# Official Journal C 82/4 Ma

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 82 |
| | |
| English edition | Information and Notices | Volume 624 March 2019 |

ISSN 1977-091X

Official Journal

of the European Union

C 82

English edition

Information and Notices

Volume 624 March 2019

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2019/C 82/01 | 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

2019/C 82/01

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 |
| 2019/C 82/02 | Case C-415/18 P: Appeal brought on 22 June 2018 by CBA Spielapparate- und Restaurantbetriebs GmbH against the order of the General Court (Third Chamber) made on 19 April 2018 in Case T-606/17, CBA Spielapparate- und Restaurantbetriebs GmbH v European Commission | 2 |
| 2019/C 82/03 | Case C-682/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH | 2 |
| 2019/C 82/04 | Case C-683/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — Elsevier Inc. v Cyando AG | 4 |
| 2019/C 82/05 | Case C-693/18: Request for a preliminary ruling from the Juge d’instruction du tribunal de grande instance de Paris (France) lodged on 29 October 2018 — Procureur de la République v X | 5 |
| 2019/C 82/06 | Case C-702/18 P: Appeal brought on 9 November 2018 by Przedsiębiorstwo Produkcyjno-Handlowe Primart Marek Łukasiewicz against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-584/17: Primart v EUIPO | 6 |
| 2019/C 82/07 | Case C-714/18 P: Appeal brought on 14 November 2018 by ACTC GmbH against the judgment of the General Court (Ninth Chamber) delivered on 13 September 2018 in Case T-94/17: ACTC v EUIPO | 8 |
| 2019/C 82/08 | Case C-715/18: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 November 2018 — Segler-Vereinigung Cuxhaven e.V. v Finanzamt Cuxhaven | 9 |
| 2019/C 82/09 | Case C-751/18: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira | 10 |
| 2019/C 82/10 | Case C-761/18 P: Appeal brought on 3 December 2018 by Päivi Leino-Sandberg against the order of the General Court (Seventh Chamber) delivered on 20 September 2018 in Case T-421/17: Leino-Sandberg v Parliament | 10 |
| 2019/C 82/11 | Case C-766/18 P: Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO | 11 |
| 2019/C 82/12 | Case C-767/18 P: Appeal brought on 5 December 2018 by the Republic of Cyprus against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-384/17: Cyprus v EUIPO | 12 |
| 2019/C 82/13 | Case C-776/18: Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 10 December 2018 — U.B. and T.V. v Eurowings GmbH | 13 |
| 2019/C 82/14 | Case C-801/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — EU v Caisse pour l’avenir des enfants | 14 |
| 2019/C 82/15 | Case C-802/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW | 15 |
| 2019/C 82/16 | Case C-803/18: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 20 December 2018 — AAS BALTA v UAB GRIFS AG | 15 |
| 2019/C 82/17 | Case C-810/18: Request for a preliminary ruling from the Krajský súd v Trnave (Slovakia) lodged on 21 December 2018 — DHL Logistics (Slovakia), spol. s r.o. v Finančné riaditeľstvo Slovenskej republiky | 16 |
| 2019/C 82/18 | Case C-817/18 P: Appeal brought on 21 December 2018 by Vereniging tot Behoud van Natuurmonumenten in Nederland and Others against the judgment of the General Court (Second Chamber) of 15 October 2018 in Case T-79/16, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission | 17 |
| 2019/C 82/19 | Case C-828/18: Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 24 December 2018 — Trendsetteuse SARL v DCA SARL | 18 |
| 2019/C 82/20 | Case C-829/18: Request for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 December 2018 — Crédit Logement SA v OE | 18 |
| 2019/C 82/21 | Case C-833/18: Request for a preliminary ruling from the tribunal de l’entreprise de Liège (Belgium) lodged on 31 December 2018 — SI, Brompton Bicycle Ltd v Chedech / Get2Get | 19 |
| 2019/C 82/22 | Case C-12/19 P: Appeal brought on 7 January 2019 by Mylène Troszczynski against the judgment of the General Court (Sixth Chamber) delivered on 8 November 2018 in Case T-550/17, Troszczynski v Parliament | 20 |
| 2019/C 82/23 | Case C-38/19 P: Appeal brought on 21 January 2019 by Marion Le Pen against the judgment of the General Court (Sixth Chamber) of 28 November 2018 in Case T-161/17, Le Pen v Parliament | 21 |
| | General Court |
| 2019/C 82/24 | Case T-167/13: Judgment of the General Court of 13 December 2018 — Comune di Milano v Commission (State aid — Ground-handling services — Capital injections provided by SEA in favour of SEA Handling — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of aid — Imputability to the State — Private investor test — Principle of the right to be heard — Rights of the defence — Right to good administration — Legitimate expectations) | 23 |
