# Official Journal C 320/9 Au

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 320 |
| | |
| English edition | Information and Notices | Volume 649 August 2021 |

ISSN 1977-091X

Official Journal

of the European Union

C 320

English edition

Information and Notices

Volume 649 August 2021

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2021/C 320/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2021/C 320/01

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

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2021/C 320/02 | Joined Cases C-682/18 and C-683/18: Judgment of the Court (Grand Chamber) of 22 June 2021 (requests for a preliminary ruling from the Bundesgerichtshof — Germany) — Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH (C-682/18) and Elsevier Inc. v Cyando AG (C-683/18) (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Making available and management of a video-sharing platform or a file hosting and -sharing platform — Liability of the operator for infringements of intellectual property rights by users of its platform — Directive 2001/29/EC — Article 3 and Article 8(3) — Concept of communication to the public — Directive 2000/31/EC — Articles 14 and 15 — Conditions for exemption from liability — No knowledge of specific infringements — Notification of such infringements as a condition for obtaining an injunction) | 2 |
| 2021/C 320/03 | Case C-439/19: Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Proceedings brought by B (Reference for a preliminary ruling — Protection of natural persons with regard to the processing of personal data — Regulation (EU) 2016/679 — Articles 5, 6 and 10 — National legislation providing for public access to personal data relating to penalty points imposed for road traffic offences — Lawfulness — Concept of personal data relating to criminal convictions and offences — Disclosure for the purpose of improving road safety — Right of public access to official documents — Freedom of information — Reconciliation with the fundamental rights to respect for private life and to the protection of personal data — Re-use of data — Article 267 TFEU — Temporal effect of a preliminary ruling — Ability of a constitutional court of a Member State to maintain the legal effects of national legislation incompatible with EU law — Principles of primacy of EU law and of legal certainty) | 3 |
| 2021/C 320/04 | Case C-550/19: Judgment of the Court (Seventh Chamber) of 24 June 2021 (request for a preliminary ruling from the Juzgado de lo Social No 14 de Madrid — Spain) — EV v Obras y Servicios Públicos SA, Acciona Agua SA (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP — Clause 5 — Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships — Successive fixed-term employment contracts in the construction sector, known as fijos de obra — Concept of objective reasons justifying the renewal of such contracts — Directive 2001/23/EC — Article 1(1) — Transfer of an undertaking — Article 3(1) — Safeguarding of employees’ rights — Taking over of employment contracts in accordance with the terms of a collective agreement — Collective agreement limiting the rights and obligations of the transferred workers to the rights and obligations arising from the last contract concluded with the outgoing company) | 4 |
| 2021/C 320/05 | Case C-559/19: Judgment of the Court (First Chamber) of 24 June 2021 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Article 258 TFEU — Doñana protected natural area (Spain) — Directive 2000/60/EC — Framework for Union action in the field of water policy — Article 4(1)(b)(i), Article 5 and Article 11(1)(3)(a), (c) and (e) and Article 11(4) — Deterioration of bodies of groundwater — No further characterisation of the groundwater bodies which have been identified as being at risk of deterioration — Appropriate basic and supplementary measures — Directive 92/43/EEC — Article 6(2) — Deterioration of natural habitats and habitats of species) | 5 |
| 2021/C 320/06 | Case C-719/19: Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Raad van State — Netherlands) — FS v Staatssecretaris van Justitie en Veiligheid (Reference for a preliminary ruling — Citizenship of the Union — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Article 15 — End of a Union citizen’s temporary residence in the territory of the host Member State — Expulsion decision — Physical departure of that Union citizen from that territory — Temporal effects of that expulsion decision — Article 6 — Possibility for that Union citizen to enjoy a new right of residence on his or her return to that territory) | 6 |
| 2021/C 320/07 | Case C-872/19 P: Judgment of the Court (Grand Chamber) of 22 June 2021 — Bolivarian Republic of Venezuela v Council of the European Union (Appeal — Common foreign and security policy (CFSP) — Restrictive measures taken with regard to the situation in Venezuela — Action for annulment brought by a third State — Admissibility — Fourth paragraph of Article 263 TFEU — Locus standi — Condition that the applicant must be directly concerned by the measure that forms the subject matter of the action — Concept of a legal person — Interest in bringing proceedings — Regulatory act which does not entail implementing measures) | 7 |
| 2021/C 320/08 | Case C-12/20: Judgment of the Court (Fifth Chamber) of 24 June 2021 (request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — DB Netz AG v Bundesrepublik Deutschland (Reference for a preliminary ruling — Rail transport — International rail freight corridors — Regulation (EU) No 913/2010 — Article 13(1) — Establishment of a one-stop shop for each freight corridor — Article 14 — Nature of the framework for the allocation of the infrastructure capacity on the freight corridor laid down by the executive board — Article 20 — Regulatory bodies — Directive 2012/34/EU — Article 27 — Procedure for submitting applications for infrastructure capacity — Role of infrastructure managers — Articles 56 and 57 — Functions of the regulatory bodies and cooperation between regulatory bodies) | 8 |
| 2021/C 320/09 | Case C-167/20 P: Judgment of the Court (Tenth Chamber) of 24 June 2021 — WD v European Food Safety Authority (Appeal — Civil service — Members of the temporary staff — Fixed-term contract — Decision not to reclassify — Lack of appraisal reports — Decision not to renew the contract) | 9 |
| 2021/C 320/10 | Case C-920/19: Order of the Court (Seventh Chamber) of 18 May 2021 (request for a preliminary ruling from the Landesverwaltungsgericht Steiermark — Austria) — Fluctus s.r.o., Fluentum s.r.o., KI v Landespolizeidirektion Steiermark (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Article 56 TFEU — Freedom to provide services — Restrictions — Gambling — Dual system of organisation of the market — Monopoly on lottery products and casino games — Prior authorisation for the use of automatic gaming machines — Advertising practices of the monopolist — Criteria for assessment — Constitutional case-law finding the national legislation to be compatible with EU law) | 9 |
| 2021/C 320/11 | Case C-88/20: Order of the Court (Seventh Chamber) of 20 May 2021 (request for a preliminary ruling from the Tribunal correctionnel de Bordeaux — France) — Criminal proceedings against ENR Grenelle Habitat SARL, EP, FQ (Reference for a preliminary ruling — Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice — Fundamental rights — Ne bis in idem principle — Joint imposition of administrative and criminal penalties for identical facts — Cold calling — Misleading commercial practice — Insufficient justification for a reference for a preliminary ruling — Manifest inadmissibility) | 10 |
| 2021/C 320/12 | Case C-248/20: Order of the Court (Eighth Chamber) of 18 May 2021 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v Skellefteå Industrihus AB (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Deduction of the input tax paid during the stage of construction of a building — Optional tax liability scheme — Abandonment of the initially planned activity — Adjustment of the deduction of the input tax paid — Reply to the question referred for a preliminary ruling which may be clearly deduced from existing case-law) | 11 |
| 2021/C 320/13 | Case C-571/20: Order of the Court (Ninth Chamber) of 6 May 2021 (request for a preliminary ruling from the Tribunale di Potenza — Italy) — OM v Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Ministero dell’Economia e delle Finanze, Presidenza del Consiglio dei Ministri, Conservatorio di Musica E.R. Duni di Matera (Reference for a preliminary ruling — Article 53(2) of the Rules of procedure of the Court of Justice — Reference for a preliminary ruling on the validity of a provision of the FEU Treaty — Clear lack of jurisdiction of the Court — Free movement of workers — Equal treatment — Article 45 TFEU — Difference in status and salary between university teachers and teachers working in the art and music higher education national system — Purely internal situation — Manifest inadmissibility) | 11 |
| 2021/C 320/14 | Case C-185/21 P: Appeal brought on 25 March 2021 by Turk Hava Yollari AO against the judgment of the General Court (Ninth Chamber) delivered on 27 January 2021 in Case T-382/19, Turk Hava Yollari v EUIPO — Sky (skylife) | 12 |
| 2021/C 320/15 | Case C-200/21: Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 31 March 2021 — TU and SU v BRD Groupe Société Générale S.A. and Next Capital Solutions Limited | 12 |
| 2021/C 320/16 | Case C-215/21: Request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Las Palmas de Gran Canaria (Spain) lodged on 6 April 2021 — Zulima v Servicios prescriptor y medios de pagos E.F.C.  S.A.U. | 13 |
| 2021/C 320/17 | Case C-216/21: Request for a preliminary ruling from the Curtea de Apel Ploiești (Romania) lodged on 6 April 2021 — Asociația Forumul Judecătorilor din România and YN v Consiliul Superior al Magistraturii | 13 |
| 2021/C 320/18 | Case C-219/21 P: Appeal brought on 1 April 2021 by Olimp Laboratories sp. z o.o. against the judgment of the General Court (Second Chamber) delivered on 27 January 2021 in Case T-817/19, Olimp Laboratories v EUIPO | 14 |
| 2021/C 320/19 | Case C-233/21 P: Appeal brought on 9 April 2021 by Germann Avocats LLC against the order of the General Court (Tenth Chamber) delivered on 4 February 2021 in Case T-352/18, Germann Avocats LLC v European Commission | 15 |
| 2021/C 320/20 | Case C-252/21: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 22 April 2021 — Facebook Inc. and Others v Bundeskartellamt | 16 |
| 2021/C 320/21 | Case C-274/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH | 18 |
| 2021/C 320/22 | Case C-275/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH | 21 |
| 2021/C 320/23 | Case C-290/21: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 5 May 2021 — AKM — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH v Canal+ Luxembourg Sàrl | 24 |
| 2021/C 320/24 | Case C-300/21: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 12 May 2021 — UI v Österreichische Post AG | 25 |
| 2021/C 320/25 | Case C-310/21 P: Appeal brought on 17 May 2021 by Aquind Ltd, Aquind Energy Sàrl, Aquind SAS against the order of the General Court (Second Chamber) delivered on 5 March 2021 in Case T-885/19, Aquind and Others v Commission | 26 |
| 2021/C 320/26 | Case C-311/21: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 18 May 2021 — CM v TimePartner Personalmanagement GmbH | 26 |
| 2021/C 320/27 | Case C-316/21: Request for a preliminary ruling from the Raad van State (Belgium) lodged on 21 May 2021 — Monument Vandekerckhove NV v Stad Gent, other parties: Denys NV, Aelterman BVBA | 28 |
| 2021/C 320/28 | Case C-323/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v B. | 28 |
| 2021/C 320/29 | Case C-324/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v F. | 29 |
| 2021/C 320/30 | Case C-325/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — K. v Staatssecretaris van Justitie en Veiligheid | 30 |
| 2021/C 320/31 | Case C-343/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 June 2021 — PV v Zamestnik izpalnitelen direktor na Darzhaven fond Zemedelie | 30 |
| 2021/C 320/32 | Case C-352/21: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2021 — A1 and A2 v I | 31 |
| 2021/C 320/33 | Case C-365/21: Request for a preliminary ruling from the Oberlandesgericht Bamberg (Germany) lodged on 11 June 2021 — Criminal proceedings against MR | 32 |
| 2021/C 320/34 | Case C-389/21 P: Appeal brought on 24 June 2021 by the European Central Bank against the judgment of the General Court (Second Chamber) delivered on 14 April 2021 in Case T-504/19, Crédit Lyonnais v ECB | 32 |
| 2021/C 320/35 | Case C-1/20: Order of the President of the Court of 19 May 2021 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — B v Finanzamt Österreich, formerly Finanzamt Wien 9/18/19 | 33 |
| 2021/C 320/36 | Case C-115/20 P: Order of the President of the Sixth Chamber of the Court of 20 May 2021 — Vanda Pharmaceuticals Ltd v European Commission | 33 |
| 2021/C 320/37 | Case C-578/20: Order of the President of the Court of 11 May 2021 (request for a preliminary ruling from the Tribunal Judicial da Comarca dos Açores — Portugal) — NM, NR, BA, XN, FA v Sata Air Açores — Sociedade Açoriana de Transportes Aéreos, SA | 34 |
| | General Court |
| 2021/C 320/38 | Case T-554/16: Judgment of the General Court of 30 June 2021 — BZ v ECB (Public service — ECB staff — Application for recognition of the occupational origin of a disease — Articles 6.3.11 to 6.3.13 of the ECB Staff Rules — Irregularity of the procedure — No inquiry report — Non-contractual liability) | 35 |
| 2021/C 320/39 | Case T-641/19: Judgment of the General Court of 30 June 2021 — FD v Fusion for Energy Joint Undertaking (Civil service — Temporary staff — Fixed-term contract — Decision not to renew — Psychological harassment — Misuse of powers — Duty to have regard for the welfare of staff — Equal treatment — Responsibilities) | 35 |
| 2021/C 320/40 | Case T-709/19: Judgment of the General Court of 30 June 2021 — GW v Court of Auditors (Civil service — Officials — Official in a state of total permanent invalidity — Periodic medical examination — Arrangements — Application for the matter to be referred to the Invalidity Committee — Refusal — Article 15 of Annex VIII to the Staff Regulations — Conclusion No 273/15 of the Committee of Heads of Administration — Duty to have regard for the welfare of officials) | 36 |
| 2021/C 320/41 | Case T-746/19: Judgment of the General Court of 30 June 2021 — GY v ECB (Civil service — ECB staff — Remuneration — Household allowance — Amendment of the scheme applicable — Rejection of the 2019 application — Plea of illegality — Equal treatment — No transitional measures) | 37 |
| 2021/C 320/42 | Case T-51/20: Judgment of the General Court of 30 June 2021 — Mélin v Parliament (Law governing the institutions — Rules governing the payment of expenses and allowances to Members of the Parliament — Parliamentary assistance allowance — Recovery of sums unduly paid — Plea of illegality — Rights of the defence — Error of fact) | 37 |
| 2021/C 320/43 | Case T-95/21 R: Order of the President of the General Court of 22 June 2021 — Portugal v Commission (Interim relief — State aid — State aid scheme implemented by Portugal in favour of the Madeira Free Zone — Application of that aid scheme in breach of Commission Decisions C(2007) 3037 final and C(2013) 4043 final — Decision declaring the aid scheme incompatible with the internal market and ordering the recovery of aid — Application for interim measures — No urgency) | 38 |
| 2021/C 320/44 | Case T-207/21 R: Order of the President of the General Court of 22 June 2021 — Polynt v ECHA (Application for interim measures — REACH — Hexahydro-4-methylphthalic anhydride substance — Obligation to register — Evaluation of dossiers — Examination of testing proposals — Obligation to provide certain information requiring animal testing — Application for interim measures — No urgency) | 38 |
| 2021/C 320/45 | Case T-295/21: Action brought on 18 May 2021 — eSlovensko v Commission | 39 |
| 2021/C 320/46 | Case T-296/21: Action brought on 20 May 2021 — SU v EIOPA | 40 |
| 2021/C 320/47 | Case T-304/21: Action brought on 30 May 2021 — eSlovensko Bratislava v Commission | 41 |
| 2021/C 320/48 | Case T-309/21: Action brought on 24 May 2021 — TC v Parliament | 42 |
| 2021/C 320/49 | Case T-328/21: Action brought on 9 June 2021 — Airoldi Metalli v Commission | 43 |
| 2021/C 320/50 | Case T-330/21: Action brought on 12 June 2021 — EWC Academy v Commission | 44 |
| 2021/C 320/51 | Case T-331/21: Action brought on 14 June 2021 — mBank v EUIPO — European Merchant Bank (EMBANK European Merchant Bank) | 45 |
| 2021/C 320/52 | Case T-334/21: Action brought on 12 June 2021 — Mendes de Almeida v Council | 46 |
| 2021/C 320/53 | Case T-336/21: Action brought on 15 June 2021 — Mendus v EUIPO (CENSOR.NET) | 47 |
| 2021/C 320/54 | Case T-338/21: Action brought on 18 June 2021 — F I S I v EUIPO — Verband der Deutschen Daunen- und Federnindustrie (ECODOWN) | 48 |
| 2021/C 320/55 | Case T-341/21: Action brought on 21 June 2021 — Rauff-Nisthar v Commission | 49 |
| 2021/C 320/56 | Case T-347/21: Action brought on 21 June 2021 — Hypo Vorarlberg Bank v SRB | 50 |
| 2021/C 320/57 | Case T-348/21: Action brought on 22 June 2021 — Volkskreditbank v SRB | 51 |
| 2021/C 320/58 | Case T-353/21: Action brought on 25 June 2021 — KTM Fahrrad v EUIPO — KTM (R2R) | 52 |
| 2021/C 320/59 | Case T-360/21: Action brought on 25 June 2021 — Portigon v SRB | 53 |
| 2021/C 320/60 | Case T-364/21: Action brought on 25 June 2021 — Essity Hygiene and Health v EUIPO (Representation of a leaf) | 54 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2021/C 320/02

Joined Cases C-682/18 and C-683/18: Judgment of the Court (Grand Chamber) of 22 June 2021 (requests for a preliminary ruling from the Bundesgerichtshof — Germany) — Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH (C-682/18) and Elsevier Inc. v Cyando AG (C-683/18) (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Making available and management of a video-sharing platform or a file hosting and -sharing platform — Liability of the operator for infringements of intellectual property rights by users of its platform — Directive 2001/29/EC — Article 3 and Article 8(3) — Concept of communication to the public — Directive 2000/31/EC — Articles 14 and 15 — Conditions for exemption from liability — No knowledge of specific infringements — Notification of such infringements as a condition for obtaining an injunction)

2

2021/C 320/03

Case C-439/19: Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Proceedings brought by B (Reference for a preliminary ruling — Protection of natural persons with regard to the processing of personal data — Regulation (EU) 2016/679 — Articles 5, 6 and 10 — National legislation providing for public access to personal data relating to penalty points imposed for road traffic offences — Lawfulness — Concept of personal data relating to criminal convictions and offences — Disclosure for the purpose of improving road safety — Right of public access to official documents — Freedom of information — Reconciliation with the fundamental rights to respect for private life and to the protection of personal data — Re-use of data — Article 267 TFEU — Temporal effect of a preliminary ruling — Ability of a constitutional court of a Member State to maintain the legal effects of national legislation incompatible with EU law — Principles of primacy of EU law and of legal certainty)

3

2021/C 320/04

Case C-550/19: Judgment of the Court (Seventh Chamber) of 24 June 2021 (request for a preliminary ruling from the Juzgado de lo Social No 14 de Madrid — Spain) — EV v Obras y Servicios Públicos SA, Acciona Agua SA (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP — Clause 5 — Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships — Successive fixed-term employment contracts in the construction sector, known as fijos de obra — Concept of objective reasons justifying the renewal of such contracts — Directive 2001/23/EC — Article 1(1) — Transfer of an undertaking — Article 3(1) — Safeguarding of employees’ rights — Taking over of employment contracts in accordance with the terms of a collective agreement — Collective agreement limiting the rights and obligations of the transferred workers to the rights and obligations arising from the last contract concluded with the outgoing company)

4

2021/C 320/05

Case C-559/19: Judgment of the Court (First Chamber) of 24 June 2021 — European Commission v Kingdom of Spain (Failure of a Member State to fulfil obligations — Article 258 TFEU — Doñana protected natural area (Spain) — Directive 2000/60/EC — Framework for Union action in the field of water policy — Article 4(1)(b)(i), Article 5 and Article 11(1)(3)(a), (c) and (e) and Article 11(4) — Deterioration of bodies of groundwater — No further characterisation of the groundwater bodies which have been identified as being at risk of deterioration — Appropriate basic and supplementary measures — Directive 92/43/EEC — Article 6(2) — Deterioration of natural habitats and habitats of species)

5

2021/C 320/06

Case C-719/19: Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Raad van State — Netherlands) — FS v Staatssecretaris van Justitie en Veiligheid (Reference for a preliminary ruling — Citizenship of the Union — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Article 15 — End of a Union citizen’s temporary residence in the territory of the host Member State — Expulsion decision — Physical departure of that Union citizen from that territory — Temporal effects of that expulsion decision — Article 6 — Possibility for that Union citizen to enjoy a new right of residence on his or her return to that territory)

6

2021/C 320/07

Case C-872/19 P: Judgment of the Court (Grand Chamber) of 22 June 2021 — Bolivarian Republic of Venezuela v Council of the European Union (Appeal — Common foreign and security policy (CFSP) — Restrictive measures taken with regard to the situation in Venezuela — Action for annulment brought by a third State — Admissibility — Fourth paragraph of Article 263 TFEU — Locus standi — Condition that the applicant must be directly concerned by the measure that forms the subject matter of the action — Concept of a legal person — Interest in bringing proceedings — Regulatory act which does not entail implementing measures)

7

2021/C 320/08

Case C-12/20: Judgment of the Court (Fifth Chamber) of 24 June 2021 (request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — DB Netz AG v Bundesrepublik Deutschland (Reference for a preliminary ruling — Rail transport — International rail freight corridors — Regulation (EU) No 913/2010 — Article 13(1) — Establishment of a one-stop shop for each freight corridor — Article 14 — Nature of the framework for the allocation of the infrastructure capacity on the freight corridor laid down by the executive board — Article 20 — Regulatory bodies — Directive 2012/34/EU — Article 27 — Procedure for submitting applications for infrastructure capacity — Role of infrastructure managers — Articles 56 and 57 — Functions of the regulatory bodies and cooperation between regulatory bodies)

8

2021/C 320/09

Case C-167/20 P: Judgment of the Court (Tenth Chamber) of 24 June 2021 — WD v European Food Safety Authority (Appeal — Civil service — Members of the temporary staff — Fixed-term contract — Decision not to reclassify — Lack of appraisal reports — Decision not to renew the contract)

9

2021/C 320/10

Case C-920/19: Order of the Court (Seventh Chamber) of 18 May 2021 (request for a preliminary ruling from the Landesverwaltungsgericht Steiermark — Austria) — Fluctus s.r.o., Fluentum s.r.o., KI v Landespolizeidirektion Steiermark (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Article 56 TFEU — Freedom to provide services — Restrictions — Gambling — Dual system of organisation of the market — Monopoly on lottery products and casino games — Prior authorisation for the use of automatic gaming machines — Advertising practices of the monopolist — Criteria for assessment — Constitutional case-law finding the national legislation to be compatible with EU law)

9

2021/C 320/11

Case C-88/20: Order of the Court (Seventh Chamber) of 20 May 2021 (request for a preliminary ruling from the Tribunal correctionnel de Bordeaux — France) — Criminal proceedings against ENR Grenelle Habitat SARL, EP, FQ (Reference for a preliminary ruling — Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice — Fundamental rights — Ne bis in idem principle — Joint imposition of administrative and criminal penalties for identical facts — Cold calling — Misleading commercial practice — Insufficient justification for a reference for a preliminary ruling — Manifest inadmissibility)

10

2021/C 320/12

Case C-248/20: Order of the Court (Eighth Chamber) of 18 May 2021 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v Skellefteå Industrihus AB (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Deduction of the input tax paid during the stage of construction of a building — Optional tax liability scheme — Abandonment of the initially planned activity — Adjustment of the deduction of the input tax paid — Reply to the question referred for a preliminary ruling which may be clearly deduced from existing case-law)

11

2021/C 320/13

Case C-571/20: Order of the Court (Ninth Chamber) of 6 May 2021 (request for a preliminary ruling from the Tribunale di Potenza — Italy) — OM v Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Ministero dell’Economia e delle Finanze, Presidenza del Consiglio dei Ministri, Conservatorio di Musica E.R. Duni di Matera (Reference for a preliminary ruling — Article 53(2) of the Rules of procedure of the Court of Justice — Reference for a preliminary ruling on the validity of a provision of the FEU Treaty — Clear lack of jurisdiction of the Court — Free movement of workers — Equal treatment — Article 45 TFEU — Difference in status and salary between university teachers and teachers working in the art and music higher education national system — Purely internal situation — Manifest inadmissibility)

11

2021/C 320/14

Case C-185/21 P: Appeal brought on 25 March 2021 by Turk Hava Yollari AO against the judgment of the General Court (Ninth Chamber) delivered on 27 January 2021 in Case T-382/19, Turk Hava Yollari v EUIPO — Sky (skylife)

12

2021/C 320/15

Case C-200/21: Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 31 March 2021 — TU and SU v BRD Groupe Société Générale S.A. and Next Capital Solutions Limited

12

2021/C 320/16

Case C-215/21: Request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Las Palmas de Gran Canaria (Spain) lodged on 6 April 2021 — Zulima v Servicios prescriptor y medios de pagos E.F.C.  S.A.U.

13

2021/C 320/17

Case C-216/21: Request for a preliminary ruling from the Curtea de Apel Ploiești (Romania) lodged on 6 April 2021 — Asociația Forumul Judecătorilor din România and YN v Consiliul Superior al Magistraturii

13

2021/C 320/18

Case C-219/21 P: Appeal brought on 1 April 2021 by Olimp Laboratories sp. z o.o. against the judgment of the General Court (Second Chamber) delivered on 27 January 2021 in Case T-817/19, Olimp Laboratories v EUIPO

14

2021/C 320/19

Case C-233/21 P: Appeal brought on 9 April 2021 by Germann Avocats LLC against the order of the General Court (Tenth Chamber) delivered on 4 February 2021 in Case T-352/18, Germann Avocats LLC v European Commission

15

2021/C 320/20

Case C-252/21: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 22 April 2021 — Facebook Inc. and Others v Bundeskartellamt

16

2021/C 320/21

Case C-274/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH

18

2021/C 320/22

Case C-275/21: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH

21

2021/C 320/23

Case C-290/21: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 5 May 2021 — AKM — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH v Canal+ Luxembourg Sàrl

24

2021/C 320/24

Case C-300/21: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 12 May 2021 — UI v Österreichische Post AG

25

2021/C 320/25

Case C-310/21 P: Appeal brought on 17 May 2021 by Aquind Ltd, Aquind Energy Sàrl, Aquind SAS against the order of the General Court (Second Chamber) delivered on 5 March 2021 in Case T-885/19, Aquind and Others v Commission

26

2021/C 320/26

Case C-311/21: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 18 May 2021 — CM v TimePartner Personalmanagement GmbH

26

2021/C 320/27

Case C-316/21: Request for a preliminary ruling from the Raad van State (Belgium) lodged on 21 May 2021 — Monument Vandekerckhove NV v Stad Gent, other parties: Denys NV, Aelterman BVBA

28

2021/C 320/28

Case C-323/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v B.

