# Official Journal C 14/16 J

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 14 |
| | |
| English edition | Information and Notices | Volume 6016 January 2017 |

ISSN 1977-091X

Official Journal

of the European Union

C 14

English edition

Information and Notices

Volume 6016 January 2017

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2017/C 14/01 | 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

2017/C 14/01

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 |
| 2017/C 14/02 | Case C-449/14 P: Judgment of the Court (First Chamber) of 10 November 2016 — DTS Distribuidora de Televisión Digital SA v European Commission, Telefónica de España SA, Telefónica Móviles España SA, Kingdom of Spain, Corporación de Radio y Televisión Española SA (RTVE) (Appeal — State aid — State aid scheme in favour of the national public broadcast organisation — Public service obligations — Set-off — Article 106(2) TFEU — Decision declaring the aid scheme compatible with the internal market — Alteration of the method of financing — Tax measures — Tax imposed on pay-television operators — Decision declaring the amended aid scheme compatible with the internal market — Taking into account of the method of financing — Existence of hypothecation between the tax and the aid scheme — Direct impact of the revenue from the tax on the amount of the aid — Coverage of the net costs of fulfilling the public service mandate — Competitive relationship between the person liable to pay the tax and the beneficiary of the aid — Distortion of national law) | 2 |
| 2017/C 14/03 | Case C-504/14: Judgment of the Court (Fourth Chamber) of 10 November 2016 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Environment — Nature conservation — Directive 92/43/EEC — Article 6(2) and (3) and Article 12(1)(b) and (d) — Wild fauna and flora — Conservation of natural habitats — Sea turtle Caretta caretta — Protection of sea turtles in the Gulf of Kyparissia — Dunes of Kyparissia Site of Community importance — Protection of species) | 3 |
| 2017/C 14/04 | Case C-2/15: Judgment of the Court (Fifth Chamber) of 16 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — DHL Express (Austria) GmbH v Post-Control-Kommission, Bundesminister für Verkehr, Innovation und Technologie (Reference for a preliminary ruling — Directive 97/67/EC — Article 9 — Postal services in the European Union — Obligation to make a financial contribution to the operational costs of the postal sector’s regulatory authority — Scope) | 4 |
| 2017/C 14/05 | Case C-30/15 P: Judgment of the Court (First Chamber) of 10 November 2016 — Simba Toys GmbH & Co. KG v European Union Intellectual Property Office (EUIPO), Seven Towns Ltd (Appeal — European Union trade mark — Three-dimensional mark in the shape of a cube with surfaces having a grid structure — Application for a declaration of invalidity — Rejection of the application for a declaration of invalidity) | 4 |
| 2017/C 14/06 | Case C-156/15: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Augstākā tiesas — Latvia) — Private Equity Insurance Group SIA v Swedbank AS (Reference for a preliminary ruling — Directive 2002/47/EC — Scope — Definition of financial collateral, relevant financial obligations and provision of financial collateral — Whether it is possible to enforce financial collateral notwithstanding the commencement of insolvency proceeding — Current account agreement including a financial collateral clause) | 5 |
| 2017/C 14/07 | Case C-174/15: Judgment of the Court (Third Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Den Haag — Netherlands) — Vereniging Openbare Bibliotheken v Stichting Leenrecht (Reference for a preliminary ruling — Copyright and related rights — Rental right and lending right in respect of copyright works — Directive 2006/115/EC — Article 1(1) — Lending of copies of works — Article 2(1) — Lending of objects — Lending of a digital copy of a book — Public libraries) | 6 |
| 2017/C 14/08 | Case C-199/15: Judgment of the Court (Ninth Chamber) of 10 November 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Ciclat Soc. coop v Consip SpA, Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture (Reference for a preliminary ruling — Directive 2004/18/EC — Article 45 — Articles 49 and 56 TFEU — Public procurement — Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts — Obligations relating to the payment of social security contributions — Social security contributions payment certificate — Correction of irregularities) | 7 |
| 2017/C 14/09 | Case C-216/15: Judgment of the Court (Fifth Chamber) of 17 November 2016 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH (Reference for a preliminary ruling — Directive 2008/104/EC — Temporary agency work — Scope — Concept of worker — Concept of economic activities — Nursing staff who do not have a contract of employment assigned to a health care institution by a not-for-profit association) | 7 |
| 2017/C 14/10 | Case C-258/15: Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (Reference for a preliminary ruling — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(2) and Article 4(1) — Discrimination on grounds of age — Recruitment of police officers of the Autonomous Community of the Basque Country restricted to candidates under 35 years of age — Concept of genuine and determining occupational requirement — Objective pursued — Proportionality) | 8 |
| 2017/C 14/11 | Case C-268/15: Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Fernand Ullens de Schooten v État belge (Reference for a preliminary ruling — Fundamental freedoms — Articles 49, 56 and 63 TFEU — Situation confined in all respects within a single Member State — Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible) | 9 |
| 2017/C 14/12 | Case C-297/15: Judgment of the Court (Fifth Chamber) of 10 November 2016 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Ferring Lægemidler A/S, acting on behalf of Ferring BV v Orifarm A/S (Reference for a preliminary ruling — Trade marks — Directive 2008/95/EC — Article 7(2) — Medicinal products — Parallel import — Partitioning of the markets — Need for the repackaging of the product bearing the mark — Medicinal product placed on the exporting market and importing market by the trade mark proprietor with the same kind of packaging) | 9 |
| 2017/C 14/13 | Case C-301/15: Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Conseil d’État — France) — Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication (Reference for a preliminary ruling — Intellectual and industrial property rights — Directive 2001/29/EC — Copyright and related rights — Articles 2 and 3 — Rights of reproduction and communication to the public — Scope — Out-of-print books which are not or no longer published — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes — Legal presumption of the authors’ consent — Lack of a mechanism ensuring authors are actually and individually informed) | 10 |
| 2017/C 14/14 | Joined Cases C-313/15 and C-530/15: Judgment of the Court (Third Chamber) of 10 November 2016 (requests for a preliminary ruling from the Tribunal de commerce de Paris, Conseil d’État — France) — Eco-Emballages SA v Sphère France SAS and Others (C-313/15), Melitta France SAS and Others v Ministre de l’Écologie, du Développement durable et de l’Énergie (C-530/15) (Reference for a preliminary ruling — Environment — Directive 94/62/EC — Article 3 — Packaging and packaging waste — Definition — Rolls, tubes and cylinders around which flexible material is wound (Roll cores) — Directive 2013/2/EU — Validity — Amendment by the European Commission of the list of examples of packaging set out in Annex I to Directive 94/62/EC — Misinterpretation of the term packaging — Misuse of implementing powers) | 11 |
| 2017/C 14/15 | Case C-316/15: Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Supreme Court of the United Kingdom) — The Queen, on the application of: Timothy Martin Hemming, trading as Simply Pleasure Ltd and Others v Westminster City Council (Reference for a preliminary ruling — Freedom to provide services — Directive 2006/123/EC — Article 13(2) — Authorisation procedures — Concept of charges which may be incurred) | 12 |
| 2017/C 14/16 | Case C-348/15: Judgment of the Court (First Chamber) of 17 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Stadt Wiener Neustadt v Niederösterreichische Landesregierung (Reference for a preliminary ruling — Assessment of the effects of certain public and private projects on the environment — Directive 85/337/EEC — Directive 2011/92/EU — Scope — Concept of specific act of national legislation — No environmental impact assessment — Definitive authorisation — Legislative regularisation a posteriori of the lack of environmental impact assessment — Principle of cooperation — Article 4 TEU) | 13 |
| 2017/C 14/17 | Case C-417/15: Judgment of the Court (Second Chamber) of 16 November 2016 (request for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien — Austria) — Wolfgang Schmidt v Christiane Schmidt (Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1215/2012 — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Scope — First subparagraph of Article 24(1) — Exclusive jurisdiction in matters relating to rights in rem in immovable property — Article 7(1)(a) — Special jurisdiction in matters relating to a contract — Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership) | 13 |
| 2017/C 14/18 | Case C-432/15: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Odvolací finanční ředitelství v Pavlína Baštová (Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 2(1)(c) — Concept of supply of services for consideration — Supply of a horse by a taxable person to the organiser of horse races — Assessment of the consideration — Right to deduct expenses linked to the preparation of the taxable person’s horses for the races — General costs linked to the overall economic activity — Annex III, point 14 — Reduced rate of VAT applicable to the use of sporting facilities — Applicability to the operation of racing stables — Transaction consisting of a single supply or several independent supplies) | 14 |
| 2017/C 14/19 | Case C-548/15: Judgment of the Court (Sixth Chamber) of 10 November 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. de Lange v Staatssecretaris van Finaciën (Reference for a preliminary ruling — Social policy — Principles of equal treatment and of non-discrimination on grounds of age — Directive 2000/78/EC — Equal treatment in employment and occupation — Articles 2, 3 and 6 — Scope — Difference in treatment on grounds of age — National legislation capping deductions of training costs incurred after a certain age — Access to vocational training) | 15 |
| 2017/C 14/20 | Case C-452/16: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Krzystof Marek Poltorak (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of judicial decision — Article 6(1) — Concept of issuing judicial authority — European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence) | 16 |
| 2017/C 14/21 | Case C-453/16: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Halil Ibrahim Özçelik (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 8(1)(c) — Concept of arrest warrant — Autonomous concept of EU law — National arrest warrant issued by a police service and confirmed by a public prosecutor for the purpose of criminal proceedings) | 17 |
| 2017/C 14/22 | Case C-477/16 PPU: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Ruslanas Kovalkovas (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of judicial decision — Article 6(1) — Concept of issuing judicial authority — European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence) | 17 |
| 2017/C 14/23 | Joined Cases C-369/15 to C-372/15: Order of the Court (Sixth Chamber) of 26 October 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Siderúrgica Sevillana SA (C-369/15), Solvay Solutions Espana SL (C-370/15) Cepsa Química SA (C-371/15), Dow Chemical Ibérica SL (C-372/15) v Administración del Estado (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — System for greenhouse gas emission allowance trading in the European Union — Directive 2003/87/EC — Article 10a — Method for allocating quotas free of charge — Calculation of the uniform cross-sectoral correction factor — Decision 2013/448/EU — Article 4 — Annex II — Validity — Application of the uniform cross-sectoral correction factor to plants in sectors subject to a high risk of carbon leaks — Decision 2-11/278/EU — Article 10(9) — Validity) | 18 |
| 2017/C 14/24 | Case C-351/16 P: Appeal brought on 24 June 2016 by 100 % Capri Italia Srl against the judgment of the General Court (First Chamber) of 19 April 2016 in Case T-198/14, Capri Italia v EUIPO — IN.PRO.DI (100 % Capri) | 19 |
| 2017/C 14/25 | Case C-524/16: Request for a preliminary ruling from the Corte dei Conti (Italy) lodged on 12 October 2016 — Istituto Nazionale della Previdenza Sociale v Francesco Faggiano | 19 |
| 2017/C 14/26 | Case C-525/16: Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão (Portugal) lodged on 13 October 2016 — MEO — Serviços de Comunicações e Multimédia S.A. v Autoridade da Concorrência | 20 |
| 2017/C 14/27 | Case C-526/16: Action brought on 12 October 2016 — European Commission v Republic of Poland | 21 |
| 2017/C 14/28 | Case C-527/16: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 October 2016 — Salzburger Gebietskrankenkasse, Bundesminister für Arbeit, Soziales und Konsumentenschutz | 22 |
| 2017/C 14/29 | Case C-528/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 17 October 2016 — Confédération paysanne, Réseau Semences Paysannes, Les Amis de la Terre France, Collectif vigilance OGM et Pesticides 16, Vigilance OG2M, CSFV 49, OGM: dangers, Vigilance OGM 33, Fédération Nature et Progrès v Premier ministre, Ministre de l’agriculture, de l’agroalimentaire et de la forêt | 23 |
| 2017/C 14/30 | Case C-530/16: Action brought on 18 October 2016 — European Commission v Republic of Poland | 24 |
| 2017/C 14/31 | Case C-542/16: Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 26 October 2016 — Länsförsäkringar Sak Försäkringsaktiebolag and Others v Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag | 25 |
| 2017/C 14/32 | Case C-544/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Marcandi Limited, trading as Madbid v Commissioners for Her Majesty's Revenue & Customs | 26 |
| 2017/C 14/33 | Case C-545/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Kubota (UK) Limited, EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs | 28 |
| 2017/C 14/34 | Case C-579/16 P: Appeal brought on 16 November 2016 by European Commission against the judgment of the General Court (Sixth Chamber) delivered on 15 September 2016 in Case T-386/14: Fih Holding and Fih Erhvervsbank v Commission | 28 |
| | General Court |
| 2017/C 14/35 | Joined Cases T-694/13 and T-2/15: Judgment of the General Court of 23 November 2016 — Ipatau v Council (Common Foreign and Security Policy — Restrictive measures against Belarus — Freezing of funds and economic resources — Restrictions on the entry into and transit through European Union territory — Retention of the applicant’s name on the list of persons concerned — Rights of the defence — Obligation to state reasons — Error of assessment — Proportionality) | 30 |
| 2017/C 14/36 | Case T-328/15 P: Judgment of the General Court of 23 November 2016 — FK v Commission (Appeal — Civil Service — Temporary staff — Renewal of contract — Restriction of the duration of the contract renewal — Rights of the defence) (*1) | 30 |
| 2017/C 14/37 | Case T-349/15: Judgment of the General Court of 24 November 2016 — CG v EUIPO — Perry Ellis International Group (P PRO PLAYER) (EU trade mark — Opposition proceedings — Application for EU figurative mark P PRO PLAYER — Earlier EU and national figurative marks P and P PROTECTIVE — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 31 |
| 2017/C 14/38 | Case T-769/15: Judgment of the General Court of 24 November 2016 — SeNaPro v EUIPO — Paltentaler Splitt & Marmorwerke (Dolokorn) (EU trade mark — Opposition proceedings — Application for EU word mark Dolokorn — Earlier EU word mark DOLOPUR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 32 |
| 2017/C 14/39 | Joined Cases T-268/15 and T-272/15: Order of the Court of 8 November 2016 — Apcoa Parking Holdings v EUIPO (PARKWAY) (European Union trade mark — Applications for European Union figurative and word marks PARKWAY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law) | 32 |
| 2017/C 14/40 | Case T-455/15: Order of the General Court of 26 October 2016 — Vitra Collections v EUIPO — Consorzio Origini (Shape of a chair) (EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate) | 33 |
| 2017/C 14/41 | Case T-602/15: Order of the General Court of 9 November 2016 — Jenkinson v Council and Others (Arbitration clause — EU international mission personnel — Consecutive fixed-term employment contracts — Claim for compensation — Manifest lack of jurisdiction — Manifest inadmissibility) | 34 |
| 2017/C 14/42 | Case T-41/16: Order of the General Court of 12 October 2016 — Cyprus Turkish Chamber of Industry and Others v Commission (Actions for annulment — Application for registration of a protected designation of origin Halloumi or Hellim — Commission letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure — Measure not open to challenge — Inadmissibility) | 34 |
| 2017/C 14/43 | Case T-116/16: Order of the General Court of 27 October 2016 — Port autonome du Centre et de l’Ouest and Others v Commission (Action for annulment — State aid — Corporate tax — Aid in favour of Belgian ports granted by Belgium — Commission letter proposing the adoption of appropriate measures — Measure not open to challenge — Inadmissibility) | 35 |
| 2017/C 14/44 | Case T-405/16: Action brought on 29 July 2016 — The Regents of the University of California v CPVO — Nador Cott Protection and CVVP (Tang Gold) | 36 |
| 2017/C 14/45 | Case T-701/16 P: Appeal brought on 30 September 2016 by the European Commission against the judgment of 21 July 2016 by the Civil Service Tribunal in Case F-91/15, AV v Commission | 37 |
| 2017/C 14/46 | Case T-747/16: Action brought on 25/10/2016 — Vincenti v EUIPO | 37 |
| 2017/C 14/47 | Case T-752/16: Action brought on 28 October 2016 — Novolipetsk Steel v Commission | 38 |
| 2017/C 14/48 | Case T-753/16: Action brought on 28 October 2016 — Severstal v Commission | 39 |
| 2017/C 14/49 | Case T-754/16: Action brought on 2 November 2016 — Oakley v EUIPO — Xuebo Ye (Representation of a silhouette in the shape of an ellipse) | 40 |
| 2017/C 14/50 | Case T-762/16: Action brought on 31 October 2016 — ArcelorMittal Belval & Differdange and ThyssenKrupp Steel Europe v ECHA | 41 |
| 2017/C 14/51 | Case T-764/16: Action brought on 3 November 2016 — Paulini v ECB | 42 |
| 2017/C 14/52 | Case T-769/16: Action brought on 7 November 2016 — Picard v Commission | 44 |
| 2017/C 14/53 | Case T-771/16: Action brought on 24 October 2016 — Toontrack Music v EUIPO (EZMIX) | 45 |
| 2017/C 14/54 | Case T-776/16: Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell.) | 45 |
| 2017/C 14/55 | Case T-777/16: Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell. Insulation Technology Made in Sweden) | 46 |
| 2017/C 14/56 | Case T-779/16: Action brought on 7 November 2016 — Rühland v EUIPO — 8 seasons design (Lamps) | 46 |
| 2017/C 14/57 | Case T-781/16: Action brought on 9 November 2016 — Puma and Others v Commission | 47 |
| 2017/C 14/58 | Case T-782/16: Action brought on 9 November 2016 — Timberland Europe v Commission | 48 |
| 2017/C 14/59 | Affaire T-788/16: Action brought on 10 November 2016 — De Geoffroy and Others v Parliament | 49 |
| 2017/C 14/60 | Case T-789/16: Action brought on 8 November 2016 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION) | 50 |
| 2017/C 14/61 | Case T-790/16: Action brought on 11 November 2016 — C & J Clark International v Commission | 51 |
| 2017/C 14/62 | Case T-791/16: Action brought on 14 November 2016 — Real Madrid Club de Fútbol v Commission | 52 |
| 2017/C 14/63 | Case T-806/16: Action brought on 15 November 2016 — Agricola J.M. v EUIPO — Torres (CLOS DE LA TORRE) | 53 |
| 2017/C 14/64 | Case T-808/16: Action brought on 14 November 2016 — Jean Patou Worldwide v EUIPO — Emboga (HISPANITAS JOY IS A CHOICE) | 54 |
| 2017/C 14/65 | Case T-815/16: Action brought on 22 November 2016 — For Tune v EUIPO — Simplicity trade (opus AETERNATUM) | 55 |
| 2017/C 14/66 | Case T-392/16: Order of the General Court of 13 October 2016 — Axium v Parliament | 55 |
| 2017/C 14/67 | Case T-565/16: Order of the President of the General Court of 25 October 2016 — Maubert v Council | 55 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2017/C 14/02

Case C-449/14 P: Judgment of the Court (First Chamber) of 10 November 2016 — DTS Distribuidora de Televisión Digital SA v European Commission, Telefónica de España SA, Telefónica Móviles España SA, Kingdom of Spain, Corporación de Radio y Televisión Española SA (RTVE) (Appeal — State aid — State aid scheme in favour of the national public broadcast organisation — Public service obligations — Set-off — Article 106(2) TFEU — Decision declaring the aid scheme compatible with the internal market — Alteration of the method of financing — Tax measures — Tax imposed on pay-television operators — Decision declaring the amended aid scheme compatible with the internal market — Taking into account of the method of financing — Existence of hypothecation between the tax and the aid scheme — Direct impact of the revenue from the tax on the amount of the aid — Coverage of the net costs of fulfilling the public service mandate — Competitive relationship between the person liable to pay the tax and the beneficiary of the aid — Distortion of national law)

2

2017/C 14/03

Case C-504/14: Judgment of the Court (Fourth Chamber) of 10 November 2016 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — Environment — Nature conservation — Directive 92/43/EEC — Article 6(2) and (3) and Article 12(1)(b) and (d) — Wild fauna and flora — Conservation of natural habitats — Sea turtle Caretta caretta — Protection of sea turtles in the Gulf of Kyparissia — Dunes of Kyparissia Site of Community importance — Protection of species)

3

2017/C 14/04

Case C-2/15: Judgment of the Court (Fifth Chamber) of 16 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — DHL Express (Austria) GmbH v Post-Control-Kommission, Bundesminister für Verkehr, Innovation und Technologie (Reference for a preliminary ruling — Directive 97/67/EC — Article 9 — Postal services in the European Union — Obligation to make a financial contribution to the operational costs of the postal sector’s regulatory authority — Scope)

4

2017/C 14/05

Case C-30/15 P: Judgment of the Court (First Chamber) of 10 November 2016 — Simba Toys GmbH & Co. KG v European Union Intellectual Property Office (EUIPO), Seven Towns Ltd (Appeal — European Union trade mark — Three-dimensional mark in the shape of a cube with surfaces having a grid structure — Application for a declaration of invalidity — Rejection of the application for a declaration of invalidity)

4

2017/C 14/06

Case C-156/15: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Augstākā tiesas — Latvia) — Private Equity Insurance Group SIA v Swedbank AS (Reference for a preliminary ruling — Directive 2002/47/EC — Scope — Definition of financial collateral, relevant financial obligations and provision of financial collateral — Whether it is possible to enforce financial collateral notwithstanding the commencement of insolvency proceeding — Current account agreement including a financial collateral clause)

5

2017/C 14/07

Case C-174/15: Judgment of the Court (Third Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Den Haag — Netherlands) — Vereniging Openbare Bibliotheken v Stichting Leenrecht (Reference for a preliminary ruling — Copyright and related rights — Rental right and lending right in respect of copyright works — Directive 2006/115/EC — Article 1(1) — Lending of copies of works — Article 2(1) — Lending of objects — Lending of a digital copy of a book — Public libraries)

6

2017/C 14/08

Case C-199/15: Judgment of the Court (Ninth Chamber) of 10 November 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Ciclat Soc. coop v Consip SpA, Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture (Reference for a preliminary ruling — Directive 2004/18/EC — Article 45 — Articles 49 and 56 TFEU — Public procurement — Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts — Obligations relating to the payment of social security contributions — Social security contributions payment certificate — Correction of irregularities)

7

2017/C 14/09

Case C-216/15: Judgment of the Court (Fifth Chamber) of 17 November 2016 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH (Reference for a preliminary ruling — Directive 2008/104/EC — Temporary agency work — Scope — Concept of worker — Concept of economic activities — Nursing staff who do not have a contract of employment assigned to a health care institution by a not-for-profit association)

7

2017/C 14/10

Case C-258/15: Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias (Reference for a preliminary ruling — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(2) and Article 4(1) — Discrimination on grounds of age — Recruitment of police officers of the Autonomous Community of the Basque Country restricted to candidates under 35 years of age — Concept of genuine and determining occupational requirement — Objective pursued — Proportionality)

8

2017/C 14/11

Case C-268/15: Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Fernand Ullens de Schooten v État belge (Reference for a preliminary ruling — Fundamental freedoms — Articles 49, 56 and 63 TFEU — Situation confined in all respects within a single Member State — Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible)

9

2017/C 14/12

Case C-297/15: Judgment of the Court (Fifth Chamber) of 10 November 2016 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Ferring Lægemidler A/S, acting on behalf of Ferring BV v Orifarm A/S (Reference for a preliminary ruling — Trade marks — Directive 2008/95/EC — Article 7(2) — Medicinal products — Parallel import — Partitioning of the markets — Need for the repackaging of the product bearing the mark — Medicinal product placed on the exporting market and importing market by the trade mark proprietor with the same kind of packaging)