| 2019/C 82/25 | Case T-498/14: Judgment of the General Court of 12 December 2018 — Deutsche Umwelthilfe v Commission (Access to documents — Documents related to correspondence between the European Commission and car manufacturers concerning refrigerant R1234yf used in motor vehicles — Documents not included — New plea put forward in the course of the proceedings — Inadmissibility — Measure of inquiry ordering the production of the contested documents in accordance with Article 104 of the Rules of Procedure — Derogation to the principle of adversarial proceedings — Regulation (EC) No 1049/2001 — Exception relating to the protection of commercial interests — Public interest in disclosure — Balance — Regulation (EC) No 1367/2006 — Article 6(1) — Overriding public interest justifying disclosure of the environmental information or relating to emissions into the environment — General proposition — Partial refusal to grant access — No need to adjudicate) | 23 |
| 2019/C 82/26 | Case T-677/14: Judgment of the General Court of 12 December 2018 — Biogaran v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 TFEU and 102 TFEU — Agreements intended to delay, or even prevent, the market entry of generic versions of perindopril — Participation of a subsidiary in the infringement committed by its parent company — Imputation of the infringement — Joint and several liability — Ceiling of the fine) | 24 |
| 2019/C 82/27 | Case T-679/14: Judgment of the General Court of 12 December 2018 — Teva UK and Others v Commission (Competition — Agreements, decisions and concerted practices — Perindopril market, medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Patent dispute settlement and exclusive purchasing agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines) | 25 |
| 2019/C 82/28 | Case T-680/14: Judgment of the General Court of 12 December 2018 — Lupin v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Technology acquisition agreement — Restriction of competition by object — Balance between competition law and patent law — Fines) | 26 |
| 2019/C 82/29 | Case T-682/14: Judgment of the General Court of 12 December 2018 — Mylan Laboratories and Mylan v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Imputation of the unlawful conduct — Fines) | 26 |
| 2019/C 82/30 | Case T-684/14: Judgment of the General Court of 12 December 2018 — Krka v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Licensing agreement — Technology acquisition agreement — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law) | 27 |
| 2019/C 82/31 | Case T-691/14: Judgment of the General Court of 12 December 2018 — Servier and Others v Commission (Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 and 102 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Right to an effective remedy — Shortness of the period for lodging an action in view of the length of the contested decision — Patent dispute settlement agreements — Licence agreements — Technology acquisition agreements — Exclusive purchasing agreement — Potential competition — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law — Classification as separate infringements or as a single infringement — Definition of the relevant market at the level of the molecule of the medicinal product concerned — Fines — Cumulation of fines imposed under Articles 101 and 102 TFEU — Principle that offences and penalties must have a proper legal basis — Value of sales — Methods of calculation in the event of overlapping infringements on the same markets) | 28 |
| 2019/C 82/32 | Case T-701/14: Judgment of the General Court of 12 December 2018 — Niche Generics v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Administrative procedure — Legal professional privilege protecting communications between lawyers and their clients — Potential competition — Restriction of competition by object — Objective necessity of the restriction — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines — 10 % cap — Imputation of the unlawful conduct) | 29 |
| 2019/C 82/33 | Case T-705/14: Judgment of the General Court of 12 December 2018 — Unichem Laboratories v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Commission’s territorial jurisdiction — Imputation of the unlawful conduct — Administrative procedure — Legal professional privilege protecting communications between lawyers and their clients — Potential competition — Restriction of competition by object — Objective necessity of the restriction — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines) | 30 |
| 2019/C 82/34 | Case T-827/14: Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission (Competition — Abuse of a dominant position — Slovak market for broadband telecommunications services — Access by third-party undertakings to the local loop of the incumbent operator on that market — Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement — Single and continuous infringement — Definition of abuse — Refusal to grant access — Margin squeeze — Calculation of margin squeeze — Equally efficient competitor test — Rights of defence — Imputation to a parent company of an infringement committed by its subsidiary — Decisive influence of the parent company over the subsidiary’s commercial policy — Actual exercise of such influence — Burden of proof — Calculation of the amount of the fine — 2006 Guidelines on the method of setting fines — Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence) | 30 |