28

2021/C 320/29

Case C-324/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v F.

29

2021/C 320/30

Case C-325/21: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — K. v Staatssecretaris van Justitie en Veiligheid

30

2021/C 320/31

Case C-343/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 June 2021 — PV v Zamestnik izpalnitelen direktor na Darzhaven fond Zemedelie

30

2021/C 320/32

Case C-352/21: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2021 — A1 and A2 v I

31

2021/C 320/33

Case C-365/21: Request for a preliminary ruling from the Oberlandesgericht Bamberg (Germany) lodged on 11 June 2021 — Criminal proceedings against MR

32

2021/C 320/34

Case C-389/21 P: Appeal brought on 24 June 2021 by the European Central Bank against the judgment of the General Court (Second Chamber) delivered on 14 April 2021 in Case T-504/19, Crédit Lyonnais v ECB

32

2021/C 320/35

Case C-1/20: Order of the President of the Court of 19 May 2021 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — B v Finanzamt Österreich, formerly Finanzamt Wien 9/18/19

33

2021/C 320/36

Case C-115/20 P: Order of the President of the Sixth Chamber of the Court of 20 May 2021 — Vanda Pharmaceuticals Ltd v European Commission

33

2021/C 320/37

Case C-578/20: Order of the President of the Court of 11 May 2021 (request for a preliminary ruling from the Tribunal Judicial da Comarca dos Açores — Portugal) — NM, NR, BA, XN, FA v Sata Air Açores — Sociedade Açoriana de Transportes Aéreos, SA

34

General Court

2021/C 320/38

Case T-554/16: Judgment of the General Court of 30 June 2021 — BZ v ECB (Public service — ECB staff — Application for recognition of the occupational origin of a disease — Articles 6.3.11 to 6.3.13 of the ECB Staff Rules — Irregularity of the procedure — No inquiry report — Non-contractual liability)

35

2021/C 320/39

Case T-641/19: Judgment of the General Court of 30 June 2021 — FD v Fusion for Energy Joint Undertaking (Civil service — Temporary staff — Fixed-term contract — Decision not to renew — Psychological harassment — Misuse of powers — Duty to have regard for the welfare of staff — Equal treatment — Responsibilities)

35

2021/C 320/40

Case T-709/19: Judgment of the General Court of 30 June 2021 — GW v Court of Auditors (Civil service — Officials — Official in a state of total permanent invalidity — Periodic medical examination — Arrangements — Application for the matter to be referred to the Invalidity Committee — Refusal — Article 15 of Annex VIII to the Staff Regulations — Conclusion No 273/15 of the Committee of Heads of Administration — Duty to have regard for the welfare of officials)

36

2021/C 320/41

Case T-746/19: Judgment of the General Court of 30 June 2021 — GY v ECB (Civil service — ECB staff — Remuneration — Household allowance — Amendment of the scheme applicable — Rejection of the 2019 application — Plea of illegality — Equal treatment — No transitional measures)

37

2021/C 320/42

Case T-51/20: Judgment of the General Court of 30 June 2021 — Mélin v Parliament (Law governing the institutions — Rules governing the payment of expenses and allowances to Members of the Parliament — Parliamentary assistance allowance — Recovery of sums unduly paid — Plea of illegality — Rights of the defence — Error of fact)

37

2021/C 320/43

Case T-95/21 R: Order of the President of the General Court of 22 June 2021 — Portugal v Commission (Interim relief — State aid — State aid scheme implemented by Portugal in favour of the Madeira Free Zone — Application of that aid scheme in breach of Commission Decisions C(2007) 3037 final and C(2013) 4043 final — Decision declaring the aid scheme incompatible with the internal market and ordering the recovery of aid — Application for interim measures — No urgency)

38

2021/C 320/44

Case T-207/21 R: Order of the President of the General Court of 22 June 2021 — Polynt v ECHA (Application for interim measures — REACH — Hexahydro-4-methylphthalic anhydride substance — Obligation to register — Evaluation of dossiers — Examination of testing proposals — Obligation to provide certain information requiring animal testing — Application for interim measures — No urgency)

38

2021/C 320/45

Case T-295/21: Action brought on 18 May 2021 — eSlovensko v Commission

39

2021/C 320/46

Case T-296/21: Action brought on 20 May 2021 — SU v EIOPA

40

2021/C 320/47

Case T-304/21: Action brought on 30 May 2021 — eSlovensko Bratislava v Commission

41

2021/C 320/48

Case T-309/21: Action brought on 24 May 2021 — TC v Parliament

TC v Parliament

42

2021/C 320/49

Case T-328/21: Action brought on 9 June 2021 — Airoldi Metalli v Commission

43

2021/C 320/50

Case T-330/21: Action brought on 12 June 2021 — EWC Academy v Commission

44

2021/C 320/51

Case T-331/21: Action brought on 14 June 2021 — mBank v EUIPO — European Merchant Bank (EMBANK European Merchant Bank)

45

2021/C 320/52

Case T-334/21: Action brought on 12 June 2021 — Mendes de Almeida v Council

46

2021/C 320/53

Case T-336/21: Action brought on 15 June 2021 — Mendus v EUIPO (CENSOR.NET)

47

2021/C 320/54

Case T-338/21: Action brought on 18 June 2021 — F I S I v EUIPO — Verband der Deutschen Daunen- und Federnindustrie (ECODOWN)

48

2021/C 320/55

Case T-341/21: Action brought on 21 June 2021 — Rauff-Nisthar v Commission

49

2021/C 320/56

Case T-347/21: Action brought on 21 June 2021 — Hypo Vorarlberg Bank v SRB

50

2021/C 320/57

Case T-348/21: Action brought on 22 June 2021 — Volkskreditbank v SRB

51

2021/C 320/58

Case T-353/21: Action brought on 25 June 2021 — KTM Fahrrad v EUIPO — KTM (R2R)

52

2021/C 320/59

Case T-360/21: Action brought on 25 June 2021 — Portigon v SRB

53

2021/C 320/60

Case T-364/21: Action brought on 25 June 2021 — Essity Hygiene and Health v EUIPO (Representation of a leaf)

54

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| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 9.8.2021 | EN | Official Journal of the European Union | C 320/1 |
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9.8.2021

EN

Official Journal of the European Union

C 320/1

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

(2021/C 320/01)

Last publication

OJ C 310, 2.8.2021

Past publications

OJ C 297, 26.7.2021

OJ C 289, 19.7.2021

OJ C 278, 12.7.2021

OJ C 263, 5.7.2021

OJ C 252, 28.6.2021

OJ C 242, 21.6.2021

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 9.8.2021 | EN | Official Journal of the European Union | C 320/2 |
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9.8.2021

EN

Official Journal of the European Union

C 320/2

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Judgment of the Court (Grand Chamber) of 22 June 2021 (requests for a preliminary ruling from the Bundesgerichtshof — Germany) — Frank Peterson v Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH (C-682/18) and Elsevier Inc. v Cyando AG (C-683/18)

(Joined Cases C-682/18 and C-683/18) (1)

(Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Making available and management of a video-sharing platform or a file hosting and -sharing platform - Liability of the operator for infringements of intellectual property rights by users of its platform - Directive 2001/29/EC - Article 3 and Article 8(3) - Concept of ‘communication to the public’ - Directive 2000/31/EC - Articles 14 and 15 - Conditions for exemption from liability - No knowledge of specific infringements - Notification of such infringements as a condition for obtaining an injunction)

(2021/C 320/02)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellants: Frank Peterson (C-682/18), Elsevier Inc. (C-683/18)

Respondents: Google LLC, YouTube LLC, YouTube Inc., Google Germany GmbH (C-682/18), Cyando AG (C-683/18)

Operative part of the judgment

| 1. | Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of that provision, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. That is the case, inter alia, where that operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, or where that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which may be attested by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform. |
| --- | --- |

1.

Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content, within the meaning of that provision, unless it contributes, beyond merely making that platform available, to giving access to such content to the public in breach of copyright. That is the case, inter alia, where that operator has specific knowledge that protected content is available illegally on its platform and refrains from expeditiously deleting it or blocking access to it, or where that operator, despite the fact that it knows or ought to know, in a general sense, that users of its platform are making protected content available to the public illegally via its platform, refrains from putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, or where that operator participates in selecting protected content illegally communicated to the public, provides tools on its platform specifically intended for the illegal sharing of such content or knowingly promotes such sharing, which may be attested by the fact that that operator has adopted a financial model that encourages users of its platform illegally to communicate protected content to the public via that platform.

| 2. | Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the activity of the operator of a video-sharing platform or a file-hosting and -sharing platform falls within the scope of that provision, provided that that operator does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform.
  Article 14(1)(a) of Directive 2000/31 must be interpreted as meaning that, for such an operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform. |
| --- | --- |

2.

Article 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the activity of the operator of a video-sharing platform or a file-hosting and -sharing platform falls within the scope of that provision, provided that that operator does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform.

Article 14(1)(a) of Directive 2000/31 must be interpreted as meaning that, for such an operator to be excluded, under that provision, from the exemption from liability provided for in Article 14(1), it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content that was uploaded to its platform.

| 3. | Article 8(3) of Directive 2001/29 must be interpreted as not precluding a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, within the meaning of Article 14(1)(a) of Directive 2000/31, unless, before court proceedings are commenced, that infringement has first been notified to that intermediary and the latter has failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur. It is, however, for the national courts to satisfy themselves, when applying such a condition, that that condition does not result in the actual cessation of the infringement being delayed in such a way as to cause disproportionate damage to the rightholder. |
| --- | --- |

3.

Article 8(3) of Directive 2001/29 must be interpreted as not precluding a situation under national law whereby a copyright holder or the holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, within the meaning of Article 14(1)(a) of Directive 2000/31, unless, before court proceedings are commenced, that infringement has first been notified to that intermediary and the latter has failed to intervene expeditiously in order to remove the content in question or to block access to it and to ensure that such infringements do not recur. It is, however, for the national courts to satisfy themselves, when applying such a condition, that that condition does not result in the actual cessation of the infringement being delayed in such a way as to cause disproportionate damage to the rightholder.

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(1)  OJ C 82, 4.3.2019.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/3 |
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9.8.2021

EN

Official Journal of the European Union

C 320/3

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Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Proceedings brought by B

(Case C-439/19) (1)

(Reference for a preliminary ruling - Protection of natural persons with regard to the processing of personal data - Regulation (EU) 2016/679 - Articles 5, 6 and 10 - National legislation providing for public access to personal data relating to penalty points imposed for road traffic offences - Lawfulness - Concept of ‘personal data relating to criminal convictions and offences’ - Disclosure for the purpose of improving road safety - Right of public access to official documents - Freedom of information - Reconciliation with the fundamental rights to respect for private life and to the protection of personal data - Re-use of data - Article 267 TFEU - Temporal effect of a preliminary ruling - Ability of a constitutional court of a Member State to maintain the legal effects of national legislation incompatible with EU law - Principles of primacy of EU law and of legal certainty)

(2021/C 320/03)

Language of the case: Latvian

Referring court

Satversmes tiesa

Parties to the main proceedings

Applicant: B

Other party: Latvijas Republikas Saeima

Operative part of the judgment

| 1. | Article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as applying to the processing of personal data relating to penalty points imposed on drivers of vehicles for road traffic offences. |
| --- | --- |

1.

Article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as applying to the processing of personal data relating to penalty points imposed on drivers of vehicles for road traffic offences.

| 2. | The provisions of Regulation (EU) 2016/679, in particular Article 5(1), Article 6(1)(e) and Article 10 thereof, must be interpreted as precluding national legislation which obliges the public body responsible for the register in which penalty points imposed on drivers of vehicles for road traffic offences are entered to make those data accessible to the public, without the person requesting access having to establish a specific interest in obtaining the data. |
| --- | --- |

2.

The provisions of Regulation (EU) 2016/679, in particular Article 5(1), Article 6(1)(e) and Article 10 thereof, must be interpreted as precluding national legislation which obliges the public body responsible for the register in which penalty points imposed on drivers of vehicles for road traffic offences are entered to make those data accessible to the public, without the person requesting access having to establish a specific interest in obtaining the data.

| 3. | The provisions of Regulation (EU) 2016/679, in particular Article 5(1), Article 6(1)(e) and Article 10 thereof, must be interpreted as precluding national legislation which authorises the public body responsible for the register in which penalty points imposed on drivers of vehicles for road traffic offences are entered to disclose those data to economic operators for re-use. |
| --- | --- |

3.

The provisions of Regulation (EU) 2016/679, in particular Article 5(1), Article 6(1)(e) and Article 10 thereof, must be interpreted as precluding national legislation which authorises the public body responsible for the register in which penalty points imposed on drivers of vehicles for road traffic offences are entered to disclose those data to economic operators for re-use.

| 4. | The principle of primacy of EU law must be interpreted as precluding the constitutional court of a Member State, before which a complaint has been brought challenging national legislation that proves, in the light of a preliminary ruling given by the Court of Justice, to be incompatible with EU law, from deciding, in accordance with the principle of legal certainty, that the legal effects of that legislation be maintained until the date of delivery of the judgment by which it rules finally on that constitutional complaint. |
| --- | --- |

4.

The principle of primacy of EU law must be interpreted as precluding the constitutional court of a Member State, before which a complaint has been brought challenging national legislation that proves, in the light of a preliminary ruling given by the Court of Justice, to be incompatible with EU law, from deciding, in accordance with the principle of legal certainty, that the legal effects of that legislation be maintained until the date of delivery of the judgment by which it rules finally on that constitutional complaint.

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(1)  OJ C 280, 19.8.2019.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/4 |
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9.8.2021

EN

Official Journal of the European Union

C 320/4

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Judgment of the Court (Seventh Chamber) of 24 June 2021 (request for a preliminary ruling from the Juzgado de lo Social No 14 de Madrid — Spain) — EV v Obras y Servicios Públicos SA, Acciona Agua SA

(Case C-550/19) (1)

(Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term employment concluded by ETUC, UNICE and CEEP - Clause 5 - Measures to prevent abuse arising from the use of successive fixed-term employment contracts or relationships - Successive fixed-term employment contracts in the construction sector, known as ‘fijos de obra’ - Concept of ‘objective reasons’ justifying the renewal of such contracts - Directive 2001/23/EC - Article 1(1) - Transfer of an undertaking - Article 3(1) - Safeguarding of employees’ rights - Taking over of employment contracts in accordance with the terms of a collective agreement - Collective agreement limiting the rights and obligations of the transferred workers to the rights and obligations arising from the last contract concluded with the outgoing company)

(2021/C 320/04)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 14 de Madrid

Parties to the main proceedings

Applicant: EV

Defendants: Obras y Servicios Públicos SA, Acciona Agua SA

Operative part of the judgment

| 1. | Clause 5(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it is for the national court to assess, in accordance with all the applicable rules of national law, whether the limitation to three consecutive years, except under specific conditions, of the employment of fixed-term workers under contracts known as ‘fijos de obra’ by the same undertaking at different workplaces located within the same province and the grant to those workers of compensation for termination, assuming that that national court finds that those measures are actually taken in respect of those workers, constitute adequate measures to prevent and, where appropriate, to penalise abuse arising from the use of successive fixed-term employment contracts or relationships or ‘equivalent legal measures’ within the meaning of that Clause 5(1). In any event, such national legislation cannot be applied by the authorities of the Member State concerned in such a way that the renewal of successive fixed-term ‘fijos de obra’ employment contracts is considered justified by ‘objective reasons’, within the meaning of Clause 5(1)(a) of that framework agreement, on the sole ground that each of those contracts is generally concluded for a specific construction project, irrespective of its duration, in so far as such national legislation does not prevent, in practice, the employer concerned from covering, by means of such renewal, fixed and permanent staffing needs; |
| --- | --- |

1.

Clause 5(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that it is for the national court to assess, in accordance with all the applicable rules of national law, whether the limitation to three consecutive years, except under specific conditions, of the employment of fixed-term workers under contracts known as ‘fijos de obra’ by the same undertaking at different workplaces located within the same province and the grant to those workers of compensation for termination, assuming that that national court finds that those measures are actually taken in respect of those workers, constitute adequate measures to prevent and, where appropriate, to penalise abuse arising from the use of successive fixed-term employment contracts or relationships or ‘equivalent legal measures’ within the meaning of that Clause 5(1). In any event, such national legislation cannot be applied by the authorities of the Member State concerned in such a way that the renewal of successive fixed-term ‘fijos de obra’ employment contracts is considered justified by ‘objective reasons’, within the meaning of Clause 5(1)(a) of that framework agreement, on the sole ground that each of those contracts is generally concluded for a specific construction project, irrespective of its duration, in so far as such national legislation does not prevent, in practice, the employer concerned from covering, by means of such renewal, fixed and permanent staffing needs;

| 2. | The first subparagraph of Article 3(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as not precluding national legislation under which, in the event of a transfer of employees under public contracts, the rights and obligations of the transferred worker that the incoming undertaking is required to respect are limited exclusively to those arising from the last contract concluded by that worker with the outgoing undertaking, provided that the application of that legislation does not have the effect of placing that worker in a less favourable position solely as a result of the transfer, which it is for the referring court to determine. |
| --- | --- |

2.

The first subparagraph of Article 3(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as not precluding national legislation under which, in the event of a transfer of employees under public contracts, the rights and obligations of the transferred worker that the incoming undertaking is required to respect are limited exclusively to those arising from the last contract concluded by that worker with the outgoing undertaking, provided that the application of that legislation does not have the effect of placing that worker in a less favourable position solely as a result of the transfer, which it is for the referring court to determine.

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(1)  OJ C 77, 9.3.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/5 |
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9.8.2021

EN

Official Journal of the European Union

C 320/5

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Judgment of the Court (First Chamber) of 24 June 2021 — European Commission v Kingdom of Spain

(Case C-559/19) (1)

(Failure of a Member State to fulfil obligations - Article 258 TFEU - Doñana protected natural area (Spain) - Directive 2000/60/EC - Framework for Union action in the field of water policy - Article 4(1)(b)(i), Article 5 and Article 11(1)(3)(a), (c) and (e) and Article 11(4) - Deterioration of bodies of groundwater - No further characterisation of the groundwater bodies which have been identified as being at risk of deterioration - Appropriate basic and supplementary measures - Directive 92/43/EEC - Article 6(2) - Deterioration of natural habitats and habitats of species)

(2021/C 320/05)

Language of the case: Spanish

Parties

Applicant: European Commission (represented initially by C. Hermes, E. Manhaeve and E. Sanfrutos Cano, and subsequently by C. Hermes, E. Manhaeve and M. Jáuregui Gómez, acting as Agents)

Defendant: Kingdom of Spain (represented initially by L. Aguilera Ruiz, and subsequently by J. Rodríguez de la Rúa Puig and M.-J. Ruiz Sánchez, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Orders that the Kingdom of Spain has failed to fulfil its obligations:






  — | under Article 5(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, as amended by Council Directive 2013/64/EU of 17 December 2013, read in conjunction with point 2.2 of Annex II thereto by failing to take into account the unlawful abstraction of groundwater and the abstraction of water for urban supply in the estimation of groundwater abstraction in the Doñana region (Spain), as part of the more detailed characterisation of the Plan Hidrológico del Guadalquivir 2015-2021 (Guadalquivir Basin Hydrological Plan 2015-2021), approved by the Real Decreto 1/2016 por el que se aprueba la revisión de los Planes Hidrológicos de las demarcaciones hidrográficas del Cantábrico Occidental, Guadalquivir, Ceuta, Melilla, Segura y Júcar, y de la parte española de las demarcaciones hidrográficas del Cantábrico Oriental, Miño-Sil, Duero, Tajo, Guadiana y Ebro (Royal Decree 1/2016 approving the revision of the Hydrographic Plans of the river basin districts of Western Cantabria, Guadalquivir, Ceuta, Melilla, Segura and Júcar, and the Spanish part of the river basin districts of Eastern Cantabria, Miño-Sil, Duero, Tagus, Guadiana and Ebro), of 8 January 2016; |
| --- | --- | --- |

1.

Orders that the Kingdom of Spain has failed to fulfil its obligations:

—

under Article 5(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, as amended by Council Directive 2013/64/EU of 17 December 2013, read in conjunction with point 2.2 of Annex II thereto by failing to take into account the unlawful abstraction of groundwater and the abstraction of water for urban supply in the estimation of groundwater abstraction in the Doñana region (Spain), as part of the more detailed characterisation of the Plan Hidrológico del Guadalquivir 2015-2021 (Guadalquivir Basin Hydrological Plan 2015-2021), approved by the Real Decreto 1/2016 por el que se aprueba la revisión de los Planes Hidrológicos de las demarcaciones hidrográficas del Cantábrico Occidental, Guadalquivir, Ceuta, Melilla, Segura y Júcar, y de la parte española de las demarcaciones hidrográficas del Cantábrico Oriental, Miño-Sil, Duero, Tajo, Guadiana y Ebro (Royal Decree 1/2016 approving the revision of the Hydrographic Plans of the river basin districts of Western Cantabria, Guadalquivir, Ceuta, Melilla, Segura and Júcar, and the Spanish part of the river basin districts of Eastern Cantabria, Miño-Sil, Duero, Tagus, Guadiana and Ebro), of 8 January 2016;

| — | under Article 11 of Directive 2000/60, read in conjunction with Article 4(1)(c) of that directive, by failing to provide, in the programme of measures drawn up in the context of the Guadalquivir Basin Hydrological Plan 2015-2021, for any measures to prevent disturbance of the types of protected habitats located in the ‘Doñana’ protected area bearing the code ZEPA/LIC ES0000024, as a result of the abstraction of groundwater for the purposes of the tourist area of Matalascañas (Spain), and; |
| --- | --- |

—

under Article 11 of Directive 2000/60, read in conjunction with Article 4(1)(c) of that directive, by failing to provide, in the programme of measures drawn up in the context of the Guadalquivir Basin Hydrological Plan 2015-2021, for any measures to prevent disturbance of the types of protected habitats located in the ‘Doñana’ protected area bearing the code ZEPA/LIC ES0000024, as a result of the abstraction of groundwater for the purposes of the tourist area of Matalascañas (Spain), and;

| — | under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, by failing to take appropriate measures to prevent significant disturbance of the types of protected habitats, located in the ‘Doñana’ protected area bearing the code ZEPA/LIC ES0000024, the ‘Doñana Norte y Oeste’ protected area bearing the code ZEPA/LIC ES6150009 and the ‘Dehesa del Estero y Montes de Moguer’ protected area bearing the code ZEC ES6150012, caused by the abstraction of groundwater from the Doñana protected natural area since 19 July 2006; |
| --- | --- |

—

under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, by failing to take appropriate measures to prevent significant disturbance of the types of protected habitats, located in the ‘Doñana’ protected area bearing the code ZEPA/LIC ES0000024, the ‘Doñana Norte y Oeste’ protected area bearing the code ZEPA/LIC ES6150009 and the ‘Dehesa del Estero y Montes de Moguer’ protected area bearing the code ZEC ES6150012, caused by the abstraction of groundwater from the Doñana protected natural area since 19 July 2006;

| 2. | Dismisses the remainder of the action; |
| --- | --- |

2.

Dismisses the remainder of the action;

| 3. | Orders the European Commission and the Kingdom of Spain to bear their own costs. |
| --- | --- |

3.

Orders the European Commission and the Kingdom of Spain to bear their own costs.

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(1)  OJ C 348, 14.10.2019.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/6 |
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9.8.2021

EN

Official Journal of the European Union

C 320/6

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Judgment of the Court (Grand Chamber) of 22 June 2021 (request for a preliminary ruling from the Raad van State — Netherlands) — FS v Staatssecretaris van Justitie en Veiligheid

(Case C-719/19) (1)

(Reference for a preliminary ruling - Citizenship of the Union - Directive 2004/38/EC - Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - Article 15 - End of a Union citizen’s temporary residence in the territory of the host Member State - Expulsion decision - Physical departure of that Union citizen from that territory - Temporal effects of that expulsion decision - Article 6 - Possibility for that Union citizen to enjoy a new right of residence on his or her return to that territory)

(2021/C 320/06)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: FS

Defendant: Staatssecretaris van Justitie en Veiligheid

Operative part of the judgment

Article 15(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEG, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a decision to expel a Union citizen from the territory of the host Member State, adopted on the basis of that provision, on the ground that that Union citizen no longer enjoys a temporary right of residence in that territory under that directive, cannot be deemed to have been complied with in full merely because that Union citizen has physically left that territory within the period prescribed by that decision for his or her voluntary departure. In order to enjoy a new right of residence under Article 6(1) of that directive in the same territory, a Union citizen who has been the subject of such an expulsion decision must not only have physically left the territory of the host Member State, but must also have genuinely and effectively terminated his or her residence there, with the result that, upon his or her return to that territory, his or her residence cannot be regarded as constituting in fact a continuation of his or her previous residence in that territory. It is for the referring court to verify whether that is the case, having regard to all the specific circumstances characterising the particular situation of the Union citizen concerned. If it follows from such a verification that the Union citizen has not genuinely and effectively terminated his or her temporary residence in the territory of the host Member State, that Member State is not obliged to adopt a new expulsion decision on the basis of the same facts which gave rise to the expulsion decision already taken against that Union citizen, but may rely on that latter decision in order to oblige him or her to leave its territory.