9

2017/C 14/13

Case C-301/15: Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Conseil d’État — France) — Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication (Reference for a preliminary ruling — Intellectual and industrial property rights — Directive 2001/29/EC — Copyright and related rights — Articles 2 and 3 — Rights of reproduction and communication to the public — Scope — Out-of-print books which are not or no longer published — National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes — Legal presumption of the authors’ consent — Lack of a mechanism ensuring authors are actually and individually informed)

10

2017/C 14/14

Joined Cases C-313/15 and C-530/15: Judgment of the Court (Third Chamber) of 10 November 2016 (requests for a preliminary ruling from the Tribunal de commerce de Paris, Conseil d’État — France) — Eco-Emballages SA v Sphère France SAS and Others (C-313/15), Melitta France SAS and Others v Ministre de l’Écologie, du Développement durable et de l’Énergie (C-530/15) (Reference for a preliminary ruling — Environment — Directive 94/62/EC — Article 3 — Packaging and packaging waste — Definition — Rolls, tubes and cylinders around which flexible material is wound (Roll cores) — Directive 2013/2/EU — Validity — Amendment by the European Commission of the list of examples of packaging set out in Annex I to Directive 94/62/EC — Misinterpretation of the term packaging — Misuse of implementing powers)

11

2017/C 14/15

Case C-316/15: Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Supreme Court of the United Kingdom) — The Queen, on the application of: Timothy Martin Hemming, trading as Simply Pleasure Ltd and Others v Westminster City Council (Reference for a preliminary ruling — Freedom to provide services — Directive 2006/123/EC — Article 13(2) — Authorisation procedures — Concept of charges which may be incurred)

12

2017/C 14/16

Case C-348/15: Judgment of the Court (First Chamber) of 17 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Stadt Wiener Neustadt v Niederösterreichische Landesregierung (Reference for a preliminary ruling — Assessment of the effects of certain public and private projects on the environment — Directive 85/337/EEC — Directive 2011/92/EU — Scope — Concept of specific act of national legislation — No environmental impact assessment — Definitive authorisation — Legislative regularisation a posteriori of the lack of environmental impact assessment — Principle of cooperation — Article 4 TEU)

13

2017/C 14/17

Case C-417/15: Judgment of the Court (Second Chamber) of 16 November 2016 (request for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien — Austria) — Wolfgang Schmidt v Christiane Schmidt (Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EU) No 1215/2012 — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Scope — First subparagraph of Article 24(1) — Exclusive jurisdiction in matters relating to rights in rem in immovable property — Article 7(1)(a) — Special jurisdiction in matters relating to a contract — Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership)

13

2017/C 14/18

Case C-432/15: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Odvolací finanční ředitelství v Pavlína Baštová (Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 2(1)(c) — Concept of supply of services for consideration — Supply of a horse by a taxable person to the organiser of horse races — Assessment of the consideration — Right to deduct expenses linked to the preparation of the taxable person’s horses for the races — General costs linked to the overall economic activity — Annex III, point 14 — Reduced rate of VAT applicable to the use of sporting facilities — Applicability to the operation of racing stables — Transaction consisting of a single supply or several independent supplies)

14

2017/C 14/19

Case C-548/15: Judgment of the Court (Sixth Chamber) of 10 November 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. de Lange v Staatssecretaris van Finaciën (Reference for a preliminary ruling — Social policy — Principles of equal treatment and of non-discrimination on grounds of age — Directive 2000/78/EC — Equal treatment in employment and occupation — Articles 2, 3 and 6 — Scope — Difference in treatment on grounds of age — National legislation capping deductions of training costs incurred after a certain age — Access to vocational training)

15

2017/C 14/20

Case C-452/16: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Krzystof Marek Poltorak (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of judicial decision — Article 6(1) — Concept of issuing judicial authority — European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence)

16

2017/C 14/21

Case C-453/16: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Halil Ibrahim Özçelik (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 8(1)(c) — Concept of arrest warrant — Autonomous concept of EU law — National arrest warrant issued by a police service and confirmed by a public prosecutor for the purpose of criminal proceedings)

17

2017/C 14/22

Case C-477/16 PPU: Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Ruslanas Kovalkovas (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Article 1(1) — Concept of judicial decision — Article 6(1) — Concept of issuing judicial authority — European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence)

17

2017/C 14/23

Joined Cases C-369/15 to C-372/15: Order of the Court (Sixth Chamber) of 26 October 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Siderúrgica Sevillana SA (C-369/15), Solvay Solutions Espana SL (C-370/15) Cepsa Química SA (C-371/15), Dow Chemical Ibérica SL (C-372/15) v Administración del Estado (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — System for greenhouse gas emission allowance trading in the European Union — Directive 2003/87/EC — Article 10a — Method for allocating quotas free of charge — Calculation of the uniform cross-sectoral correction factor — Decision 2013/448/EU — Article 4 — Annex II — Validity — Application of the uniform cross-sectoral correction factor to plants in sectors subject to a high risk of carbon leaks — Decision 2-11/278/EU — Article 10(9) — Validity)

18

2017/C 14/24

Case C-351/16 P: Appeal brought on 24 June 2016 by 100 % Capri Italia Srl against the judgment of the General Court (First Chamber) of 19 April 2016 in Case T-198/14, Capri Italia v EUIPO — IN.PRO.DI (100 % Capri)

Capri Italia

EUIPO

IN.PRO.DI (100 % Capri)

19

2017/C 14/25

Case C-524/16: Request for a preliminary ruling from the Corte dei Conti (Italy) lodged on 12 October 2016 — Istituto Nazionale della Previdenza Sociale v Francesco Faggiano

19

2017/C 14/26

Case C-525/16: Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão (Portugal) lodged on 13 October 2016 — MEO — Serviços de Comunicações e Multimédia S.A. v Autoridade da Concorrência

20

2017/C 14/27

Case C-526/16: Action brought on 12 October 2016 — European Commission v Republic of Poland

21

2017/C 14/28

Case C-527/16: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 October 2016 — Salzburger Gebietskrankenkasse, Bundesminister für Arbeit, Soziales und Konsumentenschutz

22

2017/C 14/29

Case C-528/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 17 October 2016 — Confédération paysanne, Réseau Semences Paysannes, Les Amis de la Terre France, Collectif vigilance OGM et Pesticides 16, Vigilance OG2M, CSFV 49, OGM: dangers, Vigilance OGM 33, Fédération Nature et Progrès v Premier ministre, Ministre de l’agriculture, de l’agroalimentaire et de la forêt

23

2017/C 14/30

Case C-530/16: Action brought on 18 October 2016 — European Commission v Republic of Poland

24

2017/C 14/31

Case C-542/16: Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 26 October 2016 — Länsförsäkringar Sak Försäkringsaktiebolag and Others v Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag

25

2017/C 14/32

Case C-544/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Marcandi Limited, trading as Madbid v Commissioners for Her Majesty's Revenue & Customs

26

2017/C 14/33

Case C-545/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Kubota (UK) Limited, EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs

28

2017/C 14/34

Case C-579/16 P: Appeal brought on 16 November 2016 by European Commission against the judgment of the General Court (Sixth Chamber) delivered on 15 September 2016 in Case T-386/14: Fih Holding and Fih Erhvervsbank v Commission

28

General Court

2017/C 14/35

Joined Cases T-694/13 and T-2/15: Judgment of the General Court of 23 November 2016 — Ipatau v Council (Common Foreign and Security Policy — Restrictive measures against Belarus — Freezing of funds and economic resources — Restrictions on the entry into and transit through European Union territory — Retention of the applicant’s name on the list of persons concerned — Rights of the defence — Obligation to state reasons — Error of assessment — Proportionality)

30

2017/C 14/36

Case T-328/15 P: Judgment of the General Court of 23 November 2016 — FK v Commission (Appeal — Civil Service — Temporary staff — Renewal of contract — Restriction of the duration of the contract renewal — Rights of the defence) (*1)

*1

30

2017/C 14/37

Case T-349/15: Judgment of the General Court of 24 November 2016 — CG v EUIPO — Perry Ellis International Group (P PRO PLAYER) (EU trade mark — Opposition proceedings — Application for EU figurative mark P PRO PLAYER — Earlier EU and national figurative marks P and P PROTECTIVE — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

31

2017/C 14/38

Case T-769/15: Judgment of the General Court of 24 November 2016 — SeNaPro v EUIPO — Paltentaler Splitt & Marmorwerke (Dolokorn) (EU trade mark — Opposition proceedings — Application for EU word mark Dolokorn — Earlier EU word mark DOLOPUR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

32

2017/C 14/39

Joined Cases T-268/15 and T-272/15: Order of the Court of 8 November 2016 — Apcoa Parking Holdings v EUIPO (PARKWAY) (European Union trade mark — Applications for European Union figurative and word marks PARKWAY — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

32

2017/C 14/40

Case T-455/15: Order of the General Court of 26 October 2016 — Vitra Collections v EUIPO — Consorzio Origini (Shape of a chair) (EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

33

2017/C 14/41

Case T-602/15: Order of the General Court of 9 November 2016 — Jenkinson v Council and Others (Arbitration clause — EU international mission personnel — Consecutive fixed-term employment contracts — Claim for compensation — Manifest lack of jurisdiction — Manifest inadmissibility)

34

2017/C 14/42

Case T-41/16: Order of the General Court of 12 October 2016 — Cyprus Turkish Chamber of Industry and Others v Commission (Actions for annulment — Application for registration of a protected designation of origin Halloumi or Hellim — Commission letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure — Measure not open to challenge — Inadmissibility)

34

2017/C 14/43

Case T-116/16: Order of the General Court of 27 October 2016 — Port autonome du Centre et de l’Ouest and Others v Commission (Action for annulment — State aid — Corporate tax — Aid in favour of Belgian ports granted by Belgium — Commission letter proposing the adoption of appropriate measures — Measure not open to challenge — Inadmissibility)

35

2017/C 14/44

Case T-405/16: Action brought on 29 July 2016 — The Regents of the University of California v CPVO — Nador Cott Protection and CVVP (Tang Gold)

36

2017/C 14/45

Case T-701/16 P: Appeal brought on 30 September 2016 by the European Commission against the judgment of 21 July 2016 by the Civil Service Tribunal in Case F-91/15, AV v Commission

37

2017/C 14/46

Case T-747/16: Action brought on 25/10/2016 — Vincenti v EUIPO

37

2017/C 14/47

Case T-752/16: Action brought on 28 October 2016 — Novolipetsk Steel v Commission

38

2017/C 14/48

Case T-753/16: Action brought on 28 October 2016 — Severstal v Commission

39

2017/C 14/49

Case T-754/16: Action brought on 2 November 2016 — Oakley v EUIPO — Xuebo Ye (Representation of a silhouette in the shape of an ellipse)

40

2017/C 14/50

Case T-762/16: Action brought on 31 October 2016 — ArcelorMittal Belval & Differdange and ThyssenKrupp Steel Europe v ECHA

41

2017/C 14/51

Case T-764/16: Action brought on 3 November 2016 — Paulini v ECB

42

2017/C 14/52

Case T-769/16: Action brought on 7 November 2016 — Picard v Commission

44

2017/C 14/53

Case T-771/16: Action brought on 24 October 2016 — Toontrack Music v EUIPO (EZMIX)

45

2017/C 14/54

Case T-776/16: Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell.)

45

2017/C 14/55

Case T-777/16: Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell. Insulation Technology Made in Sweden)

46

2017/C 14/56

Case T-779/16: Action brought on 7 November 2016 — Rühland v EUIPO — 8 seasons design (Lamps)

46

2017/C 14/57

Case T-781/16: Action brought on 9 November 2016 — Puma and Others v Commission

47

2017/C 14/58

Case T-782/16: Action brought on 9 November 2016 — Timberland Europe v Commission

48

2017/C 14/59

Affaire T-788/16: Action brought on 10 November 2016 — De Geoffroy and Others v Parliament

49

2017/C 14/60

Case T-789/16: Action brought on 8 November 2016 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION)

50

2017/C 14/61

Case T-790/16: Action brought on 11 November 2016 — C & J Clark International v Commission

51

2017/C 14/62

Case T-791/16: Action brought on 14 November 2016 — Real Madrid Club de Fútbol v Commission

52

2017/C 14/63

Case T-806/16: Action brought on 15 November 2016 — Agricola J.M. v EUIPO — Torres (CLOS DE LA TORRE)

53

2017/C 14/64

Case T-808/16: Action brought on 14 November 2016 — Jean Patou Worldwide v EUIPO — Emboga (HISPANITAS JOY IS A CHOICE)

54

2017/C 14/65

Case T-815/16: Action brought on 22 November 2016 — For Tune v EUIPO — Simplicity trade (opus AETERNATUM)

55

2017/C 14/66

Case T-392/16: Order of the General Court of 13 October 2016 — Axium v Parliament

55

2017/C 14/67

Case T-565/16: Order of the President of the General Court of 25 October 2016 — Maubert v Council

55

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 16.1.2017 | EN | Official Journal of the European Union | C 14/1 |
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16.1.2017

EN

Official Journal of the European Union

C 14/1

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

(2017/C 014/01)

Last publication

Last publication

OJ C 6, 9.1.2017

Past publications

Past publications

OJ C 475, 19.12.2016

OJ C 462, 12.12.2016

OJ C 454, 5.12.2016

OJ C 441, 28.11.2016

OJ C 428, 21.11.2016

OJ C 419, 14.11.2016

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 16.1.2017 | EN | Official Journal of the European Union | C 14/2 |
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16.1.2017

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Official Journal of the European Union

C 14/2

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Judgment of the Court (First Chamber) of 10 November 2016 — DTS Distribuidora de Televisión Digital SA v European Commission, Telefónica de España SA, Telefónica Móviles España SA, Kingdom of Spain, Corporación de Radio y Televisión Española SA (RTVE)

(Case C-449/14 P) (1)

((Appeal - State aid - State aid scheme in favour of the national public broadcast organisation - Public service obligations - Set-off - Article 106(2) TFEU - Decision declaring the aid scheme compatible with the internal market - Alteration of the method of financing - Tax measures - Tax imposed on pay-television operators - Decision declaring the amended aid scheme compatible with the internal market - Taking into account of the method of financing - Existence of hypothecation between the tax and the aid scheme - Direct impact of the revenue from the tax on the amount of the aid - Coverage of the net costs of fulfilling the public service mandate - Competitive relationship between the person liable to pay the tax and the beneficiary of the aid - Distortion of national law))

(2017/C 014/02)

Language of the case: Spanish

Parties

Appellant: DTS Distribuidora de Televisión Digital SA (represented by: H. Brokelmann and M. Ganino, abogados)

Other parties to the proceedings: European Commission (represented by: C. Urraca Caviedes, B. Stromsky and G. Valero Jordana, acting as Agents), Telefónica de España SA, Telefónica Móviles España SA (represented by: F. González Díaz, F. Salerno and V. Romero Algarra, abogados), Kingdom of Spain (represented by: A. Sampol Pucurull, acting as Agent), Corporación de Radio y Televisión Española SA (RTVE) (represented by: A. Martínez Sánchez and J. Rodríguez Ordóñez, abogados)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders DTS Distribuidora de Televisión Digital SA to bear its own costs and to pay those incurred by the European Commission in respect of the appeal in the main proceedings; |
| --- | --- |

2.

Orders DTS Distribuidora de Televisión Digital SA to bear its own costs and to pay those incurred by the European Commission in respect of the appeal in the main proceedings;

| 3. | Orders Telefónica de España SA and Telefónica Móviles España SA to bear their own costs and to pay those incurred by the European Commission in respect of the cross-appeal; |
| --- | --- |

3.

Orders Telefónica de España SA and Telefónica Móviles España SA to bear their own costs and to pay those incurred by the European Commission in respect of the cross-appeal;

| 4. | Orders Corporación de Radio y Televisión Española SA (RTVE) and the Kingdom of Spain to bear their own costs. |
| --- | --- |

4.

Orders Corporación de Radio y Televisión Española SA (RTVE) and the Kingdom of Spain to bear their own costs.

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(1)  
  OJ C 395, 10.11.2014.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/3 |
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16.1.2017

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Official Journal of the European Union

C 14/3

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Judgment of the Court (Fourth Chamber) of 10 November 2016 — European Commission v Hellenic Republic

(Case C-504/14) (1)

((Failure of a Member State to fulfil obligations - Environment - Nature conservation - Directive 92/43/EEC - Article 6(2) and (3) and Article 12(1)(b) and (d) - Wild fauna and flora - Conservation of natural habitats - Sea turtle Caretta caretta - Protection of sea turtles in the Gulf of Kyparissia - ‘Dunes of Kyparissia’ Site of Community importance - Protection of species))

(2017/C 014/03)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and C. Hermes, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, acting as Agent)

Operative part of the judgment

The Court:

| 1. | Declares that the Hellenic Republic






  — | by tolerating the construction of houses in Agiannaki (Greece) in 2010, the use, without a sufficient regulatory framework, of other houses in Agiannaki which were built in 2006 and the commencement of building works relating to around 50 dwellings located between Agiannaki and Elaia (Greece), and by authorising in 2012 the construction of three holiday houses in Vounaki (Greece); |
| --- | --- | --- |

1.

Declares that the Hellenic Republic

—

by tolerating the construction of houses in Agiannaki (Greece) in 2010, the use, without a sufficient regulatory framework, of other houses in Agiannaki which were built in 2006 and the commencement of building works relating to around 50 dwellings located between Agiannaki and Elaia (Greece), and by authorising in 2012 the construction of three holiday houses in Vounaki (Greece);

| — | by tolerating the development of access routes to the beach in the Dunes of Kyparissia area (Greece), namely the opening up of five new roads to Agiannaki beach and the asphalting of certain existing roads and thoroughfares; |
| --- | --- |

—

by tolerating the development of access routes to the beach in the Dunes of Kyparissia area (Greece), namely the opening up of five new roads to Agiannaki beach and the asphalting of certain existing roads and thoroughfares;

| — | by failing to take adequate measures to enforce the prohibition on wild camping close to the beaches at Kalo Nero (Greece) and Elaia; |
| --- | --- |

—

by failing to take adequate measures to enforce the prohibition on wild camping close to the beaches at Kalo Nero (Greece) and Elaia;

| — | by failing to take the measures necessary to restrict the operation of bars between Elaia and Kalo Nero, on the breeding beaches of the Caretta caretta sea turtle, and by failing to ensure that the various forms of pollution caused by those bars do not disturb that species; |
| --- | --- |

—

by failing to take the measures necessary to restrict the operation of bars between Elaia and Kalo Nero, on the breeding beaches of the Caretta caretta sea turtle, and by failing to ensure that the various forms of pollution caused by those bars do not disturb that species;

| — | by failing to take the measures necessary to reduce, within the Kyparissia area, the furniture and various structures found on the breeding beaches of the Caretta caretta sea turtle and by authorising the construction of a platform near the Messina Mare Hotel; |
| --- | --- |

—

by failing to take the measures necessary to reduce, within the Kyparissia area, the furniture and various structures found on the breeding beaches of the Caretta caretta sea turtle and by authorising the construction of a platform near the Messina Mare Hotel;

| — | by failing to take the measures necessary so as to ensure that the light pollution affecting the breeding beaches of the Caretta caretta sea turtle in the Kyparissia area is adequately curtailed; and |
| --- | --- |

—

by failing to take the measures necessary so as to ensure that the light pollution affecting the breeding beaches of the Caretta caretta sea turtle in the Kyparissia area is adequately curtailed; and

| — | by failing to take the measures necessary to ensure that fishing in the waters off the breeding beaches of the Caretta caretta sea turtle in the Kyparissia area is adequately curtailed, |
| --- | --- |

—

by failing to take the measures necessary to ensure that fishing in the waters off the breeding beaches of the Caretta caretta sea turtle in the Kyparissia area is adequately curtailed,

has failed to fulfil its obligations 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, as amended by Council Directive 2006/105/EC of 20 November 2006;

| 2. | Declares that, by issuing permits for houses built in 2010 in Agiannaki, for three holiday houses in Vounaki in 2012 and for the construction of a platform near the Messina Mare Hotel, the Hellenic Republic has failed to fulfil its obligations under Article 6(3) of Directive 92/43; |
| --- | --- |

2.

Declares that, by issuing permits for houses built in 2010 in Agiannaki, for three holiday houses in Vounaki in 2012 and for the construction of a platform near the Messina Mare Hotel, the Hellenic Republic has failed to fulfil its obligations under Article 6(3) of Directive 92/43;

| 3. | Declares that the Hellenic Republic,






  — | by failing to adopt a comprehensive, coherent and strict legislative and regulatory framework for the protection of the Caretta caretta sea turtle in the Kyparissia area; |
| --- | --- | --- |

3.

Declares that the Hellenic Republic,

—

by failing to adopt a comprehensive, coherent and strict legislative and regulatory framework for the protection of the Caretta caretta sea turtle in the Kyparissia area;

| — | by failing to take, within the prescribed period, all the specific measures necessary to prevent the deliberate disturbance of the Caretta caretta sea turtle during its breeding period; and |
| --- | --- |

—

by failing to take, within the prescribed period, all the specific measures necessary to prevent the deliberate disturbance of the Caretta caretta sea turtle during its breeding period; and

| — | by failing to take the measures necessary to enforce the prohibition on deterioration or destruction of the breeding sites of that species, |
| --- | --- |

—

by failing to take the measures necessary to enforce the prohibition on deterioration or destruction of the breeding sites of that species,

has failed to fulfil its obligations under Article 12(1)(b) and (d) of Directive 92/43;

| 4. | Dismisses the remainder of the action; |
| --- | --- |

4.

Dismisses the remainder of the action;

| 5. | Orders the European Commission and the Hellenic Republic to bear their own costs. |
| --- | --- |

5.

Orders the European Commission and the Hellenic Republic to bear their own costs.

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(1)  
  OJ C 7, 12.1.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/4 |
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16.1.2017

EN

Official Journal of the European Union

C 14/4

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Judgment of the Court (Fifth Chamber) of 16 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — DHL Express (Austria) GmbH v Post-Control-Kommission, Bundesminister für Verkehr, Innovation und Technologie

(Case C-2/15) (1)

((Reference for a preliminary ruling - Directive 97/67/EC - Article 9 - Postal services in the European Union - Obligation to make a financial contribution to the operational costs of the postal sector’s regulatory authority - Scope))

(2017/C 014/04)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: DHL Express (Austria) GmbH

Defendant: Post-Control-Kommission, Bundesminister für Verkehr, Innovation und Technologie

Operative part of the judgment

Article 9(2), second subparagraph, fourth indent, of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which imposes on all postal service providers, including those which do not provide postal services falling within the scope of the universal service, the obligation to contribute to the financing of the national regulatory authorities responsible for that sector.

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(1)  
  OJ C 127, 20.4.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/4 |
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16.1.2017

EN

Official Journal of the European Union

C 14/4

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Judgment of the Court (First Chamber) of 10 November 2016 — Simba Toys GmbH & Co. KG v European Union Intellectual Property Office (EUIPO), Seven Towns Ltd

(Case C-30/15 P) (1)

((Appeal - European Union trade mark - Three-dimensional mark in the shape of a cube with surfaces having a grid structure - Application for a declaration of invalidity - Rejection of the application for a declaration of invalidity))

(2017/C 014/05)

Language of the case: English

Parties

Appellant: Simba Toys GmbH & Co. KG (represented by: O. Ruhl, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: D. Botis and A. Folliard-Monguiral, acting as Agents), Seven Towns Ltd (represented by: K. Szamosi and M. Borbás, ügyvédek)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 25 November 2014, Simba Toys v OHIM — Seven Towns (Shape of a cube with surfaces having a grid structure) (T-450/09, EU:T:2014:983); |
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1.