| 2019/C 82/35 | Case T-851/14: Judgment of the General Court of 13 December 2018 — Slovak Telekom v Commission (Competition — Abuse of dominant position — Slovakian market for broadband telecommunications services — Access by third-party undertakings to the local loop of the incumbent operator on that market — Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement — Single and continuous infringement — Definition of abuse — Refusal to grant access — Margin squeeze — Calculation of margin squeeze — Equally efficient competitor test — Rights of defence — Imputation of an infringement committed by a subsidiary to its parent company — Decisive influence of the parent company over the subsidiary’s commercial policy — Actual exercise of such influence — Burden of proof — Calculation of the fine — 2006 Guidelines on the method of setting fines) | 32 |
| 2019/C 82/36 | Case T-111/15: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Syndicat mixte des aéroports de Charente and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard) | 33 |
| 2019/C 82/37 | Case T-165/15: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Chamber of Commerce and Industry of Pau-Béarn and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard) | 34 |
| 2019/C 82/38 | Case T-284/15: Judgment of the General Court of 13 December 2018 — AlzChem v Commission (State aid — Chemical industry — Decision to continue the operation of an undertaking during insolvency proceedings — Decision finding no State aid — Action for annulment — Individual concern — Admissibility — Concept of State aid — Advantage — Private creditor test — Whether attributable to the State — Duty to state reasons) | 34 |
| 2019/C 82/39 | Case T-558/15: Judgment of the General Court of 13 December 2018 — Iran Insurance v Council (Non-contractual liability — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds — Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures — Material damage — Non-material damage) | 35 |
| 2019/C 82/40 | Case T-559/15: Judgment of the General Court of 13 December 2018 — Post Bank Iran v Council (Non-contractual liability — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds — Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures — Non-material damage) | 36 |
| 2019/C 82/41 | Case T-591/15: Judgment of the General Court of 13 December 2018 — Transavia Airlines v Commission (State aid — Airport and marketing services agreement — Agreement between the Chamber of Commerce and Industry of Pau-Béarn and Transavia — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Whether attributable to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard) | 37 |
| 2019/C 82/42 | Case T-630/15: Judgment of the General Court of 13 December 2018 — Scandlines Danmark and Scandlines Deutschland v Commission (State aid — Public financing of the Fehmarn Belt fixed link rail-road project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest) | 37 |
| 2019/C 82/43 | Case T-631/15: Judgment of the General Court of 13 December 2018 — Stena Line Scandinavia v Commission (State aid — Public financing of the Fehmarn Belt fixed link rail-road project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest) | 38 |
| 2019/C 82/44 | Case T-53/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Chamber of Commerce and Industry of Nîmes-Uzès-Le Vigan and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard) | 39 |
| 2019/C 82/45 | Case T-77/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Advantage — Private investor test — Recovery — Selectivity) | 40 |
| 2019/C 82/46 | Case T-165/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Notion of State aid — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights of the European Union — Access to the file — Right to be heard) | 41 |
| 2019/C 82/47 | Case T-290/16: Judgment of the General Court of 13 December 2018 — Fruits de Ponent v Commission (Non-contractual liability — Agriculture — Peach and nectarine markets — Disruption during the 2014 season — Russian embargo — Temporary exceptional support measures for producers — Delegated Regulations (EU) Nos 913/2014 and 923/2014 — Rules of law intended to confer rights upon individuals — Duty of diligence and the principle of sound administration — Sufficiently serious breach — Causal link) | 42 |