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(1)  OJ C 19, 20.1.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/7 |
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9.8.2021

EN

Official Journal of the European Union

C 320/7

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Judgment of the Court (Grand Chamber) of 22 June 2021 — Bolivarian Republic of Venezuela v Council of the European Union

(Case C-872/19 P) (1)

(Appeal - Common foreign and security policy (CFSP) - Restrictive measures taken with regard to the situation in Venezuela - Action for annulment brought by a third State - Admissibility - Fourth paragraph of Article 263 TFEU - Locus standi - Condition that the applicant must be directly concerned by the measure that forms the subject matter of the action - Concept of a ‘legal person’ - Interest in bringing proceedings - Regulatory act which does not entail implementing measures)

(2021/C 320/07)

Language of the case: English

Parties

Appellant: Bolivarian Republic of Venezuela (represented by: L. Giuliano and F. Di Gianni, avvocati)

Other party to the proceedings: Council of the European Union (represented by: P. Mahnič and A. Antoniadis, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 20 September 2019, Venezuela v Council (T-65/18, EU:T:2019:649), in so far as it dismisses the Bolivarian Republic of Venezuela’s action for annulment of Articles 2, 3, 6 and 7 of Council Regulation (EU) 2017/2063 of 13 November 2017 concerning restrictive measures in view of the situation in Venezuela; |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 20 September 2019, Venezuela v Council (T-65/18, EU:T:2019:649), in so far as it dismisses the Bolivarian Republic of Venezuela’s action for annulment of Articles 2, 3, 6 and 7 of Council Regulation (EU) 2017/2063 of 13 November 2017 concerning restrictive measures in view of the situation in Venezuela;

| 2. | Refers the case back to the General Court of the European Union for judgment on the merits; |
| --- | --- |

2.

Refers the case back to the General Court of the European Union for judgment on the merits;

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

3.

Reserves the costs.

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(1)  OJ C 45, 10.2.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/8 |
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9.8.2021

EN

Official Journal of the European Union

C 320/8

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Judgment of the Court (Fifth Chamber) of 24 June 2021 (request for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen — Germany) — DB Netz AG v Bundesrepublik Deutschland

(Case C-12/20) (1)

(Reference for a preliminary ruling - Rail transport - International rail freight corridors - Regulation (EU) No 913/2010 - Article 13(1) - Establishment of a one-stop shop for each freight corridor - Article 14 - Nature of the framework for the allocation of the infrastructure capacity on the freight corridor laid down by the executive board - Article 20 - Regulatory bodies - Directive 2012/34/EU - Article 27 - Procedure for submitting applications for infrastructure capacity - Role of infrastructure managers - Articles 56 and 57 - Functions of the regulatory bodies and cooperation between regulatory bodies)

(2021/C 320/08)

Language of the case: German

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Parties to the main proceedings

Applicant: DB Netz AG

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

| 1. | Article 13(1), Article 14(9) and Article 18 (c) of Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight, and Article 27(1) and (2) of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European rail area, read in conjunction with point 3(a) of Annex IV to that directive, must be interpreted as meaning that the infrastructure manager, defined in Article 3(2) of that directive, is the competent authority for adopting, in the context of the national network statement, the applicable rules for submitting applications for infrastructure capacity, including those regarding the exclusive use of a particular electronic booking system, to the one-stop shop provided for in Article 13(1); |
| --- | --- |

1.

Article 13(1), Article 14(9) and Article 18 (c) of Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight, and Article 27(1) and (2) of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European rail area, read in conjunction with point 3(a) of Annex IV to that directive, must be interpreted as meaning that the infrastructure manager, defined in Article 3(2) of that directive, is the competent authority for adopting, in the context of the national network statement, the applicable rules for submitting applications for infrastructure capacity, including those regarding the exclusive use of a particular electronic booking system, to the one-stop shop provided for in Article 13(1);

| 2. | The review by a national regulatory body of the rules relating to the procedure for submitting applications for infrastructure capacity to the one-stop shop laid down in the network statement is governed by the provisions of Article 20 of Regulation No 913/2010 and those provisions must be interpreted as meaning that the regulatory body of a Member State cannot object to those rules without complying with the cooperation obligations arising from Article 20 and, in particular, without consulting the regulatory bodies of the other Member States involved in the freight corridor in order to achieve, as far as possible, a uniform approach; |
| --- | --- |

2.

The review by a national regulatory body of the rules relating to the procedure for submitting applications for infrastructure capacity to the one-stop shop laid down in the network statement is governed by the provisions of Article 20 of Regulation No 913/2010 and those provisions must be interpreted as meaning that the regulatory body of a Member State cannot object to those rules without complying with the cooperation obligations arising from Article 20 and, in particular, without consulting the regulatory bodies of the other Member States involved in the freight corridor in order to achieve, as far as possible, a uniform approach;

| 3. | Article 14(1) of Regulation No 913/2010, must be interpreted as meaning that the framework for the allocation of the infrastructure capacity on the freight corridor laid down by the executive board pursuant to that provision does not constitute an act of EU law. |
| --- | --- |

3.

Article 14(1) of Regulation No 913/2010, must be interpreted as meaning that the framework for the allocation of the infrastructure capacity on the freight corridor laid down by the executive board pursuant to that provision does not constitute an act of EU law.

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(1)  OJ C 137, 27.4.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/9 |
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9.8.2021

EN

Official Journal of the European Union

C 320/9

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Judgment of the Court (Tenth Chamber) of 24 June 2021 — WD v European Food Safety Authority

(Case C-167/20 P) (1)

(Appeal - Civil service - Members of the temporary staff - Fixed-term contract - Decision not to reclassify - Lack of appraisal reports - Decision not to renew the contract)

(2021/C 320/09)

Language of the case: French

Parties

Appellant: WD (represented by: L. Levi, avocate)

Other party to the proceedings: European Food Safety Authority (represented by: D. Detken and F. Volpi, acting as Agents, and by D. Waelbroeck, C. Dekemexhe and A. Duron, avocats)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders WD to bear her own costs relating to the appeal and pay those incurred by the European Food Safety Authority (EFSA). |
| --- | --- |

2.

Orders WD to bear her own costs relating to the appeal and pay those incurred by the European Food Safety Authority (EFSA).

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(1)  OJ C 271, 17.8.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/9 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/9

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Order of the Court (Seventh Chamber) of 18 May 2021 (request for a preliminary ruling from the Landesverwaltungsgericht Steiermark — Austria) — Fluctus s.r.o., Fluentum s.r.o., KI v Landespolizeidirektion Steiermark

(Case C-920/19) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Article 56 TFEU - Freedom to provide services - Restrictions - Gambling - Dual system of organisation of the market - Monopoly on lottery products and casino games - Prior authorisation for the use of automatic gaming machines - Advertising practices of the monopolist - Criteria for assessment - Constitutional case-law finding the national legislation to be compatible with EU law)

(2021/C 320/10)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellants: Fluctus s.r.o., Fluentum s.r.o., KI

Respondent: Landespolizeidirektion Steiermark

Other party: Finanzpolizei Team 96

Operative part of the order

| 1. | Article 56 TFEU must be interpreted as not precluding a dual system of organisation of the market for games of chance on the sole ground that the advertising practices of the holder of the monopoly on lottery products and casino games aim at encouraging active participation in gambling, for example by trivialising gambling, by conferring on it a positive image because revenues derived from it are used for activities in the public interest or by increasing its attractiveness by means of enticing advertising messages holding out the tantalising prospect of major winnings. |
| --- | --- |

1.

Article 56 TFEU must be interpreted as not precluding a dual system of organisation of the market for games of chance on the sole ground that the advertising practices of the holder of the monopoly on lottery products and casino games aim at encouraging active participation in gambling, for example by trivialising gambling, by conferring on it a positive image because revenues derived from it are used for activities in the public interest or by increasing its attractiveness by means of enticing advertising messages holding out the tantalising prospect of major winnings.

| 2. | The principle of primacy of EU law must be interpreted as requiring a national court of a Member State to disapply a provision of national law which is contrary to Article 56 TFEU, including where a higher court of that Member State has held that that provision was consistent with EU law. |
| --- | --- |

2.

The principle of primacy of EU law must be interpreted as requiring a national court of a Member State to disapply a provision of national law which is contrary to Article 56 TFEU, including where a higher court of that Member State has held that that provision was consistent with EU law.

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(1)  OJ C 161, 11.5.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/10 |
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9.8.2021

EN

Official Journal of the European Union

C 320/10

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Order of the Court (Seventh Chamber) of 20 May 2021 (request for a preliminary ruling from the Tribunal correctionnel de Bordeaux — France) — Criminal proceedings against ENR Grenelle Habitat SARL, EP, FQ

(Case C-88/20) (1)

(Reference for a preliminary ruling - Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice - Fundamental rights - Ne bis in idem principle - Joint imposition of administrative and criminal penalties for identical facts - Cold calling - Misleading commercial practice - Insufficient justification for a reference for a preliminary ruling - Manifest inadmissibility)

(2021/C 320/11)

Language of the case: French

Referring court

Tribunal correctionnel de Bordeaux

Criminal proceedings against

ENR Grenelle Habitat SARL, EP, FQ

Operative part of the order

The request for a preliminary ruling submitted by the tribunal correctionnel de Bordeaux (Criminal Court, Bordeaux, France), by decision of 12 December 2019, is manifestly inadmissible.

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(1)  OJ C 161, 11.5.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/11 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/11

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Order of the Court (Eighth Chamber) of 18 May 2021 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Skatteverket v Skellefteå Industrihus AB

(Case C-248/20) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Taxation - Common system of value added tax (VAT) - Directive 2006/112/EC - Deduction of the input tax paid during the stage of construction of a building - Optional tax liability scheme - Abandonment of the initially planned activity - Adjustment of the deduction of the input tax paid - Reply to the question referred for a preliminary ruling which may be clearly deduced from existing case-law)

(2021/C 320/12)

Language of the case: Swedish

Referring court

Högsta förvaltningsdomstolen

Parties to the main proceedings

Applicant: Skatteverket

Defendant: Skellefteå Industrihus AB

Operative part of the order

Articles 137, 168, 184 to 187, 189 and 192 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation which requires a property owner who was granted the right to benefit from the optional tax liability scheme during the construction of a building that he or she intended to let out, and who deducted the input value added tax (VAT) charged on the purchases relating to that building project, to repay immediately all that VAT, plus any applicable interest, on the ground that the planned project that gave rise to the right of deduction did not result in any taxed activity, but as not precluding national legislation which, in such a situation, establishes an obligation to adjust the input VAT paid.

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(1)  OJ C 279, 24.8.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/11 |
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9.8.2021

EN

Official Journal of the European Union

C 320/11

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Order of the Court (Ninth Chamber) of 6 May 2021 (request for a preliminary ruling from the Tribunale di Potenza — Italy) — OM v Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Ministero dell’Economia e delle Finanze, Presidenza del Consiglio dei Ministri, Conservatorio di Musica ‘E.R. Duni’ di Matera

(Case C-571/20) (1)

(Reference for a preliminary ruling - Article 53(2) of the Rules of procedure of the Court of Justice - Reference for a preliminary ruling on the validity of a provision of the FEU Treaty - Clear lack of jurisdiction of the Court - Free movement of workers - Equal treatment - Article 45 TFEU - Difference in status and salary between university teachers and teachers working in the art and music higher education national system - Purely internal situation - Manifest inadmissibility)

(2021/C 320/13)

Language of the case: Italian

Referring court

Tribunale di Potenza

Parties to the main proceedings

Applicant: OM

Defendants: Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Ministero dell’Economia e delle Finanze, Presidenza del Consiglio dei Ministri, Conservatorio di Musica ‘E.R. Duni’ di Matera

Operative part of the order

| 1. | The Court of Justice of the European Union clearly lacks jurisdiction to answer the first and second questions referred for a preliminary ruling by the Tribunale di Potenza (District Court, Potenza, Italy). |
| --- | --- |

1.

The Court of Justice of the European Union clearly lacks jurisdiction to answer the first and second questions referred for a preliminary ruling by the Tribunale di Potenza (District Court, Potenza, Italy).

| 2. | The third question referred for a preliminary ruling by the Tribunale di Potenza (District Court, Potenza, Italy) is manifestly inadmissible. |
| --- | --- |

2.

The third question referred for a preliminary ruling by the Tribunale di Potenza (District Court, Potenza, Italy) is manifestly inadmissible.

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(1)  OJ C 28, 25.1.2021.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/12 |
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9.8.2021

EN

Official Journal of the European Union

C 320/12

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Appeal brought on 25 March 2021 by Turk Hava Yollari AO against the judgment of the General Court (Ninth Chamber) delivered on 27 January 2021 in Case T-382/19, Turk Hava Yollari v EUIPO — Sky (skylife)

(Case C-185/21 P)

(2021/C 320/14)

Language of the case: English

Parties

Appellant: Turk Hava Yollari AO (represented by: R. Almaraz Palmero, abogada)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Sky Ltd

By order of 29 June 2021, the Court of Justice (Chamber determining whether appeals may proceed) held that the appeal was not allowed to proceed and that Turk Hava Yollari AO should bear its own costs.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/12 |
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9.8.2021

EN

Official Journal of the European Union

C 320/12

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Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 31 March 2021 — TU and SU v BRD Groupe Société Générale S.A. and Next Capital Solutions Limited

(Case C-200/21)

(2021/C 320/15)

Language of the case: Romanian

Referring court

Tribunalul București

Parties to the main proceedings

Appellants: TU and SU

Respondents: BRD Groupe Société Générale S.A. and Next Capital Solutions Limited

Question referred

Does Directive 93/13/EEC (1) preclude a rule of national law, such as that resulting from Article 712 et seq. of Chapter VI of the Code of Civil Procedure, which lays down a period of 15 days within which a debtor may, by way of an objection to enforcement, rely on the unfairness of a contractual term of the enforceable instrument, given that an action seeking to establish the existence of unfair terms in an enforceable instrument is not subject to any time limit and, in this connection, a debtor may seek suspension of enforcement of the instrument under Article 638(2) of the Code of Civil Procedure?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/13 |
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9.8.2021

EN

Official Journal of the European Union

C 320/13

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Request for a preliminary ruling from the Juzgado de Primera Instancia No 2 de Las Palmas de Gran Canaria (Spain) lodged on 6 April 2021 — Zulima v Servicios prescriptor y medios de pagos E.F.C.  S.A.U.

(Case C-215/21)

(2021/C 320/16)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia de Las Palmas de Gran Canaria

Parties to the main proceedings

Applicant: Zulima

Defendant: Servicios prescriptor y medios de pagos E.F.C. S.A.U.

Question referred

Where a consumer raises a complaint against an unfair term under Directive 93/13/EC (1) and an out-of-court offer to settle is made, Article 22 of the Ley de Enjuiciamiento Civil (Law of Civil Procedure) has the effect of compelling the consumer to bear the costs of the proceedings without regard to the seller’s or supplier’s prior conduct in having failed to heed the letters of formal notice [issued to him]. Do those Spanish rules of procedure constitute a significant obstacle capable of dissuading a consumer from exercising the right to effective judicial review of the potentially unfair nature of a contractual term contrary to the principle of effectiveness and Article[s] 6(1) and 7(1) of Directive 93/13?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/13 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/13

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Request for a preliminary ruling from the Curtea de Apel Ploiești (Romania) lodged on 6 April 2021 — Asociația ‘Forumul Judecătorilor din România’ and YN v Consiliul Superior al Magistraturii

(Case C-216/21)

(2021/C 320/17)

Language of the case: Romanian

Referring court

Curtea de Apel Ploiești

Parties to the main proceedings

Applicants: Asociația ‘Forumul Judecătorilor din România’ and YN

Defendant: Consiliul Superior al Magistraturii

Questions referred

| 1. | Must the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, (1) be regarded as an act of an institution of the Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union? Do the terms, nature and duration of the CVM established by Commission Decision 2006/928/EC of 13 December 2006 fall within the scope of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements laid down in the reports prepared in accordance with the CVM binding on the Romanian State? |
| --- | --- |

1.

Must the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, (1) be regarded as an act of an institution of the Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union? Do the terms, nature and duration of the CVM established by Commission Decision 2006/928/EC of 13 December 2006 fall within the scope of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements laid down in the reports prepared in accordance with the CVM binding on the Romanian State?

| 2. | Can the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights, as well as in the case-law of the Court of Justice of the European Union, with reference to Article 2 TEU, be interpreted as also applying to procedures for the promotion of judges in office? |
| --- | --- |

2.

Can the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights, as well as in the case-law of the Court of Justice of the European Union, with reference to Article 2 TEU, be interpreted as also applying to procedures for the promotion of judges in office?

| 3. | Is that principle infringed by the introduction of a system for promotion to a higher court which is based solely on a brief assessment of activities and conduct that is carried out by a board composed of the President of the court responsible for judicial review and of the judges of that court which, in addition to the periodic assessment of judges, separately carries out both assessments of judges for promotion purposes and the judicial review of judgments delivered by those judges? |
| --- | --- |

3.

Is that principle infringed by the introduction of a system for promotion to a higher court which is based solely on a brief assessment of activities and conduct that is carried out by a board composed of the President of the court responsible for judicial review and of the judges of that court which, in addition to the periodic assessment of judges, separately carries out both assessments of judges for promotion purposes and the judicial review of judgments delivered by those judges?

| 4. | Is the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights, as well as in the case-law of the Court of Justice of the European Union, with reference to Article 2 TEU, infringed if the Romanian State undermines the foreseeability and legal certainty of EU law by accepting the CVM and reports prepared in accordance with that mechanism and adhering to them for more than 10 years and then, with no forewarning, changing the procedure for the promotion of judges to executive positions, contrary to CVM recommendations? |
| --- | --- |

4.

Is the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights, as well as in the case-law of the Court of Justice of the European Union, with reference to Article 2 TEU, infringed if the Romanian State undermines the foreseeability and legal certainty of EU law by accepting the CVM and reports prepared in accordance with that mechanism and adhering to them for more than 10 years and then, with no forewarning, changing the procedure for the promotion of judges to executive positions, contrary to CVM recommendations?

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(1)  Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/14 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/14

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Appeal brought on 1 April 2021 by Olimp Laboratories sp. z o.o. against the judgment of the General Court (Second Chamber) delivered on 27 January 2021 in Case T-817/19, Olimp Laboratories v EUIPO

(Case C-219/21 P)

(2021/C 320/18)

Language of the case: English

Parties

Appellant: Olimp Laboratories sp. z o.o. (represented by: M. Kondrat, adwokat)

Other party to the proceedings: European Union Intellectual Property Office

By order of 24 June 2021, the Court of Justice (Chamber determining whether appeals may proceed) held that the appeal was not allowed to proceed and that Olimp Laboratories sp. z o.o. shall bear its own costs.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/15 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/15

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Appeal brought on 9 April 2021 by Germann Avocats LLC against the order of the General Court (Tenth Chamber) delivered on 4 February 2021 in Case T-352/18, Germann Avocats LLC v European Commission

(Case C-233/21 P)

(2021/C 320/19)

Language of the case: English

Parties

Appellant: Germann Avocats LLC (represented by: N. Scandamis, dikigoros)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

| — | confirm points 24 to 48 of the contested order fully rejecting the Commission's objection of inadmissibility; |
| --- | --- |

—

confirm points 24 to 48 of the contested order fully rejecting the Commission's objection of inadmissibility;

| — | for the rest, fully set aside the contested order; |
| --- | --- |

—

for the rest, fully set aside the contested order;

| — | annul pursuant to Article 263 TFEU the Commission’s decision contained in an undated letter received on 2 April 2018 rejecting the joint tender submitted by the Appellant for a follow-up study on trade union practices on non-discrimination and diversity in the workplace (call for tenders JUST/2017/RDIS/FW/EQUA/0042; OJ/S S215 — 09/11/2017 — 2017/S 215-446067); |
| --- | --- |

—

annul pursuant to Article 263 TFEU the Commission’s decision contained in an undated letter received on 2 April 2018 rejecting the joint tender submitted by the Appellant for a follow-up study on trade union practices on non-discrimination and diversity in the workplace (call for tenders JUST/2017/RDIS/FW/EQUA/0042; OJ/S S215 — 09/11/2017 — 2017/S 215-446067);

| — | order the Commission to pay damages in the amount of EUR 1; |
| --- | --- |

—

order the Commission to pay damages in the amount of EUR 1;

| — | alternatively, refer the case back to the General Court; and in any event |
| --- | --- |

—

alternatively, refer the case back to the General Court; and in any event

| — | order the Commission to pay the costs of the appeal proceedings and the proceedings before the General Court. |
| --- | --- |

—

order the Commission to pay the costs of the appeal proceedings and the proceedings before the General Court.

Pleas in law and main arguments

The appellant advances the following pleas in support of its appeal:

First, manifest distortion of facts and errors of law in relation to the misuse of powers, as well as violation of the principles of equality of arms and the right to be heard.

Second, infringement of the duty to state reasons and manifest errors of assessment.

Third, misuse of powers by infringement of the principles of equal treatment, legal certainty, sound administration and good faith.

Fourth, misuse of powers by infringement of the principle of transparency and protection of legitimate expectations regarding competition.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/16 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/16

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Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 22 April 2021 — Facebook Inc. and Others v Bundeskartellamt

(Case C-252/21)

(2021/C 320/20)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicants: Facebook Inc., Facebook Ireland Ltd., Facebook Deutschland GmbH

Defendant: Bundeskartellamt

Joined party: Verbraucherzentrale Bundesverband e.V.

Questions referred

| 1. | a) | Is it compatible with Article 51 et seq. of Regulation (EU) 2016/679 (1) (GDPR) if a national competition authority — such as the German Federal Cartel Office — which is not a supervisory authority within the meaning of Article 51 et seq. of the GDPR, of a Member State in which an undertaking established outside the European Union has an establishment that provides the main establishment of that undertaking — which is located in another Member State and has sole responsibility for processing personal data for the entire territory of the European Union — with advertising, communication and public relations support, finds, for the purposes of monitoring abuses of competition law, that the main establishment’s contractual terms relating to data processing and their implementation breach the GDPR and issues an order to end that breach? |
| --- | --- | --- |

1.

a)

Is it compatible with Article 51 et seq. of Regulation (EU) 2016/679 (1) (GDPR) if a national competition authority — such as the German Federal Cartel Office — which is not a supervisory authority within the meaning of Article 51 et seq. of the GDPR, of a Member State in which an undertaking established outside the European Union has an establishment that provides the main establishment of that undertaking — which is located in another Member State and has sole responsibility for processing personal data for the entire territory of the European Union — with advertising, communication and public relations support, finds, for the purposes of monitoring abuses of competition law, that the main establishment’s contractual terms relating to data processing and their implementation breach the GDPR and issues an order to end that breach?

| b) | If so: Is that compatible with Article 4(3) TEU if, at the same time, the lead supervisory authority in the Member State in which the main establishment, within the meaning of Article 56(1) of the GDPR, is located is investigating the undertaking’s contractual terms relating to data processing? |
| --- | --- |

b)

If so: Is that compatible with Article 4(3) TEU if, at the same time, the lead supervisory authority in the Member State in which the main establishment, within the meaning of Article 56(1) of the GDPR, is located is investigating the undertaking’s contractual terms relating to data processing?

If the answer to Question 1 is yes:

| 2. | a) | If an internet user merely visits websites or apps to which the criteria of Article 9(1) of the GDPR relate, such as flirting apps, gay dating sites, political party websites or health-related websites, or also enters information into them, for example when registering or when placing orders, and another undertaking, such as Facebook Ireland, uses interfaces integrated into those websites and apps, such as ‘Facebook Business Tools’, or cookies or similar storage technologies placed on the internet user’s computer or mobile device, to collect data about those visits to the websites and apps and the information entered by the user, and links those data with the data from the user’s Facebook.com account and uses them, does this collection and/or linking and/or use involve the processing of sensitive data for the purpose of that provision? |
| --- | --- | --- |

2.

a)

If an internet user merely visits websites or apps to which the criteria of Article 9(1) of the GDPR relate, such as flirting apps, gay dating sites, political party websites or health-related websites, or also enters information into them, for example when registering or when placing orders, and another undertaking, such as Facebook Ireland, uses interfaces integrated into those websites and apps, such as ‘Facebook Business Tools’, or cookies or similar storage technologies placed on the internet user’s computer or mobile device, to collect data about those visits to the websites and apps and the information entered by the user, and links those data with the data from the user’s Facebook.com account and uses them, does this collection and/or linking and/or use involve the processing of sensitive data for the purpose of that provision?

| b) | If so: Does visiting those websites or apps and/or entering information and/or clicking or tapping on the buttons integrated into them by a provider such as Facebook Ireland (social plugins such as ‘Like’, ‘Share’ or ‘Facebook Login’ or ‘Account Kit’) constitute manifestly making the data about the visits themselves and/or the information entered by the user public within the meaning of Article 9(2)(e) of the GDPR? |
| --- | --- |

b)

If so: Does visiting those websites or apps and/or entering information and/or clicking or tapping on the buttons integrated into them by a provider such as Facebook Ireland (social plugins such as ‘Like’, ‘Share’ or ‘Facebook Login’ or ‘Account Kit’) constitute manifestly making the data about the visits themselves and/or the information entered by the user public within the meaning of Article 9(2)(e) of the GDPR?

| 3. | Can an undertaking, such as Facebook Ireland, which operates a digital social network funded by advertising and offers personalised content and advertising, network security, product improvement and continuous, seamless use of all of its group products in its terms of service, justify collecting data for these purposes from other group services and third-party websites and apps via integrated interfaces such as Facebook Business Tools, or via cookies or similar storage technologies placed on the internet user’s computer or mobile device, linking those data with the user’s Facebook.com account and using them, on the ground of necessity for the performance of the contract under Article 6(1)(b) of the GDPR or on the ground of the pursuit of legitimate interests under Article 6(1)(f) of the GDPR? |
| --- | --- |

3.