Sets aside the judgment of the General Court of the European Union of 25 November 2014, Simba Toys v OHIM — Seven Towns (Shape of a cube with surfaces having a grid structure) (T-450/09, EU:T:2014:983);

| 2. | Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 September 2009 (Case R 1526/2008-2) relating to cancellation proceedings between Simba Toys GmbH & Co. KG and Seven Towns Ltd; |
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2.

Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 September 2009 (Case R 1526/2008-2) relating to cancellation proceedings between Simba Toys GmbH & Co. KG and Seven Towns Ltd;

| 3. | Orders Seven Towns Ltd and the European Union Intellectual Property Office to bear their own costs and to pay the costs of Simba Toys GmbH & Co. KG relating both to the proceedings at first instance in Case T-450/09 and to the appeal. |
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3.

Orders Seven Towns Ltd and the European Union Intellectual Property Office to bear their own costs and to pay the costs of Simba Toys GmbH & Co. KG relating both to the proceedings at first instance in Case T-450/09 and to the appeal.

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(1)  
  OJ C 138, 27.4.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/5 |
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16.1.2017

EN

Official Journal of the European Union

C 14/5

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Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Augstākā tiesas — Latvia) — ‘Private Equity Insurance Group’ SIA v ‘Swedbank’ AS

(Case C-156/15) (1)

((Reference for a preliminary ruling - Directive 2002/47/EC - Scope - Definition of ‘financial collateral’, ‘relevant financial obligations’ and ‘provision’ of financial collateral - Whether it is possible to enforce financial collateral notwithstanding the commencement of insolvency proceeding - Current account agreement including a financial collateral clause))

(2017/C 014/06)

Language of the case: Latvian

Referring court

Augstākā tiesas

Parties to the main proceedings

Applicant:
  ‘Private Equity Insurance Group’ SIA

Defendant:
  ‘Swedbank’ AS

Operative part of the judgment

Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements is to be interpreted as conferring on the taker of financial collateral, such as the collateral at issue in the main proceedings, whereby monies deposited in a bank account are pledged to the bank to cover all the account holder’s debts to the bank, the right to enforce the collateral, notwithstanding the commencement of insolvency proceedings in respect of the collateral provider, only if, first, the monies covered by the collateral were deposited in the account in question before the commencement of those proceedings or those monies were deposited on the day of commencement, the bank having proved that it was not aware, nor should have been aware, that those proceedings had commenced and, second, the account holder was prevented from disposing of those monies after they had been deposited in that account.

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(1)  
  OJ C 198, 15.6.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/6 |
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16.1.2017

EN

Official Journal of the European Union

C 14/6

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Judgment of the Court (Third Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Den Haag — Netherlands) — Vereniging Openbare Bibliotheken v Stichting Leenrecht

(Case C-174/15) (1)

((Reference for a preliminary ruling - Copyright and related rights - Rental right and lending right in respect of copyright works - Directive 2006/115/EC - Article 1(1) - Lending of copies of works - Article 2(1) - Lending of objects - Lending of a digital copy of a book - Public libraries))

(2017/C 014/07)

Language of the case: Dutch

Referring court

Rechtbank Den Haag

Parties to the main proceedings

Applicant: Vereniging Openbare Bibliotheken

Defendant: Stichting Leenrecht

Intervening parties: Vereniging Nederlands Uitgeversverbond, Stichting LIRA, Stichting Pictoright

Operative part of the judgment

| 1. | Article 1(1), Article 2(1)(b) and Article 6(1) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the concept of ‘lending’, within the meaning of those provisions, covers the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user. |
| --- | --- |

1.

Article 1(1), Article 2(1)(b) and Article 6(1) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the concept of ‘lending’, within the meaning of those provisions, covers the lending of a digital copy of a book, where that lending is carried out by placing that copy on the server of a public library and allowing a user to reproduce that copy by downloading it onto his own computer, bearing in mind that only one copy may be downloaded during the lending period and that, after that period has expired, the downloaded copy can no longer be used by that user.

| 2. | EU law, and in particular Article 6 of Directive 2006/115, must be interpreted as not precluding a Member State from making the application of Article 6(1) of Directive 2006/115 subject to the condition that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent, for the purpose of Article 4(2) 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.

EU law, and in particular Article 6 of Directive 2006/115, must be interpreted as not precluding a Member State from making the application of Article 6(1) of Directive 2006/115 subject to the condition that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent, for the purpose of Article 4(2) 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.

| 3. | Article 6(1) of Directive 2006/115 must be interpreted as meaning that it precludes the public lending exception laid down therein from applying to the making available by a public library of a digital copy of a book in the case where that copy was obtained from an illegal source. |
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3.

Article 6(1) of Directive 2006/115 must be interpreted as meaning that it precludes the public lending exception laid down therein from applying to the making available by a public library of a digital copy of a book in the case where that copy was obtained from an illegal source.

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(1)  
  OJ C 213, 29.6.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/7 |
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16.1.2017

EN

Official Journal of the European Union

C 14/7

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Judgment of the Court (Ninth Chamber) of 10 November 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Ciclat Soc. coop v Consip SpA, Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

(Case C-199/15) (1)

((Reference for a preliminary ruling - Directive 2004/18/EC - Article 45 - Articles 49 and 56 TFEU - Public procurement - Conditions for exclusion from a procedure for the award of public works contracts, public supply contracts and public service contracts - Obligations relating to the payment of social security contributions - Social security contributions payment certificate - Correction of irregularities))

(2017/C 014/08)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Ciclat Soc. coop

Defendants: Consip SpA, Autorità per la Vigilanza sui Contratti Pubblici di lavori, servizi e forniture

Intervening parties: Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL), Team Service SCARL, as the representative of ATI-Snam Lazio Sud Srl and Ati-Linda Srl, Consorzio Servizi Integrati

Operative part of the judgment

Article 45 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which obliges a contracting authority to consider an infringement relating to the payment of social security contributions, recorded in a certificate requested by a contracting authority on its own initiative and issued by the social security institutions, to be a ground for exclusion, where that infringement existed on the date of the participation in a tender procedure, even if it no longer existed at the time of the award or of the verification carried out on the contracting authority’s own initiative.

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(1)  
  OJ C 262, 10.8.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/7 |
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16.1.2017

EN

Official Journal of the European Union

C 14/7

---

Judgment of the Court (Fifth Chamber) of 17 November 2016 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH

(Case C-216/15) (1)

((Reference for a preliminary ruling - Directive 2008/104/EC - Temporary agency work - Scope - Concept of ‘worker’ - Concept of ‘economic activities’ - Nursing staff who do not have a contract of employment assigned to a health care institution by a not-for-profit association))

(2017/C 014/09)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Appellant: Betriebsrat der Ruhrlandklinik gGmbH

Respondent: Ruhrlandklinik gGmbH

Operative part of the judgment

Article 1(1) and (2) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work must be interpreted as meaning that the scope of that directive covers the assignment by a not-for-profit association, in return for financial compensation, of one of its members to a user undertaking for the purposes of that member carrying out, as his main occupation and under the direction of that user undertaking, work in return for remuneration, where that member is protected on that basis in the Member State concerned, this being a matter for the referring court to determine, even if that member does not have the status of worker under national law on the ground that he has not concluded a contract of employment with that association.

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(1)  
  OJ C 270, 17.8.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/8 |
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16.1.2017

EN

Official Journal of the European Union

C 14/8

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Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco — Spain) — Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias

(Case C-258/15) (1)

((Reference for a preliminary ruling - Equal treatment in employment and occupation - Directive 2000/78/EC - Article 2(2) and Article 4(1) - Discrimination on grounds of age - Recruitment of police officers of the Autonomous Community of the Basque Country restricted to candidates under 35 years of age - Concept of ‘genuine and determining occupational requirement’ - Objective pursued - Proportionality))

(2017/C 014/10)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

Parties to the main proceedings

Applicant: Gorka Salaberria Sorondo

Defendant: Academia Vasca de Policía y Emergencias

Operative part of the judgment

Article 2(2) of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, read together with Article 4(1) of that directive, must be interpreted as not precluding legislation, such as that at issue in the main proceedings, which provides that candidates for posts as police officers who are to perform all the operational duties incumbent on police officers must be under 35 years of age.

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(1)  
  OJ C 270, 17.8.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/9 |
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16.1.2017

EN

Official Journal of the European Union

C 14/9

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Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Fernand Ullens de Schooten v État belge

(Case C-268/15) (1)

((Reference for a preliminary ruling - Fundamental freedoms - Articles 49, 56 and 63 TFEU - Situation confined in all respects within a single Member State - Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible))

(2017/C 014/11)

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: Fernand Ullens de Schooten

Defendant: État belge

Operative part of the judgment

European Union law must be interpreted as meaning that the system of non-contractual liability of a Member State for damage caused by a breach of that law does not apply in the case of damage allegedly caused to an individual as a result of an alleged breach of a fundamental freedom laid down in Article 49, 56 or 63 TFEU by national legislation that is applicable without distinction to the State’s own nationals and those of other Member States, where, in a situation which is confined in all respects within a single Member State, there is no link between the subject or circumstances of the dispute in the main proceedings and those articles.

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(1)  
  OJ C 279, 24.8.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/9 |
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16.1.2017

EN

Official Journal of the European Union

C 14/9

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Judgment of the Court (Fifth Chamber) of 10 November 2016 (request for a preliminary ruling from the Sø- og Handelsretten — Denmark) — Ferring Lægemidler A/S, acting on behalf of Ferring BV v Orifarm A/S

(Case C-297/15) (1)

((Reference for a preliminary ruling - Trade marks - Directive 2008/95/EC - Article 7(2) - Medicinal products - Parallel import - Partitioning of the markets - Need for the repackaging of the product bearing the mark - Medicinal product placed on the exporting market and importing market by the trade mark proprietor with the same kind of packaging))

(2017/C 014/12)

Language of the case: Danish

Referring court

Sø- og Handelsretten

Parties to the main proceedings

Applicant: Ferring Lægemidler A/S, acting on behalf of Ferring BV

Defendant: Orifarm A/S

Operative part of the judgment

Article 7(2) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that a trade mark proprietor may object to the continued marketing of a medicinal product by a parallel importer, where that importer has repackaged that medicinal product in a new, outer packaging and reaffixed the trade mark, where, first, the medicinal product at issue can be marketed in the importing State party to the EEA Agreement, of 2 May 1992, in the same packaging as that in which it is marketed in the exporting State party to the EEA Agreement and, second, the importer has not demonstrated that the imported product can only be marketed in a limited part of the importing State’s market, and those are matters which it is for the referring court to determine.

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(1)  
  OJ C 294, 7.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/10 |
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16.1.2017

EN

Official Journal of the European Union

C 14/10

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Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Conseil d’État — France) — Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication

(Case C-301/15) (1)

((Reference for a preliminary ruling - Intellectual and industrial property rights - Directive 2001/29/EC - Copyright and related rights - Articles 2 and 3 - Rights of reproduction and communication to the public - Scope - ‘Out-of-print’ books which are not or no longer published - National legislation giving a collecting society rights to exploit out-of-print books for commercial purposes - Legal presumption of the authors’ consent - Lack of a mechanism ensuring authors are actually and individually informed))

(2017/C 014/13)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Marc Soulier, Sara Doke

Defendants: Premier ministre, Ministre de la Culture et de la Communication

Intervening parties: Société française des intérêts des auteurs de l’écrit (SOFIA), Joëlle Wintrebert and Others

Operative part of the judgment

Article 2(a) and 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 precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.

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(1)  
  OJ C 294, 7.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/11 |
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16.1.2017

EN

Official Journal of the European Union

C 14/11

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Judgment of the Court (Third Chamber) of 10 November 2016 (requests for a preliminary ruling from the Tribunal de commerce de Paris, Conseil d’État — France) — Eco-Emballages SA v Sphère France SAS and Others (C-313/15), Melitta France SAS and Others v Ministre de l’Écologie, du Développement durable et de l’Énergie (C-530/15)

(Joined Cases C-313/15 and C-530/15) (1)

((Reference for a preliminary ruling - Environment - Directive 94/62/EC - Article 3 - Packaging and packaging waste - Definition - Rolls, tubes and cylinders around which flexible material is wound (‘Roll cores’) - Directive 2013/2/EU - Validity - Amendment by the European Commission of the list of examples of packaging set out in Annex I to Directive 94/62/EC - Misinterpretation of the term ‘packaging’ - Misuse of implementing powers))

(2017/C 014/14)

Language of the case: French

Referring court

Tribunal de commerce de Paris, Conseil d’État

Parties to the main proceedings

(Case C-313/15)

Applicant: Eco-Emballages SA

Defendants: Sphère France SAS, Carrefour Import SAS, SCA Tissue France SAS, Melitta France SAS, SCA Hygiène Products SAS, Wepa France SAS, formerly Wepa Troyes SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica SL, Cofresco Frischhalteprodukte GmbH & Co. KG, Kimberly-Clark SAS, Gopack SAS, Délipapier SAS, Scamark SAS, CMC France SARL, Schweitzer SAS, Paul Hartmann SA, Wepa France SAS, formerly Wepa Lille SAS, Système U Centrale Nationale SA, Industrie Cartarie Tronchetti France SAS

Interveners: Group’Hygiène syndicat professionnel (C-313/15),

(Case C-350/15)

Applicants: Melitta France SAS, Cofresco Frischhalteprodukte GmbH & Co. KG, Délipapier SAS, Gopack SAS, Industrie Cartarie Tronchetti SpA, Industrie Cartarie Tronchetti Ibérica SL, Kimberly-Clark SAS, Wepa France SAS, formerly Lucart France, Paul Hartmann SA, SCA Hygiène Products SAS, SCA Tissue France SAS, Group’Hygiène syndicat professionnel

Defendant: Ministre de l’Écologie, du Développement durable et de l'Énergie

Intervener: Industrie Cartarie Tronchetti France SAS (C-530/15)

Operative part of the judgment

Article 3(1) of Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste, as amended by Directive 2004/12/EC of the European Parliament and of the Council of 11 February 2004, must be interpreted as meaning that roll cores in the form of rolls, tubes or cylinders, around which flexible material is wound and sold to consumers, constitute ‘packaging’ within the meaning of that provision.

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(1)  
  OJ C 294, 7.9.2015.

OJ C 414, 14.12.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/12 |
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16.1.2017

EN

Official Journal of the European Union

C 14/12

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Judgment of the Court (Third Chamber) of 16 November 2016 (request for a preliminary ruling from the Supreme Court of the United Kingdom) — The Queen, on the application of: Timothy Martin Hemming, trading as ‘Simply Pleasure Ltd’ and Others v Westminster City Council

(Case C-316/15) (1)

((Reference for a preliminary ruling - Freedom to provide services - Directive 2006/123/EC - Article 13(2) - Authorisation procedures - Concept of charges which may be incurred))

(2017/C 014/15)

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Applicants: The Queen, on the application of: Timothy Martin Hemming, trading as ‘Simply Pleasure Ltd’, James Alan Poulton, Harmony Ltd, Gatisle Ltd, trading as ‘Janus’, Winart Publications Ltd, Darker Enterprises Ltd, Swish Publications Ltd

Defendant: Westminster City Council

Interveners: The Architects’ Registration Board, The Solicitors’ Regulation Authority, The Bar Standards Board, The Care Quality Commission, The Farriers’ Registration Council, The Law Society, The Bar Council, The Local Government Association, Her Majesty’s Treasury

Operative part of the judgment

Article 13(2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, the requirement for the payment of a fee, at the time of submitting an application for the grant or renewal of authorisation, part of which corresponds to the costs relating to the management and enforcement of the authorisation scheme concerned, even if that part is refundable if that application is refused.

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(1)  
  OJ C 311, 21.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/13 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/13

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Judgment of the Court (First Chamber) of 17 November 2016 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Stadt Wiener Neustadt v Niederösterreichische Landesregierung

(Case C-348/15) (1)

((Reference for a preliminary ruling - Assessment of the effects of certain public and private projects on the environment - Directive 85/337/EEC - Directive 2011/92/EU - Scope - Concept of ‘specific act of national legislation’ - No environmental impact assessment - Definitive authorisation - Legislative regularisation a posteriori of the lack of environmental impact assessment - Principle of cooperation - Article 4 TEU))

(2017/C 014/16)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Stadt Wiener Neustadt

Defendant: Niederösterreichische Landesregierung

Intervening party: .A.S.A. Abfall Service AG

Operative part of the judgment

Article 1(5) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, must be interpreted as meaning that it covers a project subject to a legislative provision such as that at issue in the main proceedings, under which a project which has been the subject of a decision taken in breach of the obligation to assess its effects on the environment, in respect of which the time limit for an action for annulment has expired, must be regarded as lawfully authorised. EU law precludes such a legislative provision insofar as it provides that a prior environmental impact assessment must be deemed to have been carried out for such a project.

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(1)  
  OJ C 363, 3.11.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/13 |
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16.1.2017

EN

Official Journal of the European Union

C 14/13

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Judgment of the Court (Second Chamber) of 16 November 2016 (request for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien — Austria) — Wolfgang Schmidt v Christiane Schmidt

(Case C-417/15) (1)

((Reference for a preliminary ruling - Area of freedom, security and justice - Regulation (EU) No 1215/2012 - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Scope - First subparagraph of Article 24(1) - Exclusive jurisdiction in matters relating to rights in rem in immovable property - Article 7(1)(a) - Special jurisdiction in matters relating to a contract - Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership))

(2017/C 014/17)

Language of the case: German

Referring court

Landesgericht für Zivilrechtssachen Wien

Parties to the main proceedings

Applicant: Wolfgang Schmidt

Defendant: Christiane Schmidt

Operative part of the judgment

The provisions of 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 is to be interpreted as meaning that an action seeking the avoidance of a gift of immovable property on the ground of the donor’s incapacity to contract does not fall within the exclusive jurisdiction of the courts of the Member State in which the property is situated, provided for under Article 24(1) of Regulation No 1215/2012, but within the special jurisdiction provided for under Article 7(1)(a) of that regulation.

An action seeking the removal from the land register of notices evidencing the donee’s right of ownership falls within the exclusive jurisdiction provided for under Article 24(1) of the same regulation.

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(1)  
  OJ C 363, 3.11.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/14 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/14

---

Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Odvolací finanční ředitelství v Pavlína Baštová

(Case C-432/15) (1)

((Reference for a preliminary ruling - Taxation - Value added tax - Directive 2006/112/EC - Article 2(1)(c) - Concept of ‘supply of services for consideration’ - Supply of a horse by a taxable person to the organiser of horse races - Assessment of the consideration - Right to deduct expenses linked to the preparation of the taxable person’s horses for the races - General costs linked to the overall economic activity - Annex III, point 14 - Reduced rate of VAT applicable to the use of sporting facilities - Applicability to the operation of racing stables - Transaction consisting of a single supply or several independent supplies))

(2017/C 014/18)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Odvolací finanční ředitelství

Defendant: Pavlína Baštová

Operative part of the judgment

| 1. | Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that the supply of a horse by its owner, who is a taxable person for value added tax purposes, to the organiser of a horse race for the purpose of the horse’s participation in that race does not constitute a supply of services for consideration within the meaning of that provision where it does not give rise to a payment awarded for participation or any other direct remuneration and where only the owners of horses which are placed in the race receive a prize, even if that prize is determined in advance. On the other hand, such a supply of a horse for the purposes of its participation in the race constitutes a supply of services for consideration where it gives rise to the payment, by the organiser, of remuneration irrespective of whether or not the horse in question is placed in the race. |
| --- | --- |

1.

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that the supply of a horse by its owner, who is a taxable person for value added tax purposes, to the organiser of a horse race for the purpose of the horse’s participation in that race does not constitute a supply of services for consideration within the meaning of that provision where it does not give rise to a payment awarded for participation or any other direct remuneration and where only the owners of horses which are placed in the race receive a prize, even if that prize is determined in advance. On the other hand, such a supply of a horse for the purposes of its participation in the race constitutes a supply of services for consideration where it gives rise to the payment, by the organiser, of remuneration irrespective of whether or not the horse in question is placed in the race.

| 2. | Directive 2006/112 must be interpreted to the effect that a taxable person, who breeds and trains his own race horses and those of other owners, has the right to deduct input value added tax on the transactions relating to the preparation for horse races of his own horses and the participation of his own horses in races, on the ground that the costs pertaining to those transactions are part of the general costs linked to his economic activity, provided that the costs incurred in each of those transactions have a direct and immediate link with that overall activity. That may be the case if the costs thus incurred pertain to race horses actually intended for sale or if the participation of those horses in races is, from an objective point of view, a means of promoting the economic activity, this being a matter for the referring court to determine.
  In a situation where such a right to deduct exists, any prize won by the taxable person on account of the placing of one of his horses in a race is not to be included in the taxable amount for value added tax purposes. |
| --- | --- |

2.

Directive 2006/112 must be interpreted to the effect that a taxable person, who breeds and trains his own race horses and those of other owners, has the right to deduct input value added tax on the transactions relating to the preparation for horse races of his own horses and the participation of his own horses in races, on the ground that the costs pertaining to those transactions are part of the general costs linked to his economic activity, provided that the costs incurred in each of those transactions have a direct and immediate link with that overall activity. That may be the case if the costs thus incurred pertain to race horses actually intended for sale or if the participation of those horses in races is, from an objective point of view, a means of promoting the economic activity, this being a matter for the referring court to determine.

In a situation where such a right to deduct exists, any prize won by the taxable person on account of the placing of one of his horses in a race is not to be included in the taxable amount for value added tax purposes.

| 3. | Article 98 of the Directive 2006/112, read in conjunction with point 14 of Annex III thereto, must be interpreted to the effect that the reduced rate of value added tax may not be applied to a single composite supply of services, made up of several components relating, inter alia, to the training of horses, the use of sporting facilities and the stabling, feeding and other care provided to the horses where the use of the sporting facilities, within the meaning of point 14 of Annex III to that directive, and the training of the horses constitute two components of that composite supply having equal status or where the training of the horses constitutes the main component of that supply, this being a matter for the referring court to assess. |
| --- | --- |

3.

Article 98 of the Directive 2006/112, read in conjunction with point 14 of Annex III thereto, must be interpreted to the effect that the reduced rate of value added tax may not be applied to a single composite supply of services, made up of several components relating, inter alia, to the training of horses, the use of sporting facilities and the stabling, feeding and other care provided to the horses where the use of the sporting facilities, within the meaning of point 14 of Annex III to that directive, and the training of the horses constitute two components of that composite supply having equal status or where the training of the horses constitutes the main component of that supply, this being a matter for the referring court to assess.

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(1)  
  OJ C 371, 9.11.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/15 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/15

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Judgment of the Court (Sixth Chamber) of 10 November 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — J.J. de Lange v Staatssecretaris van Finaciën

(Case C-548/15) (1)

((Reference for a preliminary ruling - Social policy - Principles of equal treatment and of non-discrimination on grounds of age - Directive 2000/78/EC - Equal treatment in employment and occupation - Articles 2, 3 and 6 - Scope - Difference in treatment on grounds of age - National legislation capping deductions of training costs incurred after a certain age - Access to vocational training))

(2017/C 014/19)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: J.J. de Lange

Defendant: Staatssecretaris van Finaciën

Operative part of the judgment

| 1. | Article 3(1)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a taxation scheme, such as that at issue in the main proceedings, which provides that the tax treatment of vocational training costs incurred by a person differs depending on his age, comes within the material scope of that directive to the extent to which the scheme is designed to improve access to training for young people. |
| --- | --- |

1.