| 2019/C 82/48 | Joined Cases T-339/16, T-352/16 and T-391/16: Judgment of the General Court of 13 December 2018 — Ville de Paris, Ville de Bruxelles and Ayuntamiento de Madrid v Commission (Environment — Regulation (EU) 2016/646 — Pollutant emissions from light passenger and commercial vehicles (Euro 6) — Fixing, in respect of nitrogen oxide emissions, of not-to-exceed (NTE) values, during tests in real driving conditions (RDE) — Actions for annulment — Powers of a municipal authority concerning environmental protection to restrict the circulation of certain vehicles — Whether directly concerned — Admissibility — Lack of competence of the Commission — Compliance with higher legal norms — Temporal adjustment of the effects of an annulment — Non-contractual liability — Compensation for alleged harm to image and reputation) | 42 |
| 2019/C 82/49 | Case T-530/16: Judgment of the General Court of 13 December 2018 — Schubert and Others v Commission (Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other members of staff — Regulations (EU) No 422/2014 and No 423/2014 — Adjustments of remuneration and pensions for 2011 and 2012 — Duty to state reasons — Proportionality — Legitimate expectations — Rules on dialogue between management and workers) | 43 |
| 2019/C 82/50 | Joined Cases T-543/16 and T-544/16: Judgment of the General Court of 13 December 2018 — Carpenito and Others v Council (Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other EU staff — Regulations (EU) No 422/2014 and No 423/2014 — Adjustments of salaries and pensions for the years 2011 and 2012 — Duty to state reasons — Proportionality — Legitimate expectations — Rules on social dialogue) | 44 |
| 2019/C 82/51 | Case T-591/16: Judgment of the General Court of 13 December 2018 –Wahlström v Frontex (Civil service — Members of the temporary staff — Frontex — Non-renewal of a fixed-term contract — Article 8 of the CEOS — Duty of care — Use of an annulled appraisal report — Manifest error of assessment — Liability — Costs — Equity — Article 135(1) of the Rules of Procedure) | 45 |
| 2019/C 82/52 | Case T-632/16: Judgment of the General Court of 13 December 2018 — Haeberlen v ENISA (Civil service — Remuneration — Annual adjustment of remunerations and pensions of officials and other agents — Regulations (EU) Nos 422/2014 and 423/2014 — Adjustments of salaries and pensions for 2011 and 2012 — Obligation to state reasons — Proportionality — Legitimate expectations — Rules on social dialogue) | 46 |
| 2019/C 82/53 | Case T-672/16: Judgment of the General Court of 13 December 2018 — C=Holdings v EUIPO — Trademarkers (C=commodore) (EU trade mark — Revocation proceedings — International registration designating the European Union — Figurative mark C=commodore — Application for invalidation of the effects of the international registration — Article 158(2) of Regulation (EC) No 207/2009 (now Article 198(2) of Regulation (EU) 2017/1001) — Article 51(1)(a) of Regulation No 207/2009 (now Article 58(1)(a) of Regulation 2017/1001) — No genuine use concerning certain goods and services covered by the international registration — Presence of proper reasons for non-use) | 47 |
| 2019/C 82/54 | Case T-689/16: Judgment of the General Court of 13 December 2018 — Pipiliagkas v Commission (Civil service — Officials — Assignment — Decision with retroactive effect — Article 22a of the Staff Regulations — Authority lacking competence — Liability — Compensation in respect of material and non-material harm) | 47 |
| 2019/C 82/55 | Case T-743/16 RENV: Judgment of the General Court of 13 December 2018 — CX v Commission (Civil service — Officials — Disciplinary measure — Removal from post — Rights of the defence — Duty to have regard for the welfare of officials — Article 22(1) of Annex IX to the Staff Regulations — Articles 41 and 52 of the Charter of Fundamental Rights — Liability — Actual damage — Causal link) | 48 |
| 2019/C 82/56 | Case T-830/16: Judgment of the General Court of 13 December 2018 — Monolith Frost v EUIPO — Dovgan (PLOMBIR) (EU trade mark — Invalidity proceedings — EU word mark PLOMBIR — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Examination of the facts — Article 76(1) of Regulation No 207/2009 (now Article 95(1) of Regulation 2017/1001) — Evidence submitted for the first time before the General Court) | 49 |
| 2019/C 82/57 | Case T-247/17: Judgment of the General Court of 13 December 2018 — Azarov v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and of economic resources — Maintenance of the applicant’s name on the list — Right to property — Right to pursue an economic activity — Manifest error of assessment) | 50 |
| 2019/C 82/58 | Case T-274/17: Judgment of the General Court of 13 December 2018 — Monster Energy v EUIPO — Bösel (MONSTER DIP) (EU trade mark — Opposition proceedings — Application for EU figurative mark MONSTER DIP — Earlier EU word and figurative marks and unregistered sign used in the course of trade, all including the word element monster — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — No likelihood of misleading association — Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001) — No likelihood of dilution of the reputation of the earlier mark — Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)) | 50 |