Can an undertaking, such as Facebook Ireland, which operates a digital social network funded by advertising and offers personalised content and advertising, network security, product improvement and continuous, seamless use of all of its group products in its terms of service, justify collecting data for these purposes from other group services and third-party websites and apps via integrated interfaces such as Facebook Business Tools, or via cookies or similar storage technologies placed on the internet user’s computer or mobile device, linking those data with the user’s Facebook.com account and using them, on the ground of necessity for the performance of the contract under Article 6(1)(b) of the GDPR or on the ground of the pursuit of legitimate interests under Article 6(1)(f) of the GDPR?

| 4. | In those circumstances, can






  — | the fact of users being underage, vis-à-vis the personalisation of content and advertising, product improvement, network security and non-marketing communications with the user; |
| --- | --- | --- |

4.

In those circumstances, can

—

the fact of users being underage, vis-à-vis the personalisation of content and advertising, product improvement, network security and non-marketing communications with the user;

| — | the provision of measurements, analytics and other business services to enable advertisers, developers and other partners to evaluate and improve their services; |
| --- | --- |

—

the provision of measurements, analytics and other business services to enable advertisers, developers and other partners to evaluate and improve their services;

| — | the provision of marketing communications to the user to enable the undertaking to improve its products and engage in direct marketing; |
| --- | --- |

—

the provision of marketing communications to the user to enable the undertaking to improve its products and engage in direct marketing;

| — | research and innovation for social good, to further the state of the art or the academic understanding of important social issues and to affect society and the world in a positive way; |
| --- | --- |

—

research and innovation for social good, to further the state of the art or the academic understanding of important social issues and to affect society and the world in a positive way;

| — | the sharing of information with law enforcement agencies and responding to legal requests in order to prevent, detect and prosecute criminal offences, unlawful use, breaches of the terms of service and policies and other harmful behaviour;
  also constitute legitimate interests within the meaning of Article 6(1)(f) of the GDPR if, for those purposes, the undertaking links data from other group services and from third-party websites and apps with the user’s Facebook.com account via integrated interfaces such as Facebook Business Tools or via cookies or similar storage technologies placed on the internet user’s computer or mobile device and uses those data? |
| --- | --- |

—

the sharing of information with law enforcement agencies and responding to legal requests in order to prevent, detect and prosecute criminal offences, unlawful use, breaches of the terms of service and policies and other harmful behaviour;

also constitute legitimate interests within the meaning of Article 6(1)(f) of the GDPR if, for those purposes, the undertaking links data from other group services and from third-party websites and apps with the user’s Facebook.com account via integrated interfaces such as Facebook Business Tools or via cookies or similar storage technologies placed on the internet user’s computer or mobile device and uses those data?

| 5. | In those circumstances, can collecting data from other group services and from third-party websites and apps via integrated interfaces such as Facebook Business Tools, or via cookies or similar storage technologies placed on the internet user’s computer or mobile device, linking those data with the user’s Facebook.com account and using them, or using data already collected and linked by other lawful means, also be justified under Article 6(1)(c), (d) and (e) of the GDPR in individual cases, for example to respond to a legitimate request for certain data (point (c)), to combat harmful behaviour and promote security (point (d)), to research for social good and to promote safety, integrity and security (point (e))? |
| --- | --- |

5.

In those circumstances, can collecting data from other group services and from third-party websites and apps via integrated interfaces such as Facebook Business Tools, or via cookies or similar storage technologies placed on the internet user’s computer or mobile device, linking those data with the user’s Facebook.com account and using them, or using data already collected and linked by other lawful means, also be justified under Article 6(1)(c), (d) and (e) of the GDPR in individual cases, for example to respond to a legitimate request for certain data (point (c)), to combat harmful behaviour and promote security (point (d)), to research for social good and to promote safety, integrity and security (point (e))?

| 6. | Can consent within the meaning of Article 6(1)(a) and Article 9(2)(a) of the GDPR be given effectively and, in accordance with Article 4(11) of the GDPR in particular, freely, to a dominant undertaking such as Facebook Ireland?
  If the answer to Question 1 is no: |
| --- | --- |

6.

Can consent within the meaning of Article 6(1)(a) and Article 9(2)(a) of the GDPR be given effectively and, in accordance with Article 4(11) of the GDPR in particular, freely, to a dominant undertaking such as Facebook Ireland?

If the answer to Question 1 is no:

| 7. | a) | Can the national competition authority of a Member State, such as the Federal Cartel Office, which is not a supervisory authority within the meaning of Article 51 et seq. of the GDPR and which examines a breach by a dominant undertaking of the competition-law prohibition on abuse that is not a breach of the GDPR by that undertaking’s data processing terms and their implementation, determine, when assessing the balance of interests, whether those data processing terms and their implementation comply with the GDPR? |
| --- | --- | --- |

7.

a)

Can the national competition authority of a Member State, such as the Federal Cartel Office, which is not a supervisory authority within the meaning of Article 51 et seq. of the GDPR and which examines a breach by a dominant undertaking of the competition-law prohibition on abuse that is not a breach of the GDPR by that undertaking’s data processing terms and their implementation, determine, when assessing the balance of interests, whether those data processing terms and their implementation comply with the GDPR?

| b) | If so: In the light of Article 4(3) TEU, does that also apply if the competent lead supervisory authority in accordance with Article 56(1) of the GDPR is investigating the undertaking’s data processing terms at the same time? |
| --- | --- |

b)

If so: In the light of Article 4(3) TEU, does that also apply if the competent lead supervisory authority in accordance with Article 56(1) of the GDPR is investigating the undertaking’s data processing terms at the same time?

If the answer to Question 7 is yes, Questions 3 to 5 must be answered in relation to data from the use of the group’s Instagram service.

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(1)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/18 |
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9.8.2021

EN

Official Journal of the European Union

C 320/18

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Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH

(Case C-274/21)

(2021/C 320/21)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: EPIC Financial Consulting Ges.m.b.H.

Defendants: Republik Österreich, Bundesbeschaffung GmbH

Questions referred

| 1. | Does the procedure for granting an interlocutory injunction provided for in Article 2(1)(a) of Directive 89/665/EEC, (1) as amended by Directive 2014/23/EU, (2) which is also provided for at national level in Austria in proceedings before the Bundesverwaltungsgericht (Federal Administrative Court), in which it is also possible to bring about, for example, a temporary prohibition on the conclusion of framework agreements or on the conclusion of supply contracts, constitute a dispute concerning a civil and commercial matter within the meaning of Article 1(1) of Regulation (EU) No 1215/2012 (3) (Brussels I Regulation)? Does such a procedure for granting an interlocutory injunction as referred to in the preceding question at least constitute a civil matter pursuant to Article 81(1) TFEU? Is the procedure for granting interlocutory injunctions pursuant to Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, a procedure for granting provisional measures pursuant to Article 35 of the Brussels I Regulation? |
| --- | --- |

1.

Does the procedure for granting an interlocutory injunction provided for in Article 2(1)(a) of Directive 89/665/EEC, (1) as amended by Directive 2014/23/EU, (2) which is also provided for at national level in Austria in proceedings before the Bundesverwaltungsgericht (Federal Administrative Court), in which it is also possible to bring about, for example, a temporary prohibition on the conclusion of framework agreements or on the conclusion of supply contracts, constitute a dispute concerning a civil and commercial matter within the meaning of Article 1(1) of Regulation (EU) No 1215/2012 (3) (Brussels I Regulation)? Does such a procedure for granting an interlocutory injunction as referred to in the preceding question at least constitute a civil matter pursuant to Article 81(1) TFEU? Is the procedure for granting interlocutory injunctions pursuant to Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, a procedure for granting provisional measures pursuant to Article 35 of the Brussels I Regulation?

| 2. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which the court must, before disposing of an application for an interlocutory injunction, as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, determine the type of contract award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue, when in (other types of) civil cases in Austria, such as, for example, in the case of actions seeking compensation or injunctions for infringements of competition law, non-payment of fees does not otherwise preclude the disposal of an application for an interlocutory injunction lodged in conjunction with an action, irrespective of the issue of the fees payable for judicial protection, whatever the amount, and, moreover, non-payment of flat-rate fees does not, in principle, preclude the disposal of an application for an interlocutory injunction lodged separately from an action in proceedings before the civil courts; and, by way of further comparison, in Austria, non-payment of appeal fees for bringing appeals against administrative decisions or for appeals or appeals on points of law against decisions of administrative courts to the Verfassungsgerichtshof (Constitutional Court) or the Verwaltungsgerichtshof (Supreme Administrative Court) does not lead to the dismissal of an appeal owing to non-payment of fees and, for example, does not lead to applications for the granting of suspensive effect being disposed of only by way of their rejection in such appeals or appeals on points of law? |
| --- | --- |

2.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which the court must, before disposing of an application for an interlocutory injunction, as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, determine the type of contract award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue, when in (other types of) civil cases in Austria, such as, for example, in the case of actions seeking compensation or injunctions for infringements of competition law, non-payment of fees does not otherwise preclude the disposal of an application for an interlocutory injunction lodged in conjunction with an action, irrespective of the issue of the fees payable for judicial protection, whatever the amount, and, moreover, non-payment of flat-rate fees does not, in principle, preclude the disposal of an application for an interlocutory injunction lodged separately from an action in proceedings before the civil courts; and, by way of further comparison, in Austria, non-payment of appeal fees for bringing appeals against administrative decisions or for appeals or appeals on points of law against decisions of administrative courts to the Verfassungsgerichtshof (Constitutional Court) or the Verwaltungsgerichtshof (Supreme Administrative Court) does not lead to the dismissal of an appeal owing to non-payment of fees and, for example, does not lead to applications for the granting of suspensive effect being disposed of only by way of their rejection in such appeals or appeals on points of law?

| 2.1. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as precluding the application of Austrian national rules under which, prior to the disposal of an application for an interlocutory injunction as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, an order for regularisation of fees is to be made by the presiding judge of the chamber, sitting as a single judge, in the event of insufficient payment of flat-rate fees, and that single judge must reject the application for an interlocutory injunction in the event of non-payment of fees, when otherwise in civil actions in Austria, under the Gerichtsgebührengesetz (Law on court fees), no additional flat-rate court fees are to be paid, in principle, for an application for an interlocutory injunction lodged together with an action, on top of the fees for the action at first instance, and, moreover, with regard to applications for the granting of suspensive effect which are lodged together with an appeal against an administrative decision to an administrative court, an appeal on points of law to the Supreme Administrative Court or an appeal to the Constitutional Court, and which, from a functional point of view, have the same or a similar objective in terms of judicial protection as an application for an interlocutory injunction, no separate fees must be paid for such ancillary applications for the granting of suspensive effect? |
| --- | --- |

2.1.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as precluding the application of Austrian national rules under which, prior to the disposal of an application for an interlocutory injunction as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, an order for regularisation of fees is to be made by the presiding judge of the chamber, sitting as a single judge, in the event of insufficient payment of flat-rate fees, and that single judge must reject the application for an interlocutory injunction in the event of non-payment of fees, when otherwise in civil actions in Austria, under the Gerichtsgebührengesetz (Law on court fees), no additional flat-rate court fees are to be paid, in principle, for an application for an interlocutory injunction lodged together with an action, on top of the fees for the action at first instance, and, moreover, with regard to applications for the granting of suspensive effect which are lodged together with an appeal against an administrative decision to an administrative court, an appeal on points of law to the Supreme Administrative Court or an appeal to the Constitutional Court, and which, from a functional point of view, have the same or a similar objective in terms of judicial protection as an application for an interlocutory injunction, no separate fees must be paid for such ancillary applications for the granting of suspensive effect?

| 3. | Having regard to the other provisions of EU law, is the requirement under Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/24/EU, (4)
  to take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, to be interpreted as meaning that that requirement to act without undue delay confers a subjective right to have a decision taken without undue delay on an application for an interlocutory injunction and that it precludes the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must, before disposing of an application for an interlocutory injunction aimed at preventing further procurement by the contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of separately contestable decisions contested or to be contested from specific award procedures and also, if necessary, the lots from a specific award procedure, even if those elements do not bear any relevance to the court’s decision, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement vis-à-vis the applicant would ensue? |
| --- | --- |

3.

Having regard to the other provisions of EU law, is the requirement under Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/24/EU, (4)
  to take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, to be interpreted as meaning that that requirement to act without undue delay confers a subjective right to have a decision taken without undue delay on an application for an interlocutory injunction and that it precludes the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must, before disposing of an application for an interlocutory injunction aimed at preventing further procurement by the contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of separately contestable decisions contested or to be contested from specific award procedures and also, if necessary, the lots from a specific award procedure, even if those elements do not bear any relevance to the court’s decision, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement vis-à-vis the applicant would ensue?

| 4. | Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter (5) to be interpreted as conferring subjective rights on individuals and as precluding the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must, before disposing of an application for an interlocutory injunction aimed at preventing further procurement by the contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, even if those elements do not bear any relevance to the court’s decision, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement vis-à-vis the applicant would ensue? |
| --- | --- |

4.

Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter (5) to be interpreted as conferring subjective rights on individuals and as precluding the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must, before disposing of an application for an interlocutory injunction aimed at preventing further procurement by the contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, even if those elements do not bear any relevance to the court’s decision, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for an interlocutory injunction due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement vis-à-vis the applicant would ensue?

| 5. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring on individuals subjective rights against the Member State and as precluding the application of Austrian national rules under which, in the event of non-payment of flat-rate fees for an application for an interlocutory injunction within the meaning of Directive 89/665, as amended, (only) a chamber of an administrative court, as a judicial body, must prescribe flat-rate fees (leading to curtailed possibilities of judicial protection for the party liable to pay the fees) when fees for actions, interlocutory injunctions and appeals in civil court proceedings are otherwise prescribed, in the event of non-payment, by an administrative decision in accordance with the Gerichtliches Einbringungsgesetz (Law on judicial collection) and, in administrative law, appeal fees for appeals to an administrative court or to the Constitutional Court or for appeals on points of law to the Supreme Administrative Court are as a general rule prescribed, in the event of non-payment of those fees, by way of a notice of a tax authority (notice prescribing fees), against which an appeal can always be brought before an administrative court and then, in turn, an appeal on points of law before the Supreme Administrative Court or an appeal before the Constitutional Court? |
| --- | --- |

5.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring on individuals subjective rights against the Member State and as precluding the application of Austrian national rules under which, in the event of non-payment of flat-rate fees for an application for an interlocutory injunction within the meaning of Directive 89/665, as amended, (only) a chamber of an administrative court, as a judicial body, must prescribe flat-rate fees (leading to curtailed possibilities of judicial protection for the party liable to pay the fees) when fees for actions, interlocutory injunctions and appeals in civil court proceedings are otherwise prescribed, in the event of non-payment, by an administrative decision in accordance with the Gerichtliches Einbringungsgesetz (Law on judicial collection) and, in administrative law, appeal fees for appeals to an administrative court or to the Constitutional Court or for appeals on points of law to the Supreme Administrative Court are as a general rule prescribed, in the event of non-payment of those fees, by way of a notice of a tax authority (notice prescribing fees), against which an appeal can always be brought before an administrative court and then, in turn, an appeal on points of law before the Supreme Administrative Court or an appeal before the Constitutional Court?

| 6. | Having regard to the other provisions of EU law, is Article 1(1) of Directive 89/665, as amended by Directive 2014/23, to be interpreted as meaning that the conclusion of a framework agreement with a single economic operator pursuant to Article 33(3) of Directive 2014/24 constitutes the conclusion of a contract pursuant to Article 2a(2) of Directive 89/665, as amended by Directive 2014/23? |
| --- | --- |

6.

Having regard to the other provisions of EU law, is Article 1(1) of Directive 89/665, as amended by Directive 2014/23, to be interpreted as meaning that the conclusion of a framework agreement with a single economic operator pursuant to Article 33(3) of Directive 2014/24 constitutes the conclusion of a contract pursuant to Article 2a(2) of Directive 89/665, as amended by Directive 2014/23?

| 6.1. | Are the words ‘contracts based on that agreement’ in Article 33(3) of Directive 2014/24 to be interpreted as meaning that a contract based on the framework agreement exists where the contracting authority awards an individual contract expressly on the basis of the framework agreement concluded? Or is the cited phrase ‘contracts based on that agreement’ to be interpreted as meaning that if the total quantity covered by the framework agreement within the meaning of the judgment of the Court of Justice in Case C-216/17, (6) paragraph 64, has already been exhausted, there is no longer a contract based on the framework agreement originally concluded? |
| --- | --- |

6.1.

Are the words ‘contracts based on that agreement’ in Article 33(3) of Directive 2014/24 to be interpreted as meaning that a contract based on the framework agreement exists where the contracting authority awards an individual contract expressly on the basis of the framework agreement concluded? Or is the cited phrase ‘contracts based on that agreement’ to be interpreted as meaning that if the total quantity covered by the framework agreement within the meaning of the judgment of the Court of Justice in Case C-216/17, (6) paragraph 64, has already been exhausted, there is no longer a contract based on the framework agreement originally concluded?

| 7. | Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as precluding the application of a rule under which the contracting authority designated in the procurement dispute must, in the proceedings for the granting of an interlocutory injunction, provide all the information required and produce all the documents required — whereby failure to do so in either respect may lead to a default decision to its detriment — if the officials or employees of that contracting authority who are required to provide that information on behalf of the contracting authority may thereby be exposed to the risk of possibly even having to incriminate themselves under criminal law if they provide the information or produce the documents? |
| --- | --- |

7.

Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as precluding the application of a rule under which the contracting authority designated in the procurement dispute must, in the proceedings for the granting of an interlocutory injunction, provide all the information required and produce all the documents required — whereby failure to do so in either respect may lead to a default decision to its detriment — if the officials or employees of that contracting authority who are required to provide that information on behalf of the contracting authority may thereby be exposed to the risk of possibly even having to incriminate themselves under criminal law if they provide the information or produce the documents?

| 8. | Taking account also of the right to an effective remedy under Article 47 of the Charter, and having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/24, that procurement review procedures must, in particular, be conducted effectively, to be interpreted as meaning that those provisions confer subjective rights and preclude the application of national rules under which the party seeking judicial protection by way of an application for an interlocutory injunction is required to specify in his or her application for an interlocutory injunction the specific contract award procedure and the specific decision of a contracting authority, even where, in the case of award procedures without prior publication of a contract notice, that applicant will generally not know how many non-transparent award procedures the contracting authority has conducted and how many award decisions have already been taken in the non-transparent award procedures? |
| --- | --- |

8.

Taking account also of the right to an effective remedy under Article 47 of the Charter, and having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/24, that procurement review procedures must, in particular, be conducted effectively, to be interpreted as meaning that those provisions confer subjective rights and preclude the application of national rules under which the party seeking judicial protection by way of an application for an interlocutory injunction is required to specify in his or her application for an interlocutory injunction the specific contract award procedure and the specific decision of a contracting authority, even where, in the case of award procedures without prior publication of a contract notice, that applicant will generally not know how many non-transparent award procedures the contracting authority has conducted and how many award decisions have already been taken in the non-transparent award procedures?

| 9. | Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for an interlocutory [injunction] the specific contract award procedure and the specific contested, separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know how many non-transparent award procedures the contracting authority has conducted and how many award decisions have already been taken in the non-transparent award procedures? |
| --- | --- |

9.

Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for an interlocutory [injunction] the specific contract award procedure and the specific contested, separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know how many non-transparent award procedures the contracting authority has conducted and how many award decisions have already been taken in the non-transparent award procedures?

| 10. | Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for an interlocutory injunction is required to pay flat-rate fees in an amount which he or she cannot ascertain in advance, because, in the case of contract award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know whether non-transparent award procedures have been conducted by the contracting authority and, if so, the number of such procedures and their estimated contract value and how many separately contestable award decisions have already been taken in the non-transparent award procedures? |
| --- | --- |

10.

Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for an interlocutory injunction is required to pay flat-rate fees in an amount which he or she cannot ascertain in advance, because, in the case of contract award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know whether non-transparent award procedures have been conducted by the contracting authority and, if so, the number of such procedures and their estimated contract value and how many separately contestable award decisions have already been taken in the non-transparent award procedures?

---

(1)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

(2)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(3)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

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

(5)  Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391).

(6)  Judgment of 19 December 2018, Autorità Garante della Concorrenza e del Mercato — Antitrust and Coopservice, ECLI:EU:C:2018:1034.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/21 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/21

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Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 28 April 2021 — EPIC Financial Consulting Ges.m.b.H. v Republik Österreich and Bundesbeschaffung GmbH

(Case C-275/21)

(2021/C 320/22)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: EPIC Financial Consulting Ges.m.b.H.

Defendants: Republik Österreich, Bundesbeschaffung GmbH

Questions referred

| 1. | Does a review procedure before the Bundesverwaltungsgericht (Federal Administrative Court), which takes place in implementation of Directive 89/665/EEC, (1) as amended by Directive 2014/23/EU, (2) constitute a dispute concerning a civil and commercial matter within the meaning of Article 1(1) of Regulation (EU) No 1215/2012 (3)? Does such a review procedure as referred to in the preceding question at least constitute a civil matter pursuant to Article 81(1) TFEU? |
| --- | --- |

1.

Does a review procedure before the Bundesverwaltungsgericht (Federal Administrative Court), which takes place in implementation of Directive 89/665/EEC, (1) as amended by Directive 2014/23/EU, (2) constitute a dispute concerning a civil and commercial matter within the meaning of Article 1(1) of Regulation (EU) No 1215/2012 (3)? Does such a review procedure as referred to in the preceding question at least constitute a civil matter pursuant to Article 81(1) TFEU?

| 2. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which the court must, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, determine the type of contract award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and then, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue, when in civil cases in Austria, such as, for example, in the case of actions seeking compensation or injunctions for infringements of competition law, non-payment of fees does not otherwise preclude the disposal of an action, irrespective of the issue of the fees payable for judicial protection, whatever the amount, and, by way of further comparison, in Austria, non-payment of appeal fees for bringing appeals against administrative decisions or for appeals or appeals on points of law against decisions of administrative courts to the Verfassungsgerichtshof (Constitutional Court) or the Verwaltungsgerichtshof (Supreme Administrative Court) does not lead to the dismissal of an appeal owing to non-payment of fees? |
| --- | --- |

2.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which the court must, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, determine the type of contract award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the competent chamber of the court for the purpose of recovering fees and then, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue, when in civil cases in Austria, such as, for example, in the case of actions seeking compensation or injunctions for infringements of competition law, non-payment of fees does not otherwise preclude the disposal of an action, irrespective of the issue of the fees payable for judicial protection, whatever the amount, and, by way of further comparison, in Austria, non-payment of appeal fees for bringing appeals against administrative decisions or for appeals or appeals on points of law against decisions of administrative courts to the Verfassungsgerichtshof (Constitutional Court) or the Verwaltungsgerichtshof (Supreme Administrative Court) does not lead to the dismissal of an appeal owing to non-payment of fees?

| 2.1. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as precluding the application of Austrian national rules under which, prior to the disposal of an application for an interlocutory injunction as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, an order for regularisation of fees is to be made by the presiding judge of the chamber, sitting as a single judge, in the event of insufficient payment of flat-rate fees, and that single judge must reject the application for an interlocutory injunction in the event of non-payment of fees, when otherwise in civil actions in Austria, under the Gerichtsgebührengesetz (Law on court fees), no additional flat-rate court fees are to be paid, in principle, for an application for an interlocutory injunction lodged together with an action, on top of the fees for the action at first instance, and, moreover, with regard to applications for the granting of suspensive effect which are lodged together with an appeal against an administrative decision to an administrative court, an appeal on points of law to the Supreme Administrative Court or an appeal to the Constitutional Court, and which, from a functional point of view, have the same or a similar objective in terms of judicial protection as an application for an interlocutory injunction, no separate fees must be paid for such ancillary applications for the granting of suspensive effect? |
| --- | --- |

2.1.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as precluding the application of Austrian national rules under which, prior to the disposal of an application for an interlocutory injunction as provided for in Article 2(1)(a) of Directive 89/665, as amended by Directive 2014/23, an order for regularisation of fees is to be made by the presiding judge of the chamber, sitting as a single judge, in the event of insufficient payment of flat-rate fees, and that single judge must reject the application for an interlocutory injunction in the event of non-payment of fees, when otherwise in civil actions in Austria, under the Gerichtsgebührengesetz (Law on court fees), no additional flat-rate court fees are to be paid, in principle, for an application for an interlocutory injunction lodged together with an action, on top of the fees for the action at first instance, and, moreover, with regard to applications for the granting of suspensive effect which are lodged together with an appeal against an administrative decision to an administrative court, an appeal on points of law to the Supreme Administrative Court or an appeal to the Constitutional Court, and which, from a functional point of view, have the same or a similar objective in terms of judicial protection as an application for an interlocutory injunction, no separate fees must be paid for such ancillary applications for the granting of suspensive effect?

| 3. | Having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/23, according to which procurement review procedures must, in particular, be conducted as rapidly as possible, to be interpreted as meaning that that requirement of rapidity confers a subjective right to a rapid review procedure and precludes the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must in every case determine, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement would ensue? |
| --- | --- |

3.

Having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/23, according to which procurement review procedures must, in particular, be conducted as rapidly as possible, to be interpreted as meaning that that requirement of rapidity confers a subjective right to a rapid review procedure and precludes the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must in every case determine, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to rule on the application for review, failing which a loss of entitlement would ensue?

| 4. | Having regard to the principle of transparency under Article 18(1) of Directive 2014/24/EU (4) and the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter (5) to be interpreted as precluding the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must in every case, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue? |
| --- | --- |

4.