Article 3(1)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a taxation scheme, such as that at issue in the main proceedings, which provides that the tax treatment of vocational training costs incurred by a person differs depending on his age, comes within the material scope of that directive to the extent to which the scheme is designed to improve access to training for young people.

| 2. | Article 6(1) of Directive 2000/78 must be interpreted as not precluding a taxation scheme, such as that at issue in the main proceedings, which allows persons who have not yet reached the age of 30 to deduct in full, under certain conditions, vocational training costs from their taxable income, whereas that right to deduct is restricted in the case of persons who have reached that age, in so far as, first, that scheme is objectively and reasonably justified by a legitimate objective relating to employment and labour market policy and, second, the means of attaining that objective are appropriate and necessary. It is for the national court to determine whether that is the case in the main proceedings. |
| --- | --- |

2.

Article 6(1) of Directive 2000/78 must be interpreted as not precluding a taxation scheme, such as that at issue in the main proceedings, which allows persons who have not yet reached the age of 30 to deduct in full, under certain conditions, vocational training costs from their taxable income, whereas that right to deduct is restricted in the case of persons who have reached that age, in so far as, first, that scheme is objectively and reasonably justified by a legitimate objective relating to employment and labour market policy and, second, the means of attaining that objective are appropriate and necessary. It is for the national court to determine whether that is the case in the main proceedings.

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(1)  
  OJ C 38, 1.2.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/16 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/16

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Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Krzystof Marek Poltorak

(Case C-452/16) (1)

((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 1(1) - Concept of ‘judicial decision’ - Article 6(1) - Concept of ‘issuing judicial authority’ - European arrest warrant issued by the Rikspolisstyrelsen (National Police Board, Sweden) with a view to executing a custodial sentence))

(2017/C 014/20)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Krzystof Marek Poltorak

Operative part of the judgment

The term ‘judicial authority’, within the meaning of Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of EU law and that provision must be interpreted as meaning that a police service, such as the Rikspolisstyrelsen (National Police Board, Sweden), is not covered by the term ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by that police service with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.

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(1)  
  OJ C 383, 17.10.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/17 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/17

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Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Halil Ibrahim Özçelik

(Case C-453/16) (1)

((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 8(1)(c) - Concept of ‘arrest warrant’ - Autonomous concept of EU law - National arrest warrant issued by a police service and confirmed by a public prosecutor for the purpose of criminal proceedings))

(2017/C 014/21)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Party to the main proceedings

Halil Ibrahim Özçelik

Operative part of the judgment

Article 8(1)(c) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that a confirmation, such as that at issue in the main proceedings, by the public prosecutor’s office, of a national arrest warrant issued previously by a police service in connection with criminal proceedings constitutes a ‘judicial decision’, within the meaning of that provision.

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(1)  
  OJ C 383, 17.10.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/17 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/17

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Judgment of the Court (Fourth Chamber) of 10 November 2016 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against Ruslanas Kovalkovas

(Case C-477/16 PPU) (1)

((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 1(1) - Concept of ‘judicial decision’ - Article 6(1) - Concept of ‘issuing judicial authority’ - European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence))

(2017/C 014/22)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Applicant: Openbaar Ministerie

Defendant: Ruslanas Kovalkovas

Operative part of the judgment

The term ‘judicial authority’, referred to in Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, is an autonomous concept of EU law and that provision must be interpreted as meaning that it precludes an organ of the executive, such as the Ministry of Justice of the Republic of Lithuania, from being designated as an ‘issuing judicial authority’, within the meaning of the same Article 6(1), meaning that the European arrest warrant issued by it with a view to executing a judgment imposing a custodial sentence cannot be regarded as a ‘judicial decision’, within the meaning of Article 1(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299.

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(1)  
  OJ C 383, 17.10.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/18 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/18

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Order of the Court (Sixth Chamber) of 26 October 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Siderúrgica Sevillana SA (C-369/15), Solvay Solutions Espana SL (C-370/15) Cepsa Química SA (C-371/15), Dow Chemical Ibérica SL (C-372/15) v Administración del Estado

(Joined Cases C-369/15 to C-372/15) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - System for greenhouse gas emission allowance trading in the European Union - Directive 2003/87/EC - Article 10a - Method for allocating quotas free of charge - Calculation of the uniform cross-sectoral correction factor - Decision 2013/448/EU - Article 4 - Annex II - Validity - Application of the uniform cross-sectoral correction factor to plants in sectors subject to a high risk of carbon leaks - Decision 2-11/278/EU - Article 10(9) - Validity))

(2017/C 014/23)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicants: Siderúrgica Sevillana SA (C-369/15), Solvay Solutions Espana SL (C-370/15) Cepsa Química SA (C-371/15), Dow Chemical Ibérica SL (C-372/15)

Defendant: Administración del Estado

Interveners: Repsol Petróleo SA BP, Oil Espana SAU (C-371/15)

Operative part of the order

| 1. | It is not apparent either from the provisions of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, read in the light of Article 15(3) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council, nor from . 2013/448/EU: Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council, that, when determining the maximum annual quantity of greenhouse gas emission allowances, the European Commission excluded emissions other than those attributable to electricity producers. |
| --- | --- |

1.

It is not apparent either from the provisions of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, read in the light of Article 15(3) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council, nor from . 2013/448/EU: Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council, that, when determining the maximum annual quantity of greenhouse gas emission allowances, the European Commission excluded emissions other than those attributable to electricity producers.

| 2. | Examination of question 3b has revealed nothing which affects the validity of Article 15(3) of Decision 2011/278. |
| --- | --- |

2.

Examination of question 3b has revealed nothing which affects the validity of Article 15(3) of Decision 2011/278.

| 3. | Examination of question 4 has revealed nothing to affect the validity of the first subparagraph of Article 10(9) of Decision 2011/278. |
| --- | --- |

3.

Examination of question 4 has revealed nothing to affect the validity of the first subparagraph of Article 10(9) of Decision 2011/278.

| 4. | Article 4 of and Annex H to Decision 2013/448 are invalid. |
| --- | --- |

4.

Article 4 of and Annex H to Decision 2013/448 are invalid.

| 5. | The effects of the declaration of invalidity of Article 4 of and Annex H to Decision 2011/278 are limited in time and so, firstly, the declaration has no effects until the expiry of a period of 10 months, to run from the date of the delivery of the judgment of 28 April 2016, Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), in order to permit the European Commission to adopt the measures necessary and, secondly, the measures adopted until that deadline on the basis of the invalidated provisions cannot be called into question. |
| --- | --- |

5.

The effects of the declaration of invalidity of Article 4 of and Annex H to Decision 2011/278 are limited in time and so, firstly, the declaration has no effects until the expiry of a period of 10 months, to run from the date of the delivery of the judgment of 28 April 2016, Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), in order to permit the European Commission to adopt the measures necessary and, secondly, the measures adopted until that deadline on the basis of the invalidated provisions cannot be called into question.

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(1)  
  OJ C 311, 21.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/19 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/19

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Appeal brought on 24 June 2016 by 100 % Capri Italia Srl against the judgment of the General Court (First Chamber) of 19 April 2016 in Case T-198/14, Capri Italia v EUIPO — IN.PRO.DI (100 % Capri)

(Case C-351/16 P)

(2017/C 014/24)

Language of the case: Italian

Parties

Appellant: 100 % Capri Italia Srl (represented by: P. Pozzi, G. Ghisletti, F. Braga, avvocati)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Inghirami produzione distribuzione SpA (IN.PRO.DI)

By order of 10 November 2016, the Court (Seventh Chamber) dismissed the appeal and ordered 100 % Capri Italia Srl to bear its own costs.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/19 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/19

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Request for a preliminary ruling from the Corte dei Conti (Italy) lodged on 12 October 2016 — Istituto Nazionale della Previdenza Sociale v Francesco Faggiano

(Case C-524/16)

(2017/C 014/25)

Language of the case: Italian

Referring court

Corte dei Conti

Parties to the main proceedings

Applicant: Istituto Nazionale della Previdenza Sociale

Defendant: Francesco Faggiano

Questions referred

| 1. | Must the rules of EU law laid down in Regulation (EEC) No 1408/1971 of the Council of 14 June 1971 (1) and Council Regulation (EC) No 1606/1998 of 29 June 1998 (2) be interpreted to the effect that a request for aggregation of social security contributions made to several pension funds, in particular in the home Member State and in another Member State of the European Union, may not be made by a person already in receipt of a pension? |
| --- | --- |

1.

Must the rules of EU law laid down in Regulation (EEC) No 1408/1971 of the Council of 14 June 1971 (1) and Council Regulation (EC) No 1606/1998 of 29 June 1998 (2) be interpreted to the effect that a request for aggregation of social security contributions made to several pension funds, in particular in the home Member State and in another Member State of the European Union, may not be made by a person already in receipt of a pension?

| 2. | Does Article 49(1)(b)(ii) of Regulation (EEC) No 1408/1971 of the Council of 14 June 1971 preclude a national rule such as the Italian rule laid down in Article 71 of Law No 388 of 23 December 2000, according to which a request for aggregation of social security contributions made to several pension funds, in particular in the home Member State and in another Member State of the European Union, is confined to those who have not yet acquired the right to a pension from any social security fund? |
| --- | --- |

2.

Does Article 49(1)(b)(ii) of Regulation (EEC) No 1408/1971 of the Council of 14 June 1971 preclude a national rule such as the Italian rule laid down in Article 71 of Law No 388 of 23 December 2000, according to which a request for aggregation of social security contributions made to several pension funds, in particular in the home Member State and in another Member State of the European Union, is confined to those who have not yet acquired the right to a pension from any social security fund?

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(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2).

(2)  Council Regulation (EC) No 1606/98 of 29 June 1998 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 with a view to extending them to cover special schemes for civil servants (OJ 1998 L 209, p. 1).

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/20 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/20

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Request for a preliminary ruling from the Tribunal da Concorrência, Regulação e Supervisão (Portugal) lodged on 13 October 2016 — MEO — Serviços de Comunicações e Multimédia S.A. v Autoridade da Concorrência

(Case C-525/16)

(2017/C 014/26)

Language of the case: Portuguese

Referring court

Tribunal da Concorrência, Regulação e Supervisão

Parties to the main proceedings

Applicant: MEO — Serviços de Comunicações e Multimédia S.A.

Defendant: Autoridade da Concorrência

Other party: GDA — Cooperativa de Gestão dos Direitos dos Artistas Intérpretes ou Executantes, ‘GDA’

Questions referred

| 1. | If, in infringement proceedings, facts concerning the effects of any charging of discriminatory prices by an undertaking in a dominant position in relation to one of the retail undertakings, which prejudice that undertaking with regard to its competitors, are proven or evidenced, in order for that conduct to be characterised as placing at a competitive disadvantage within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU must there have been an additional assessment of the gravity, relevance or importance of those effects on the affected undertaking’s competitive position and/or ability to compete, in particular as regards its capacity to absorb the difference in the costs incurred in the context of the wholesale service? |
| --- | --- |

1.

If, in infringement proceedings, facts concerning the effects of any charging of discriminatory prices by an undertaking in a dominant position in relation to one of the retail undertakings, which prejudice that undertaking with regard to its competitors, are proven or evidenced, in order for that conduct to be characterised as placing at a competitive disadvantage within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU must there have been an additional assessment of the gravity, relevance or importance of those effects on the affected undertaking’s competitive position and/or ability to compete, in particular as regards its capacity to absorb the difference in the costs incurred in the context of the wholesale service?

| 2. | If there is proof or evidence in infringement proceedings that the discriminatory prices charged by an undertaking in a dominant position are of significantly reduced importance for the costs incurred, income obtained and profitability achieved by the affected retail undertaking, is an assessment that there is no evidence of abuse of a dominant position and prohibited practices compatible with an interpretation consistent with subparagraph (c) of [the second paragraph of] Article 102 TFEU and the case-law established in the judgments in British Airways (1) and Clearstream? (2) |
| --- | --- |

2.

If there is proof or evidence in infringement proceedings that the discriminatory prices charged by an undertaking in a dominant position are of significantly reduced importance for the costs incurred, income obtained and profitability achieved by the affected retail undertaking, is an assessment that there is no evidence of abuse of a dominant position and prohibited practices compatible with an interpretation consistent with subparagraph (c) of [the second paragraph of] Article 102 TFEU and the case-law established in the judgments in British Airways (1) and Clearstream? (2)

| 3. | Or, on the contrary, is such a circumstance insufficient to preclude the conduct in question from being characterised as abuse of a dominant position and a prohibited practice within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU, that circumstance being of relevance only for the purposes of determining the degree of liability or punishment of the infringing undertaking? |
| --- | --- |

3.

Or, on the contrary, is such a circumstance insufficient to preclude the conduct in question from being characterised as abuse of a dominant position and a prohibited practice within the meaning of subparagraph (c) of [the second paragraph of] Article 102 TFEU, that circumstance being of relevance only for the purposes of determining the degree of liability or punishment of the infringing undertaking?

| 4. | Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum percentage of the affected undertaking’s costs structure? |
| --- | --- |

4.

Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum percentage of the affected undertaking’s costs structure?

| 5. | Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum difference between the average costs incurred by the competitor undertakings in the wholesale service in question? |
| --- | --- |

5.

Must the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must in turn correspond to a minimum difference between the average costs incurred by the competitor undertakings in the wholesale service in question?

| 6. | May the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must, in the context of the market and service in question, correspond to values higher than the differences indicated in [...] Tables 5, 6 and 7, for the purposes of characterising the conduct as a prohibited practice? |
| --- | --- |

6.

May the phrase thereby placing them at a competitive disadvantage in subparagraph (c) of [the second paragraph of] Article 102 TFEU be interpreted as corresponding to the requirement that the advantage arising from the discrimination must, in the context of the market and service in question, correspond to values higher than the differences indicated in [...] Tables 5, 6 and 7, for the purposes of characterising the conduct as a prohibited practice?

| 7. | If the answer to any of questions (iv) to (vi) is in the affirmative, how must such a minimum threshold of significance for the disadvantage in relation to the costs structure or the average costs incurred by the competitor undertakings in the retail service in question be defined? |
| --- | --- |

7.

If the answer to any of questions (iv) to (vi) is in the affirmative, how must such a minimum threshold of significance for the disadvantage in relation to the costs structure or the average costs incurred by the competitor undertakings in the retail service in question be defined?

| 8. | If such a minimum threshold has been defined, does the failure to meet it in each year enable the presumption in the Clearstream judgment, according to which it must be considered that ‘the application to a trading partner of different prices for equivalent services continuously over a period of five years and by an undertaking having a de facto monopoly on the upstream market could not fail to cause that partner a competitive disadvantage’, (3) to be rebutted? |
| --- | --- |

8.

If such a minimum threshold has been defined, does the failure to meet it in each year enable the presumption in the Clearstream judgment, according to which it must be considered that ‘the application to a trading partner of different prices for equivalent services continuously over a period of five years and by an undertaking having a de facto monopoly on the upstream market could not fail to cause that partner a competitive disadvantage’, (3) to be rebutted?

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(1)  C-95/04 P, EU:C:2007:166.

(2)  T-301/04, EU:T:2009:317.

(3)  Paragraphs 194 and 195.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/21 |
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16.1.2017

EN

Official Journal of the European Union

C 14/21

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Action brought on 12 October 2016 — European Commission v Republic of Poland

(Case C-526/16)

(2017/C 014/27)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: M. Owsiany-Hornung and C. Zadra, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The Commission claims that the Court should:

| — | declare that, by excluding projects to locate and search for mineral deposits by means of drilling to a depth of 5 000 metres — with the exception of drilling in areas intended for water extraction, areas containing protected inland waters and nature protection areas in the form of national parks, nature reserves, landscape parks and ‘Natura 2000’ protection areas and the contiguous protection zones, in which drilling to a depth of more than 1 000 metres is subject to the procedure for determining whether an environmental impact assessment is necessary — from the procedure for determining whether an environmental impact assessment is necessary, by setting, for drilling outside areas intended for water extraction, areas containing protected inland waters and the various nature protection areas indicated and their contiguous protection zones, a threshold value triggering that procedure which fails to take account of all of the essential selection criteria set out in Annex III to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment, (1), the Republic of Poland has failed to comply with its obligations under Articles 2(1) and 4(2) and (3) of that directive, read in conjunction with Annexes II and III thereto; |
| --- | --- |

—

declare that, by excluding projects to locate and search for mineral deposits by means of drilling to a depth of 5 000 metres — with the exception of drilling in areas intended for water extraction, areas containing protected inland waters and nature protection areas in the form of national parks, nature reserves, landscape parks and ‘Natura 2000’ protection areas and the contiguous protection zones, in which drilling to a depth of more than 1 000 metres is subject to the procedure for determining whether an environmental impact assessment is necessary — from the procedure for determining whether an environmental impact assessment is necessary, by setting, for drilling outside areas intended for water extraction, areas containing protected inland waters and the various nature protection areas indicated and their contiguous protection zones, a threshold value triggering that procedure which fails to take account of all of the essential selection criteria set out in Annex III to Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment, (1), the Republic of Poland has failed to comply with its obligations under Articles 2(1) and 4(2) and (3) of that directive, read in conjunction with Annexes II and III thereto;

| — | order the Republic of Poland to pay the costs. |
| --- | --- |

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission claims that the Republic of Poland has infringed Articles 2(1) and 4(2) and (3) of Directive 2011/92, read in conjunction with Annexes II and III to that directive.

Article 2(1) of Directive 2011/92 requires the Member States to ensure that ‘
  before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment
  ’.

Under Article 4(2) of Directive 2011/92 the Member States are required to determine, by means of a case-by-case examination or by means of thresholds or criteria which they set (that is to say, within the framework of a ‘screening’), whether projects covered by Annex II to that directive must be made subject to an environmental impact assessment.

Under Article 4(3) of Directive 2011/92, in the determination of the criteria or thresholds for the ‘screening’, ‘
  the relevant selection criteria set out in Annex III shall be taken into account
  ’.

Drilling activity designed to locate and search for mineral deposits come under Annex II to Directive 2011/92, as these relate to ‘deep drillings’ within the meaning of point 2(d) of that annex.

These are projects in respect of which it cannot, on the basis of an overall assessment, be said that they do not have significant effects on the environment.

The Member States are, in the Commission’s view, under an obligation, through application of the essential criteria set out in Annex III to Directive 2011/92, to subject such projects to a ‘screening’.

However, the measures of national law by which Directive 2011/92 has been transposed in the Polish legal order exclude from the ‘screening’ procedure projects to locate and search for mineral deposits by means of drilling activity to a depth of 5 000 metres (with the exception of drilling in so-called ‘sensitive areas’, that is to say, in areas intended for water extraction, areas containing protected inland waters and nature protection areas in the form of national parks, nature reserves, landscape parks and ‘Natura 2000’ protection areas and the contiguous protection zones, in which drilling to a depth of more than 1 000 metres is subject to the ‘screening’ procedure).

This essentially has the result that the vast majority of drilling activities designed to locate and search for mineral deposits situated outside the ‘sensitive areas’ are excluded from the ‘screening’ procedure.

Such an exclusion in disregard of all of the essential criteria set out in Annex III to Directive 2011/92 is, in the Commission’s view, at variance with Articles 2(1) and 4(2) and (3) of Directive 2011/92, read in conjunction with Annexes II and III to that directive.

---

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

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Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 14 October 2016 — Salzburger Gebietskrankenkasse, Bundesminister für Arbeit, Soziales und Konsumentenschutz

(Case C-527/16)

(2017/C 014/28)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Salzburger Gebietskrankenkasse and Bundesminister für Arbeit, Soziales und Konsumentenschutz

Interveners: Alpenrind GmbH, Martin-Meat Szolgáltató és Kereskedelmi Kft, Martimpex-Meat Kft, Pensionsversicherungsanstalt and Allgemeine Unfallversicherungsanstalt

Questions referred

| 1. | Does Article 5 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, (1) which establishes the binding effect of documents within the meaning of Article 19(2) of Regulation (EC) No 987/2009, also apply in proceedings before a court within the meaning of Article 267 TFEU? |
| --- | --- |

1.

Does Article 5 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, (1) which establishes the binding effect of documents within the meaning of Article 19(2) of Regulation (EC) No 987/2009, also apply in proceedings before a court within the meaning of Article 267 TFEU?

| 2. | If Question 1 is answered in the affirmative:






  a) | Does the aforementioned binding effect also apply where proceedings had previously taken place before the Administrative Commission for the Coordination of Social Security Systems and such proceedings did not result either in agreement or in a withdrawal of the contested documents? |
| --- | --- | --- |

2.

If Question 1 is answered in the affirmative:

a)

Does the aforementioned binding effect also apply where proceedings had previously taken place before the Administrative Commission for the Coordination of Social Security Systems and such proceedings did not result either in agreement or in a withdrawal of the contested documents?

| b) | Does the aforementioned binding effect also apply where an ‘A 1’ document is not issued until after the receiving Member State has formally determined that insurance is compulsory under its legislation? Does the binding effect also apply retroactively in such cases? |
| --- | --- |

b)

Does the aforementioned binding effect also apply where an ‘A 1’ document is not issued until after the receiving Member State has formally determined that insurance is compulsory under its legislation? Does the binding effect also apply retroactively in such cases?

| 3. | In the event that, under certain conditions, the binding effect of documents within the meaning of Article 19(2) of Regulation (EC) No 987/2009 is limited:
  Does it contravene the prohibition on replacement set forth in Article 12(1) of Regulation (EC) No 883/2004 if the replacement occurs not in the form of a posting by the same employer but instead by another employer? Does it matter whether






  a) | the second employer has its registered office in the same Member State as the first employer, and |
| --- | --- | --- |

3.

In the event that, under certain conditions, the binding effect of documents within the meaning of Article 19(2) of Regulation (EC) No 987/2009 is limited:

Does it contravene the prohibition on replacement set forth in Article 12(1) of Regulation (EC) No 883/2004 if the replacement occurs not in the form of a posting by the same employer but instead by another employer? Does it matter whether

a)

the second employer has its registered office in the same Member State as the first employer, and

| b) | the first and the second posting employer share staffing and/or organisational resources? |
| --- | --- |

b)

the first and the second posting employer share staffing and/or organisational resources?

---

(1)  
  OJ 2004 L 284, p. 1.

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 17 October 2016 — Confédération paysanne, Réseau Semences Paysannes, Les Amis de la Terre France, Collectif vigilance OGM et Pesticides 16, Vigilance OG2M, CSFV 49, OGM: dangers, Vigilance OGM 33, Fédération Nature et Progrès v Premier ministre, Ministre de l’agriculture, de l’agroalimentaire et de la forêt

(Case C-528/16)

(2017/C 014/29)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Confédération paysanne, Réseau Semences Paysannes, Les Amis de la Terre France, Collectif vigilance OGM et Pesticides 16, Vigilance OG2M, CSFV 49, OGM: dangers, Vigilance OGM 33, Fédération Nature et Progrès

Defendants: Premier ministre, Ministre de l’agriculture, de l’agroalimentaire et de la forêt

Questions referred

| 1. | Do organisms obtained by mutagenesis constitute genetically modified organisms within the meaning of Article 2 of Directive [2001/18/EC] of 12 March 2001, (1) although they are exempt under Article 3 of and Annex IB to the directive from the obligations laid down for release and placing on the market of genetically modified organisms? In particular, may mutagenesis techniques, in particular new directed mutagenesis techniques implementing genetic engineering processes, be regarded as techniques listed in Annex IA, to which Article 2 refers? Consequently, must Articles 2 and 3 of and Annexes IA and IB to Directive 2001/18 of 12 March 2001 be interpreted as meaning that they exempt from precautionary, impact assessment and traceability measures all organisms and seeds obtained by mutagenesis, or only organisms obtained by conventional random mutagenesis methods by ionising radiation or exposure to mutagenic chemical agents existing before those measures were adopted? |
| --- | --- |

1.