| 2019/C 82/59 | Case T-537/17: Judgment of the General Court of 13 December 2018 — De Loecker v EEAS (Civil service — EEAS — Temporary agents — Psychological harassment — Request for assistance — Rejection of the request — Right to be heard — Liability) | 51 |
| 2019/C 82/60 | Case T-609/17: Judgment of the General Court of 12 December 2018 — France v Commission (EAGF — Expenditure excluded from financing — Expenditure incurred by France — Export refunds on poultry meat — Flat-rate financial correction — Regulations (EC) No 1290/2005 and (EU) No 1306/2013 — Sound, fair and merchantable quality — Checks — Proportionality) | 52 |
| 2019/C 82/61 | Case T-706/17: Judgment of the General Court of 13 December 2018 — UP v Commission (Civil service — Officials — Serious illness — Application f for part-time work on medical grounds — Rejection of the application — Principle of non-discrimination on grounds of disability — Right to be heard — Principle of sound administration — Duty of care — Liability) | 52 |
| 2019/C 82/62 | Case T-743/17: Judgment of the General Court of 12 December 2018 — Bischoff v EUIPO — Miroglio Fashion (CARACTÈRE) (EU trade mark — Invalidity proceedings — EU word mark CARACTÈRE — Absolute grounds for refusal — No descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001)) | 53 |
| 2019/C 82/63 | Case T-821/17: Judgment of the General Court of 12 December 2018 — Vitromed v EUIPO — Vitromed Healthcare (VITROMED Germany) (EU trade mark — Opposition proceedings — Application for EU figurative mark VITROMED Germany — Earlier EU word mark Vitromed — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)) | 53 |
| 2019/C 82/64 | Case T-76/18: Judgment of the General Court 13 December 2018 — CN v Parliament (Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Right to be heard — Principle of audi alteram partem — Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses — Refusal of the defendant institution to comply with a measure of inquiry of the General Court) | 54 |
| 2019/C 82/65 | Case T-83/18: Judgment of the General Court of 13 December 2018 — CH v Parliament (Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Right to be heard — Principle of audi alteram partem — Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses — Refusal of the defendant institution to comply with a measure of inquiry of the General Court) | 55 |
| 2019/C 82/66 | Case T-94/18: Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (fit+fun) (EU trade mark — Application for EU word mark fit+fun — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EU) 2017/1001) | 55 |
| 2019/C 82/67 | Case T-98/18: Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (MULTIFIT) (EU trade mark — Application for EU word mark MULTIFIT — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EU) 2017/1001) | 56 |
| 2019/C 82/68 | Case T-102/18: Judgment of the General Court of 13 December 2018 — Knauf v EUIPO (upgrade your personality) (EU trade mark — Application for EU word mark upgrade your personality — Absolute ground for refusal — Lack of distinctive character — Advertising slogan — Article 7(1)(b) of Regulation (EU) 2017/1001) | 56 |
| 2019/C 82/69 | Case T-745/18: Action brought on 20 December 2018 — Covestro Deutschland v Commission | 57 |
| 2019/C 82/70 | Case T-750/18: Action brought on 21 December 2018 — Briois v Parliament | 58 |
| 2019/C 82/71 | Case T-758/18: Action brought on 21 December 2018 — ABLV Bank v SRB | 59 |
| 2019/C 82/72 | Case T-2/19: Action brought on 4 January 2019 — Algebris (UK) and Anchorage Capital Group v SRB | 60 |
| 2019/C 82/73 | Case T-5/19: Action brought on 4 January 2019 — Clatronic International/EUIPO (PROFI CARE) | 61 |
| 2019/C 82/74 | Case T-19/19: Action brought on 11 January 2019 — Fastweb v Commission | 61 |
| 2019/C 82/75 | Case T-20/19: Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep) | 64 |
| 2019/C 82/76 | Case T-21/19: Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep) | 64 |
| 2019/C 82/77 | Case T-22/19: Action brought on 11 January 2019 — Noguer Enríquez and Others v Commission | 65 |
| 2019/C 82/78 | Case T-28/19: Action brought on 15 January 2019 — Karlovarské minerální vody v EUIPO — Aguas de San Martín de Veri (VERITEA) | 67 |
| 2019/C 82/79 | Case T-30/19: Action brought on 15 January 2019 — CRIA and CCCMC v Commission | 67 |
| 2019/C 82/80 | Case T-37/19: Action brought on 21 January 2019 — Cimpress Schweiz v EUIPO — Impress Media (CIMPRESS) | 69 |
| 2019/C 82/81 | Case T-42/19: Action brought on 23 January 2019 — Volkswagen v EUIPO (CROSS) | 69 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2019/C 82/02