Having regard to the principle of transparency under Article 18(1) of Directive 2014/24/EU (4) and the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter (5) to be interpreted as precluding the application of Austrian national rules under which, even in the case of contract award procedures conducted in a non-transparent manner, the court must in every case, before disposing of an application for review, which must be directed at the annulment of a separately contestable decision of a contracting authority, determine the type of award procedure and the (estimated) contract value as well as the total number of contested, separately contestable decisions from specific award procedures and also, if necessary, the lots from a specific award procedure, in order then to issue, if necessary, an order for regularisation via the presiding judge of the chamber of the court for the purpose of recovering fees and, in the event of non-payment of fees, to prescribe — before or no later than at the same time as rejecting an application for review due to failure to pay fees subsequently demanded — the procedural fees via the chamber of the court competent to deal with the application for review, failing which a loss of entitlement would ensue?

| 5. | Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which, in the event of non-payment of flat-rate fees for the lodging of an application for review of decisions of contracting authorities within the meaning of Directive 89/665, as amended (or, as the case may be, also for a finding of illegality in connection with a contract award for the purpose of obtaining compensation), (only) a chamber of an administrative court, as a judicial body, must prescribe flat-rate fees which have not been paid but are payable (leading to curtailed possibilities of judicial protection for the party liable to pay the fees) when fees for actions and appeals in civil court proceedings are otherwise prescribed, in the event of non-payment, by an administrative decision in accordance with the Gerichtliches Einbringungsgesetz (Law on judicial collection) and, moreover, in administrative law, appeal fees for appeals to an administrative court or to the Constitutional Court or for appeals on points of law to the Supreme Administrative Court are as a general rule prescribed, in the event of non-payment of the fees, by way of a notice of an administrative authority (notice prescribing fees), against which an appeal can as a general rule always be brought before an administrative court and then, in turn, an appeal on points of law before the Supreme Administrative Court or an appeal before the Constitutional Court? |
| --- | --- |

5.

Having regard to the other provisions of EU law, is the principle of equivalence to be interpreted as conferring subjective rights on individuals against the Member State and as precluding the application of Austrian national rules under which, in the event of non-payment of flat-rate fees for the lodging of an application for review of decisions of contracting authorities within the meaning of Directive 89/665, as amended (or, as the case may be, also for a finding of illegality in connection with a contract award for the purpose of obtaining compensation), (only) a chamber of an administrative court, as a judicial body, must prescribe flat-rate fees which have not been paid but are payable (leading to curtailed possibilities of judicial protection for the party liable to pay the fees) when fees for actions and appeals in civil court proceedings are otherwise prescribed, in the event of non-payment, by an administrative decision in accordance with the Gerichtliches Einbringungsgesetz (Law on judicial collection) and, moreover, in administrative law, appeal fees for appeals to an administrative court or to the Constitutional Court or for appeals on points of law to the Supreme Administrative Court are as a general rule prescribed, in the event of non-payment of the fees, by way of a notice of an administrative authority (notice prescribing fees), against which an appeal can as a general rule always be brought before an administrative court and then, in turn, an appeal on points of law before the Supreme Administrative Court or an appeal before the Constitutional Court?

| 6. | Having regard to the other provisions of EU law, is Article 1(1) of Directive 89/665, as amended by Directive 2014/23, to be interpreted as meaning that the conclusion of a framework agreement with a single economic operator pursuant to Article 33(3) of Directive 2014/24 constitutes the conclusion of a contract pursuant to Article 2a(2) of Directive 89/665, as amended by Directive 2014/23, and, consequently, the decision of a contracting authority as to the single economic operator pursuant to Article 33(3) of Directive 2014/24 with which that framework agreement is to be concluded constitutes a contract award decision pursuant to Article 2a(1) of Directive 89/665, as amended by Directive 2014/23? |
| --- | --- |

6.

Having regard to the other provisions of EU law, is Article 1(1) of Directive 89/665, as amended by Directive 2014/23, to be interpreted as meaning that the conclusion of a framework agreement with a single economic operator pursuant to Article 33(3) of Directive 2014/24 constitutes the conclusion of a contract pursuant to Article 2a(2) of Directive 89/665, as amended by Directive 2014/23, and, consequently, the decision of a contracting authority as to the single economic operator pursuant to Article 33(3) of Directive 2014/24 with which that framework agreement is to be concluded constitutes a contract award decision pursuant to Article 2a(1) of Directive 89/665, as amended by Directive 2014/23?

| 6.1. | Are the words ‘contracts based on that agreement’ in Article 33(3) of Directive 2014/24 to be interpreted as meaning that a contract based on the framework agreement exists where the contracting authority awards an individual contract expressly on the basis of the framework agreement concluded? Or is the cited phrase ‘contracts based on that agreement’ to be interpreted as meaning that if the total quantity covered by the framework agreement within the meaning of the judgment of the Court of Justice in Case C-216/17, (6) paragraph 64, has already been exhausted, there is no longer a contract based on the framework agreement originally concluded? |
| --- | --- |

6.1.

Are the words ‘contracts based on that agreement’ in Article 33(3) of Directive 2014/24 to be interpreted as meaning that a contract based on the framework agreement exists where the contracting authority awards an individual contract expressly on the basis of the framework agreement concluded? Or is the cited phrase ‘contracts based on that agreement’ to be interpreted as meaning that if the total quantity covered by the framework agreement within the meaning of the judgment of the Court of Justice in Case C-216/17, (6) paragraph 64, has already been exhausted, there is no longer a contract based on the framework agreement originally concluded?

| 6.2. | If Question 6.1. is answered in the affirmative:
  Having regard to the other provisions of EU law, are Articles 4 and 5 of Directive 2014/24 to be interpreted as meaning that the estimated contract value of an individual contract based on the framework agreement is always the estimated contract value pursuant to Article 5(5) of Directive 2014/24? Or, in the case of a single contract based on a framework agreement, is the estimated contract value pursuant to Article 4 of that directive the contract value derived in application of Article 5 of that directive for the purposes of determining the estimated contract value for a single supply contract based on the framework agreement? |
| --- | --- |

6.2.

If Question 6.1. is answered in the affirmative:

Having regard to the other provisions of EU law, are Articles 4 and 5 of Directive 2014/24 to be interpreted as meaning that the estimated contract value of an individual contract based on the framework agreement is always the estimated contract value pursuant to Article 5(5) of Directive 2014/24? Or, in the case of a single contract based on a framework agreement, is the estimated contract value pursuant to Article 4 of that directive the contract value derived in application of Article 5 of that directive for the purposes of determining the estimated contract value for a single supply contract based on the framework agreement?

| 7. | Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as precluding the application of a rule under which the contracting authority designated in the procurement dispute must provide all the information required and produce all the documents required — whereby failure to do so in either respect may lead to a default decision to its detriment — if the officials or employees of that contracting authority who are required to provide that information on behalf of the contracting authority may thereby be exposed to the risk of possibly having to incriminate themselves under criminal law if they provide the information or produce the documents? |
| --- | --- |

7.

Having regard to the other provisions of EU law, is the right to a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as precluding the application of a rule under which the contracting authority designated in the procurement dispute must provide all the information required and produce all the documents required — whereby failure to do so in either respect may lead to a default decision to its detriment — if the officials or employees of that contracting authority who are required to provide that information on behalf of the contracting authority may thereby be exposed to the risk of possibly having to incriminate themselves under criminal law if they provide the information or produce the documents?

| 8. | Taking account also of the right to an effective remedy under Article 47 of the Charter, and having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/24, that procurement review procedures must, in particular, be conducted effectively, to be interpreted as meaning that those provisions confer subjective rights and preclude the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for review the specific award procedure in each case and the specific separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she will generally not know whether the contracting authority has conducted direct award procedures under national law that are non-transparent for the applicant or negotiated procedures without prior publication of a contract notice that are non-transparent for the applicant, or whether one or more non-transparent award procedures with one or more contestable decisions have been conducted? |
| --- | --- |

8.

Taking account also of the right to an effective remedy under Article 47 of the Charter, and having regard to the other provisions of EU law, is the requirement under Article 1(1) of Directive 89/665, as amended by Directive 2014/24, that procurement review procedures must, in particular, be conducted effectively, to be interpreted as meaning that those provisions confer subjective rights and preclude the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for review the specific award procedure in each case and the specific separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she will generally not know whether the contracting authority has conducted direct award procedures under national law that are non-transparent for the applicant or negotiated procedures without prior publication of a contract notice that are non-transparent for the applicant, or whether one or more non-transparent award procedures with one or more contestable decisions have been conducted?

| 9. | Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for review the specific contract award procedure and the specific separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice, that applicant cannot generally know whether the contracting authority has conducted direct award procedures under national law that are non-transparent for the applicant or negotiated procedures without prior publication of a contract notice that are non-transparent for the applicant, or whether one or more award procedures with one or more separately contestable decisions have been conducted? |
| --- | --- |

9.

Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to specify in his or her application for review the specific contract award procedure and the specific separately contestable decision of a contracting authority, even if, in the case of award procedures without prior publication of a contract notice, that applicant cannot generally know whether the contracting authority has conducted direct award procedures under national law that are non-transparent for the applicant or negotiated procedures without prior publication of a contract notice that are non-transparent for the applicant, or whether one or more award procedures with one or more separately contestable decisions have been conducted?

| 10. | Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to pay flat-rate fees in an amount which he or she cannot foresee at the time when the application is lodged, because, in the case of contract award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know whether the contracting authority has conducted direct award procedures under national law or non-transparent negotiated procedures without prior publication of a contract notice, and how high the estimated contract value is in the case of any negotiated procedure without prior publication of a contract notice that may have been conducted, or how many separately contestable decisions have already been issued? |
| --- | --- |

10.

Having regard to the other provisions of EU law, is the requirement of a fair trial before a court or tribunal under Article 47 of the Charter to be interpreted as meaning that that provision confers subjective rights and precludes the application of national rules under which the party seeking judicial protection by way of an application for review is required to pay flat-rate fees in an amount which he or she cannot foresee at the time when the application is lodged, because, in the case of contract award procedures without prior publication of a contract notice that are non-transparent for that applicant, he or she cannot generally know whether the contracting authority has conducted direct award procedures under national law or non-transparent negotiated procedures without prior publication of a contract notice, and how high the estimated contract value is in the case of any negotiated procedure without prior publication of a contract notice that may have been conducted, or how many separately contestable decisions have already been issued?

---

(1)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

(2)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(3)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

(4)  Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391).

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

(6)  Judgment of 19 December 2018, Autorità Garante della Concorrenza e del Mercato — Antitrust and Coopservice, ECLI:EU:C:2018:1034.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/24 |
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9.8.2021

EN

Official Journal of the European Union

C 320/24

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 5 May 2021 — AKM — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH v Canal+ Luxembourg Sàrl

(Case C-290/21)

(2021/C 320/23)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: AKM — Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger regGenmbH

Defendant: Canal+ Luxembourg Sàrl

Other parties: Tele 5 TM-TV GmbH, Österreichische Rundfunksender GmbH & Co. KG, Seven.One Entertainment Group GmbH, ProsiebenSat 1 PULS 4 GmbH

Questions referred

| 1. | Is Article 1(2)(b) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (1) to be interpreted as meaning that not only the broadcasting organisation, but also a satellite package provider intervening in the indivisible and single act of broadcasting, carries out an act of use — which in any case requires consent — solely in the State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth, with the consequence that the intervention of the satellite package provider in the act of broadcasting cannot lead to an infringement of copyright in the receiving State? |
| --- | --- |

1.

Is Article 1(2)(b) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (1) to be interpreted as meaning that not only the broadcasting organisation, but also a satellite package provider intervening in the indivisible and single act of broadcasting, carries out an act of use — which in any case requires consent — solely in the State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth, with the consequence that the intervention of the satellite package provider in the act of broadcasting cannot lead to an infringement of copyright in the receiving State?

| 2. | If Question 1 is answered in the negative:
  Is the concept of ‘communication to the public’ in Article 1(2)(a) and (c) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission and in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2) to be interpreted as meaning that the satellite package provider, which intervenes as another operator during a communication to the public by satellite, bundles several encrypted high-definition signals of free-to-air and pay-TV programmes of various broadcasting organisations into a package of its own composition and offers the independent audiovisual product created in this way to its customers in return for payment, requires separate authorisation from the right holders concerned even in respect of the protected content in the free-to-air TV programmes contained in the package of programmes, although in this respect it is merely providing its customers with access to works which are already freely accessible — albeit in poorer standard-definition quality — to everyone in the broadcasting area? |
| --- | --- |

2.

If Question 1 is answered in the negative:

Is the concept of ‘communication to the public’ in Article 1(2)(a) and (c) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission and in Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2) to be interpreted as meaning that the satellite package provider, which intervenes as another operator during a communication to the public by satellite, bundles several encrypted high-definition signals of free-to-air and pay-TV programmes of various broadcasting organisations into a package of its own composition and offers the independent audiovisual product created in this way to its customers in return for payment, requires separate authorisation from the right holders concerned even in respect of the protected content in the free-to-air TV programmes contained in the package of programmes, although in this respect it is merely providing its customers with access to works which are already freely accessible — albeit in poorer standard-definition quality — to everyone in the broadcasting area?

---

(1)  OJ 1993 L 248, p. 15.

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

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/25 |
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9.8.2021

EN

Official Journal of the European Union

C 320/25

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 12 May 2021 — UI v Österreichische Post AG

(Case C-300/21)

(2021/C 320/24)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant on a point of law: UI

Respondent in the appeal on a point of law: Österreichische Post AG

Questions referred

| 1. | Does the award of compensation under Article 82 of Regulation (EU) 2016/679 (1) (the GDPR) also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation? |
| --- | --- |

1.

Does the award of compensation under Article 82 of Regulation (EU) 2016/679 (1) (the GDPR) also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation?

| 2. | Does the assessment of the compensation depend on further EU-law requirements in addition to the principles of effectiveness and equivalence? |
| --- | --- |

2.

Does the assessment of the compensation depend on further EU-law requirements in addition to the principles of effectiveness and equivalence?

| 3. | Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement? |
| --- | --- |

3.

Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement?

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(1)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/26 |
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9.8.2021

EN

Official Journal of the European Union

C 320/26

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Appeal brought on 17 May 2021 by Aquind Ltd, Aquind Energy Sàrl, Aquind SAS against the order of the General Court (Second Chamber) delivered on 5 March 2021 in Case T-885/19, Aquind and Others v Commission

(Case C-310/21 P)

(2021/C 320/25)

Language of the case: English

Parties

Appellants: Aquind Ltd, Aquind Energy Sàrl, Aquind SAS (represented by: S. Goldberg, E. White, C. Davis, Solicitors)

Other parties to the proceedings: European Commission, Federal Republic of Germany, Kingdom of Spain, French Republic

Form of order sought

The applicants claim that the Court should:

| — | set aside the Order under appeal; |
| --- | --- |

—

set aside the Order under appeal;

| — | decide that the Application at first instance is well-founded and annul the Commission Delegated Regulation (EU) 2020/389 (1) insofar as it applies to the Appellants; and |
| --- | --- |

—

decide that the Application at first instance is well-founded and annul the Commission Delegated Regulation (EU) 2020/389 (1) insofar as it applies to the Appellants; and

| — | order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court. |
| --- | --- |

—

order the Commission to pay the costs of both the appeal proceedings and the proceedings before the General Court.

Pleas in law and main arguments

The appellants claim that the Commission Delegated Regulation (EU) 2020/389 should have been considered a definitive act on the day it was adopted and not on the day of its entry into force, which was subject to absence of Parliament’s or Council’s objections. As such, this regulation was open to challenge even before the date of its publication. The appellants therefore consider that the General Court wrongly applied the Court’s case law concerning acts that are not open to challenge.

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(1)  Commission Delegated Regulation (EU) 2020/389 of 31 October 2019 amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of projects of common interest (OJ 2020, L 74, p. 1).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/26 |
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9.8.2021

EN

Official Journal of the European Union

C 320/26

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Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 18 May 2021 — CM v TimePartner Personalmanagement GmbH

(Case C-311/21)

(2021/C 320/26)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: CM

Defendant: TimePartner Personalmanagement GmbH

Questions referred

| 1. | How is the concept of ‘overall protection of temporary agency workers’ in Article 5(3) of Directive 2008/104/EC (1) to be defined, and, in particular, does it encompass more than what is provided for in the mandatory provisions on protection for all workers under national and EU law? |
| --- | --- |

1.

How is the concept of ‘overall protection of temporary agency workers’ in Article 5(3) of Directive 2008/104/EC (1) to be defined, and, in particular, does it encompass more than what is provided for in the mandatory provisions on protection for all workers under national and EU law?

| 2. | What conditions and criteria must be met for the presumption that arrangements concerning the working and employment conditions of temporary agency workers in a collective agreement which derogate from the principle of equal treatment laid down in Article 5(1) of Directive 2008/104 have been established while respecting the overall protection of temporary agency workers?






  (a) | Is the assessment of respect for overall protection to be based — in the abstract — on the collectively agreed working conditions of the temporary agency workers covered by such a collective agreement or is it necessary to carry out an evaluative analysis comparing the collectively agreed working conditions with the working conditions existing in the undertaking to which the temporary agency workers are assigned (user undertaking)? |
| --- | --- | --- |

2.

What conditions and criteria must be met for the presumption that arrangements concerning the working and employment conditions of temporary agency workers in a collective agreement which derogate from the principle of equal treatment laid down in Article 5(1) of Directive 2008/104 have been established while respecting the overall protection of temporary agency workers?

(a)

Is the assessment of respect for overall protection to be based — in the abstract — on the collectively agreed working conditions of the temporary agency workers covered by such a collective agreement or is it necessary to carry out an evaluative analysis comparing the collectively agreed working conditions with the working conditions existing in the undertaking to which the temporary agency workers are assigned (user undertaking)?

| (b) | In the case of a derogation from the principle of equal treatment with regard to pay, does the respect for overall protection prescribed in Article 5(3) of Directive 2008/104 require the existence of an employment relationship of indefinite duration between the temporary employment agency and the temporary worker? |
| --- | --- |

(b)

In the case of a derogation from the principle of equal treatment with regard to pay, does the respect for overall protection prescribed in Article 5(3) of Directive 2008/104 require the existence of an employment relationship of indefinite duration between the temporary employment agency and the temporary worker?

| 3. | Must the national legislature prescribe the conditions and criteria under which the social partners must respect the overall protection of temporary agency workers within the meaning of Article 5(3) of Directive 2008/104 where the national legislature gives the social partners the option of concluding collective agreements which establish arrangements concerning the working and employment conditions of temporary agency workers which derogate from the principle of equal treatment, and the national collective bargaining system provides for requirements which can be presumed to ensure an appropriate balance of interests between the parties to collective agreements (‘presumption of fairness of collective agreements’)? |
| --- | --- |

3.

Must the national legislature prescribe the conditions and criteria under which the social partners must respect the overall protection of temporary agency workers within the meaning of Article 5(3) of Directive 2008/104 where the national legislature gives the social partners the option of concluding collective agreements which establish arrangements concerning the working and employment conditions of temporary agency workers which derogate from the principle of equal treatment, and the national collective bargaining system provides for requirements which can be presumed to ensure an appropriate balance of interests between the parties to collective agreements (‘presumption of fairness of collective agreements’)?

| 4. | If the third question is answered in the affirmative:






  (a) | Is respect for the overall protection of temporary agency workers within the meaning of Article 5(3) of Directive 2008/104 ensured by statutory rules which, like the version of the Arbeitnehmerüberlassungsgesetz (Law on the supply of temporary workers) in force since 1 April 2017, provide for a minimum wage floor for temporary workers, for a maximum duration of assignment to the same user undertaking, for a time limit on the derogation from the principle of equal treatment with regard to pay, for the non-application of a collectively agreed arrangement derogating from the principle of equal treatment to temporary workers who, in the six months preceding the assignment to the user undertaking, left the employ of that user undertaking or an employer forming a group with that user undertaking within the meaning of Paragraph 18 of the Aktiengesetz (Law on public limited companies) and for an obligation of the user undertaking to grant temporary workers access to collective facilities or services (such as, in particular, childcare facilities, collective catering and transport) in principle under the same conditions as those applicable to permanent workers? |
| --- | --- | --- |

4.

If the third question is answered in the affirmative:

(a)

Is respect for the overall protection of temporary agency workers within the meaning of Article 5(3) of Directive 2008/104 ensured by statutory rules which, like the version of the Arbeitnehmerüberlassungsgesetz (Law on the supply of temporary workers) in force since 1 April 2017, provide for a minimum wage floor for temporary workers, for a maximum duration of assignment to the same user undertaking, for a time limit on the derogation from the principle of equal treatment with regard to pay, for the non-application of a collectively agreed arrangement derogating from the principle of equal treatment to temporary workers who, in the six months preceding the assignment to the user undertaking, left the employ of that user undertaking or an employer forming a group with that user undertaking within the meaning of Paragraph 18 of the Aktiengesetz (Law on public limited companies) and for an obligation of the user undertaking to grant temporary workers access to collective facilities or services (such as, in particular, childcare facilities, collective catering and transport) in principle under the same conditions as those applicable to permanent workers?

| (b) | If that question is answered in the affirmative:
  Does this also apply if the relevant statutory rules, such as those in the version of the Law on the supply of temporary workers in force until 31 March 2017, do not provide for a time limit on derogations from the principle of equal treatment with regard to pay or a specific time frame for the requirement that the assignment may only be ‘temporary’? |
| --- | --- |

(b)

If that question is answered in the affirmative:

Does this also apply if the relevant statutory rules, such as those in the version of the Law on the supply of temporary workers in force until 31 March 2017, do not provide for a time limit on derogations from the principle of equal treatment with regard to pay or a specific time frame for the requirement that the assignment may only be ‘temporary’?

| 5. | If the third question is answered in the negative:
  In the case of arrangements concerning the working and employment conditions of temporary agency workers which derogate from the principle of equal treatment through collective agreements in accordance with Article 5(3) of Directive 2008/104, may the national courts review such collective agreements without restriction with a view to determining whether the derogations have been established while respecting the overall protection of temporary agency workers, or does Article 28 of the Charter of Fundamental Rights and/or the reference to the ‘autonomy of the social partners’ in recital 19 of Directive 2008/104 grant the parties to collective agreements a margin of assessment with regard to respect for the overall protection of temporary agency workers that is subject to only limited judicial review and — if so — how far does that margin extend? |
| --- | --- |

5.

If the third question is answered in the negative:

In the case of arrangements concerning the working and employment conditions of temporary agency workers which derogate from the principle of equal treatment through collective agreements in accordance with Article 5(3) of Directive 2008/104, may the national courts review such collective agreements without restriction with a view to determining whether the derogations have been established while respecting the overall protection of temporary agency workers, or does Article 28 of the Charter of Fundamental Rights and/or the reference to the ‘autonomy of the social partners’ in recital 19 of Directive 2008/104 grant the parties to collective agreements a margin of assessment with regard to respect for the overall protection of temporary agency workers that is subject to only limited judicial review and — if so — how far does that margin extend?

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(1)  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/28 |
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9.8.2021

EN

Official Journal of the European Union

C 320/28

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Request for a preliminary ruling from the Raad van State (Belgium) lodged on 21 May 2021 — Monument Vandekerckhove NV v Stad Gent, other parties: Denys NV, Aelterman BVBA

(Case C-316/21)

(2021/C 320/27)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicant: Monument Vandekerckhove NV

Defendant: Stad Gent

Interveners: Denys NV, Aelterman BVBA

Questions referred

| 1. | Must the second paragraph of Article 63(1) of Directive 2014/24/EU (1) of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, taken on its own and in conjunction with the scope of the principles of European law, namely equality, non-discrimination and transparency in public procurement, be interpreted as meaning that, if the contracting authority ascertains that an entity on whose capacity an economic operator relies does not fulfil the selection criteria, it is obliged to request that entity’s replacement or that it has the option to request such replacement if the economic operator wishes to be selected? |
| --- | --- |

1.

Must the second paragraph of Article 63(1) of Directive 2014/24/EU (1) of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, taken on its own and in conjunction with the scope of the principles of European law, namely equality, non-discrimination and transparency in public procurement, be interpreted as meaning that, if the contracting authority ascertains that an entity on whose capacity an economic operator relies does not fulfil the selection criteria, it is obliged to request that entity’s replacement or that it has the option to request such replacement if the economic operator wishes to be selected?

| 2. | Are there circumstances in which, on the basis of the principles of equality, non-discrimination and transparency, and also depending on the conduct of the award procedure, the contracting authority is not, or is no longer, obliged, or is not, or is no longer, permitted to insist on replacement? |
| --- | --- |

2.

Are there circumstances in which, on the basis of the principles of equality, non-discrimination and transparency, and also depending on the conduct of the award procedure, the contracting authority is not, or is no longer, obliged, or is not, or is no longer, permitted to insist on replacement?

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(1)  OJ 2014 L 94, p. 65.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/28 |
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9.8.2021

EN

Official Journal of the European Union

C 320/28

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v B.

(Case C-323/21)

(2021/C 320/28)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie en Veiligheid

Respondent: B.

Questions referred

| 1. | a) | Must the term ‘requesting Member State’ within the meaning of Article 29(2) 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 (OJ 2013 L 180[, p. 31]) be interpreted as referring to the Member State (in this case, the third Member State, namely the Netherlands) which was the last to submit a take back or take charge request to another Member State? |
| --- | --- | --- |

1.

a)

Must the term ‘requesting Member State’ within the meaning of Article 29(2) 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 (OJ 2013 L 180[, p. 31]) be interpreted as referring to the Member State (in this case, the third Member State, namely the Netherlands) which was the last to submit a take back or take charge request to another Member State?

| b) | If the answer is in the negative: does the fact that a claim agreement has previously been concluded between two Member States (in this case, Germany and Italy) still have consequences for the legal obligations of the third Member State (in this case, the Netherlands) under the Dublin Regulation towards the foreign national or the Member States concerned by that earlier claim agreement, and if so, what are those consequences? |
| --- | --- |

b)

If the answer is in the negative: does the fact that a claim agreement has previously been concluded between two Member States (in this case, Germany and Italy) still have consequences for the legal obligations of the third Member State (in this case, the Netherlands) under the Dublin Regulation towards the foreign national or the Member States concerned by that earlier claim agreement, and if so, what are those consequences?

| 2. | If Question 1 must be answered in the affirmative, must Article 27(1) of Regulation (EU) No 604/2013, read in the light of recital 19 of that regulation, be interpreted as precluding an applicant for international protection from successfully arguing, in the context of an appeal against a transfer decision, that that transfer cannot proceed because the time limit for a previously agreed transfer between two Member States (in this case, Germany and Italy) has expired? |
| --- | --- |

2.