Do organisms obtained by mutagenesis constitute genetically modified organisms within the meaning of Article 2 of Directive [2001/18/EC] of 12 March 2001, (1) although they are exempt under Article 3 of and Annex IB to the directive from the obligations laid down for release and placing on the market of genetically modified organisms? In particular, may mutagenesis techniques, in particular new directed mutagenesis techniques implementing genetic engineering processes, be regarded as techniques listed in Annex IA, to which Article 2 refers? Consequently, must Articles 2 and 3 of and Annexes IA and IB to Directive 2001/18 of 12 March 2001 be interpreted as meaning that they exempt from precautionary, impact assessment and traceability measures all organisms and seeds obtained by mutagenesis, or only organisms obtained by conventional random mutagenesis methods by ionising radiation or exposure to mutagenic chemical agents existing before those measures were adopted?

| 2. | Do varieties obtained by mutagenesis constitute genetically modified varieties within the meaning of Article 4 of Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species, (2) which would not be exempt from the obligations laid down in that directive? Or, on the contrary, is the scope of that directive the same as that which under Articles 2 and 3 of and Annex IB to the Directive of 12 March 2001, and does it also exempt varieties obtained by mutagenesis from the obligations laid down for the inclusion of genetically modified varieties in the common catalogue of agricultural plant species by the Directive of 13 June 2002? |
| --- | --- |

2.

Do varieties obtained by mutagenesis constitute genetically modified varieties within the meaning of Article 4 of Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species, (2) which would not be exempt from the obligations laid down in that directive? Or, on the contrary, is the scope of that directive the same as that which under Articles 2 and 3 of and Annex IB to the Directive of 12 March 2001, and does it also exempt varieties obtained by mutagenesis from the obligations laid down for the inclusion of genetically modified varieties in the common catalogue of agricultural plant species by the Directive of 13 June 2002?

| 3. | Do Articles 2 and 3 of and Annex IB to Directive 2001/18/EC of 12 March 2001 on the deliberate release into the environment of genetically modified organisms constitute, insofar as they exclude mutagenesis from the scope of the obligations laid down in the directive, a full harmonisation measure prohibiting Member States from subjecting organisms obtained by mutagenesis to all or some of the obligations laid down in the directive or to any other obligation, or do the Member States, when transposing those provisions, have a discretion to define the regime to be applied to organisms obtained by mutagenesis? |
| --- | --- |

3.

Do Articles 2 and 3 of and Annex IB to Directive 2001/18/EC of 12 March 2001 on the deliberate release into the environment of genetically modified organisms constitute, insofar as they exclude mutagenesis from the scope of the obligations laid down in the directive, a full harmonisation measure prohibiting Member States from subjecting organisms obtained by mutagenesis to all or some of the obligations laid down in the directive or to any other obligation, or do the Member States, when transposing those provisions, have a discretion to define the regime to be applied to organisms obtained by mutagenesis?

| 4. | May the validity of Articles 2 and 3 of and Annexes IA and IB to Directive 2001/18/EC of 12 March 2001 with regard to the precautionary principle guaranteed by Article 191(2) of the Treaty on the Functioning of the European Union, in that those provisions do not subject genetically modified organisms obtained by mutagenesis to precautionary, impact assessment and traceability measures, be called in question, taking account of the development of genetic engineering processes, the appearance of new plant varieties obtained by means of those techniques and the current scientific uncertainty as to their impacts and the potential risks they represent for the environment and human and animal health? |
| --- | --- |

4.

May the validity of Articles 2 and 3 of and Annexes IA and IB to Directive 2001/18/EC of 12 March 2001 with regard to the precautionary principle guaranteed by Article 191(2) of the Treaty on the Functioning of the European Union, in that those provisions do not subject genetically modified organisms obtained by mutagenesis to precautionary, impact assessment and traceability measures, be called in question, taking account of the development of genetic engineering processes, the appearance of new plant varieties obtained by means of those techniques and the current scientific uncertainty as to their impacts and the potential risks they represent for the environment and human and animal health?

---

(1)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC — Commission Declaration (OJ 2001 L 106, p. 1).

(2)  Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ 2002 L 193, p. 1).

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/24 |
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Action brought on 18 October 2016 — European Commission v Republic of Poland

(Case C-530/16)

(2017/C 014/30)

Language of the case: Polish

Parties

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

Defendant: Republic of Poland

Form of order sought

The Commission claims that the Court should:

| — | declare that:






  — | by failing to adopt the measures necessary to ensure that the safety authority is independent of railway undertakings, rail infrastructure operators, applicants and procurement entities, and |
| --- | --- | --- |

—

declare that:

—

by failing to adopt the measures necessary to ensure that the safety authority is independent of railway undertakings, rail infrastructure operators, applicants and procurement entities, and

| — | by failing to adopt the measures necessary to ensure that the investigating body is independent of railway undertakings and rail infrastructure operators, (1) |
| --- | --- |

—

by failing to adopt the measures necessary to ensure that the investigating body is independent of railway undertakings and rail infrastructure operators, (1)

the Republic of Poland has failed to fulfil its obligations under Articles 16(1) and 21(1) of Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification;

| — | order the Republic of Poland to pay the costs. |
| --- | --- |

—

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The Commission criticises the Republic of Poland on the ground that it has failed correctly to transpose within the Polish legal system the principle that the investigating body (that is to say, the Państwowa Komisja Badania Wypadków Kolejowych (National Commission for the investigation of railway accidents) (PKBWK)) must be independent in its organisation, legal structure and decision-making, as required by Article 21(1) of Directive 2004/49/EC. The status conferred on the PKBWK does not guarantee its independence. The Commission criticises the fact that the PKBWK is an integral part of the ministry of transport and that there is no safeguard whatsoever to ensure that it is independent of the ministry and the rail infrastructure operator. Furthermore, the PKBWK does not act in its own name: the minister for transport appoints and dismisses the director of the PKBWK and his deputy, as well as the secretary and the permanent and ad hoc members of the PKBWK. In addition, the minister for transport has not, by way of an appropriate arrangement, made available to the PKBWK the financial means necessary to enable it to carry out its tasks.

The Commission also criticises the Republic of Poland for failing correctly to implement Article 16(1) of Directive 2004/49/EC on the ground that the safety authority (that is to say, the Prezes Urzędu Transportu Kolejowego (board of the rail authority) is not independent in its organisation, legal structure and decision-making vis-à-vis railway undertakings, rail infrastructure operators, applicants and procurement entities.

---

(1)  
  OJ 2004 L 164, p. 44.

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Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 26 October 2016 — Länsförsäkringar Sak Försäkringsaktiebolag and Others v Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag

(Case C-542/16)

(2017/C 014/31)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Applicants: Länsförsäkringar Sak Försäkringsaktiebolag, Jan-Herik Strobel, Mona Strobel, Margareta Nilsson, Per Nilsson, Kent Danås, Dödsboet efter Tommy Jönsson, Stefan Pramryd, Stefan Ingemansson, Lars Persson, Magnus Persson, Anne-Charlotte Wickström, Peter Nilsson, Ingela Landau, Thomas Landau, Britt-Inger Ruth Romare, Gertrud Andersson, Eva Andersson, Rolf Andersson, Lisa Bergström, Bo Sörensson, Christina Sörensson, Kaj Wirenkook, Lena Bergquist Johansson, Agneta Danås, Hans Eriksson, Christina Forsberg, Christina Danielsson, Per-Olof Danielsson, Ann-Christin Jönsson, Åke Jönsson, Stefan Lindgren, Daniel Röme, Ulla Nilsson, Dödsboet efter Leif Göran Erik Nilsson

Defendants: Dödsboet efter Ingvar Mattsson, Länsförsäkringar Sak Försäkringsaktiebolag

Questions referred

| 1 | (a) | Does Directive 2002/92 (1) cover activity where an insurance intermediary had no intention of concluding an actual insurance contract? Is it relevant whether such an intention was absent before the activity was commenced or came into being only subsequently? |
| --- | --- | --- |

1

(a)

Does Directive 2002/92 (1) cover activity where an insurance intermediary had no intention of concluding an actual insurance contract? Is it relevant whether such an intention was absent before the activity was commenced or came into being only subsequently?

| (b) | In the situation envisaged in question 1(a), is it relevant if the intermediary has also carried out proper insurance mediation activity alongside the fictive activity? |
| --- | --- |

(b)

In the situation envisaged in question 1(a), is it relevant if the intermediary has also carried out proper insurance mediation activity alongside the fictive activity?

| (c) | Also in the situation envisaged in question 1(a), is it relevant that the activity appeared, prima facie, to the client to be work preparatory to the conclusion of an insurance contract? Is the client’s understanding, be it well founded or unfounded, of whether insurance mediation was involved of any relevance? |
| --- | --- |

(c)

Also in the situation envisaged in question 1(a), is it relevant that the activity appeared, prima facie, to the client to be work preparatory to the conclusion of an insurance contract? Is the client’s understanding, be it well founded or unfounded, of whether insurance mediation was involved of any relevance?

| 2 | (a) | Does Directive 2002/92 govern advice, economic or other, given in connection with insurance mediation but which as such does not concern the actual signing or continuation of an insurance contract? In that regard, what does apply, in particular, as regards advice concerning the placing of capital in the context of capital assurance? |
| --- | --- | --- |

2

(a)

Does Directive 2002/92 govern advice, economic or other, given in connection with insurance mediation but which as such does not concern the actual signing or continuation of an insurance contract? In that regard, what does apply, in particular, as regards advice concerning the placing of capital in the context of capital assurance?

| (b) | Is advice such as that referred to in question 2(a), where, by definition, it constitutes investment advice under Directive 2004/39, (2) also or instead covered by the provisions of that directive? If such advice is also covered by Directive 2004/39, does one set of rules take precedence over the other? |
| --- | --- |

(b)

Is advice such as that referred to in question 2(a), where, by definition, it constitutes investment advice under Directive 2004/39, (2) also or instead covered by the provisions of that directive? If such advice is also covered by Directive 2004/39, does one set of rules take precedence over the other?

---

(1)  Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation (OJ 2003 L 9, p. 3).

(2)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

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Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Marcandi Limited, trading as ‘Madbid’ v Commissioners for Her Majesty's Revenue & Customs

(Case C-544/16)

(2017/C 014/32)

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicant: Marcandi Limited, trading as ‘Madbid’

Defendant: Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | On the correct interpretation of articles 2(1), 24, 62, 63, 65, and 73 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, and in circumstances such as those in the main proceedings:






  a) | is the issue of Credits to users, by Madbid, in return for a money payment:






  i. | a ‘preliminary transaction’ outside the scope of article 2(1), of the sort identified by the Court in MacDonald Resorts Ltd v Revenue and Customs Commissioners (C-270/09) [2010] ECR I-13179 ECLI:EU:C:2010:780, at paragraphs 23-42; or |
| --- | --- | --- | --- |

1.

On the correct interpretation of articles 2(1), 24, 62, 63, 65, and 73 of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, and in circumstances such as those in the main proceedings:

a)

is the issue of Credits to users, by Madbid, in return for a money payment:

i.

a ‘preliminary transaction’ outside the scope of article 2(1), of the sort identified by the Court in MacDonald Resorts Ltd v Revenue and Customs Commissioners (C-270/09) [2010] ECR I-13179 ECLI:EU:C:2010:780, at paragraphs 23-42; or

| ii. | a supply of services by Madbid within the meaning of article 2(1)(c), namely the grant of a right to participate in online auctions; |
| --- | --- |

ii.

a supply of services by Madbid within the meaning of article 2(1)(c), namely the grant of a right to participate in online auctions;

| b) | if the grant of a right to participate in online auctions is a supply of services by Madbid, then is it a supply made ‘for consideration’ within the meaning of article 2(1)(c), namely the payment for it (i.e. the money received by Madbid from a user in return for Credits); |
| --- | --- |

b)

if the grant of a right to participate in online auctions is a supply of services by Madbid, then is it a supply made ‘for consideration’ within the meaning of article 2(1)(c), namely the payment for it (i.e. the money received by Madbid from a user in return for Credits);

| c) | is the answer to (b) different if the payment for the Credits also serves as an entitlement for the user to acquire goods to the same value in the event of the user not succeeding in the auction; |
| --- | --- |

c)

is the answer to (b) different if the payment for the Credits also serves as an entitlement for the user to acquire goods to the same value in the event of the user not succeeding in the auction;

| d) | if Madbid does not make a supply of services for consideration when it issues Credits to its users in return for a money payment, does it make such a supply at any other time; |
| --- | --- |

d)

if Madbid does not make a supply of services for consideration when it issues Credits to its users in return for a money payment, does it make such a supply at any other time;

and what principles should be applied in determining the answer to those questions?

| 2. | On the correct interpretation of articles 2(1), 14, 62, 63, 65, 73 and 79(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax what, in circumstances such as those in the main proceedings, is the consideration obtained by Madbid in return for the supplies of goods that it makes to users, for the purposes of articles 2(1)(a) and 73? In particular, and taking into account the answer to Question 1:






  a) | is the money paid by a user to Madbid for Credits a ‘payment...on account’ for a supply of goods within the scope of article 65, so that VAT is ‘chargeable’ on receipt of that payment, and such that the payment received by Madbid from the user is consideration for a supply of goods; |
| --- | --- | --- |

2.

On the correct interpretation of articles 2(1), 14, 62, 63, 65, 73 and 79(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax what, in circumstances such as those in the main proceedings, is the consideration obtained by Madbid in return for the supplies of goods that it makes to users, for the purposes of articles 2(1)(a) and 73? In particular, and taking into account the answer to Question 1:

a)

is the money paid by a user to Madbid for Credits a ‘payment...on account’ for a supply of goods within the scope of article 65, so that VAT is ‘chargeable’ on receipt of that payment, and such that the payment received by Madbid from the user is consideration for a supply of goods;

| b) | if a user buys goods through the Buy Now or Earned Discount features, is the value of Credits used in placing bids in auctions and, where the bid is unsuccessful, has the effect of generating Earned Discount or reducing the Buy Now price:






  i. | a ‘price discount’ within the meaning of article 79(b), such that the consideration for Madbid's supply of the goods is the money actually paid to Madbid by the user at the time of purchasing the goods and no more; or |
| --- | --- | --- |

b)

if a user buys goods through the Buy Now or Earned Discount features, is the value of Credits used in placing bids in auctions and, where the bid is unsuccessful, has the effect of generating Earned Discount or reducing the Buy Now price:

i.

a ‘price discount’ within the meaning of article 79(b), such that the consideration for Madbid's supply of the goods is the money actually paid to Madbid by the user at the time of purchasing the goods and no more; or

| ii. | part of the consideration for the supply of goods, such that the consideration for Madbid's supply of goods includes both the money paid to Madbid by the user at the time of purchasing the goods and the money paid by the user for Credits used in placing unsuccessful bids in auctions; |
| --- | --- |

ii.

part of the consideration for the supply of goods, such that the consideration for Madbid's supply of goods includes both the money paid to Madbid by the user at the time of purchasing the goods and the money paid by the user for Credits used in placing unsuccessful bids in auctions;

| c) | if a user exercises the right to buy goods after winning an online auction, is the consideration for the supply of those goods the stated auction winning price (plus shipping and handling charges) and no more, or is the value of the Credits that the winner used to bid in that auction also part of the consideration for the supply of those goods by Madbid to the user; |
| --- | --- |

c)

if a user exercises the right to buy goods after winning an online auction, is the consideration for the supply of those goods the stated auction winning price (plus shipping and handling charges) and no more, or is the value of the Credits that the winner used to bid in that auction also part of the consideration for the supply of those goods by Madbid to the user;

or what principles should be applied in determining the answer to those questions?

| 3. | Where two Member States treat a transaction differently for the purposes of VAT, to what extent should the courts of one of those Member States take into account, when interpreting the relevant provisions of EU law and national law, the desirability of avoiding:






  a) | double taxation of the transaction; and/or |
| --- | --- | --- |

3.

Where two Member States treat a transaction differently for the purposes of VAT, to what extent should the courts of one of those Member States take into account, when interpreting the relevant provisions of EU law and national law, the desirability of avoiding:

a)

double taxation of the transaction; and/or

| b) | non-taxation of the transaction; |
| --- | --- |

b)

non-taxation of the transaction;

and what bearing does the principle of fiscal neutrality have on this question?

---

(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

OJ L 347, p. 1

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Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 28 October 2016 — Kubota (UK) Limited, EP Barrus Limited v Commissioners for Her Majesty's Revenue & Customs

(Case C-545/16)

(2017/C 014/33)

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicants: Kubota (UK) Limited, EP Barrus Limited

Defendant: Commissioners for Her Majesty's Revenue & Customs

Questions referred

| 1. | Is Commission Implementing Regulation (EU) 2015/221 (1) concerning the classification of certain goods in the Combined Nomenclature invalid in so far as it classifies the vehicles specified in the Regulation under CN Code 8704 21 91, rather than CN Code 8704 10? |
| --- | --- |

1.

| 2. | In particular, is Commission Implementing Regulation (EU) 2015/221 concerning the classification of certain goods in the Combined Nomenclature invalid in so far as it: unduly restricts the scope of subheading 8704-10; takes into account impermissible factors; is internally inconsistent; does not take proper account of the Explanatory Notes, CN headings and GIRs; and/or fails to take account of the relevant requirements identified by case law of the Court of Justice of the European Union in relation to CN heading 8704 10? |
| --- | --- |

2.

---

(1)  Commission Implementing Regulation (EU) 2015/221 of 10 February 2015 concerning the classification of certain goods in the Combined Nomenclature

OJ L 37, p. 1

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Appeal brought on 16 November 2016 by European Commission against the judgment of the General Court (Sixth Chamber) delivered on 15 September 2016 in Case T-386/14: Fih Holding and Fih Erhvervsbank v Commission

(Case C-579/16 P)

(2017/C 014/34)

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Flynn, K. Blanck-Putz, A. Bouchagiar, Agents)

Other parties to the proceedings: FIH Holding A/S, FIH Erhvervsbank A/S

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission; |
| --- | --- |

—

set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission;

| — | rule itself on the application at first instance and reject the application as unfounded in law; and |
| --- | --- |

—

rule itself on the application at first instance and reject the application as unfounded in law; and

| — | order the respondents and applicants at first instance to pay the costs of the proceedings. |
| --- | --- |

—

order the respondents and applicants at first instance to pay the costs of the proceedings.

In the alternative, the appellant claims that the Court should:

| — | set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission; and |
| --- | --- |

—

set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission; and

| — | refer the case back to the General Court for consideration of the second plea at first instance; and |
| --- | --- |

—

refer the case back to the General Court for consideration of the second plea at first instance; and

| — | reserve the costs of the proceedings at first instance and on appeal. |
| --- | --- |

—

reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The General Court erred in law in finding that to establish the presence of State aid in the 2012 measures the Commission was required to apply the market economy creditor test in light of the cost which would have arisen for Denmark had it not adopted those measures. That finding of the General Court is a legal error because the cost in question is the direct consequence of the previous award of State aid by Denmark in favour of FIH and the consistent case-law of the Court makes clear that the Commission cannot take such a cost into account when it examines if a Member State has acted as a market economy operator would have done.

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General Court

| 16.1.2017 | EN | Official Journal of the European Union | C 14/30 |
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Official Journal of the European Union

C 14/30

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Judgment of the General Court of 23 November 2016 — Ipatau v Council

(Joined Cases T-694/13 and T-2/15) (1)

((Common Foreign and Security Policy - Restrictive measures against Belarus - Freezing of funds and economic resources - Restrictions on the entry into and transit through European Union territory - Retention of the applicant’s name on the list of persons concerned - Rights of the defence - Obligation to state reasons - Error of assessment - Proportionality))

(2017/C 014/35)

Language of the case: French

Parties

Applicant: Vadzim Ipatau (Minsk, Belarus) (represented by: M. Michalauskas, lawyer)

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

Re:

Application on the basis of Article 263 TFEU seeking the annulment of Council Decision 2013/534/CFSP of 29 October 2013 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2013 L 288, p. 69), Council Implementing Regulation (EU) No 1054/2013 of 29 October 2013 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2013 L 288, p. 1), Council Decision 2014/750/CFSP of 30 October 2014 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2014 L 311, p. 39) and Council Implementing Regulation (EU) No 1159/2014 of 30 October 2014 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2014 L 311, p. 2), in so far as they concern the applicant.

Operative part of the judgment

The Court:

| 1. | Dismisses the actions; |
| --- | --- |

1.

Dismisses the actions;

| 2. | Orders Mr Vadzim Ipatau to pay the costs. |
| --- | --- |

2.

Orders Mr Vadzim Ipatau to pay the costs.

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(1)  
  OJ C 93, 29.3.2014.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/30 |
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Official Journal of the European Union

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Judgment of the General Court of 23 November 2016 — FK (*1) v Commission

(Case T-328/15 P) (1)

((Appeal - Civil Service - Temporary staff - Renewal of contract - Restriction of the duration of the contract renewal - Rights of the defence))

(2017/C 014/36)

Language of the case: French

Parties

Appellant: FK (*1)

Other party to the proceedings: European Commission (represented initially by: J. Currall, G. Berscheid and T. Bohr, and subsequently by: G. Berscheid and T. Bohr, acting as Agents)

Re:

Appeal lodged against the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 April 2015, FK (*1) v Commission (F-87/12 RENV, EU:F:2015:31), seeking to have that judgment set aside.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 April 2015, FK (*1) v Commission (F-87/12 RENV, EU:F:2015:31) insofar as the Civil Service Tribunal dismissed the first and third pleas in law seeking annulment raised at first instance and the claim for damages; |
| --- | --- |

1.

Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 April 2015, FK (*1) v Commission (F-87/12 RENV, EU:F:2015:31) insofar as the Civil Service Tribunal dismissed the first and third pleas in law seeking annulment raised at first instance and the claim for damages;

| 2. | Rejects the plea of inadmissibility raised by the Commission before the Civil Service Tribunal; |
| --- | --- |

2.

Rejects the plea of inadmissibility raised by the Commission before the Civil Service Tribunal;

| 3. | Annuls the decision of the European Commission of 18 November 2011, insofar as it restricts the duration of the extension of FK (*1)’ temporary contract to 31 March 2012; |
| --- | --- |

3.

Annuls the decision of the European Commission of 18 November 2011, insofar as it restricts the duration of the extension of FK (*1)’ temporary contract to 31 March 2012;

| 4. | Refers the action back to a Chamber of the General Court other than that which has ruled in the present appeal for a ruling on the claims for damages put forward by FK (*1); |
| --- | --- |

4.

Refers the action back to a Chamber of the General Court other than that which has ruled in the present appeal for a ruling on the claims for damages put forward by FK (*1);

| 5. | Reserves the costs. |
| --- | --- |

5.

Reserves the costs.