Case C-415/18 P: Appeal brought on 22 June 2018 by CBA Spielapparate- und Restaurantbetriebs GmbH against the order of the General Court (Third Chamber) made on 19 April 2018 in Case T-606/17, CBA Spielapparate- und Restaurantbetriebs GmbH v European Commission

CBA Spielapparate- und Restaurantbetriebs GmbH

European Commission

2

2019/C 82/03

Case C-682/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH

2

2019/C 82/04

Case C-683/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — Elsevier Inc. v Cyando AG

4

2019/C 82/05

Case C-693/18: Request for a preliminary ruling from the Juge d’instruction du tribunal de grande instance de Paris (France) lodged on 29 October 2018 — Procureur de la République v X

5

2019/C 82/06

Case C-702/18 P: Appeal brought on 9 November 2018 by Przedsiębiorstwo Produkcyjno-Handlowe Primart Marek Łukasiewicz against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-584/17: Primart v EUIPO

6

2019/C 82/07

Case C-714/18 P: Appeal brought on 14 November 2018 by ACTC GmbH against the judgment of the General Court (Ninth Chamber) delivered on 13 September 2018 in Case T-94/17: ACTC v EUIPO

8

2019/C 82/08

Case C-715/18: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 November 2018 — Segler-Vereinigung Cuxhaven e.V. v Finanzamt Cuxhaven

9

2019/C 82/09

Case C-751/18: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira

10

2019/C 82/10

Case C-761/18 P: Appeal brought on 3 December 2018 by Päivi Leino-Sandberg against the order of the General Court (Seventh Chamber) delivered on 20 September 2018 in Case T-421/17: Leino-Sandberg v Parliament

10

2019/C 82/11

Case C-766/18 P: Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO

11

2019/C 82/12

Case C-767/18 P: Appeal brought on 5 December 2018 by the Republic of Cyprus against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-384/17: Cyprus v EUIPO

12

2019/C 82/13

Case C-776/18: Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 10 December 2018 — U.B. and T.V. v Eurowings GmbH

13

2019/C 82/14

Case C-801/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — EU v Caisse pour l’avenir des enfants

14

2019/C 82/15

Case C-802/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW

15

2019/C 82/16

Case C-803/18: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 20 December 2018 — AAS BALTA v UAB GRIFS AG

15

2019/C 82/17

Case C-810/18: Request for a preliminary ruling from the Krajský súd v Trnave (Slovakia) lodged on 21 December 2018 — DHL Logistics (Slovakia), spol. s r.o. v Finančné riaditeľstvo Slovenskej republiky

16

2019/C 82/18

Case C-817/18 P: Appeal brought on 21 December 2018 by Vereniging tot Behoud van Natuurmonumenten in Nederland and Others against the judgment of the General Court (Second Chamber) of 15 October 2018 in Case T-79/16, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission

17

2019/C 82/19

Case C-828/18: Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 24 December 2018 — Trendsetteuse SARL v DCA SARL

18

2019/C 82/20

Case C-829/18: Request for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 December 2018 — Crédit Logement SA v OE

18

2019/C 82/21

Case C-833/18: Request for a preliminary ruling from the tribunal de l’entreprise de Liège (Belgium) lodged on 31 December 2018 — SI, Brompton Bicycle Ltd v Chedech / Get2Get

19

2019/C 82/22

Case C-12/19 P: Appeal brought on 7 January 2019 by Mylène Troszczynski against the judgment of the General Court (Sixth Chamber) delivered on 8 November 2018 in Case T-550/17, Troszczynski v Parliament

Troszczynski

Parliament

20

2019/C 82/23

Case C-38/19 P: Appeal brought on 21 January 2019 by Marion Le Pen against the judgment of the General Court (Sixth Chamber) of 28 November 2018 in Case T-161/17, Le Pen v Parliament