If Question 1 must be answered in the affirmative, must Article 27(1) of Regulation (EU) No 604/2013, read in the light of recital 19 of that regulation, be interpreted as precluding an applicant for international protection from successfully arguing, in the context of an appeal against a transfer decision, that that transfer cannot proceed because the time limit for a previously agreed transfer between two Member States (in this case, Germany and Italy) has expired?

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/29 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/29

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — Staatssecretaris van Justitie en Veiligheid v F.

(Case C-324/21)

(2021/C 320/29)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie en Veiligheid

Respondent: F.

Question referred

Must Article 29 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 (OJ 2013 L 180[, p. 31]) be interpreted as meaning that a current transfer time limit, as referred to in Article 29(1) and (2), restarts at the point at which the foreign national, having obstructed the transfer by a Member State by absconding, lodges a fresh application for international protection in another (in this case, a third) Member State?

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/30 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/30

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 25 May 2021 — K. v Staatssecretaris van Justitie en Veiligheid

(Case C-325/21)

(2021/C 320/30)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: K.

Respondent: Staatssecretaris van Justitie en Veiligheid

Questions referred

| 1. | Must Article 29 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 (OJ 2013 L 180[, p. 31]) be interpreted as meaning that a current transfer time limit, as referred to in Article 29(1) and (2), restarts at the point at which the foreign national, after having obstructed the transfer by a Member State by absconding, lodges a fresh application for international protection in another (in this case, a third) Member State? |
| --- | --- |

1.

Must Article 29 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 (OJ 2013 L 180[, p. 31]) be interpreted as meaning that a current transfer time limit, as referred to in Article 29(1) and (2), restarts at the point at which the foreign national, after having obstructed the transfer by a Member State by absconding, lodges a fresh application for international protection in another (in this case, a third) Member State?

| 2. | If Question 1 must be answered in the negative, must Article 27(1) of Regulation (EU) No 604/2013, read in the light of recital 19 of that regulation, be interpreted as precluding an applicant for international protection from successfully arguing, in the context of an appeal against a transfer decision, that that transfer cannot proceed because the time limit for a previously agreed transfer between two Member States (in this case, France and Austria) has expired, with the result that the time limit within which the Netherlands can effect the transfer has expired? |
| --- | --- |

2.

If Question 1 must be answered in the negative, must Article 27(1) of Regulation (EU) No 604/2013, read in the light of recital 19 of that regulation, be interpreted as precluding an applicant for international protection from successfully arguing, in the context of an appeal against a transfer decision, that that transfer cannot proceed because the time limit for a previously agreed transfer between two Member States (in this case, France and Austria) has expired, with the result that the time limit within which the Netherlands can effect the transfer has expired?

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/30 |
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9.8.2021

EN

Official Journal of the European Union

C 320/30

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Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 June 2021 — PV v Zamestnik izpalnitelen direktor na Darzhaven fond ‘Zemedelie’

(Case C-343/21)

(2021/C 320/31)

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Appellant: PV

Respondent: Zamestnik izpalnitelen direktor na Darzhaven fond ‘Zemedelie’

Questions referred

| 1. | Does the interpretation of Article 45(4) of Regulation (EC) No 1974/2006 (1) laying down detailed rules for the application of Regulation (EC) No 1698/2005 permit the assumption that, in a case such as the present one, a holding has been ‘reparcelled’ or has been the subject of ‘land-consolidation measures’ as a result of which the beneficiary is unable to comply with the commitments given by him or her? |
| --- | --- |

1.

Does the interpretation of Article 45(4) of Regulation (EC) No 1974/2006 (1) laying down detailed rules for the application of Regulation (EC) No 1698/2005 permit the assumption that, in a case such as the present one, a holding has been ‘reparcelled’ or has been the subject of ‘land-consolidation measures’ as a result of which the beneficiary is unable to comply with the commitments given by him or her?

| 2. | If the first question is answered in the affirmative, does the fact that a Member State has not taken the measures necessary to allow the beneficiary’s commitments to be adapted to the new situation of the holding provide justification for not requiring reimbursement of the funds in respect of the period in which the commitment was effective? |
| --- | --- |

2.

If the first question is answered in the affirmative, does the fact that a Member State has not taken the measures necessary to allow the beneficiary’s commitments to be adapted to the new situation of the holding provide justification for not requiring reimbursement of the funds in respect of the period in which the commitment was effective?

| 3. | If the first question is answered in the negative, how is Article 31 of Council Regulation (EC) No 73/2009 (2) of 19 January 2009 to be interpreted in the light of the facts established in the main proceedings and what is the nature of the time limit under Article 75(2) of Commission Regulation (EC) No 1122/2009 (3) of 30. November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009? |
| --- | --- |

3.

If the first question is answered in the negative, how is Article 31 of Council Regulation (EC) No 73/2009 (2) of 19 January 2009 to be interpreted in the light of the facts established in the main proceedings and what is the nature of the time limit under Article 75(2) of Commission Regulation (EC) No 1122/2009 (3) of 30. November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009?

---

(1)  Commission Regulation (EC) No 1974/2006 of 15 December 2006 laying down detailed rules for the application of Council Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2006 L 368, p. 15, Special edition in Bulgarian: Chapter 03 Volume 080 P. 133).

(2)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

(3)  Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/31 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/31

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Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 28 May 2021 — A1 and A2 v I

(Case C-352/21)

(2021/C 320/32)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Appellants: A1 and A2

Respondents: I

Question referred

Must Article 15(5) of the Brussels I Regulation, (1) in conjunction with Article 16(5) thereof, be interpreted as meaning that hull insurance for pleasure craft that are not used for commercial purposes falls within the exception laid down in Article 16(5) of that regulation, and is, therefore, an insurance contract which contains a choice of court agreement departing from the rule laid down in Article 11 of that regulation valid under Article 15(5) of that regulation?

---

(1)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/32 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/32

---

Request for a preliminary ruling from the Oberlandesgericht Bamberg (Germany) lodged on 11 June 2021 — Criminal proceedings against MR

(Case C-365/21)

(2021/C 320/33)

Language of the case: German

Referring court

Oberlandesgericht Bamberg

Party to the main proceedings

MR

Questions referred

| 1. | Is Article 55 of the Convention implementing the Schengen Agreement (‘the CISA’) (1) compatible with Article 50 of the Charter of Fundamental Rights of the European Union and does it continue to be valid in so far as it admits, as an exception to the prohibition of double prosecution, that a Contracting Party may, when ratifying, accepting or approving that Convention, declare that it is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against national security or other equally significant interests of that Contracting Party? |
| --- | --- |

1.

Is Article 55 of the Convention implementing the Schengen Agreement (‘the CISA’) (1) compatible with Article 50 of the Charter of Fundamental Rights of the European Union and does it continue to be valid in so far as it admits, as an exception to the prohibition of double prosecution, that a Contracting Party may, when ratifying, accepting or approving that Convention, declare that it is not bound by Article 54 of the CISA where the acts to which the foreign judgment relates constitute an offence against national security or other equally significant interests of that Contracting Party?

| 2. | If Question 1 is answered in the affirmative:
  Do Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation by the German courts of the declaration made by the Federal Republic of Germany when ratifying the CISA in relation to Paragraph 129 of the Strafgesetzbuch (German Criminal Code, Federal Law Gazette 1994, II 631) that the declaration also covers criminal organisations, such as those at issue in the main proceedings, which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

Do Articles 54 and 55 of the CISA and Articles 50 and 52 of the Charter preclude an interpretation by the German courts of the declaration made by the Federal Republic of Germany when ratifying the CISA in relation to Paragraph 129 of the Strafgesetzbuch (German Criminal Code, Federal Law Gazette 1994, II 631) that the declaration also covers criminal organisations, such as those at issue in the main proceedings, which engage exclusively in financial crime and do not, in addition, pursue any political, ideological, religious or world-view objectives and also do not seek to gain influence by dishonest means over politics, the media, the public administration, the judiciary or the economy?

---

(1)  Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/32 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/32

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Appeal brought on 24 June 2021 by the European Central Bank against the judgment of the General Court (Second Chamber) delivered on 14 April 2021 in Case T-504/19, Crédit Lyonnais v ECB

(Case C-389/21 P)

(2021/C 320/34)

Language of the case: French

Parties

Appellant: European Central Bank (represented by: C. Zilioli, R. Ugena, M. Ioannidis and F. Bonnard, acting as Agents)

Other party to the proceedings: Crédit Lyonnais

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside the judgment under appeal; |
| --- | --- |

—

set aside the judgment under appeal;

| — | order Crédit Lyonnais to pay the costs. |
| --- | --- |

—

order Crédit Lyonnais to pay the costs.

Pleas in law and main arguments

The European Central Bank (‘ECB’) submits that the judgment under appeal should be set aside, because the General Court:

| — | exceeded the limits of judicial review by substituting its own assessment of complex economic factors for that of the ECB, in breach of the standard established by EU courts on the matter; |
| --- | --- |

—

exceeded the limits of judicial review by substituting its own assessment of complex economic factors for that of the ECB, in breach of the standard established by EU courts on the matter;

| — | breached its duty to state reasons by not allowing the ECB to understand in what way its assessment of the dual guarantee by the State, issued in the context of the regulated savings, could be flawed; |
| --- | --- |

—

breached its duty to state reasons by not allowing the ECB to understand in what way its assessment of the dual guarantee by the State, issued in the context of the regulated savings, could be flawed;

| — | distorted the evidence that had been submitted to it in the course of the proceedings by a manifestly incorrect reading, both of the decision contested at first instance (decision ECB-SSM-2019-FRCAG-39 of 3 May 2019), and of the methodology applied by the ECB and against which the request for exemption submitted by Crédit Lyonnais had been examined; |
| --- | --- |

—

distorted the evidence that had been submitted to it in the course of the proceedings by a manifestly incorrect reading, both of the decision contested at first instance (decision ECB-SSM-2019-FRCAG-39 of 3 May 2019), and of the methodology applied by the ECB and against which the request for exemption submitted by Crédit Lyonnais had been examined;

| — | infringed Article 4(1)(94) of Regulation 575/2013 (1) by adding to the definition of the risk of excessive leverage the criteria that are not there, and Article 429(14) thereof, concerning the exemption of certain exposures from the calculation of the leverage ratio, thus depriving the ECB of the discretion granted to it by virtue of that article. |
| --- | --- |

—

infringed Article 4(1)(94) of Regulation 575/2013 (1) by adding to the definition of the risk of excessive leverage the criteria that are not there, and Article 429(14) thereof, concerning the exemption of certain exposures from the calculation of the leverage ratio, thus depriving the ECB of the discretion granted to it by virtue of that article.

---

(1)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1), as amended by Commission Delegated Regulation (EU) 2015/62 of 10 October 2014 amending Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to the leverage ratio (OJ 2015 L 11, p. 37).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/33 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/33

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Order of the President of the Court of 19 May 2021 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — B v Finanzamt Österreich, formerly Finanzamt Wien 9/18/19

(Case C-1/20) (1)

(2021/C 320/35)

Language of the case: German

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

---

(1)  OJ C 137, 27.4.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/33 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/33

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Order of the President of the Sixth Chamber of the Court of 20 May 2021 — Vanda Pharmaceuticals Ltd v European Commission

(Case C-115/20 P) (1)

(2021/C 320/36)

Language of the case: English

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

---

(1)  OJ C 137, 27.4.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/34 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/34

---

Order of the President of the Court of 11 May 2021 (request for a preliminary ruling from the Tribunal Judicial da Comarca dos Açores — Portugal) — NM, NR, BA, XN, FA v Sata Air Açores — Sociedade Açoriana de Transportes Aéreos, SA

(Case C-578/20) (1)

(2021/C 320/37)

Language of the case: Portuguese

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

---

(1)  OJ C 28, 25.1.2021.

---

General Court

| 9.8.2021 | EN | Official Journal of the European Union | C 320/35 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/35

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Judgment of the General Court of 30 June 2021 — BZ v ECB

(Case T-554/16) (1)

(Public service - ECB staff - Application for recognition of the occupational origin of a disease - Articles 6.3.11 to 6.3.13 of the ECB Staff Rules - Irregularity of the procedure - No inquiry report - Non-contractual liability)

(2021/C 320/38)

Language of the case: French

Parties

Applicant: BZ (represented by: S. Pappas, lawyer)

Defendant: European Central Bank (represented by: E. Carlini and F. Malfrère, acting as Agents, assisted by B. Wägenbaur, lawyer)

Re:

Application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the decision of the ECB of 23 July 2014 which closed the procedure for recognition of the occupational origin of the applicant’s disease, and second, compensation for the material and non-material harm that the applicant allegedly suffered as a result of that decision.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Central Bank (ECB) of 23 July 2014 which closed the procedure for recognition of the occupational origin of BZ’s disease; |
| --- | --- |

1.

Annuls the decision of the European Central Bank (ECB) of 23 July 2014 which closed the procedure for recognition of the occupational origin of BZ’s disease;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the ECB to pay the costs. |
| --- | --- |

3.

Orders the ECB to pay the costs.

---

(1)  OJ C 279, 24.8.2015 (case initially registered at the European Union Civil Service Tribunal as Case F-79/15 and transferred to the General Court of the European Union on 1.9.2016).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/35 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/35

---

Judgment of the General Court of 30 June 2021 — FD v Fusion for Energy Joint Undertaking

(Case T-641/19) (1)

(Civil service - Temporary staff - Fixed-term contract - Decision not to renew - Psychological harassment - Misuse of powers - Duty to have regard for the welfare of staff - Equal treatment - Responsibilities)

(2021/C 320/39)

Language of the case: French

Parties

Applicant: FD (represented by: Casado García-Hirschfeld, lawyer)

Defendants: European Joint Undertaking for ITER and the Development of Fusion Energy (represented by: R. Hanak and G. Poszler, Agents, and B. Wägenbaur, lawyer)

Re:

Application under Article 270 TFEU for, first, annulment, in substance, of the decision of the European Joint Undertaking for ITER and the Development of Fusion Energy of 3 December 2018 not to renew the applicant’s fixed-term contract and, secondly, compensation for the material and non-material damage allegedly suffered by the applicant as a result of that decision, concerning an overall strategy of harassment of which, in his opinion, he was a victim.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders FD to pay the costs. |
| --- | --- |

2.

Orders FD to pay the costs.

---

(1)  OJ C 383, 11.11.2019.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/36 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/36

---

Judgment of the General Court of 30 June 2021 — GW v Court of Auditors

(Case T-709/19) (1)

(Civil service - Officials - Official in a state of total permanent invalidity - Periodic medical examination - Arrangements - Application for the matter to be referred to the Invalidity Committee - Refusal - Article 15 of Annex VIII to the Staff Regulations - Conclusion No 273/15 of the Committee of Heads of Administration - Duty to have regard for the welfare of officials)

(2021/C 320/40)

Language of the case: French

Parties

Applicant: GW (represented by: J.N. Louis, lawyer)

Defendant: European Court of Auditors (represented by: C. Lesauvage, Agent)

Re:

Application under Article 270 TFEU seeking annulment of the decision of the Court of Auditors of 22 May 2019 dismissing the applicant’s application to refer the matter to the Invalidity Committee.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Court of Auditors of 22 May 2019 dismissing GW’s application to refer the matter to the Invalidity Committee; |
| --- | --- |

1.

Annuls the decision of the Court of Auditors of 22 May 2019 dismissing GW’s application to refer the matter to the Invalidity Committee;

| 2. | Orders the Court of Auditors to pay the costs. |
| --- | --- |

2.

Orders the Court of Auditors to pay the costs.

---

(1)  OJ C 413, 9.12.2019.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/37 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/37

---

Judgment of the General Court of 30 June 2021 — GY v ECB

(Case T-746/19) (1)

(Civil service - ECB staff - Remuneration - Household allowance - Amendment of the scheme applicable - Rejection of the 2019 application - Plea of illegality - Equal treatment - No transitional measures)

(2021/C 320/41)

Language of the case: English

Parties

Applicant: GY (represented by: L. Levi and A. Champetier, lawyers)

Defendant: European Central Bank (represented by: F. von Lindeiner and D. Nessaf, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union for annulment of the ECB’s decision of 28 January 2019 not to grant the applicant the household allowance for 2019.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Central Bank (ECB) of 28 January 2019 in so far as it refuses to grant the household allowance for 2019 to GY; |
| --- | --- |

1.

Annuls the decision of the European Central Bank (ECB) of 28 January 2019 in so far as it refuses to grant the household allowance for 2019 to GY;

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

2.

Orders the ECB to pay the costs.

---

(1)  OJ C 36, 3.2.2020.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/37 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/37

---

Judgment of the General Court of 30 June 2021 — Mélin v Parliament

(Case T-51/20) (1)

(Law governing the institutions - Rules governing the payment of expenses and allowances to Members of the Parliament - Parliamentary assistance allowance - Recovery of sums unduly paid - Plea of illegality - Rights of the defence - Error of fact)

(2021/C 320/42)

Language of the case: French

Parties

Applicant: Joëlle Mélin (Aubagne, France) (represented by: F. Wagner, lawyer)

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

Re:

Application under Article 263 TFEU, seeking annulment of the decision of the Secretary-General of the Parliament of 17 December 2019 relating to the recovery from the applicant of a sum of EUR 130 339,35 unduly paid by way of parliamentary assistance and the related debit note of 18 December 2019.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ms Joëlle Mélin to pay the costs. |
| --- | --- |

2.

Orders Ms Joëlle Mélin to pay the costs.

---

(1)  OJ C 87, 16.3.2020.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/38 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/38

---

Order of the President of the General Court of 22 June 2021 — Portugal v Commission

(Case T-95/21 R)

(Interim relief - State aid - State aid scheme implemented by Portugal in favour of the Madeira Free Zone - Application of that aid scheme in breach of Commission Decisions C(2007) 3037 final and C(2013) 4043 final - Decision declaring the aid scheme incompatible with the internal market and ordering the recovery of aid - Application for interim measures - No urgency)

(2021/C 320/43)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, L. Borrego, P. Barros da Costa, M. Marques and A. Soares de Freitas, acting as Agents, and by M. Gorjão Henriques and A. Saavedra, lawyers)

Defendant: Commission (represented by: P. Arenas and G. Braga da Cruz, acting as Agents)

Re:

Application under Articles 278 and 279 TFEU for interim measures seeking, first, suspension of operation of Commission Decision C(2020) 8550 final of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal in favour of the Madeira Free Zone (MFZ) — Regime III and, second, that the Commission be ordered not to publish that decision in the Official Journal of the European Union until a judgment has been delivered in the main proceedings.

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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| 9.8.2021 | EN | Official Journal of the European Union | C 320/38 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/38

---

Order of the President of the General Court of 22 June 2021 — Polynt v ECHA

(Case T-207/21 R)

(Application for interim measures - REACH - Hexahydro-4-methylphthalic anhydride substance - Obligation to register - Evaluation of dossiers - Examination of testing proposals - Obligation to provide certain information requiring animal testing - Application for interim measures - No urgency)

(2021/C 320/44)

Language of the case: English

Parties

Applicant: Polynt SpA (Scanzorosciate, Italy) (represented by: C. Mereu, P. Sellar and S. Abdel-Qader, lawyers)

Defendant: European Chemicals Agency (represented by: M. Heikkilä, W. Broere and N. Knight, acting as Agents)

Re:

Application under Articles 278 and 279 TFEU for the suspension of the operation of Decision A 015 2019 of the Board of Appeal of ECHA of 9 February 2021, which requests the applicant to carry out an Extended One-Generation Reproductive Toxicity Study (EOGRTS) of the substance hexahydro-4-methylphthalic anhydride or for the grant of any other interim measures deemed appropriate.

Operative part of the order

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

1.

The application for interim measures is dismissed;

| 2. | The costs shall be reserved. |
| --- | --- |

2.

The costs shall be reserved.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/39 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/39

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Action brought on 18 May 2021 — eSlovensko v Commission

(Case T-295/21)

(2021/C 320/45)

Language of the case: English

Parties

Applicant: eSlovensko (Lučenec, Slovakia) (represented by: B. Fridrich, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Commission, concretely, the individual legal act ‘Recovery Order and Debit Note’ issued by the European Commission, DG for Communications Networks, Content and Technology, Ref. ARES(2021)1955613, on 18 March 2021; |
| --- | --- |

—

annul the decision of the Commission, concretely, the individual legal act ‘Recovery Order and Debit Note’ issued by the European Commission, DG for Communications Networks, Content and Technology, Ref. ARES(2021)1955613, on 18 March 2021;

| — | return the financial applications to the European Commission audit process and claim the relevant costs admissible according to the grant agreement ‘Slovak Safer Internet’, No. SI-2010-SIC-1231002; |
| --- | --- |

—

return the financial applications to the European Commission audit process and claim the relevant costs admissible according to the grant agreement ‘Slovak Safer Internet’, No. SI-2010-SIC-1231002;

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

—

order the Commission to pay the costs and expenses of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging the annulment of the defendant’s decision and recovery order Ref. ARES(2021)1955613 due to infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers, particularly improper legal evaluation of facts and findings (breach of right of defence, breach of right to good administration, breach of principle of proportionality, principle of legal certainty, rule of law, principle of legal expectations and non-retroactivity, improper legal evaluation of facts and findings of the Audit 12-INFS-024 and follow-up Audit 15-NR01-044). |
| --- | --- |

1.

First plea in law, alleging the annulment of the defendant’s decision and recovery order Ref. ARES(2021)1955613 due to infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers, particularly improper legal evaluation of facts and findings (breach of right of defence, breach of right to good administration, breach of principle of proportionality, principle of legal certainty, rule of law, principle of legal expectations and non-retroactivity, improper legal evaluation of facts and findings of the Audit 12-INFS-024 and follow-up Audit 15-NR01-044).

| 2. | Second plea in law, alleging that the defendant be ordered to proceed to pay the eligible costs to the applicant as the original beneficiary and the contractual party to the grant agreement No. SI-2010-SIC-123002 — ‘Slovak Safer Internet’, in accordance with the valid and effective grant agreement, based on the fact that the defendant has the competence to deal with issues of project implementation and financial transfers in relation to the valid and effective contract between the defendant and the applicant. |
| --- | --- |

2.

Second plea in law, alleging that the defendant be ordered to proceed to pay the eligible costs to the applicant as the original beneficiary and the contractual party to the grant agreement No. SI-2010-SIC-123002 — ‘Slovak Safer Internet’, in accordance with the valid and effective grant agreement, based on the fact that the defendant has the competence to deal with issues of project implementation and financial transfers in relation to the valid and effective contract between the defendant and the applicant.

| 3. | Third plea in law, alleging that the defendant be ordered to reimburse the costs and expenses of the proceedings. In accordance with the above-mentioned arguments and arbitrary character of the contested decision, the applicant seeks reimbursement of the costs and expenses connected with the proceedings before the General Court of the European Union as well as the costs and expenses spent for the legal assistance in relation to this claim. |
| --- | --- |

3.

Third plea in law, alleging that the defendant be ordered to reimburse the costs and expenses of the proceedings. In accordance with the above-mentioned arguments and arbitrary character of the contested decision, the applicant seeks reimbursement of the costs and expenses connected with the proceedings before the General Court of the European Union as well as the costs and expenses spent for the legal assistance in relation to this claim.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/40 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/40

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Action brought on 20 May 2021 — SU v EIOPA

(Case T-296/21)

(2021/C 320/46)

Language of the case: English

Parties

Applicant: SU (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Insurance and Occupational Pensions Authority

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 15 July 2020 not to renew the applicant’s contract; |
| --- | --- |

—

annul the decision of 15 July 2020 not to renew the applicant’s contract;

| — | annul the applicant’s 2019 Appraisal Report; |
| --- | --- |

—

annul the applicant’s 2019 Appraisal Report;

| — | as far as necessary, annul the decision of 11 February 2021 rejecting the complaint; |
| --- | --- |

—

as far as necessary, annul the decision of 11 February 2021 rejecting the complaint;

| — | provide compensation for the applicant’s material prejudice, as calculated in this application; |
| --- | --- |

—

provide compensation for the applicant’s material prejudice, as calculated in this application;

| — | provide compensation for the applicant’s moral prejudice, as evaluated ex aequo et bono at EUR 10 000; |
| --- | --- |

—

provide compensation for the applicant’s moral prejudice, as evaluated ex aequo et bono at EUR 10 000;

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

—

order the defendant to pay the entire costs.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law, all of which invoke the alleged illegality of the 2019 appraisal report and of the non-renewal decision but on different grounds, as follows.

| 1. | First plea in law, alleging that the 2019 appraisal report was not duly finalised and the contract renewal report (CRR) relied on a non-finalised appraisal report.






  — | The applicant considers that the 2019 appraisal report is illegal insofar as it was not duly finalised by a reasoned decision of the appeal assessor. She also considers that the non-renewal decision is illegal insofar as it relied on a 2019 appraisal report, which was not finalised. |
| --- | --- | --- |

1.

First plea in law, alleging that the 2019 appraisal report was not duly finalised and the contract renewal report (CRR) relied on a non-finalised appraisal report.

—

The applicant considers that the 2019 appraisal report is illegal insofar as it was not duly finalised by a reasoned decision of the appeal assessor. She also considers that the non-renewal decision is illegal insofar as it relied on a 2019 appraisal report, which was not finalised.

| 2. | Second plea in law, alleging violation of the principle of impartiality, of Article 11 of the Staff Regulations and of Article 41 of the Charter of Fundamental Rights of the EU.






  — | According to the distribution of tasks and responsibilities at the EIOPA, the Executive Director has been tasked to act as appeal assessor and the Authority Authorised to Conclude Contracts of Employment (AACC) in this case, which does not ensure the impartiality of both the 2019 appraisal process and the decision of non-renewal of the applicant’s contract. |
| --- | --- | --- |

2.