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(*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

(1)  
  OJ C 279, 24.8.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/31 |
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Official Journal of the European Union

C 14/31

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Judgment of the General Court of 24 November 2016 — CG v EUIPO — Perry Ellis International Group (P PRO PLAYER)

(Case T-349/15) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark P PRO PLAYER - Earlier EU and national figurative marks P and P PROTECTIVE - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2017/C 014/37)

Language of the case: English

Parties

Applicant: CG Verwaltungsgesellschaft mbH (Gevelsberg, Germany) (represented by: T. Körber, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Stoyanova-Valchanova and M. Fischer, Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Perry Ellis International Group Holdings Ltd (Nassau, Bahamas) (represented by: O. Günzel and V. Ahmann, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 April 2015 (Case R 2439/2014-4), relating to opposition proceedings between Perry Ellis International Group Holdings and CG Verwaltungsgesellschaft.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders CG Verwaltungsgesellschaft mbH to bear its own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO) and by Perry Ellis International Group Holdings Ltd. |
| --- | --- |

2.

Orders CG Verwaltungsgesellschaft mbH to bear its own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO) and by Perry Ellis International Group Holdings Ltd.

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(1)  
  OJ C 294, 7.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/32 |
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Official Journal of the European Union

C 14/32

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Judgment of the General Court of 24 November 2016 — SeNaPro v EUIPO — Paltentaler Splitt & Marmorwerke (Dolokorn)

(Case T-769/15) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark Dolokorn - Earlier EU word mark DOLOPUR - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2017/C 014/38)

Language of the case: German

Parties

Applicant: SeNaPro GmbH (Pommelsbrunn, Germany) (represented by: A. Schröder, lawyer)

Defendant: European Union Intellectual Property Office (represented by: E. Strittmatter and A. Folliard–Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Paltentaler Splitt & Marmorwerke GmbH (Rottenmann, Austria) (represented by: C. Ofner, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 23 October 2015 (Case R 2643/2014-1), relating to opposition proceedings between Paltentaler Splitt & Marmorwerke and SeNaPro.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders SeNaPro GmbH to pay the costs. |
| --- | --- |

2.

Orders SeNaPro GmbH to pay the costs.

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(1)  
  OJ C 78, 29.2.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/32 |
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Official Journal of the European Union

C 14/32

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Order of the Court of 8 November 2016 — Apcoa Parking Holdings v EUIPO (PARKWAY)

(Joined Cases T-268/15 and T-272/15) (1)

((European Union trade mark - Applications for European Union figurative and word marks PARKWAY - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))

(2017/C 014/39)

Language of the Case: German

Parties

Applicant: Apcoa Parking Holdings GmbH (Stuttgart, Germany) (represented by: A. Lohmann, lawyer)

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

Re:

Two actions brought against the decision of the Fourth Board of Appeal of EUIPO of 25 March 2015 (Cases R 2063/2014-4 and R 2062/2014-4) concerning applications for registration of the figurative and word signs PARKWAY as European Union trade marks.

Operative part of the judgment

The Court:

| 1) | Dismisses the actions; |
| --- | --- |

1)

Dismisses the actions;

| 2) | Orders Apcoa Parking Holdings GmbH to pay the costs. |
| --- | --- |

2)

Orders Apcoa Parking Holdings GmbH to pay the costs.

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(1)  
  OJ C 245, 27.7.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/33 |
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Official Journal of the European Union

C 14/33

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Order of the General Court of 26 October 2016 — Vitra Collections v EUIPO — Consorzio Origini (Shape of a chair)

(Case T-455/15) (1)

((EU trade mark - Invalidity proceedings - Withdrawal of the application for a declaration of invalidity - No need to adjudicate))

(2017/C 014/40)

Language of the case: English

Parties

Applicant: Vitra Collections AG (Muttenz, Switzerland) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

Defendant: European Union Intellectual Property Office (represented: initially by P. Bullock, subsequently by D. Hanf and finally by D. Hanf and S. Bonne, acting as agents)

Other party to the proceedings before the Board of Appeal of EUIPO intervening before the General Court: Consorzio Origini per l’Internazionalizzazione (Florence, Italy) (represented by: S. Rizzo, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 18 March 2015 (Case R 664/2011-5), relating to invalidity proceedings between Consorzio Origini and Vitra Collections AG.

Operative part of the order

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

1.

There is no need to adjudicate on the action.

| 2. | Vitra Collections AG and Consorzio Origini per l’Internazionalizzazione shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Vitra Collections AG and Consorzio Origini per l’Internazionalizzazione shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

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(1)  
  OJ C 320, 28.9.2015.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/34 |
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Official Journal of the European Union

C 14/34

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Order of the General Court of 9 November 2016 — Jenkinson v Council and Others

(Case T-602/15) (1)

((Arbitration clause - EU international mission personnel - Consecutive fixed-term employment contracts - Claim for compensation - Manifest lack of jurisdiction - Manifest inadmissibility))

(2017/C 014/41)

Language of the case: French

Parties

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

Defendants: Council of the European Union (represented by: A. Vitro and M. Bishop, acting as Agents), European Commission (represented by: G. Gattinara and S. Bartelt, acting as Agents), European External Action Service (represented by: S. Marquardt, E. Chaboureau and G. Pasqualetti, acting as Agents), Eulex Kosovo (represented by: D. Fouquet and E. Raoult, lawyers)

Subject matter of the proceedings

Principally, an application pursuant to Article 272 TFEU seeking, on the one hand, to have the applicant’s contractual relationship reclassified as an employment contract of indeterminate duration and to obtain compensation for the loss that the applicant claims to have suffered as a result of the abusive use of consecutive fixed-term contracts and an unfair dismissal, and, on the other hand, a declaration that the Council, the Commission and EEAS discriminated against the applicant and an order requiring them to pay compensation to the applicant, and, in the alternative, a claim based on the non-contractual liability of the European institutions.

Operative part of the order

| 1) | The action is dismissed. |
| --- | --- |

1)

The action is dismissed.

| 2) | Liam Jenkinson is ordered to pay the costs. |
| --- | --- |

2)

Liam Jenkinson is ordered to pay the costs.

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(1)  
  OJ C 90, 7.3.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/34 |
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Official Journal of the European Union

C 14/34

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Order of the General Court of 12 October 2016 — Cyprus Turkish Chamber of Industry and Others v Commission

(Case T-41/16) (1)

((Actions for annulment - Application for registration of a protected designation of origin ‘Halloumi’ or ‘Hellim’ - Commission letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure - Measure not open to challenge - Inadmissibility))

(2017/C 014/42)

Language of the case: English

Parties

Applicants: Cyprus Turkish Chamber of Industry (Nicosia, Cyprus), Animal Breeders and Producers Association (Nicosia), Milk and Oil Products Production and Marketing Cooperative Ltd (Nicosia), Süt Urünleri İmalatçulari Birliği Milk Processors Association (Nicosia), Fatma Garanti (Güzelyurt)) (represented by: B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers)

Defendant: European Commission (represented by: A. Lewis, P. Aalto and J. Guillem Carrau, Agents)

Re:

Action pursuant to Article 263 TFEU for annulment of two letters from the European Commission of 18 November 2015 (Ref.Ares (2015) 5171539) and of 15 January 2016 (Ref.Ares (2016) 220922) concerning the applicants’ involvement in the opposition procedure relating to the procedure for registering the cheese called ‘Halloumi/Hellim’ as a protected designation of origin

Operative part of the order

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

1.

The action is dismissed.

| 2. | There is no need to rule on the applications for leave to intervene submitted by the Council of the European Union, the European Parliament and the Republic of Cyprus. |
| --- | --- |

2.

There is no need to rule on the applications for leave to intervene submitted by the Council of the European Union, the European Parliament and the Republic of Cyprus.

| 3. | Cyprus Turkish Chamber of Industry, Animal Breeders and Producers Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Urünleri İmalatçulari Birliği Milk Processors Association and Mrs Fatma Garanti shall bear their own costs and pay those incurred by the European Commission, including the costs relating to the interlocutory proceedings. |
| --- | --- |

3.

Cyprus Turkish Chamber of Industry, Animal Breeders and Producers Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Urünleri İmalatçulari Birliği Milk Processors Association and Mrs Fatma Garanti shall bear their own costs and pay those incurred by the European Commission, including the costs relating to the interlocutory proceedings.

| 4. | Cyprus Turkish Chamber of Industry, Animal Breeders and Producers Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Urünleri İmalatçulari Birliği Milk Processors Association, Mrs Fatma Garanti, the Commission, the Council, the Parliament and the Republic of Cyprus shall each bear their own costs relating to the applications for leave to intervene. |
| --- | --- |

4.

Cyprus Turkish Chamber of Industry, Animal Breeders and Producers Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Urünleri İmalatçulari Birliği Milk Processors Association, Mrs Fatma Garanti, the Commission, the Council, the Parliament and the Republic of Cyprus shall each bear their own costs relating to the applications for leave to intervene.

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(1)  
  OJ C 118, 4.4.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/35 |
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Official Journal of the European Union

C 14/35

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Order of the General Court of 27 October 2016 — Port autonome du Centre et de l’Ouest and Others v Commission

(Case T-116/16) (1)

((Action for annulment - State aid - Corporate tax - Aid in favour of Belgian ports granted by Belgium - Commission letter proposing the adoption of appropriate measures - Measure not open to challenge - Inadmissibility))

(2017/C 014/43)

Language of the case: French

Parties

Applicants: Port autonome du Centre et de l’Ouest SCRL (La Louvière, Belgium), Port autonome de Namur (Namur, Belgiun), Port autonome de Charleroi (Charleroi, Belgium), Port autonome de Liège (Liège, Belgium), Région wallonne (Belgium) (represented by: J. Vanden Eynde, lawyer)

Defendant: European Commission (represented by: S. Noë and B. Stromsky, acting as Agents)

Re:

Action based on Article 263 TFEU, requesting annulment of the alleged decision concerning State aid SA.38393 (2015/E) — Taxation of ports in Belgium, annexed to the Commission’s letter of 22 January 2016 seeking to propose appropriate measures to the Kingdom of Belgium.

Operative part of the order

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

1.

The action is dismissed as inadmissible.

| 2. | The Port autonome du Centre et de l’Ouest SCRL, the Port autonome de Namur, the Port autonome de Charleroi, the Port autonome de Liège and the Région wallonne shall bear their own costs and those incurred by the European Commission. |
| --- | --- |

2.

The Port autonome du Centre et de l’Ouest SCRL, the Port autonome de Namur, the Port autonome de Charleroi, the Port autonome de Liège and the Région wallonne shall bear their own costs and those incurred by the European Commission.

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(1)  
  OJ C 175, 17.5.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/36 |
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Official Journal of the European Union

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Action brought on 29 July 2016 — The Regents of the University of California v CPVO — Nador Cott Protection and CVVP (Tang Gold)

(Case T-405/16)

(2017/C 014/44)

Language in which the application was lodged: Spanish

Parties

Applicant: The Regents of the University of California (Riverside, California, United States of America) (represented by: J. Muñoz-Delgado Mérida, S. Poza Martínez, M. Esteve Sanz y J. Lissen Arbeloa, abogados)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal: Nador Cott Protection SARL (Saint-Raphaël, France) and Club de Variedades Vegetales Protegidas (Valencia, Spain)

Details of the proceedings before CPVO

Proprietor of the plant variety right at issue: Applicant

Community Plant variety right at issue: Community Plant Variety Right No EU 38924, variety denomination: Tang Gold, species: Citrus reticulata Bianco

Contested decision: Decision of the Board of Appeal of CPVO of 29 April 2016 in Case A006/2014

Form of order sought

The applicant claims that the Court should:

| — | Confer on the variety Nadorcott, with regard to characteristic No 68 of Protocol CPVO-TP 201/2, the level of expression ‘very high’ with a mark of 9 or, in the alternative, the level of expression ‘high’ with a mark of 7, entering that classification on the Report on the Differences with Similar Varieties, which form part of the official description of the variety Tang Gold; |
| --- | --- |

—

Confer on the variety Nadorcott, with regard to characteristic No 68 of Protocol CPVO-TP 201/2, the level of expression ‘very high’ with a mark of 9 or, in the alternative, the level of expression ‘high’ with a mark of 7, entering that classification on the Report on the Differences with Similar Varieties, which form part of the official description of the variety Tang Gold;

| — | Recognise the existence of manifest differences between the varieties Tang Gold and Nardocott as regards characteristics Nos 5, 6, 14, 15, 16, 37, 50, 60 and 65 of Protocol CPVO-TP 201/2, by making a declaration to that effect and granting the amendment of the Report on the Differences with Similar Varieties, which forms part of the official description of the variety Tang Gold, in such a way as to include those differences in the report. |
| --- | --- |

—

Recognise the existence of manifest differences between the varieties Tang Gold and Nardocott as regards characteristics Nos 5, 6, 14, 15, 16, 37, 50, 60 and 65 of Protocol CPVO-TP 201/2, by making a declaration to that effect and granting the amendment of the Report on the Differences with Similar Varieties, which forms part of the official description of the variety Tang Gold, in such a way as to include those differences in the report.

Pleas in law

| — | Infringement of Articles 57, 62, 67, 75 and 81 of Regulation No 2100/94. |
| --- | --- |

—

Infringement of Articles 57, 62, 67, 75 and 81 of Regulation No 2100/94.

| — | Infringement of Article 49 of Regulation No 874/09. |
| --- | --- |

—

Infringement of Article 49 of Regulation No 874/09.

| — | Misinterpretation of the Report of the IVIA entitled ‘Extent of the reduction of the seed content through induced mutagenesis’. |
| --- | --- |

—

Misinterpretation of the Report of the IVIA entitled ‘Extent of the reduction of the seed content through induced mutagenesis’.

| — | Characteristic No 68 does not depend on environmental conditions. |
| --- | --- |

—

Characteristic No 68 does not depend on environmental conditions.

| — | The data provided by UCR on the number of seeds contained in the Nadorcott variety is comparable. |
| --- | --- |

—

The data provided by UCR on the number of seeds contained in the Nadorcott variety is comparable.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/37 |
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Official Journal of the European Union

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Appeal brought on 30 September 2016 by the European Commission against the judgment of 21 July 2016 by the Civil Service Tribunal in Case F-91/15, AV v Commission

(Case T-701/16 P)

(2017/C 014/45)

Language of the case: French

Parties

Appellant: European Commission (represented by C. Berardis-Kayser, T. S. Bohr and C. Ehrbar, acting as Agents)

Other party to the proceedings: AV (Cadrezzate, Italy)

Form of order sought by the appellant

The appellant claims that the Court should:

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

—

Set aside the judgment under appeal;

| — | Refer the case back to the court of first instance; |
| --- | --- |

—

Refer the case back to the court of first instance;

| — | Reserve the costs. |
| --- | --- |

—

Reserve the costs.

Pleas in law and main arguments

In support of the appeal, the appellant relies on two pleas in law.

| 1. | First plea in law, alleging that the Civil Service Tribunal (CST) committed two errors of law. In the first place, the CST annulled the contested decision, namely the decision of the Commission, of 16 September 2014, to apply to the other party in the proceedings the medical reservation clause provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union and to refuse to award him an invalidity allowance, notwithstanding the fact that a decision may be annulled only exceptionally on the ground of infringement of the reasonable time principle. In the second place, the CST wrongly found that the excessive delay in taking the decision could affect the very content of the decision. The appellant alleges, moreover, an infringement of the duty to provide reasons with regard to that second aspect. |
| --- | --- |

1.

First plea in law, alleging that the Civil Service Tribunal (CST) committed two errors of law. In the first place, the CST annulled the contested decision, namely the decision of the Commission, of 16 September 2014, to apply to the other party in the proceedings the medical reservation clause provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union and to refuse to award him an invalidity allowance, notwithstanding the fact that a decision may be annulled only exceptionally on the ground of infringement of the reasonable time principle. In the second place, the CST wrongly found that the excessive delay in taking the decision could affect the very content of the decision. The appellant alleges, moreover, an infringement of the duty to provide reasons with regard to that second aspect.

| 2. | Second plea in law, alleging an error of law resulting from the fact that, as the CST annulled the contested decision by holding that the delay in the conduct of administrative procedures, which was found to be excessive, affected the very content of the decision, the judgment under appeal disregarded the principle of res judicata. |
| --- | --- |

2.

Second plea in law, alleging an error of law resulting from the fact that, as the CST annulled the contested decision by holding that the delay in the conduct of administrative procedures, which was found to be excessive, affected the very content of the decision, the judgment under appeal disregarded the principle of res judicata.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/37 |
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Official Journal of the European Union

C 14/37

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Action brought on 25/10/2016 — Vincenti v EUIPO

(Case T-747/16)

(2017/C 014/46)

Language of the case: English

Parties

Applicant: Guillaume Vincenti (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Form of order sought

The applicant claims that the Court should:

| — | Annul the EUIPO’s decision not to recognize the applicant’s total permanent incapacity to perform duties and its refusal to declare that he shall be retired |
| --- | --- |

—

Annul the EUIPO’s decision not to recognize the applicant’s total permanent incapacity to perform duties and its refusal to declare that he shall be retired

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant infringed the relevant provisions of the Staff Regulations, namely Articles 7-9, 13, 33, and 78 thereof, and Articles 13-16 of Annex VIII to those Regulations and in particular Article 53 of the Staff Regulations. |
| --- | --- |

1.

First plea in law, alleging that the defendant infringed the relevant provisions of the Staff Regulations, namely Articles 7-9, 13, 33, and 78 thereof, and Articles 13-16 of Annex VIII to those Regulations and in particular Article 53 of the Staff Regulations.

| 2. | Second plea in law, alleging that the defendant breached its fiduciary duty and the principle of sound administration (Articles 41(1), 41 (2)(a), (b) and (c), Charter of Fundamental Rights of the EU) as well as the applicant’s procedural rights, also by basing the Contested Decision on distorted facts: |
| --- | --- |

2.

Second plea in law, alleging that the defendant breached its fiduciary duty and the principle of sound administration (Articles 41(1), 41 (2)(a), (b) and (c), Charter of Fundamental Rights of the EU) as well as the applicant’s procedural rights, also by basing the Contested Decision on distorted facts:

| 3. | Third plea in law, alleging that the defendant breached Article 3(1) of the Charter of Fundamental Rights of the EU. |
| --- | --- |

3.

Third plea in law, alleging that the defendant breached Article 3(1) of the Charter of Fundamental Rights of the EU.

In support of the above pleas, the applicant argues in particular that the Appointing Authority does not have any discretion within the procedure for invalidity according to the relevant stipulations of the Staff Regulations to recognise or not recognise the permanent incapacity of an official to perform his duties, since the decision of the Invalidity Committee is binding and, even on the assumption that the Appointing Authority has a discretion within this procedure, there was no justified reason in the case of the applicant not to recognize his permanent incapacity.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/38 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/38

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Action brought on 28 October 2016 — Novolipetsk Steel v Commission

(Case T-752/16)

(2017/C 014/47)

Language of the case: English

Parties

Applicant: PAO Novolipetsk Steel (Lipetsk, Russia) (represented by: B. Evtimov, lawyer and D. O’Keeffe, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Regulation (EU) 2016/1328 of 29 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold rolled flat steel products originating, inter alia, in the Russian Federation, published in the OJ L 210 of 04/08/2016 in its entirety insofar as it affects the Applicant; |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1328 of 29 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold rolled flat steel products originating, inter alia, in the Russian Federation, published in the OJ L 210 of 04/08/2016 in its entirety insofar as it affects the Applicant;

| — | order the Commission to pay the costs of and occasioned by these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of and occasioned by these 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 a breach of the right to a fair hearing, including the rights of defence, the principle of equality of arms, and the principle of good administration. |
| --- | --- |

1.

First plea in law, alleging a breach of the right to a fair hearing, including the rights of defence, the principle of equality of arms, and the principle of good administration.

| 2. | Second plea in law, alleging that the Commission breached Article 18 of the Basic Regulation (1), Article 6.8 and Annex II of the ADA (2), the principle of proportionality and made an error in law and a manifest error of assessment by considering the Applicant a non-cooperating producer and applying facts available to it. |
| --- | --- |

2.

Second plea in law, alleging that the Commission breached Article 18 of the Basic Regulation (1), Article 6.8 and Annex II of the ADA (2), the principle of proportionality and made an error in law and a manifest error of assessment by considering the Applicant a non-cooperating producer and applying facts available to it.

| 3. | Third plea in law, alleging that the Commission breached Article 3(2) and 3(5) of the Basic Regulation and Article 3.1 of the ADA, distorted the evidence before it and made manifest errors of assessment, by wrongly assessing the injury indicators and not carrying out an objective examination of the state of the Union industry.






  — | The Applicant puts forward that the Commission relied only on selected economic indicators of the state of the Union industry and neglected key indicators which would have revealed a different, more positive state of the Union industry. |
| --- | --- | --- |

3.

Third plea in law, alleging that the Commission breached Article 3(2) and 3(5) of the Basic Regulation and Article 3.1 of the ADA, distorted the evidence before it and made manifest errors of assessment, by wrongly assessing the injury indicators and not carrying out an objective examination of the state of the Union industry.

—

The Applicant puts forward that the Commission relied only on selected economic indicators of the state of the Union industry and neglected key indicators which would have revealed a different, more positive state of the Union industry.

| — | The Applicant further puts forward that the Commission took a biased approach favoring its injury findings and distorting evidence before it by failing to examine the ‘free’ and ‘captive’ markets of the product concerned as a whole in violation of its duty to conduct an objective evaluation under Article 3(2) of the Basic Regulation. |
| --- | --- |

—

The Applicant further puts forward that the Commission took a biased approach favoring its injury findings and distorting evidence before it by failing to examine the ‘free’ and ‘captive’ markets of the product concerned as a whole in violation of its duty to conduct an objective evaluation under Article 3(2) of the Basic Regulation.

| 4. | Fourth plea in law, alleging that the Commission breached Article 3(7) of the Basic Regulation, as it wrongly assessed the causal link between allegedly dumped imports and the situation of the Union industry. The Applicant further puts forward that the Commission failed in its duty not to attribute other factors causing injury to the allegedly dumped imports and overlooked other factors which jointly and severally were capable of breaking the causal link. |
| --- | --- |

4.

Fourth plea in law, alleging that the Commission breached Article 3(7) of the Basic Regulation, as it wrongly assessed the causal link between allegedly dumped imports and the situation of the Union industry. The Applicant further puts forward that the Commission failed in its duty not to attribute other factors causing injury to the allegedly dumped imports and overlooked other factors which jointly and severally were capable of breaking the causal link.

| 5. | Fifth plea in law, alleging that the Commission wrongly determined the injury elimination level, breaching Articles 2(9), 9(4) of the Basic Regulation and making a manifest error of assessment. In particular, according to the Applicant, the Commission determined an unreasonable and excessive profit margin for the Union industry and committed a manifest error of assessment in applying, for injury margin purposes, and by analogy, the adjustment for reasonable selling, general and administrative costs and a profit of an unrelated importer, foreseen in Article 2(9) of the Basic Regulation. |
| --- | --- |

5.

Fifth plea in law, alleging that the Commission wrongly determined the injury elimination level, breaching Articles 2(9), 9(4) of the Basic Regulation and making a manifest error of assessment. In particular, according to the Applicant, the Commission determined an unreasonable and excessive profit margin for the Union industry and committed a manifest error of assessment in applying, for injury margin purposes, and by analogy, the adjustment for reasonable selling, general and administrative costs and a profit of an unrelated importer, foreseen in Article 2(9) of the Basic Regulation.

---

(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51).

(2)  WTO Anti-dumping Agreement.