Second plea in law, alleging violation of the principle of impartiality, of Article 11 of the Staff Regulations and of Article 41 of the Charter of Fundamental Rights of the EU.

—

According to the distribution of tasks and responsibilities at the EIOPA, the Executive Director has been tasked to act as appeal assessor and the Authority Authorised to Conclude Contracts of Employment (AACC) in this case, which does not ensure the impartiality of both the 2019 appraisal process and the decision of non-renewal of the applicant’s contract.

| 3. | Third plea in law, alleging violation of the right to be heard and of the duty to state reasons, violation of Article 25 of the Staff Regulations, of Article 41 of the Charter of Fundamental Rights of the EU and of paragraphs 6.7, 6.9 and 6.10 of the EIOPA contract renewal procedure.






  — | The applicant hereby considers that her right to be heard and the duty to state reasons were violated in relation to both the decision of non-renewal of contract and her 2019 appraisal. |
| --- | --- | --- |

3.

Third plea in law, alleging violation of the right to be heard and of the duty to state reasons, violation of Article 25 of the Staff Regulations, of Article 41 of the Charter of Fundamental Rights of the EU and of paragraphs 6.7, 6.9 and 6.10 of the EIOPA contract renewal procedure.

—

The applicant hereby considers that her right to be heard and the duty to state reasons were violated in relation to both the decision of non-renewal of contract and her 2019 appraisal.

| 4. | Fourth plea in law, alleging manifest error of assessment, absence of a diligent assessment of all aspects of the case and violation of Article 41 of the Charter of Fundamental Rights of the EU, together with violation of Article 4 and 6.5 of the contract renewal procedure.






  — | In this case, the defendant’s assessment is illegal, tainted by a manifest error of assessment and a violation of the duty of good administration, for two main reasons. Firstly, the applicant argues that the defendant did not take into due consideration the other criteria referred to in Article 4 of the procedure on contract renewal and, in particular, the applicant’s previous positive performance assessments. Secondly, the reasons given by the defendant with regard to the applicant’s performance in 2019 and 2020 are manifestly erroneous and unfounded. |
| --- | --- | --- |

4.

Fourth plea in law, alleging manifest error of assessment, absence of a diligent assessment of all aspects of the case and violation of Article 41 of the Charter of Fundamental Rights of the EU, together with violation of Article 4 and 6.5 of the contract renewal procedure.

—

In this case, the defendant’s assessment is illegal, tainted by a manifest error of assessment and a violation of the duty of good administration, for two main reasons. Firstly, the applicant argues that the defendant did not take into due consideration the other criteria referred to in Article 4 of the procedure on contract renewal and, in particular, the applicant’s previous positive performance assessments. Secondly, the reasons given by the defendant with regard to the applicant’s performance in 2019 and 2020 are manifestly erroneous and unfounded.

| 5. | Fifth plea in law, alleging discrimination based on gender and family situation — violation of Article 1d of the Staff Regulations and of Articles 21 and 23 of the Charter of Fundamental Rights of the EU.






  — | The applicant considers that she was discriminated against, due to her leave periods and working patterns, and that the decision not to renew her contract is tainted by such discrimination and constitutes retaliation. |
| --- | --- | --- |

5.

Fifth plea in law, alleging discrimination based on gender and family situation — violation of Article 1d of the Staff Regulations and of Articles 21 and 23 of the Charter of Fundamental Rights of the EU.

—

The applicant considers that she was discriminated against, due to her leave periods and working patterns, and that the decision not to renew her contract is tainted by such discrimination and constitutes retaliation.

| 6. | Sixth plea in law, alleging violation of the duty of care.






  — | According to the duty of care, the administration must not only take into account the interest of the service but also the interests of the staff member. This, the applicant alleges, was not done. |
| --- | --- | --- |

6.

Sixth plea in law, alleging violation of the duty of care.

—

According to the duty of care, the administration must not only take into account the interest of the service but also the interests of the staff member. This, the applicant alleges, was not done.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/41 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/41

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Action brought on 30 May 2021 — eSlovensko Bratislava v Commission

(Case T-304/21)

(2021/C 320/47)

Language of the case: English

Parties

Applicant: eSlovensko Bratislava (Bratislava, Slovakia) (represented by: B. Fridrich, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission, concretely, the individual legal act ‘Termination of the Action’ adopted by the European Commission, INEA, No. ARES(2021)1953853, issued on 30 March 2021; |
| --- | --- |

—

annul the decision of the European Commission, concretely, the individual legal act ‘Termination of the Action’ adopted by the European Commission, INEA, No. ARES(2021)1953853, issued on 30 March 2021;

| — | return the action to the European Commission and INEA and regard the action and grant agreement as valid and not terminated according to grant agreement No. INEA/CEF/ICT/A2015/1154788 for the project ‘Slovak Safer Internet Centre IV’, No. 2015-SK-IA-0038; |
| --- | --- |

—

return the action to the European Commission and INEA and regard the action and grant agreement as valid and not terminated according to grant agreement No. INEA/CEF/ICT/A2015/1154788 for the project ‘Slovak Safer Internet Centre IV’, No. 2015-SK-IA-0038;

| — | order the Commission to reimburse the costs and expenses of the proceedings. |
| --- | --- |

—

order the Commission to reimburse the costs and expenses of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging the annulment of the European Commission decision ‘Termination of the Action’ Ref. ARES(2021)1953853, due to the infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers, particularly improper legal evaluation of facts and findings (breach of right for good administration, breach of principle of proportionality, principle of legal certainty, rule of law, principle of legal expectations and improper legal evaluation of facts and findings of the request for final payment in the project 2015-SK-IA-0038 Slovak Safer Internet Centre IV). |
| --- | --- |

1.

First plea in law, alleging the annulment of the European Commission decision ‘Termination of the Action’ Ref. ARES(2021)1953853, due to the infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers, particularly improper legal evaluation of facts and findings (breach of right for good administration, breach of principle of proportionality, principle of legal certainty, rule of law, principle of legal expectations and improper legal evaluation of facts and findings of the request for final payment in the project 2015-SK-IA-0038 Slovak Safer Internet Centre IV).

| 2. | Second plea in law, alleging that the request for final payment in relation to the project ‘Slovak Safer Internet Centre IV’ be returned to the Commission and INEA for its [sic] evaluation and the implementation of the control competence as well as fulfilment of the contractual obligations based on grant agreement No. INEA/CEF/ICT/A2015/1154788 and that the Commission be ordered to proceed to final payment of the eligible costs to the applicant, in accordance with the valid and effective grant agreement, based on the fact that the Commission has the competence to deal with issues of project implementation and financial transfers under the valid and effective contract between the Commission and the applicant. |
| --- | --- |

2.

Second plea in law, alleging that the request for final payment in relation to the project ‘Slovak Safer Internet Centre IV’ be returned to the Commission and INEA for its [sic] evaluation and the implementation of the control competence as well as fulfilment of the contractual obligations based on grant agreement No. INEA/CEF/ICT/A2015/1154788 and that the Commission be ordered to proceed to final payment of the eligible costs to the applicant, in accordance with the valid and effective grant agreement, based on the fact that the Commission has the competence to deal with issues of project implementation and financial transfers under the valid and effective contract between the Commission and the applicant.

| 3. | Third plea in law, alleging that the Commission be ordered to reimburse the costs and expenses of the proceedings. In accordance with the above-mentioned arguments and arbitrary character of the Commission decision, the applicant requests reimbursement of costs and expenses connected with the proceedings before the General Court of the European Union as well as the costs and expenses spent for the legal assistance in relation to this claim. |
| --- | --- |

3.

Third plea in law, alleging that the Commission be ordered to reimburse the costs and expenses of the proceedings. In accordance with the above-mentioned arguments and arbitrary character of the Commission decision, the applicant requests reimbursement of costs and expenses connected with the proceedings before the General Court of the European Union as well as the costs and expenses spent for the legal assistance in relation to this claim.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/42 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/42

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Action brought on 24 May 2021 — TC v Parliament

(Case T-309/21)

(2021/C 320/48)

Language of the case: Lithuanian

Parties

Applicant: TC, represented by D. Aukštuolytė, lawyer

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Secretary-General of the European Parliament of 16 March 2021; |
| --- | --- |

—

annul the decision of the Secretary-General of the European Parliament of 16 March 2021;

| — | cancel debit note No 7010000523 issued by the European Parliament on 31 March 2021; |
| --- | --- |

—

cancel debit note No 7010000523 issued by the European Parliament on 31 March 2021;

| — | order the Parliament to pay the applicant’s costs. |
| --- | --- |

—

order the Parliament to pay the applicant’s costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Parliament was, without justification, unreasonably and unfairly late in adopting its decision by failing to observe the principle that action must be taken within a reasonable time in the administrative procedures provided for in Article 41(1) of the Charter of Fundamental Rights of the European Union. Because of this, the applicant’s rights of defence were infringed as a result of the late initiation of recovery proceedings brought against him, since the duration of those proceedings deprived him of the opportunity to defend himself effectively against the allegations made and to adduce evidence. |
| --- | --- |

1.

First plea in law, alleging that the Parliament was, without justification, unreasonably and unfairly late in adopting its decision by failing to observe the principle that action must be taken within a reasonable time in the administrative procedures provided for in Article 41(1) of the Charter of Fundamental Rights of the European Union. Because of this, the applicant’s rights of defence were infringed as a result of the late initiation of recovery proceedings brought against him, since the duration of those proceedings deprived him of the opportunity to defend himself effectively against the allegations made and to adduce evidence.

| 2. | Second plea in law, alleging that the decision of the Secretary-General of the European Parliament, upon which the debit note was based, as a legal measure affecting the applicant, was adopted in breach of the principles of impartial and fair procedure, equality of arms and the applicant’s rights of defence:






  — | The Parliament infringed the obligation to give reasons and the applicant’s right to be heard under Article 41(2)(a) and (c) of the Charter by basing the contested decision on findings made by the General Court in a case in which the applicant was not involved and on which he did not have an opportunity to be heard; |
| --- | --- | --- |

2.

Second plea in law, alleging that the decision of the Secretary-General of the European Parliament, upon which the debit note was based, as a legal measure affecting the applicant, was adopted in breach of the principles of impartial and fair procedure, equality of arms and the applicant’s rights of defence:

—

The Parliament infringed the obligation to give reasons and the applicant’s right to be heard under Article 41(2)(a) and (c) of the Charter by basing the contested decision on findings made by the General Court in a case in which the applicant was not involved and on which he did not have an opportunity to be heard;

| — | The Parliament did not provide the applicant with the evidence on which it indirectly based the contested decision, nor did it provide the applicant with other information necessary to enable him properly to exercise his right to be heard (to submit observations), in breach of Article 41(2)(a) and (b) of the Charter. |
| --- | --- |

—

The Parliament did not provide the applicant with the evidence on which it indirectly based the contested decision, nor did it provide the applicant with other information necessary to enable him properly to exercise his right to be heard (to submit observations), in breach of Article 41(2)(a) and (b) of the Charter.

| 3. | Third plea in law, alleging that the Parliament made an error of assessment, in that it failed to assess the evidence adduced by the applicant which confirmed that the matters referred to by the assistant before the General Court on which the Parliament relies, and on the basis of which recovery proceedings have been initiated, are incorrect (confirm that the investigation was initiated without justification) and breach the obligation to give reasons set out in Article 41(2)(c) of the Charter. |
| --- | --- |

3.

Third plea in law, alleging that the Parliament made an error of assessment, in that it failed to assess the evidence adduced by the applicant which confirmed that the matters referred to by the assistant before the General Court on which the Parliament relies, and on the basis of which recovery proceedings have been initiated, are incorrect (confirm that the investigation was initiated without justification) and breach the obligation to give reasons set out in Article 41(2)(c) of the Charter.

| 4. | Fourth plea in law, alleging that the Parliament infringed the principle of proportionality and the obligation to state reasons laid down in Article 296 TFEU and in Article 41(2)(c) of the Charter, in so far as the amount to be repaid was set at EUR 78 838,21. The sum required to be repaid has not been substantiated in full, and for that reason the contested decision assumes that the Parliamentary assistant never worked for the applicant. |
| --- | --- |

4.

Fourth plea in law, alleging that the Parliament infringed the principle of proportionality and the obligation to state reasons laid down in Article 296 TFEU and in Article 41(2)(c) of the Charter, in so far as the amount to be repaid was set at EUR 78 838,21. The sum required to be repaid has not been substantiated in full, and for that reason the contested decision assumes that the Parliamentary assistant never worked for the applicant.

| 5. | Fifth plea in law, alleging that information of the Parliament which is publicly available confirms that the Parliamentary assistant carried out his functions until no later than 15 December 2015, which indicates that it was unreasonable to initiate the procedure for recovery of the funds, with the result that the decision must be annulled. |
| --- | --- |

5.

Fifth plea in law, alleging that information of the Parliament which is publicly available confirms that the Parliamentary assistant carried out his functions until no later than 15 December 2015, which indicates that it was unreasonable to initiate the procedure for recovery of the funds, with the result that the decision must be annulled.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/43 |
| --- | --- | --- | --- |

9.8.2021

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Official Journal of the European Union

C 320/43

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Action brought on 9 June 2021 — Airoldi Metalli v Commission

(Case T-328/21)

(2021/C 320/49)

Language of the case: English

Parties

Applicant: Airoldi Metalli SpA (Molteno, Italy) (represented by: M. Campa, M. Pirovano, D. Rovetta, G. Pandey, P. Gjørtler and V. Villante, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Regulation (EU) 2021/546 of 29 March 2021, imposing a definitive anti-dumping duty and definitely collecting the provisional duty imposed on imports of aluminium extrusions originating in the People’s Republic of China (1); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2021/546 of 29 March 2021, imposing a definitive anti-dumping duty and definitely collecting the provisional duty imposed on imports of aluminium extrusions originating in the People’s Republic of China (1);

| — | order the Commission to bear the applicant’s legal costs and its own costs in the present proceedings. |
| --- | --- |

—

order the Commission to bear the applicant’s legal costs and its own costs in the present proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a breach of the principle of equality of arms and of sound administration, a manifest error of assessment, and a breach of the rights of defence and of disclosure of the applicant. |
| --- | --- |

1.

First plea in law, alleging a breach of the principle of equality of arms and of sound administration, a manifest error of assessment, and a breach of the rights of defence and of disclosure of the applicant.

| 2. | Second plea in law, alleging a manifest error of assessment by the Commission in the assessment of injury and causation with regard to the methodology, data and procedure applied, and a breach of Article 3 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (the ‘Basic Regulation’) (2). |
| --- | --- |

2.

Second plea in law, alleging a manifest error of assessment by the Commission in the assessment of injury and causation with regard to the methodology, data and procedure applied, and a breach of Article 3 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (the ‘Basic Regulation’) (2).

| 3. | Third plea in law, alleging a breach of Articles 1(2) and 5(2) of the Basic Regulation by reason of an incorrect definition of the product concerned. |
| --- | --- |

3.

Third plea in law, alleging a breach of Articles 1(2) and 5(2) of the Basic Regulation by reason of an incorrect definition of the product concerned.

| 4. | Fourth plea in law, alleging a breach of Article 1(2) and of Article 3 of the Basic Regulation as well as a manifest error of assessment concerning the scope of the product concerned as well as concerning the evaluation of imports from the country concerned for the injury analysis and causation purposes (CN Code 7610 90 90). |
| --- | --- |

4.

Fourth plea in law, alleging a breach of Article 1(2) and of Article 3 of the Basic Regulation as well as a manifest error of assessment concerning the scope of the product concerned as well as concerning the evaluation of imports from the country concerned for the injury analysis and causation purposes (CN Code 7610 90 90).

| 5. | Fifth plea in law, alleging a breach of Article 2(6a) (a) of the Basic Regulation in that the Commission performed a wrong choice of the ‘appropriate representative’ country. |
| --- | --- |

5.

Fifth plea in law, alleging a breach of Article 2(6a) (a) of the Basic Regulation in that the Commission performed a wrong choice of the ‘appropriate representative’ country.

| 6. | Sixth plea in law, alleging a breach of Article 2(6a) of the Basic Regulation concerning the legal status of the report by which the Commission establishes the existence of significant market distortions in a certain country or a certain sector in that country. The applicant maintains that there is a violation of Regulation No 1/1958 determining the languages to be used by the European Economic Community (3) and of its fundamental rights, given that it could not receive the above report in Italian language. |
| --- | --- |

6.

Sixth plea in law, alleging a breach of Article 2(6a) of the Basic Regulation concerning the legal status of the report by which the Commission establishes the existence of significant market distortions in a certain country or a certain sector in that country. The applicant maintains that there is a violation of Regulation No 1/1958 determining the languages to be used by the European Economic Community (3) and of its fundamental rights, given that it could not receive the above report in Italian language.

---

(1)  OJ 2021 L 109, p. 1.

(2)  OJ 2016 L 176, p. 21.

(3)  OJ, English Special Edition, Series I 1952-1958, p. 59.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/44 |
| --- | --- | --- | --- |

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Official Journal of the European Union

C 320/44

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Action brought on 12 June 2021 — EWC Academy v Commission

(Case T-330/21)

(2021/C 320/50)

Language of the case: German

Parties

Applicant: EWC Academy GmbH (Hamburg, Germany) (represented by: H. Däubler-Gmelin, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the rejection decision of 14 April 2021 of the Commission of the European Union, Directorate-General for Employment, Social Affairs and Inclusion (EMPL), EMPL.B.2/AP/ab; Ref. Ares (2021); |
| --- | --- |

—

annul the rejection decision of 14 April 2021 of the Commission of the European Union, Directorate-General for Employment, Social Affairs and Inclusion (EMPL), EMPL.B.2/AP/ab; Ref. Ares (2021);

| — | oblige the EU Commission to adopt a lawful grant decision; |
| --- | --- |

—

oblige the EU Commission to adopt a lawful grant decision;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the contested rejection decision of 14 April 2021 of the Commission disregards the meaning of Article 197(2)(c) of the EU Financial Regulation (1) in connection with the call for proposals VP/2020/008 and applies those provisions to European works councils in a legally impermissible manner. The requirement for the applicant European works councils to demonstrate that they have their own budget or annual accounts and bank account as evidence of stability and financial capacity would exclude from that support, a priori, the large majority of European works councils whose national rules for transposing Directive 2009/38/EC (2) do not provide for legal personality. That breaches the principle of equal treatment and non-discrimination and diametrically contradicts also the purpose of the support programme. |
| --- | --- |

1.

First plea in law, alleging that the contested rejection decision of 14 April 2021 of the Commission disregards the meaning of Article 197(2)(c) of the EU Financial Regulation (1) in connection with the call for proposals VP/2020/008 and applies those provisions to European works councils in a legally impermissible manner. The requirement for the applicant European works councils to demonstrate that they have their own budget or annual accounts and bank account as evidence of stability and financial capacity would exclude from that support, a priori, the large majority of European works councils whose national rules for transposing Directive 2009/38/EC (2) do not provide for legal personality. That breaches the principle of equal treatment and non-discrimination and diametrically contradicts also the purpose of the support programme.

| 2. | Second plea in law, alleging that as the call for proposals does not mention a restriction of the range of eligible applicants and even expressly applies without limit, including to United Kingdom European works councils, among others, the restriction would also breach the fundamental EU principle of transparency. |
| --- | --- |

2.

Second plea in law, alleging that as the call for proposals does not mention a restriction of the range of eligible applicants and even expressly applies without limit, including to United Kingdom European works councils, among others, the restriction would also breach the fundamental EU principle of transparency.

| 3. | Third plea in law, alleging the interpretation put forward in the rejection decision and its application to European works councils would also unduly favour undertakings, which — as social partners — in principle are called upon to submit suitable support projects in the call for proposals VP/2020/008. |
| --- | --- |

3.

Third plea in law, alleging the interpretation put forward in the rejection decision and its application to European works councils would also unduly favour undertakings, which — as social partners — in principle are called upon to submit suitable support projects in the call for proposals VP/2020/008.

---

(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

(2)  Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) (OJ 2009 L 122, p. 28).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/45 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/45

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Action brought on 14 June 2021 — mBank v EUIPO — European Merchant Bank (EMBANK European Merchant Bank)

(Case T-331/21)

(2021/C 320/51)

Language of the case: English

Parties

Applicant: mBank S.A. (Warsaw, Poland) (represented by: E. Skrzydło-Tefelska and K. Gajek, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: European Merchant Bank UAB (Vilnius, Lithuania)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union figurative mark EMBANK European Merchant Bank — European Union trade mark No 18 048 966

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 30 March 2021 in Case R 1845/2020-5

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order EUIPO to pay the costs.

Pleas in law

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

—

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

| — | Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council and Article 27(4) of Commission Delegated Regulation (EU) 2018/625. |
| --- | --- |

—

Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council and Article 27(4) of Commission Delegated Regulation (EU) 2018/625.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/46 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/46

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Action brought on 12 June 2021 — Mendes de Almeida v Council

(Case T-334/21)

(2021/C 320/52)

Language of the case: Portuguese

Parties

Applicant: Ana Carla Mendes de Almeida (Sobreda, Portugal) (represented by: R. Leandro de Vasconcelos and M. Marques de Carvalho, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

| — | annul the decision of the Council of 8 March 2021 concerning the complaint and supplementary complaint made by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union against Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo Moreira Alves d’Oliveira Guerra, one of the three candidates initially nominated by Portugal, as European Prosecutor of the European Public Prosecutor’s Office as temporary agent at grade AD 13 for a non-renewable period of three years from 29 July 2020 (OJ 2020 L 244, p. 18); |
| --- | --- |

—

annul the decision of the Council of 8 March 2021 concerning the complaint and supplementary complaint made by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Union against Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo Moreira Alves d’Oliveira Guerra, one of the three candidates initially nominated by Portugal, as European Prosecutor of the European Public Prosecutor’s Office as temporary agent at grade AD 13 for a non-renewable period of three years from 29 July 2020 (OJ 2020 L 244, p. 18);

| — | annul Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo Moreira Alves d’Oliveira Guerra as European Prosecutor of the European Public Prosecutor’s Office as temporary agent at grade AD 13 for a non-renewable period of three years from 29 July 2020; |
| --- | --- |

—

annul Council Implementing Decision (EU) 2020/1117 of 27 July 2020 appointing the European Prosecutors of the European Public Prosecutor’s Office, in the part which appoints José Eduardo Moreira Alves d’Oliveira Guerra as European Prosecutor of the European Public Prosecutor’s Office as temporary agent at grade AD 13 for a non-renewable period of three years from 29 July 2020;

| — | order the Council of the European Union to pay the costs of both parties. |
| --- | --- |

—

order the Council of the European Union to pay the costs of both parties.

Pleas in law and main arguments

In support of her action, the applicant relies on six pleas on law:

| 1. | First plea in law, alleging manifest error of assessment, in that the Council considers that it is not the ‘Appointing Authority’ (‘AA’) under Article 1(1) and (2) of the Staff Regulations, read in conjunction with Article 6 of the Conditions of Employment of Other Servants of the European Union, where it appoints European Prosecutors under Article 96(1) of Regulation 2017/1939. |
| --- | --- |

1.

First plea in law, alleging manifest error of assessment, in that the Council considers that it is not the ‘Appointing Authority’ (‘AA’) under Article 1(1) and (2) of the Staff Regulations, read in conjunction with Article 6 of the Conditions of Employment of Other Servants of the European Union, where it appoints European Prosecutors under Article 96(1) of Regulation 2017/1939.

| 2. | Second plea in law, alleging infringement of the rules applicable to the appointment of European Prosecutors, which guarantee the principle of the independence of the European Public Prosecutor’s Office. The applicant claims that the Portuguese Government’s challenge, made by letter of 29 November 2019, to the classification made by the selection panel referred to in Article 14(3) of Regulation (EU) 2017/1939 of the candidates submitted by the Portuguese Government itself, calls into question the structure of the procedure for the appointment of European Prosecutors. |
| --- | --- |

2.

Second plea in law, alleging infringement of the rules applicable to the appointment of European Prosecutors, which guarantee the principle of the independence of the European Public Prosecutor’s Office. The applicant claims that the Portuguese Government’s challenge, made by letter of 29 November 2019, to the classification made by the selection panel referred to in Article 14(3) of Regulation (EU) 2017/1939 of the candidates submitted by the Portuguese Government itself, calls into question the structure of the procedure for the appointment of European Prosecutors.

| 3. | Third plea in law, alleging manifest error in the premisses of the decision. The applicant claims, in particular, that the letter of 29 November 2019, sent by the Portuguese Government to the Council, contains two serious errors, as acknowledged by the Government itself. These were: (i) the reference to the Portuguese Government’s preferred candidate, made six times, as ‘Deputy Public Prosecutor José Guerra’ and (ii) the assertion that that prosecutor had an investigative and prosecuting role in an important trial relating to offences against the financial interests of the European Union. |
| --- | --- |

3.

Third plea in law, alleging manifest error in the premisses of the decision. The applicant claims, in particular, that the letter of 29 November 2019, sent by the Portuguese Government to the Council, contains two serious errors, as acknowledged by the Government itself. These were: (i) the reference to the Portuguese Government’s preferred candidate, made six times, as ‘Deputy Public Prosecutor José Guerra’ and (ii) the assertion that that prosecutor had an investigative and prosecuting role in an important trial relating to offences against the financial interests of the European Union.

| 4. | Fourth plea in law, alleging misuse of power. The applicant claims that the objectives at issue — in the light of which powers were conferred on the Council of the European Union in the context of the procedure for the selection and appointment of European Prosecutors — are to ensure the independence of the body and to appoint the best-qualified national candidates whose independence is beyond doubt to the post of European Prosecutor. |
| --- | --- |

4.