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/39 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/39

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Action brought on 28 October 2016 — Severstal v Commission

(Case T-753/16)

(2017/C 014/48)

Language of the case: English

Parties

Applicant: PAO Severstal (Cherepovets, Russia) (represented by: B. Evtimov, lawyer and D. O’Keeffe, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Regulation (EU) 2016/1328 of 29 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold rolled flat steel products originating, inter alia, in the Russian Federation, published in the OJ L 210 of 04/08/2016 in its entirety insofar as it affects the Applicant; |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1328 of 29 July 2016 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain cold rolled flat steel products originating, inter alia, in the Russian Federation, published in the OJ L 210 of 04/08/2016 in its entirety insofar as it affects the Applicant;

| — | order the Commission to pay the costs of and occasioned by these proceedings. |
| --- | --- |

—

order the Commission to pay the costs of and occasioned by these 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 that the Commission breached Article 18 of the Basic Regulation (1), Article 6.8 and Annex II of the ADA (2), when it considered the Applicant a partially non-cooperating producer and applied facts available to it, and made a manifest error of assessment. According to the Applicant, in addition, the consequences from partial non-cooperation were manifestly inappropriate in light of the limited deficiencies found. |
| --- | --- |

1.

First plea in law, alleging that the Commission breached Article 18 of the Basic Regulation (1), Article 6.8 and Annex II of the ADA (2), when it considered the Applicant a partially non-cooperating producer and applied facts available to it, and made a manifest error of assessment. According to the Applicant, in addition, the consequences from partial non-cooperation were manifestly inappropriate in light of the limited deficiencies found.

| 2. | Second plea in law, alleging that the Commission breached the right to a fair hearing and the rights of defence of the Applicant by limiting the opportunities for the Applicant to defend itself against the Commission’s adverse findings. According to the Applicant, the Commission effectively rejected/disregarded any additional information or argument from the Applicant concerning its partial non-cooperation status. |
| --- | --- |

2.

Second plea in law, alleging that the Commission breached the right to a fair hearing and the rights of defence of the Applicant by limiting the opportunities for the Applicant to defend itself against the Commission’s adverse findings. According to the Applicant, the Commission effectively rejected/disregarded any additional information or argument from the Applicant concerning its partial non-cooperation status.

| 3. | Third plea in law, alleging that the Commission failed to establish a correct dumping margin in accordance with Article 2(12) of the Basic Regulation after it breached Article 2(3), Article 2(4), misinterpreted Article 2(9), and made manifest errors of assessment and alleging that the Commission failed to make a fair comparison in accordance with Article 2(10) of the Basic Regulation. |
| --- | --- |

3.

Third plea in law, alleging that the Commission failed to establish a correct dumping margin in accordance with Article 2(12) of the Basic Regulation after it breached Article 2(3), Article 2(4), misinterpreted Article 2(9), and made manifest errors of assessment and alleging that the Commission failed to make a fair comparison in accordance with Article 2(10) of the Basic Regulation.

| 4. | Fourth plea in law, alleging that the Commission breached Article 3(2) and 3(5) of the Basic Regulation and Article 3.1 of the ADA, distorted the evidence before it and made manifest errors of assessment, by wrongly assessing the injury indicators and not carrying out an objective examination of the state of the Union industry. According to the Applicant, the Commission relied only on selected economic indicators of the state of the Union industry and neglected key indicators which would have revealed a different, more positive state of the Union industry. The Applicant further puts forward that the Commission took a biased approach favoring its injury findings and distorting evidence before it by failing to examine the ‘free’ and ‘captive’ markets of the product concerned as a whole and together for all indicators, and choosing to make a separate ‘three-way assessment’ which distorted the overall assessment. |
| --- | --- |

4.

Fourth plea in law, alleging that the Commission breached Article 3(2) and 3(5) of the Basic Regulation and Article 3.1 of the ADA, distorted the evidence before it and made manifest errors of assessment, by wrongly assessing the injury indicators and not carrying out an objective examination of the state of the Union industry. According to the Applicant, the Commission relied only on selected economic indicators of the state of the Union industry and neglected key indicators which would have revealed a different, more positive state of the Union industry. The Applicant further puts forward that the Commission took a biased approach favoring its injury findings and distorting evidence before it by failing to examine the ‘free’ and ‘captive’ markets of the product concerned as a whole and together for all indicators, and choosing to make a separate ‘three-way assessment’ which distorted the overall assessment.

| 5. | Fifth plea in law, alleging that the Commission breached Article 3(7) of the Basic Regulation, as it wrongly assessed the causal link between allegedly dumped imports and the situation of the Union industry. The Applicant further puts forward that the Commission failed in its duty not to attribute other factors causing injury to the allegedly dumped imports and overlooked other factors which jointly and severally were capable of breaking the causal link. |
| --- | --- |

5.

Fifth plea in law, alleging that the Commission breached Article 3(7) of the Basic Regulation, as it wrongly assessed the causal link between allegedly dumped imports and the situation of the Union industry. The Applicant further puts forward that the Commission failed in its duty not to attribute other factors causing injury to the allegedly dumped imports and overlooked other factors which jointly and severally were capable of breaking the causal link.

| 6. | Sixth plea in law, alleging that the Commission wrongly determined the injury elimination level, breaching Articles 2(9), 9(4) of the Basic Regulation and making a manifest error of assessment. In particular, according to the Applicant, the Commission determined an unreasonable and excessive profit margin for the Union industry and committed a manifest error of assessment in applying, for injury margin purposes, and by analogy, the adjustment for reasonable selling, general and administrative costs and a profit of an unrelated importer, foreseen in Article 2(9) of the Basic Regulation. |
| --- | --- |

6.

Sixth plea in law, alleging that the Commission wrongly determined the injury elimination level, breaching Articles 2(9), 9(4) of the Basic Regulation and making a manifest error of assessment. In particular, according to the Applicant, the Commission determined an unreasonable and excessive profit margin for the Union industry and committed a manifest error of assessment in applying, for injury margin purposes, and by analogy, the adjustment for reasonable selling, general and administrative costs and a profit of an unrelated importer, foreseen in Article 2(9) of the Basic Regulation.

---

(1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p. 51).

(2)  WTO Anti-dumping Agreement.

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/40 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/40

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Action brought on 2 November 2016 — Oakley v EUIPO — Xuebo Ye (Representation of a silhouette in the shape of an ellipse)

(Case T-754/16)

(2017/C 014/49)

Language in which the application was lodged: Spanish

Parties

Applicant: Oakley, Inc. (Foothill Ranch, California, United States) (represented by: E. Ochoa Santamaría and V. Rodríguez Pombo, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Xuebo Ye (Wenzhou, China)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union figurative mark (Representation of a silhouette in the shape of an ellipse) — Application for registration No 13 088 191

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 31/08/16 in Case R 2608/2015-4

Form of order sought

The applicant claims that the Court should:

| — | declare the application admissible together with all the associated documents and the corresponding copies; |
| --- | --- |

—

declare the application admissible together with all the associated documents and the corresponding copies;

| — | rule that the evidence offered may be submitted; |
| --- | --- |

—

rule that the evidence offered may be submitted;

| — | grant the application, annulling the contested decision and refusing the application for registration of EU trade mark No 13 088 19, pursuant to Article 8(1)(b) and (5) of Regulation No 207/2009; |
| --- | --- |

—

grant the application, annulling the contested decision and refusing the application for registration of EU trade mark No 13 088 19, pursuant to Article 8(1)(b) and (5) of Regulation No 207/2009;

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

—

order EUIPO to pay the costs.

Plea in law

| — | Infringement of Article 8(1)(b) and (5) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8(1)(b) and (5) of Regulation No 207/2009.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/41 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/41

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Action brought on 31 October 2016 — ArcelorMittal Belval & Differdange and ThyssenKrupp Steel Europe v ECHA

(Case T-762/16)

(2017/C 014/50)

Language of the case: English

Parties

Applicants: ArcelorMittal Belval & Differdange SA (Esch-sur-Alzette, Luxembourg) and ThyssenKrupp Steel Europe AG (Duisburg, Germany) (represented by: H. Scheidmann and M. Kottmann, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicants claim that the Court should:

| — | annul the ECHA’s decision of 26 September 2016 (reference ATD/52/2016); |
| --- | --- |

—

annul the ECHA’s decision of 26 September 2016 (reference ATD/52/2016);

| — | alternatively, annul the ECHA's decision of 19 August 2016 (reference ATD/52/2016) to the extent that it rejects the applicants’ request for access to their file; |
| --- | --- |

—

alternatively, annul the ECHA's decision of 19 August 2016 (reference ATD/52/2016) to the extent that it rejects the applicants’ request for access to their file;

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

—

order the ECHA to bear the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

| 1. | First plea in law, alleging infringement of Article 4(2), first indent, of Regulation (EC) No 1049/2001






  — | The applicants claim that the contested decision misapplies the abovementioned provision by erroneously finding that commercial interests would be undermined by disclosure and they further argue that the decision disregards overriding public interests. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Article 4(2), first indent, of Regulation (EC) No 1049/2001

—

The applicants claim that the contested decision misapplies the abovementioned provision by erroneously finding that commercial interests would be undermined by disclosure and they further argue that the decision disregards overriding public interests.

| 2. | Second plea in law, alleging infringement of Article 41(2), second indent, of the Charter of Fundamental Rights of the European Union






  — | The applicants assert that the contested decision violates the abovementioned provision and that, contrary to that decision, the documents to which access is requested do pertain to the applicants’ file and are not, therefore, excluded from the scope of that provision. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 41(2), second indent, of the Charter of Fundamental Rights of the European Union

—

The applicants assert that the contested decision violates the abovementioned provision and that, contrary to that decision, the documents to which access is requested do pertain to the applicants’ file and are not, therefore, excluded from the scope of that provision.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/42 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/42

---

Action brought on 3 November 2016 — Paulini v ECB

(Case T-764/16)

(2017/C 014/51)

Language of the case: English

Parties

Applicant: Jörn Paulini (Frankfurt am Main, Germany) (represented by: L. Levi and M. Vandenbussche, lawyers)

Defendant: European Central Bank (ECB)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 15 December 2015, as modified on 10 February 2016, which informs the applicant of his Annual Salary and Bonus Review (ASBR) reward for 2015; |
| --- | --- |

—

annul the decision of 15 December 2015, as modified on 10 February 2016, which informs the applicant of his Annual Salary and Bonus Review (ASBR) reward for 2015;

| — | grant the applicant compensation for the material prejudice as described in paragraphs 99 to 103 of the application; |
| --- | --- |

—

grant the applicant compensation for the material prejudice as described in paragraphs 99 to 103 of the application;

| — | grant the applicant compensation for the moral prejudice he suffered, estimated at EUR 10 000; |
| --- | --- |

—

grant the applicant compensation for the moral prejudice he suffered, estimated at EUR 10 000;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging the illegality of the 2015 ASBR guidelines insofar as they infringe the principle of non-discrimination, Article 51 of the Conditions of Employment and Articles 12 and 21 of the EU Charter. On a subsidiary basis, illegality of the contested decision insofar as it violates the 2015 ASBR guidelines and is tainted by a manifest error of assessment.
  The applicant considers that the 2015 ASBR guidelines are illegal insofar as they put at a disadvantage staff members with limited availability for their business area for reasons that are objectively out of their control, such as sick leave, part time work due to disability or time dispensation for activities in the Staff Committee (or a combination thereof), in comparison to their colleagues available full time for their business area. The contested decision, which was adopted on the basis of illegal ASBR guidelines, is, as a consequence, also illegal.
  On a subsidiary basis, should the 2015 ASBR guidelines be legal, the applicant nevertheless considers that the contested decision violates these guidelines insofar as his periods of absence were used as a discriminating element in his case and, moreover, should have been used as a positive behavioral attitude to influence the ASBR reward positively. All the factors to be assessed in accordance with the 2015 ASBR guidelines should manifestly have led to a higher ASBR reward. |
| --- | --- |

1.

First plea in law, alleging the illegality of the 2015 ASBR guidelines insofar as they infringe the principle of non-discrimination, Article 51 of the Conditions of Employment and Articles 12 and 21 of the EU Charter. On a subsidiary basis, illegality of the contested decision insofar as it violates the 2015 ASBR guidelines and is tainted by a manifest error of assessment.

The applicant considers that the 2015 ASBR guidelines are illegal insofar as they put at a disadvantage staff members with limited availability for their business area for reasons that are objectively out of their control, such as sick leave, part time work due to disability or time dispensation for activities in the Staff Committee (or a combination thereof), in comparison to their colleagues available full time for their business area. The contested decision, which was adopted on the basis of illegal ASBR guidelines, is, as a consequence, also illegal.

On a subsidiary basis, should the 2015 ASBR guidelines be legal, the applicant nevertheless considers that the contested decision violates these guidelines insofar as his periods of absence were used as a discriminating element in his case and, moreover, should have been used as a positive behavioral attitude to influence the ASBR reward positively. All the factors to be assessed in accordance with the 2015 ASBR guidelines should manifestly have led to a higher ASBR reward.

| 2. | Second plea in law, alleging, with regard to the application of the formula for time-dispensed staff representation activities, illegality of the contested decision insofar as it did not neutralise absences for sick leave and therefore violates the decision of 18 December 2008, the principle of non-discrimination, Articles 12 and 21 of the EU Charter and of Article 51 of the Conditions of Employment. On a subsidiary basis, should the decision of 18 December 2008 not allow the possibility to neutralise sick leave, plea of illegality of the decision of 18 December 2008 in that respect.
  The applicant considers that the ECB should have neutralised his absence for sick leave, as reflected in his time dispensation for January and February 2015, when calculating his ASBR award for his activities as a member of the Staff Committee using the formula in the decision of 18 December 2008 on the ASBR formula for members of staff in relation to their Staff Committee activities.
  Should the decision of 18 December 2008 not allow such possibility, the applicant herewith challenges, on a subsidiary basis, the legality of this decision in that respect, as staff committee members whose time dispensation had to be redistributed for reasons of absence due to health are disadvantaged compared to their colleagues working full time, despite similar performance or output, and are disadvantaged because of their involvement in the Staff Committee. |
| --- | --- |

2.

Second plea in law, alleging, with regard to the application of the formula for time-dispensed staff representation activities, illegality of the contested decision insofar as it did not neutralise absences for sick leave and therefore violates the decision of 18 December 2008, the principle of non-discrimination, Articles 12 and 21 of the EU Charter and of Article 51 of the Conditions of Employment. On a subsidiary basis, should the decision of 18 December 2008 not allow the possibility to neutralise sick leave, plea of illegality of the decision of 18 December 2008 in that respect.

The applicant considers that the ECB should have neutralised his absence for sick leave, as reflected in his time dispensation for January and February 2015, when calculating his ASBR award for his activities as a member of the Staff Committee using the formula in the decision of 18 December 2008 on the ASBR formula for members of staff in relation to their Staff Committee activities.

Should the decision of 18 December 2008 not allow such possibility, the applicant herewith challenges, on a subsidiary basis, the legality of this decision in that respect, as staff committee members whose time dispensation had to be redistributed for reasons of absence due to health are disadvantaged compared to their colleagues working full time, despite similar performance or output, and are disadvantaged because of their involvement in the Staff Committee.

| 3. | Third plea in law alleging, as to the practice of rounding off, violation of the ECB decision of 18 December 2008 insofar as the decision of 18 December 2008 does not allow rounding off for Staff Committee members. On a subsidiary basis, if the 18 December 2008 decision allows rounding off for Staff Committee members, it would be manifestly unjustified and inadequate in that respect.
  In the second plea, the applicant challenged the legality of the decision of 18 December 2008 if that decision had to be interpreted as not allowing for the ECB to neutralise the applicant’s sick leave when applying the formula laid down to calculate ASBR awards. In that plea, he challenged the legality of that decision in that respect only. In addition, the ECB uses a practice which consists of rounding off the result of the formula, in order to translate it into steps, and then translates these rounded steps back into percentages in order to determine the salary increase to be received by the staff member.
  The applicant contests this practice which has no legal basis in the applicable rules and, in particular, in the decision of 18 December 2008. On a subsidiary basis, should the decision of 18 December 2008 be found to allow for the rounding of ASBR awards for Staff Committee members, this decision would be illegal in that respect as it would be manifestly unjustified and inadequate. |
| --- | --- |

3.

Third plea in law alleging, as to the practice of rounding off, violation of the ECB decision of 18 December 2008 insofar as the decision of 18 December 2008 does not allow rounding off for Staff Committee members. On a subsidiary basis, if the 18 December 2008 decision allows rounding off for Staff Committee members, it would be manifestly unjustified and inadequate in that respect.

In the second plea, the applicant challenged the legality of the decision of 18 December 2008 if that decision had to be interpreted as not allowing for the ECB to neutralise the applicant’s sick leave when applying the formula laid down to calculate ASBR awards. In that plea, he challenged the legality of that decision in that respect only. In addition, the ECB uses a practice which consists of rounding off the result of the formula, in order to translate it into steps, and then translates these rounded steps back into percentages in order to determine the salary increase to be received by the staff member.

The applicant contests this practice which has no legal basis in the applicable rules and, in particular, in the decision of 18 December 2008. On a subsidiary basis, should the decision of 18 December 2008 be found to allow for the rounding of ASBR awards for Staff Committee members, this decision would be illegal in that respect as it would be manifestly unjustified and inadequate.

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/44 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/44

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Action brought on 7 November 2016 — Picard v Commission

(Case T-769/16)

(2017/C 014/52)

Language of the case: French

Parties

Applicant: Maxime Picard (Hettange-Grande, France) (represented by: M.-A. Lucas, lawyer)

Defendant: European Commission

Form of order sought

| — | Annul the decision setting, in advance, certain elements of the applicant’s pension rights or the failure to adopt such a decision required by the Staff Regulations as a result of the message sent on 4 January 2016 to the applicant by a case handler in Section 001 ‘Pensions’ of Unit 4 of the PMO informing him, in response to his query of the same date, that his pension rights had changed following his re-employment in Function Group II at 1 June 2014, his pensionable age having become 66 years old and the accrual rate of his pension rights having become is 1,8 % from 1 June 2014; |
| --- | --- |

—

Annul the decision setting, in advance, certain elements of the applicant’s pension rights or the failure to adopt such a decision required by the Staff Regulations as a result of the message sent on 4 January 2016 to the applicant by a case handler in Section 001 ‘Pensions’ of Unit 4 of the PMO informing him, in response to his query of the same date, that his pension rights had changed following his re-employment in Function Group II at 1 June 2014, his pensionable age having become 66 years old and the accrual rate of his pension rights having become is 1,8 % from 1 June 2014;

| — | Annul if necessary the decision of 26 July 2016 of the Director of Directorate E of the Human Resources Directorate General of the Commission, inasmuch as it rejects the applicant’s claim of 1 April 2016 against the decision or lack of decision resulting from the message of 4 January 2016 as inadmissible in the absence of a measure adversely affecting him and, in the alternative, as unfounded; |
| --- | --- |

—

Annul if necessary the decision of 26 July 2016 of the Director of Directorate E of the Human Resources Directorate General of the Commission, inasmuch as it rejects the applicant’s claim of 1 April 2016 against the decision or lack of decision resulting from the message of 4 January 2016 as inadmissible in the absence of a measure adversely affecting him and, in the alternative, as unfounded;

| — | 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 an error of law and infringement of the second and fifth paragraphs of Article 77 of the Staff Regulations of Officials (‘the Staff Regulations’) and of the second paragraph of Article 21 and the second subparagraph of Article 22(1) of Annex XIII thereto, applicable by virtue of Article 109 of the Conditions of Employment of Other Servants (CEOS) which vitiate the message of 4 January 2016, in that the date of entry into service taken into consideration for the application of those provisions of the regulation was 1 June 2014, the date on which the applicant entered Function Group II (‘FG II’) pursuant to Article 87(4) of the CEOS, whereas that date should have been 1 July 2008, the date on which he initially entered the Commission’s service as a member of the contractual staff in Function Group I.

That plea in law is divided into two parts:

| — | First part, alleging that Section 1 of Unit 4 of the Office for Administration and Payment of Individual Entitlements (‘PMO’) and the Director of Directorate E of the Human Resources Directorate General of the Commission (DGHR) was incorrect to take the view, on the ground that the contract of 19 May 2014 by which the applicant entered FG II was new and had given rise to a fresh recruitment, that the second subparagraph of Article 22(1) and the second paragraph of Article 21 of Annex XIII of the Staff Regulations did not apply to him, so that paragraphs 5 and 2 of Article 77 of the Staff Regulations did apply to him, however, although the date of entry into service referred to in Articles 21 and 22 of Annex XIII is the date of first recruitment. |
| --- | --- |

—

First part, alleging that Section 1 of Unit 4 of the Office for Administration and Payment of Individual Entitlements (‘PMO’) and the Director of Directorate E of the Human Resources Directorate General of the Commission (DGHR) was incorrect to take the view, on the ground that the contract of 19 May 2014 by which the applicant entered FG II was new and had given rise to a fresh recruitment, that the second subparagraph of Article 22(1) and the second paragraph of Article 21 of Annex XIII of the Staff Regulations did not apply to him, so that paragraphs 5 and 2 of Article 77 of the Staff Regulations did apply to him, however, although the date of entry into service referred to in Articles 21 and 22 of Annex XIII is the date of first recruitment.

| — | Second part, alleging an error also committed by Section 1 of the Unit of the PMO and the Director of Directorate E of the DGHR in taking the view, on the ground that the contract of 19 May 2014 by which the applicant entered GF II constituted a break in continuity in his career, that the second subparagraph of Article 22(1) and the second paragraph of Article 21 of Annex XIII of the Staff Regulations did not apply to him, so that paragraphs 5 and 2 of Article 77 of the Staff Regulations did apply to him, however, although that contract formed part of his continued career since it was intended to and had the effect of re-grading him without making any change to his duties other than a formal change. |
| --- | --- |

—

Second part, alleging an error also committed by Section 1 of the Unit of the PMO and the Director of Directorate E of the DGHR in taking the view, on the ground that the contract of 19 May 2014 by which the applicant entered GF II constituted a break in continuity in his career, that the second subparagraph of Article 22(1) and the second paragraph of Article 21 of Annex XIII of the Staff Regulations did not apply to him, so that paragraphs 5 and 2 of Article 77 of the Staff Regulations did apply to him, however, although that contract formed part of his continued career since it was intended to and had the effect of re-grading him without making any change to his duties other than a formal change.

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/45 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/45

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Action brought on 24 October 2016 — Toontrack Music v EUIPO (EZMIX)

(Case T-771/16)

(2017/C 014/53)

Language of the case: Swedish

Parties

Applicant: Toontrack Music AB (Umeå, Sweden) (represented by: L.-E. Ström, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: European Union word mark ‘EZMIX’ — Application for registration No 13 945 423

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 27 July 2016 in Case R 2436/2015-5

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision in accordance with Articles 7(1)(b), 7(1)(c), 7(2), 43 and 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark; and |
| --- | --- |

—

annul the contested decision in accordance with Articles 7(1)(b), 7(1)(c), 7(2), 43 and 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark; and

| — | order EUIPO to pay the applicant’s costs and to bear its own costs. |
| --- | --- |

—

order EUIPO to pay the applicant’s costs and to bear its own costs.

Plea in law

| — | Infringement of Articles 7(1)(b), 7(1)(c), 7(2) and 43 of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Articles 7(1)(b), 7(1)(c), 7(2) and 43 of Regulation No 207/2009.

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/45 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/45

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Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell.)

(Case T-776/16)

(2017/C 014/54)

Language in which the application was lodged: German

Parties

Applicant: Isocell GmbH (Neumarkt am Wallersee, Germany) (represented by: C. Thiele, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: iCell AB (Älvdalen, Sweden)

Details of the proceedings before EUIPO

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

Trade mark at issue: EU figurative mark containing the word element ‘iCell.’ — Application No 12 877 676

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 15 September 2016 in Case R 2496/2015-1

Form of order sought

The applicant claims that the Court should:

| — | amend the contested decision by declaring that the opposition is upheld in its entirety and that EU trade mark application No 12877676 is refused; |
| --- | --- |

—

amend the contested decision by declaring that the opposition is upheld in its entirety and that EU trade mark application No 12877676 is refused;

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

—

order EUIPO to pay the costs.

Plea in law

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

—

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

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/46 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/46

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Action brought on 4 November 2016 — Isocell v EUIPO — iCell (iCell. Insulation Technology Made in Sweden)

(Case T-777/16)

(2017/C 014/55)

Language in which the application was lodged: German

Parties

Applicant: Isocell GmbH (Neumarkt am Wallersee, Germany) (represented by: C. Thiele, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: iCell AB (Älvdalen, Sweden)

Details of the proceedings before EUIPO

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

Trade mark at issue: EU figurative mark containing the word elements ‘iCell. Insulation Technology Made in Sweden’ — Application No 12 882 023

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 28 July 2016 in Case R 181/2016-1

Form of order sought

The applicant claims that the Court should:

| — | amend the contested decision by upholding the opposition in its entirety and refusing EU trade mark application No 12882023; |
| --- | --- |

—

amend the contested decision by upholding the opposition in its entirety and refusing EU trade mark application No 12882023;

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

—

order EUIPO to pay the costs.

Plea in law

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

—

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

---

| 16.1.2017 | EN | Official Journal of the European Union | C 14/46 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/46

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Action brought on 7 November 2016 — Rühland v EUIPO — 8 seasons design (Lamps)

(Case T-779/16)

(2017/C 014/56)

Language in which the application was lodged: German

Parties

Applicant: Lothar Rühland (Wendeburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla, S. Risthaus and J. Engberding, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: 8 seasons design GmbH (Eschweiler, Germany)

Details of the proceedings before EUIPO

Proprietor of the design at issue: Applicant

Design at issue: Community design ‘Lamps’ No 1 402 341-0006

Contested decision: Decision of the Third Board of Appeal of EUIPO of 8 July 2016 in Case R 878/2015-3

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | dismiss the action for annulment of Community design No 0010402341-0006; |
| --- | --- |

—

dismiss the action for annulment of Community design No 0010402341-0006;

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

—

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

Plea in law

| — | Infringement of Article 25(1)(b), in conjunction with Article 6, of Regulation No 6/2002. |
| --- | --- |

—

Infringement of Article 25(1)(b), in conjunction with Article 6, of Regulation No 6/2002.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/47 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/47

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Action brought on 9 November 2016 — Puma and Others v Commission

(Case T-781/16)

(2017/C 014/57)

Language of the case: English

Parties

Applicants: Puma SE (Herzogenaurach, Germany) and 8 others (represented by: E. Vermulst, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52);

| — | annul Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 245, p. 16); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 245, p. 16);

| — | annul Commission Implementing Regulation (EU) 2016/1731 of 28 September 2016 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 (OJ L 262, p. 4); and |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1731 of 28 September 2016 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 (OJ L 262, p. 4); and

| — | order the European Commission to pay the Applicant’s costs. |
| --- | --- |

—

order the European Commission 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 Commission did not have the legal competence to adopt the contested regulations in the first place. |
| --- | --- |

1.

First plea in law, alleging that the Commission did not have the legal competence to adopt the contested regulations in the first place.

| 2. | Second plea in law, alleging that the Commission failed to provide the precise legal basis for the adoption of the contested regulations in violation of Article 296 TFUE and infringed the rights of defence and the right to effective judicial protection of the applicants. |
| --- | --- |

2.

Second plea in law, alleging that the Commission failed to provide the precise legal basis for the adoption of the contested regulations in violation of Article 296 TFUE and infringed the rights of defence and the right to effective judicial protection of the applicants.

| 3. | Third plea in law, alleging that the reopening of the concluded footwear proceeding and the retroactive imposition of the expired anti-dumping duty on the applicant’s suppliers (i) lacks legal basis, is based on a manifest error in the application of Article 266 TFUE and the Basic Regulation and infringed the latter, (ii) is inconsistent with the principles of protection of legitimate expectations, legal certainty and non-retroactivity; and (iii) is inconsistent with Article 266 TFUE, infringed Article 5(4) TFUE and is based on a misuse of powers by the Commission. |
| --- | --- |

3.

Third plea in law, alleging that the reopening of the concluded footwear proceeding and the retroactive imposition of the expired anti-dumping duty on the applicant’s suppliers (i) lacks legal basis, is based on a manifest error in the application of Article 266 TFUE and the Basic Regulation and infringed the latter, (ii) is inconsistent with the principles of protection of legitimate expectations, legal certainty and non-retroactivity; and (iii) is inconsistent with Article 266 TFUE, infringed Article 5(4) TFUE and is based on a misuse of powers by the Commission.

| 4. | Fourth plea in law, alleging that the retroactive imposition of the duty through the three contested regulations is discriminatory vis-à-vis the applicants. |
| --- | --- |

4.

Fourth plea in law, alleging that the retroactive imposition of the duty through the three contested regulations is discriminatory vis-à-vis the applicants.

| 5. | Fifth plea in law, alleging that the manner of assessment of the market economy and individual treatment claims of the applicants’ suppliers was discriminatory and based on a misuse of power by the Commission. |
| --- | --- |

5.

Fifth plea in law, alleging that the manner of assessment of the market economy and individual treatment claims of the applicants’ suppliers was discriminatory and based on a misuse of power by the Commission.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/48 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/48

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Action brought on 9 November 2016 — Timberland Europe v Commission

(Case T-782/16)

(2017/C 014/58)

Language of the case: English

Parties

Applicant: Timberland Europe BV (Enschede, Netherlands) (represented by: E. Vermulst, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52);

| — | annul Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 245, p. 16); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 245, p. 16);

| — | annul Commission Implementing Regulation (EU) 2016/1731 of 28 September 2016 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 (OJ L 262, p. 4); and |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1731 of 28 September 2016 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C-659/13 and C-34/14 (OJ L 262, p. 4); and

| — | order the European Commission to pay the Applicant’s costs. |
| --- | --- |

—

order the European Commission 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 Commission did not have the legal competence to adopt the contested regulations in the first place. |
| --- | --- |

1.

| 2. | Second plea in law, alleging that the Commission failed to provide the precise legal basis for the adoption of the contested regulations in violation of Article 296 TFUE and infringed the rights of defence and the right to effective judicial protection of the applicant. |
| --- | --- |

2.

| 3. | Third plea in law, alleging that the reopening of the concluded footwear proceeding and the retroactive imposition of the expired anti-dumping duty on the applicant’s suppliers (i) lacks legal basis, is based on a manifest error in the application of Article 266 TFUE and the Basic Regulation and infringed the latter, (ii) is inconsistent with the principles of protection of legitimate expectations, legal certainty and non-retroactivity; and (iii) is inconsistent with Article 266 TFUE, infringed Article 5(4) and is based on a misuse of powers by the Commission. |
| --- | --- |

3.

| 4. | Fourth plea in law, alleging that the retroactive imposition of the duty through the three contested regulations is discriminatory vis-à-vis the applicant. |
| --- | --- |

4.

| 5. | Fifth plea in law, alleging that the manner of assessment of the market economy and individual treatment claims of the applicant’s suppliers was discriminatory and based on a misuse of power by the Commission. |
| --- | --- |

5.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/49 |
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16.1.2017

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C 14/49

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Action brought on 10 November 2016 — De Geoffroy and Others v Parliament

(Affaire T-788/16)

(2017/C 014/59)

Language of the case: French

Parties

Applicant: Dominique De Geoffroy (Brussels, Belgium) and 14 others (represented by: N. de Montigny and J.-N. Louis, lawyers)

Defendant: European Parliament

Forms of order sought

The applicants claim that the General Court should:

| — | annul the Parliament’s Guidelines on leave, published on 21 March 2016; |
| --- | --- |

—

annul the Parliament’s Guidelines on leave, published on 21 March 2016;

| — | annul the decision of 13 June 2016 refusing to grant leave applied for by Mr Stéphane Grosjean; |
| --- | --- |

—

annul the decision of 13 June 2016 refusing to grant leave applied for by Mr Stéphane Grosjean;

| — | annul the decision of 12 April 2016 accepting Mrs Françoise Joostens’ application for leave but including the days of leave applied for in the quota of 3.5 days; |
| --- | --- |

—

annul the decision of 12 April 2016 accepting Mrs Françoise Joostens’ application for leave but including the days of leave applied for in the quota of 3.5 days;

| — | annul the decision of 2 June 2016 refusing to grant leave applied for by Mrs Françoise Joostens; |
| --- | --- |

—

annul the decision of 2 June 2016 refusing to grant leave applied for by Mrs Françoise Joostens;

| — | in any event, order the defendant to pay the costs. |
| --- | --- |

—

in any event, order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants invoke six pleas in law.

| 1. | First plea, alleging a complete failure to state reasons on the part of the defendant, in the light of the failure to respond to objections raised by the applicants against the Parliament’s Guidelines on leave, published on 21 March 2016 (‘the contested Guidelines’
  ). |
| --- | --- |

1.

First plea, alleging a complete failure to state reasons on the part of the defendant, in the light of the failure to respond to objections raised by the applicants against the Parliament’s Guidelines on leave, published on 21 March 2016 (‘the contested Guidelines’
  ).

| 2. | Second plea, alleging that the adoption of the contested Guidelines by the Parliament was unlawful, as a result of infringement of the Staff Regulations and rights recognised by internal rules governing the management of leave, and infringement of the applicants’ acquired rights.






  — | Therefore, the two applicants addressees of the three individual contested decisions, respectively of 2 June 2016, 13 June 2016 and 12 April 2016, the first two decisions refusing to grant leave applied for by them, and the last decision accepting the application for leave made by one of them but including the days of leave applied for in the quota of 3,5 days, consider that those individual decisions invoke the same plea in law seeking annulment of those decisions. |
| --- | --- | --- |

2.

Second plea, alleging that the adoption of the contested Guidelines by the Parliament was unlawful, as a result of infringement of the Staff Regulations and rights recognised by internal rules governing the management of leave, and infringement of the applicants’ acquired rights.

—

Therefore, the two applicants addressees of the three individual contested decisions, respectively of 2 June 2016, 13 June 2016 and 12 April 2016, the first two decisions refusing to grant leave applied for by them, and the last decision accepting the application for leave made by one of them but including the days of leave applied for in the quota of 3,5 days, consider that those individual decisions invoke the same plea in law seeking annulment of those decisions.

| 3. | Third plea, alleging a failure to consult the members of the Parliament staff during the adoption of the contested Guidelines by the latter, which amounts to an infringement of Article 27 of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

3.

Third plea, alleging a failure to consult the members of the Parliament staff during the adoption of the contested Guidelines by the latter, which amounts to an infringement of Article 27 of the Charter of Fundamental Rights of the European Union.

| 4. | Fourth plea, alleging a failure to weigh the interests of the institution with those of the interpreters, disregard for the principle of proportionality, an abuse of law, an error of assessment and infringement of the principle of good administration and of the duty of care, committed by the defendant institution in adopting the contested Guidelines. |
| --- | --- |

4.

Fourth plea, alleging a failure to weigh the interests of the institution with those of the interpreters, disregard for the principle of proportionality, an abuse of law, an error of assessment and infringement of the principle of good administration and of the duty of care, committed by the defendant institution in adopting the contested Guidelines.

| 5. | Fifth plea, alleging discrimination caused by the adoption of the contested Guidelines between interpreters and other officials and staff. |
| --- | --- |

5.

Fifth plea, alleging discrimination caused by the adoption of the contested Guidelines between interpreters and other officials and staff.

| 6. | Sixth plea, alleging infringement of the principles of equality and non-discrimination, infringement of the principle of legal certainty and predictability as regards exceptions and special cases provided for by those Guidelines. |
| --- | --- |

6.

Sixth plea, alleging infringement of the principles of equality and non-discrimination, infringement of the principle of legal certainty and predictability as regards exceptions and special cases provided for by those Guidelines.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/50 |
| --- | --- | --- | --- |

16.1.2017

EN

Official Journal of the European Union

C 14/50

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Action brought on 8 November 2016 — InvoiceAuction B2B v EUIPO (INVOICE AUCTION)

(Case T-789/16)

(2017/C 014/60)

Language of the case: German

Parties

Applicant: InvoiceAuction B2B GmbH (Frankfurt am Main, Germany) (represented by: C. Jonas, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: European Union figurative mark containing the word elements ‘INVOICE AUCTION’ — Application for registration No 13 821 095

Contested decision: Decision of the First Board of Appeal of EUIPO of 3 August 2016 in Case R 2201/2015-1

Form of order sought

The applicant claims that the Court should:

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

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

Plea in law

| — | Infringement of Article 7(1)(c) of Regulation No 207/2009; |
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Infringement of Article 7(1)(c) of Regulation No 207/2009;

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

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/51 |
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16.1.2017

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Official Journal of the European Union

C 14/51

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Action brought on 11 November 2016 — C & J Clark International v Commission

(Case T-790/16)

(2017/C 014/61)

Language of the case: English

Parties

Applicant: C & J Clark International Ltd (Somerset, United Kingdom) (represented by: A. Willems and S. De Knop, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Declare the application admissible; |
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Declare the application admissible;

| — | Annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52); |
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Annul Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C-659/13 and C-34/14 (OJ L 225, p. 52);

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that by proceeding without a valid legal basis, the Commission violated the principle of conferral under Articles 5(1) and 5(2) TFUE. |
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1.

First plea in law, alleging that by proceeding without a valid legal basis, the Commission violated the principle of conferral under Articles 5(1) and 5(2) TFUE.

| 2. | Second plea in law, alleging that by failing to take the necessary measures to comply with the judgment of the Court of Justice of 4 February 2016, C & J Clark International, C-659/13 and C-34/14, EU:C:2016:74, the Commission violated Article 266 TFUE. |
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2.

Second plea in law, alleging that by failing to take the necessary measures to comply with the judgment of the Court of Justice of 4 February 2016, C & J Clark International, C-659/13 and C-34/14, EU:C:2016:74, the Commission violated Article 266 TFUE.

| 3. | Third plea in law, alleging that by imposing an anti-dumping duty on imports of Footwear ‘which took place during the period of application of the [Invalidated Regulations]’, the Commission violated Articles 1(1) and 10(1) of the Basic Regulation (1) and the principle of legal certainty (non-retroactivity); |
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3.

Third plea in law, alleging that by imposing an anti-dumping duty on imports of Footwear ‘which took place during the period of application of the [Invalidated Regulations]’, the Commission violated Articles 1(1) and 10(1) of the Basic Regulation (1) and the principle of legal certainty (non-retroactivity);

| 4. | Fourth plea in law, alleging that by imposing an anti-dumping duty without conducting a fresh Union interest assessment, the Commission violated Article 21 of the Basic Regulation, in any event, it would have been manifestly erroneous to conclude that the imposition of the anti-dumping duty was in the Union interest; |
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4.

Fourth plea in law, alleging that by imposing an anti-dumping duty without conducting a fresh Union interest assessment, the Commission violated Article 21 of the Basic Regulation, in any event, it would have been manifestly erroneous to conclude that the imposition of the anti-dumping duty was in the Union interest;

| 5. | Fifth plea in law, alleging that by adopting an act that exceeds what is necessary to achieve its objective, the Commission violated Articles 5(1) and 5(4) TEU. |
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5.

Fifth plea in law, alleging that by adopting an act that exceeds what is necessary to achieve its objective, the Commission violated Articles 5(1) and 5(4) TEU.

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

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/52 |
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Official Journal of the European Union

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Action brought on 14 November 2016 — Real Madrid Club de Fútbol v Commission

(Case T-791/16)

(2017/C 014/62)

Language of the case: Spanish

Parties

Applicant: Real Madrid Club de Fútbol (Madrid, Spain) (represented by: J. Pérez-Bustamante and F. Löwhagen, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the present application admissible; |
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declare the present application admissible;

| — | annul, in its entirety, the Commission decision of 4 July 2016 in Case SA.33754 (2013/C) (ex 2013/NN); |
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annul, in its entirety, the Commission decision of 4 July 2016 in Case SA.33754 (2013/C) (ex 2013/NN);

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

Pleas in law and main arguments

In the contested decision in the present case, the Commission considered that a transfer of land between Real Madrid and Madrid City Council constituted State aid, in so far as the land to which the transaction related had been overvalued by EUR 18,4 million.

The contested decision arises from the non-compliance, by Madrid City Council, with the 1998 implementing agreement, under which it undertook to transfer to Real Madrid CF plot B-32 in Las Tablas. Madrid City Council and Real Madrid CF remedied that situation by the 2011 settlement agreement under which compensation was awarded to Real Madrid FC in the form of the transfer of the abovementioned land.

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

| 1. | First plea in law, alleging infringement of Article 107(1), TFEU






  — | In that regard, the applicant submits that the Commission committed manifest errors when it concluded that the 2011 settlement agreement conferred an economic advantage on the applicant and thus constituted State aid in its favour. By the 2011 settlement agreement, Madrid City Council merely recognised its responsibility for the non-compliance with the 1998 implementing agreement. Furthermore, the Commission did not take into account, in applying the principle of the private market economy operator, of the fact that options other than the 2011 settlement agreement, such as defending a legal action, would have been much more onerous for the city council. |
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1.

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In that regard, the applicant submits that the Commission committed manifest errors when it concluded that the 2011 settlement agreement conferred an economic advantage on the applicant and thus constituted State aid in its favour. By the 2011 settlement agreement, Madrid City Council merely recognised its responsibility for the non-compliance with the 1998 implementing agreement. Furthermore, the Commission did not take into account, in applying the principle of the private market economy operator, of the fact that options other than the 2011 settlement agreement, such as defending a legal action, would have been much more onerous for the city council.

| 2. | Second plea in law, alleging infringement of article 107(1) TFEU and the general principle of sound administration.






  — | In that regard, the applicant submits that the Commission has made serious errors of assessment by basing its conclusions on an expert opinion with no probative value and by rejecting the other valuations of plot B-32 included in the file without having sought the opinion of its own assessor or any other expert with the relevant qualifications. |
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2.

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In that regard, the applicant submits that the Commission has made serious errors of assessment by basing its conclusions on an expert opinion with no probative value and by rejecting the other valuations of plot B-32 included in the file without having sought the opinion of its own assessor or any other expert with the relevant qualifications.

| 3. | Third plea in law, alleging infringement of Articles 107(1) and 296 TFEU and the principle of sound administration when determining the amount of compensation awarded to Real Madrid FC under the 2011 settlement agreement.






  — | In that regard, the applicant submits that the Commission has not assessed the value of the immovable property transferred to the applicant under the 2011 settlement agreement as compensation but has accepted, without any reasoning and without replying to the detailed arguments set out by the applicant on that point, the value which the Madrid City Council attributed to it, although the Commission simply rejected the other valuations (such as the valuation of plot B-32) carried out by the city council using the same method. |
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3.

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In that regard, the applicant submits that the Commission has not assessed the value of the immovable property transferred to the applicant under the 2011 settlement agreement as compensation but has accepted, without any reasoning and without replying to the detailed arguments set out by the applicant on that point, the value which the Madrid City Council attributed to it, although the Commission simply rejected the other valuations (such as the valuation of plot B-32) carried out by the city council using the same method.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/53 |
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16.1.2017

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Official Journal of the European Union

C 14/53

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Action brought on 15 November 2016 — Agricola J.M. v EUIPO — Torres (CLOS DE LA TORRE)

(Case T-806/16)

(2017/C 014/63)

Language in which the application was lodged: Spanish

Parties

Applicant: Agricola J.M., SL (Girona, Spain) (represented by: J. Clos Creus, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Miguel Torres, SA (Vilafranca del Penedès, Spain).

Details of the proceedings before EUIPO

Applicant: Applicant

Trade mark at issue: European Union word mark ‘CLOS DE LA TORRE’ — Application for registration No 13 029 533

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 July 2016 in Case R 2099/2015-5

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Fifth Board of Appeal of EUIPO of 28 July 2016; |
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annul the decision of the Fifth Board of Appeal of EUIPO of 28 July 2016;

| — | annul the decision of the Opposition Division of EUIPO of 7 August 2015, which upheld the opposition against all the products in class 33: ‘alcoholic beverages (except beers)’ by refusing the Community trade mark for all the contested goods; |
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annul the decision of the Opposition Division of EUIPO of 7 August 2015, which upheld the opposition against all the products in class 33: ‘alcoholic beverages (except beers)’ by refusing the Community trade mark for all the contested goods;

| — | alter earlier decisions by granting registration of the mark to the applicant for all the goods in class 33; |
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alter earlier decisions by granting registration of the mark to the applicant for all the goods in class 33;

| — | order EUIPO to pay the costs of this action. |
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order EUIPO to pay the costs of this action.

Pleas in law

| — | Infringement of Article 8(1)(b) of Regulation No 207/2009 and of the case-law arising from cases similar to the present case. |
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Infringement of Article 8(1)(b) of Regulation No 207/2009 and of the case-law arising from cases similar to the present case.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/54 |
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16.1.2017

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Official Journal of the European Union

C 14/54

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Action brought on 14 November 2016 — Jean Patou Worldwide v EUIPO — Emboga (HISPANITAS JOY IS A CHOICE)

(Case T-808/16)

(2017/C 014/64)

Language in which the application was lodged: English

Parties

Applicant: Jean Patou Worldwide Ltd (Watford, United Kingdom) (represented by: S. Baran, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Emboga, SA (Petrel, Spain)

Details of the proceedings before EUIPO

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

Trade mark at issue: EU figurative mark containing the word elements ‘HISPANITAS JOY IS A CHOICE’ — Application for registration No 12 789 971

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 23 June 2016 in Case R 235/2016-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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—

annul the contested decision;

| — | order EUIPO and the other party to the proceedings to pay the costs, including those incurred by the applicant before the Office. |
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order EUIPO and the other party to the proceedings to pay the costs, including those incurred by the applicant before the Office.

Plea in law

| — | Infringement of Articles 8(1)(b) and 8(5) of Regulation No 207/2009. |
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Infringement of Articles 8(1)(b) and 8(5) of Regulation No 207/2009.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/55 |
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16.1.2017

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Official Journal of the European Union

C 14/55

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Action brought on 22 November 2016 — For Tune v EUIPO — Simplicity trade (opus AETERNATUM)

(Case T-815/16)

(2017/C 014/65)

Language in which the application was lodged: English

Parties

Applicant: For Tune sp. z o.o. (Warszawa, Poland) (represented by: K. Popławska, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Simplicity trade GmbH (Oelde, Germany)

Details of the proceedings before EUIPO

Applicant: Applicant

Trade mark at issue: EU figurative mark containing the word elements ‘opus AETERNATUM’ — Application for registration No 11 024 296

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 14 September 2016 in Case R 152/2016-2

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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—

annul the contested decision;

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

Plea in law

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

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/55 |
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Order of the General Court of 13 October 2016 — Axium v Parliament

(Case T-392/16) (1)

(2017/C 014/66)

Language of the case: French

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

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(1)  
  OJ C 326, 5.9.2016.

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| 16.1.2017 | EN | Official Journal of the European Union | C 14/55 |
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Order of the President of the General Court of 25 October 2016 — Maubert v Council

(Case T-565/16) (1)

(2017/C 014/67)

Language of the case: French

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

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(1)  
  OJ C 27 of 25 January 2016 (Case originally registered before the Civil Service Tribunal of the European Union under number F-137/15 and transferred to the General Court of the European Union on 1 September 2016.

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