Fourth plea in law, alleging misuse of power. The applicant claims that the objectives at issue — in the light of which powers were conferred on the Council of the European Union in the context of the procedure for the selection and appointment of European Prosecutors — are to ensure the independence of the body and to appoint the best-qualified national candidates whose independence is beyond doubt to the post of European Prosecutor.

| 5. | Fifth plea in law, alleging breach of the right to good administration. The applicant claims that, inasmuch as the Council departed from the selection panel’s opinion and, therefore, from the order of priority based on the outcome of that panel’s assessment, a general reasoning in the form of a mere single reference to a ‘different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, is tantamount to a complete lack of reasoning, making it impossible for the applicant to know the reasons for that departure. |
| --- | --- |

5.

Fifth plea in law, alleging breach of the right to good administration. The applicant claims that, inasmuch as the Council departed from the selection panel’s opinion and, therefore, from the order of priority based on the outcome of that panel’s assessment, a general reasoning in the form of a mere single reference to a ‘different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, is tantamount to a complete lack of reasoning, making it impossible for the applicant to know the reasons for that departure.

| 6. | Sixth plea in law, alleging infringement of the principle of equal treatment and non-discrimination. The applicant claims that the Council, by conducting ‘the different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, infringed the principle of equal treatment and non-discrimination, as far as the applicant is concerned. |
| --- | --- |

6.

Sixth plea in law, alleging infringement of the principle of equal treatment and non-discrimination. The applicant claims that the Council, by conducting ‘the different assessment of the candidates’ merits made within the relevant preparatory bodies of the Council’, infringed the principle of equal treatment and non-discrimination, as far as the applicant is concerned.

---

| 9.8.2021 | EN | Official Journal of the European Union | C 320/47 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/47

---

Action brought on 15 June 2021 — Mendus v EUIPO (CENSOR.NET)

(Case T-336/21)

(2021/C 320/53)

Language of the case: English

Parties

Applicant: Iaroslav Mendus (Kiev, Ukraine) (represented by: P. Kurcman, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union word mark CENSOR.NET — Application for registration No 17 975 929

Contested decision: Decision of the First Board of Appeal of EUIPO of 16 April 2021 in Case R 1225/2020-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision in respect of services for which registration has been refused; |
| --- | --- |

—

annul the contested decision in respect of services for which registration has been refused;

| — | annul the decision of Operations Division dated 17 April 2020 in application procedure No 17 975 929 in respect of services for which registration has been refused; |
| --- | --- |

—

annul the decision of Operations Division dated 17 April 2020 in application procedure No 17 975 929 in respect of services for which registration has been refused;

| — | refer the case back to EUIPO so it can amend the decision on the substance of the case and register European Union trade mark No 17 975 929 in respect of all the services covered; |
| --- | --- |

—

refer the case back to EUIPO so it can amend the decision on the substance of the case and register European Union trade mark No 17 975 929 in respect of all the services covered;

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

—

charge EUIPO with the costs of the proceedings before the Operations Division, Board of Appeal and General Court.

Plea in law

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

—

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

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/48 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/48

---

Action brought on 18 June 2021 — F I S I v EUIPO — Verband der Deutschen Daunen- und Federnindustrie (ECODOWN)

(Case T-338/21)

(2021/C 320/54)

Language in which the application was lodged: Italian

Parties

Applicant: F I S I Fibre sintetiche SpA (Oggiono, Italy) (represented by: G. Cartella and B. Cartella, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Verband der Deutschen Daunen- und Federnindustrie (Magonza, Germany)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union word mark ‘ECODOWN’ — European Union trade mark No 2 756 740

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the First Board of Appeal of EUIPO of 13 April 2021 in Case R 216/2020-1

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | consequently, rule on the merits confirming the validity of EU trade mark No 2 756 740 |
| --- | --- |

—

consequently, rule on the merits confirming the validity of EU trade mark No 2 756 740

| — | order the other party to the proceedings to pay the costs of the proceedings, including the costs of the proceedings before EUIPO. |
| --- | --- |

—

order the other party to the proceedings to pay the costs of the proceedings, including the costs of the proceedings before EUIPO.

Pleas in law

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

—

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

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

—

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

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

—

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

| — | Incorrect consideration of the evidence submitted by the applicant regarding the distinctive character of the mark acquired through use. |
| --- | --- |

—

Incorrect consideration of the evidence submitted by the applicant regarding the distinctive character of the mark acquired through use.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/49 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/49

---

Action brought on 21 June 2021 — Rauff-Nisthar v Commission

(Case T-341/21)

(2021/C 320/55)

Language of the case: French

Parties

Applicant: Nadya Rauff-Nisthar (Pfinztal, Germany) (represented by: N. de Montigny, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 9 March 2020 and the decision upon review of 19 August 2020 of the European Personnel Selection Office (EPSO) Selection Board in respect of competition EPSO/AD/371/19 (AD 7) — 6 — Scientific Research Administrators not to include the applicant’s name on the reserve list; |
| --- | --- |

—

annul the decision of 9 March 2020 and the decision upon review of 19 August 2020 of the European Personnel Selection Office (EPSO) Selection Board in respect of competition EPSO/AD/371/19 (AD 7) — 6 — Scientific Research Administrators not to include the applicant’s name on the reserve list;

| — | in so far as necessary, annul the decision of 15 March 2021 rejecting the complaint; |
| --- | --- |

—

in so far as necessary, annul the decision of 15 March 2021 rejecting the complaint;

| — | request that the applicant’s competition tests and test results, and the results of the next stage, be produced in order to enable a substantive assessment of the results correlating to each irregularity and the significance of the consequences of the stress induced by the irregularities found, pursuant to Article 91 of the Rules of Procedure of the General Court; |
| --- | --- |

—

request that the applicant’s competition tests and test results, and the results of the next stage, be produced in order to enable a substantive assessment of the results correlating to each irregularity and the significance of the consequences of the stress induced by the irregularities found, pursuant to Article 91 of the Rules of Procedure of the General Court;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law, alleging unequal treatment caused by the irregularities that occurred during the tests and influenced the competition results. This plea is divided into four parts.

| 1. | First part, alleging that technical errors occurred in the organisation of the tests for competition EPSO/AD/371/19 (AD 7) — 6 — Scientific Research Administrators, which were acknowledged by the administration and caused the applicant increased stress during the tests. |
| --- | --- |

1.

First part, alleging that technical errors occurred in the organisation of the tests for competition EPSO/AD/371/19 (AD 7) — 6 — Scientific Research Administrators, which were acknowledged by the administration and caused the applicant increased stress during the tests.

| 2. | Second part, alleging that the administration failed to exercise due care and to take action to correct those errors. |
| --- | --- |

2.

Second part, alleging that the administration failed to exercise due care and to take action to correct those errors.

| 3. | Third part, alleging a failure to take account of the errors when assessing the applicant’s performance and the failure to put in place procedures guaranteeing equality between candidates. |
| --- | --- |

3.

Third part, alleging a failure to take account of the errors when assessing the applicant’s performance and the failure to put in place procedures guaranteeing equality between candidates.

| 4. | Fourth part, alleging a manifest error of assessment of the applicant’s performance. |
| --- | --- |

4.

Fourth part, alleging a manifest error of assessment of the applicant’s performance.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/50 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/50

---

Action brought on 21 June 2021 — Hypo Vorarlberg Bank v SRB

(Case T-347/21)

(2021/C 320/56)

Language of the case: German

Parties

Applicant: Hypo Vorarlberg Bank AG (Bregenz, Austria) (represented by: G. Eisenberger and A. Brenneis, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the 2021 ex-ante contributions to the Single Resolution Fund (SRB/ES/2021/22), including the annexes thereto, in any event in so far as that decision, including the annexes thereto, concerns the contribution to be made by the applicant; |
| --- | --- |

—

annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the 2021 ex-ante contributions to the Single Resolution Fund (SRB/ES/2021/22), including the annexes thereto, in any event in so far as that decision, including the annexes thereto, concerns the contribution to be made by the applicant;

| — | stay the proceedings pursuant to Article 69(c) or (d) of the Rules of Procedure of the General Court pending final resolution of (joined) Cases C-584/20 P (1) and C-621/20 P, (2) C-663/20 P (3) and C-664/20 P, (4) since the legal issues are largely the same in those proceedings, which have already been pending for some time; |
| --- | --- |

—

stay the proceedings pursuant to Article 69(c) or (d) of the Rules of Procedure of the General Court pending final resolution of (joined) Cases C-584/20 P (1) and C-621/20 P, (2) C-663/20 P (3) and C-664/20 P, (4) since the legal issues are largely the same in those proceedings, which have already been pending for some time;

| — | order the Single Resolution Board to pay the costs of the proceedings. |
| --- | --- |

—

order the Single Resolution Board to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of essential procedural requirements due to a lack of full disclosure of the contested decision






  — | The contested decision was not fully disclosed to the applicant, contrary to paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU and Articles 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Knowledge of the information that was not communicated is necessary, as a central component of the decision, in order to be able to understand and check the contribution calculations. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of essential procedural requirements due to a lack of full disclosure of the contested decision

—

The contested decision was not fully disclosed to the applicant, contrary to paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU and Articles 42 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Knowledge of the information that was not communicated is necessary, as a central component of the decision, in order to be able to understand and check the contribution calculations.

| 2. | Second plea in law, alleging infringement of essential procedural requirements on account of an inadequate statement of reasons for the contested decision






  — | The contested decision infringes the obligation to state reasons under paragraph 2 of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter because only a small number of selected partial calculation results were disclosed. As regards the defendant’s discretionary powers, it was not explained which assessments the defendant made and for what reasons. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of essential procedural requirements on account of an inadequate statement of reasons for the contested decision

—

The contested decision infringes the obligation to state reasons under paragraph 2 of Article 296 TFEU and Article 41(1) and (2)(c) of the Charter because only a small number of selected partial calculation results were disclosed. As regards the defendant’s discretionary powers, it was not explained which assessments the defendant made and for what reasons.

| 3. | Third plea in law, alleging infringement of essential procedural requirements due to the absence of a hearing and the failure to observe the right be heard






  — | The applicant was not granted the right to be heard either before the contested decision was adopted or before the contribution notice based on that decision was issued, contrary to Article 41(1) and (2)(a) of the Charter. Nor did the newly introduced consultation procedure create an effective opportunity to submit comments. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of essential procedural requirements due to the absence of a hearing and the failure to observe the right be heard

—

The applicant was not granted the right to be heard either before the contested decision was adopted or before the contribution notice based on that decision was issued, contrary to Article 41(1) and (2)(a) of the Charter. Nor did the newly introduced consultation procedure create an effective opportunity to submit comments.

| 4. | Fourth plea in law, alleging unlawfulness of Delegated Regulation (EU) 2015/63 (5) as a legal basis for the contested decision and unlawfulness of the risk adjustment methodology set out in Delegated Regulation (EU) 2015/63






  — | In the context of the fourth plea, the applicant submits that Articles 4 to 7 and Article 9 of, and Annex I to, Delegated Regulation 2015/63 — on which the contested decision was based — create a non-transparent system for determining contributions which is contrary to Articles 16, 17, 41 and 47 of the Charter and under which compliance with Articles 20 and 21 of the Charter and observance of the principles of proportionality and legal certainty are not guaranteed. |
| --- | --- | --- |

4.

Fourth plea in law, alleging unlawfulness of Delegated Regulation (EU) 2015/63 (5) as a legal basis for the contested decision and unlawfulness of the risk adjustment methodology set out in Delegated Regulation (EU) 2015/63

—

In the context of the fourth plea, the applicant submits that Articles 4 to 7 and Article 9 of, and Annex I to, Delegated Regulation 2015/63 — on which the contested decision was based — create a non-transparent system for determining contributions which is contrary to Articles 16, 17, 41 and 47 of the Charter and under which compliance with Articles 20 and 21 of the Charter and observance of the principles of proportionality and legal certainty are not guaranteed.

| 5. | Fifth plea in law, alleging unlawfulness of Directive 2014/59/EU (6) and Regulation (EU) No 806/2014 (7) as a legal basis for Delegated Regulation (EU) 2015/63 and therefore for the contested decision






  — | In the alternative, the applicant, in its fifth plea, challenges as unlawful those provisions of Directive 2014/59/EU and Regulation (EU) No 806/2014 which determine the contribution system implemented by Delegated Regulation 2015/63 and are not capable of being interpreted in conformity with primary law, and are therefore contrary to the principle of providing reasons for legal acts, the principle of legal certainty, the Treaties (in particular paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU) and the Charter (in particular Articles 16, 17, 41, 42 and 47 of the Charter). |
| --- | --- | --- |

5.

Fifth plea in law, alleging unlawfulness of Directive 2014/59/EU (6) and Regulation (EU) No 806/2014 (7) as a legal basis for Delegated Regulation (EU) 2015/63 and therefore for the contested decision

—

In the alternative, the applicant, in its fifth plea, challenges as unlawful those provisions of Directive 2014/59/EU and Regulation (EU) No 806/2014 which determine the contribution system implemented by Delegated Regulation 2015/63 and are not capable of being interpreted in conformity with primary law, and are therefore contrary to the principle of providing reasons for legal acts, the principle of legal certainty, the Treaties (in particular paragraph 2 of Article 1 TEU, Articles 15, 296 and 298 TFEU) and the Charter (in particular Articles 16, 17, 41, 42 and 47 of the Charter).

---

(1)  OJ 2020 C 423, p. 32.

(2)  OJ 2020 C 443, p. 17.

(3)  OJ 2020 C 44, p. 33.

(4)  OJ 2020 C 44, p. 35.

(5)  Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

(6)  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

(7)  Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/51 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/51

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Action brought on 22 June 2021 — Volkskreditbank v SRB

(Case T-348/21)

(2021/C 320/57)

Language of the case: German

Parties

Applicant: Volkskreditbank AG (Linz, Austria) (represented by G. Eisenberger and A. Brenneis, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

| — | Annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the ex-ante contributions to the single resolution fund for 2021 (ref: SRB/ESF/2021/22), including the annexes thereto, in any event in so far as that Decision, including the annexes thereto, concerns the contribution to be paid by the applicant; |
| --- | --- |

—

Annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the ex-ante contributions to the single resolution fund for 2021 (ref: SRB/ESF/2021/22), including the annexes thereto, in any event in so far as that Decision, including the annexes thereto, concerns the contribution to be paid by the applicant;

| — | stay the present proceedings under Article 69(c) and (d) of the Rules of Procedure of the General Court until final settlement of (joined) cases C-584/20 P (1) and C-621/20 P, (2) C-663/20 P (3) and C-664/20 P, (4) as the legal questions are largely the same in those pending appeals; |
| --- | --- |

—

stay the present proceedings under Article 69(c) and (d) of the Rules of Procedure of the General Court until final settlement of (joined) cases C-584/20 P (1) and C-621/20 P, (2) C-663/20 P (3) and C-664/20 P, (4) as the legal questions are largely the same in those pending appeals;

| — | order the Single Resolution Board to pay the costs of the proceedings. |
| --- | --- |

—

order the Single Resolution Board to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law, which are identical to the pleas in law put forward in Case T-347/21, Hypo Vorarlberg Bank v SRB.

---

(1)  OJ 2020 C 423, p. 32.

(2)  OJ 2020 C 443, p. 17.

(3)  OJ 2021 C 44, p. 33.

(4)  OJ 2021 C 44, p. 35.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/52 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/52

---

Action brought on 25 June 2021 — KTM Fahrrad v EUIPO — KTM (R2R)

(Case T-353/21)

(2021/C 320/58)

Language in which the application was lodged: German

Parties

Applicant: KTM Fahrrad GmbH (Mattighofen, Austria) (represented by: V. Hoene, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: KTM AG (Mattighofen, Austria)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: European Union word mark R2R — European Union trade mark No 17 886 364

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 20 April 2021 in Case R 261/2020-5

Form of order sought

The applicant claims that the Court should:

| — | annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal]; |
| --- | --- |

—

annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal];

| — | in the alternative, annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal], so far as concerns vehicles and vehicle parts, included in Class 12 — namely, land vehicles and vehicle parts for them; |
| --- | --- |

—

in the alternative, annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal], so far as concerns vehicles and vehicle parts, included in Class 12 — namely, land vehicles and vehicle parts for them;

| — | in the further alternative, annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal], so far as concerns vehicles and vehicle parts, included in Class 12, namely, bicycles and two-wheeled vehicles and vehicle parts for them. |
| --- | --- |

—

in the further alternative, annul cancellation decision No 22964C of the Cancellation Division of 4 December 2019 and the decision of the Fifth Board of Appeal of 20 April 2021 upholding it, including as regards the costs, and reject the application for cancellation of the respondent [before the Board of Appeal], so far as concerns vehicles and vehicle parts, included in Class 12, namely, bicycles and two-wheeled vehicles and vehicle parts for them.

Pleas in law

| — | Infringement of Article 58 of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 58 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of Article 95 of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 95 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/53 |
| --- | --- | --- | --- |

9.8.2021

EN

Official Journal of the European Union

C 320/53

---

Action brought on 25 June 2021 — Portigon v SRB

(Case T-360/21)

(2021/C 320/59)

Language of the case: German

Parties

Applicant: Portigon AG (Dusseldorf, Germany) (represented by: D. Bliesener, V. Jungkind and F. Geber, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s decision of 14 April 2021 on the calculation of the ex-ante contributions to the single resolution fund for 2021 (ref: SRB/ES/2021/22) in so far as the decision concerns the applicant; |
| --- | --- |

—

annul the defendant’s decision of 14 April 2021 on the calculation of the ex-ante contributions to the single resolution fund for 2021 (ref: SRB/ES/2021/22) in so far as the decision concerns the applicant;

| — | stay the present proceedings under Article 69(c) and (d) of the Rules of Procedure of the General Court until a final decision is issued in cases T-413/18, (1) T-481/19, (2) T-339/20 (3) and T-424/20 (4) und C-664/20 P (5) or until those cases are otherwise brought to a conclusion; |
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stay the present proceedings under Article 69(c) and (d) of the Rules of Procedure of the General Court until a final decision is issued in cases T-413/18, (1) T-481/19, (2) T-339/20 (3) and T-424/20 (4) und C-664/20 P (5) or until those cases are otherwise brought to a conclusion;

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

Pleas in law and main arguments

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

| 1. | First plea, alleging infringement of Regulation (EU) No. 806/2014 of the European Parliament and of the Council of 15 July 2014, (6) Council Implementing Regulation (EU) 2015/81 (7) and TFEU through increases in the amounts of the contributions to be paid by the applicant to the Fund.






  — | The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since a mandatory contribution for institutions under resolution is not provided for under Regulation No 806/2014 or Directive 2014/59/EU of the European Parliament and of the Council. (8) |
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1.

First plea, alleging infringement of Regulation (EU) No. 806/2014 of the European Parliament and of the Council of 15 July 2014, (6) Council Implementing Regulation (EU) 2015/81 (7) and TFEU through increases in the amounts of the contributions to be paid by the applicant to the Fund.

—

The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since a mandatory contribution for institutions under resolution is not provided for under Regulation No 806/2014 or Directive 2014/59/EU of the European Parliament and of the Council. (8)

| — | The legislature was not entitled to base the obligation to pay a contribution on Article 114 TFEU owing to the lack of relevance to the internal market. Harmonised rules governing contributions throughout the European Union neither facilitate the exercise of fundamental freedoms nor remedy appreciable distortions of competition in relation to institutions that withdraw from the market; |
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The legislature was not entitled to base the obligation to pay a contribution on Article 114 TFEU owing to the lack of relevance to the internal market. Harmonised rules governing contributions throughout the European Union neither facilitate the exercise of fundamental freedoms nor remedy appreciable distortions of competition in relation to institutions that withdraw from the market;

| — | The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since the institution has no risk exposure, there is no prospect of the institution entering into resolution in accordance with the rules of Regulation (EU) No 806/2014 and the institution is of no importance to the stability of the financial system. |
| --- | --- |

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The applicant claims that the defendant was wrong to make the applicant subject to an obligation to pay a contribution, since the institution has no risk exposure, there is no prospect of the institution entering into resolution in accordance with the rules of Regulation (EU) No 806/2014 and the institution is of no importance to the stability of the financial system.

| — | Delegated Regulation (EU) 2015/63 (9) infringes Article 114 TFEU and Article 103(7) of Directive 2014/59/EU as an essential element relating to the calculation of the contribution (second sentence of Art. 290(1) TFEU). |
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Delegated Regulation (EU) 2015/63 (9) infringes Article 114 TFEU and Article 103(7) of Directive 2014/59/EU as an essential element relating to the calculation of the contribution (second sentence of Art. 290(1) TFEU).

| 2. | Second plea, alleging infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the ground that the calculation procedure does not allow for a complete statement of reasons for the contested decision. Delegated Regulation (EU) 2015/63 is partially ineffective. |
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2.

Second plea, alleging infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the ground that the calculation procedure does not allow for a complete statement of reasons for the contested decision. Delegated Regulation (EU) 2015/63 is partially ineffective.

| 3. | Third plea, alleging infringement of Articles 16 and 20 of the Charter, since, in view of the special situation of the applicant, the contested decision is at variance with the general principle of equality and infringes the principle of freedom to conduct a business. |
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3.

Third plea, alleging infringement of Articles 16 and 20 of the Charter, since, in view of the special situation of the applicant, the contested decision is at variance with the general principle of equality and infringes the principle of freedom to conduct a business.

| 4. | Fourth plea, alleging infringement of the essential formal requirements and possibly of Article 5(1) of Implementing Regulation (EU) 2015/81, as it is unclear whether the SRB Decision was authenticated. In addition, the defendant failed to clarify the situation sufficiently, did not grant the applicant a hearing before the adoption of the SRB decision and did not give sufficient reasons for its decision. |
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4.

Fourth plea, alleging infringement of the essential formal requirements and possibly of Article 5(1) of Implementing Regulation (EU) 2015/81, as it is unclear whether the SRB Decision was authenticated. In addition, the defendant failed to clarify the situation sufficiently, did not grant the applicant a hearing before the adoption of the SRB decision and did not give sufficient reasons for its decision.

| 5. | Fifth plea, alleging, in the alternative, infringement of Article 69(1) of Regulation No 806/2014 due to an excessive target level, since the defendant may have set the target level at no more than EUR 55.000.000.000. |
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5.

Fifth plea, alleging, in the alternative, infringement of Article 69(1) of Regulation No 806/2014 due to an excessive target level, since the defendant may have set the target level at no more than EUR 55.000.000.000.

| 6. | Sixth plea, alleging, in the alternative, infringement of Article 70(2) of Regulation No 806/2014 in conjunction with Article 103(7) of Directive 2014/59/EU, since the defendant, in calculating the amount of the contribution, should have excluded risk-free liabilities from the relevant liabilities. |
| --- | --- |

6.

Sixth plea, alleging, in the alternative, infringement of Article 70(2) of Regulation No 806/2014 in conjunction with Article 103(7) of Directive 2014/59/EU, since the defendant, in calculating the amount of the contribution, should have excluded risk-free liabilities from the relevant liabilities.

| 7. | Seventh plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014 in conjunction with Article 5(3) and (4) of Delegated Regulation (EU) 2015/63, since the defendant wrongly calculated the applicant’s contribution on the basis of a gross approach with regard to derivative contracts. |
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7.

Seventh plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014 in conjunction with Article 5(3) and (4) of Delegated Regulation (EU) 2015/63, since the defendant wrongly calculated the applicant’s contribution on the basis of a gross approach with regard to derivative contracts.

| 8. | Eighth plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014 in conjunction with Article 6(8)(a) of Delegated Regulation (EU) 2015/63, since the defendant wrongly regarded the applicant as an institution undergoing reorganisation. |
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8.

Eighth plea, alleging, in the alternative, infringement of Article 70(6) of Regulation (EU) No 806/2014 in conjunction with Article 6(8)(a) of Delegated Regulation (EU) 2015/63, since the defendant wrongly regarded the applicant as an institution undergoing reorganisation.

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(1)  OJ 2018 C 294, p. 41.

(2)  OJ 2019 C 305, p. 60.

(3)  OJ 2020 C 240, p. 34.

(4)  OJ 2020 C 279, p. 70.

(5)  OJ 2021 C 44, p. 35.

(6)  Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

(7)  Council Implementing Regulation (EU) 2015/81 of 19. December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ. 2015 L 15, p. 1).

(8)  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

(9)  Commission Delegated Regulation (EU) 2015/63 of 21. October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

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| 9.8.2021 | EN | Official Journal of the European Union | C 320/54 |
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9.8.2021

EN

Official Journal of the European Union

C 320/54

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Action brought on 25 June 2021 — Essity Hygiene and Health v EUIPO (Representation of a leaf)

(Case T-364/21)

(2021/C 320/60)

Language of the case: Swedish

Parties

Applicant: Essity Hygiene and Health AB (Gothenburg, Sweden) (represented by: U. Wennermark, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for registration of EU figurative mark representing a leaf — Application for registration No 16 709 305

Contested decision: Decision of the First Board of Appeal of EUIPO of 31 March 2021 in Case R 2196/2017-1

Form of order sought

The applicant claims, primarily, that the Court should:

| — | annul the contested decision in so far as it refuses the application; |
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annul the contested decision in so far as it refuses the application;

| — | vary the contested decision by granting the appeal against the examiner’s decision not to grant the application in respect of the goods in Class 16; and |
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vary the contested decision by granting the appeal against the examiner’s decision not to grant the application in respect of the goods in Class 16; and

| — | order EUIPO to pay the applicant’s costs incurred in the proceedings before both the General Court and EUIPO. |
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order EUIPO to pay the applicant’s costs incurred in the proceedings before both the General Court and EUIPO.

The applicant claims, in the alternative, that the Court should:

| — | order EUIPO to pay the applicant’s costs incurred before the General Court. |
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order EUIPO to pay the applicant’s costs incurred before the General Court.

Pleas in law

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

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

| — | Infringement of Article 165(5) of Regulation (EU) 2017/1001 and Article 36(1)(g) and 36(2) of Commission Delegated Regulation (EU) 2018/625. |
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Infringement of Article 165(5) of Regulation (EU) 2017/1001 and Article 36(1)(g) and 36(2) of Commission Delegated Regulation (EU) 2018/625.

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