Le Pen

Parliament

21

General Court

2019/C 82/24

Case T-167/13: Judgment of the General Court of 13 December 2018 — Comune di Milano v Commission (State aid — Ground-handling services — Capital injections provided by SEA in favour of SEA Handling — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of aid — Imputability to the State — Private investor test — Principle of the right to be heard — Rights of the defence — Right to good administration — Legitimate expectations)

23

2019/C 82/25

Case T-498/14: Judgment of the General Court of 12 December 2018 — Deutsche Umwelthilfe v Commission (Access to documents — Documents related to correspondence between the European Commission and car manufacturers concerning refrigerant R1234yf used in motor vehicles — Documents not included — New plea put forward in the course of the proceedings — Inadmissibility — Measure of inquiry ordering the production of the contested documents in accordance with Article 104 of the Rules of Procedure — Derogation to the principle of adversarial proceedings — Regulation (EC) No 1049/2001 — Exception relating to the protection of commercial interests — Public interest in disclosure — Balance — Regulation (EC) No 1367/2006 — Article 6(1) — Overriding public interest justifying disclosure of the environmental information or relating to emissions into the environment — General proposition — Partial refusal to grant access — No need to adjudicate)

23

2019/C 82/26

Case T-677/14: Judgment of the General Court of 12 December 2018 — Biogaran v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 TFEU and 102 TFEU — Agreements intended to delay, or even prevent, the market entry of generic versions of perindopril — Participation of a subsidiary in the infringement committed by its parent company — Imputation of the infringement — Joint and several liability — Ceiling of the fine)

24

2019/C 82/27

Case T-679/14: Judgment of the General Court of 12 December 2018 — Teva UK and Others v Commission (Competition — Agreements, decisions and concerted practices — Perindopril market, medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Patent dispute settlement and exclusive purchasing agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines)

25

2019/C 82/28

Case T-680/14: Judgment of the General Court of 12 December 2018 — Lupin v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Technology acquisition agreement — Restriction of competition by object — Balance between competition law and patent law — Fines)

26

2019/C 82/29

Case T-682/14: Judgment of the General Court of 12 December 2018 — Mylan Laboratories and Mylan v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Imputation of the unlawful conduct — Fines)

26

2019/C 82/30

Case T-684/14: Judgment of the General Court of 12 December 2018 — Krka v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Licensing agreement — Technology acquisition agreement — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law)

27

2019/C 82/31

Case T-691/14: Judgment of the General Court of 12 December 2018 — Servier and Others v Commission (Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 and 102 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Right to an effective remedy — Shortness of the period for lodging an action in view of the length of the contested decision — Patent dispute settlement agreements — Licence agreements — Technology acquisition agreements — Exclusive purchasing agreement — Potential competition — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law — Classification as separate infringements or as a single infringement — Definition of the relevant market at the level of the molecule of the medicinal product concerned — Fines — Cumulation of fines imposed under Articles 101 and 102 TFEU — Principle that offences and penalties must have a proper legal basis — Value of sales — Methods of calculation in the event of overlapping infringements on the same markets)

28

2019/C 82/32

Case T-701/14: Judgment of the General Court of 12 December 2018 — Niche Generics v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Administrative procedure — Legal professional privilege protecting communications between lawyers and their clients — Potential competition — Restriction of competition by object — Objective necessity of the restriction — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines — 10 % cap — Imputation of the unlawful conduct)

29

2019/C 82/33

Case T-705/14: Judgment of the General Court of 12 December 2018 — Unichem Laboratories v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Commission’s territorial jurisdiction — Imputation of the unlawful conduct — Administrative procedure — Legal professional privilege protecting communications between lawyers and their clients — Potential competition — Restriction of competition by object — Objective necessity of the restriction — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines)

30

2019/C 82/34

Case T-827/14: Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission (Competition — Abuse of a dominant position — Slovak market for broadband telecommunications services — Access by third-party undertakings to the local loop of the incumbent operator on that market — Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement — Single and continuous infringement — Definition of abuse — Refusal to grant access — Margin squeeze — Calculation of margin squeeze — Equally efficient competitor test — Rights of defence — Imputation to a parent company of an infringement committed by its subsidiary — Decisive influence of the parent company over the subsidiary’s commercial policy — Actual exercise of such influence — Burden of proof — Calculation of the amount of the fine — 2006 Guidelines on the method of setting fines — Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence)

30

2019/C 82/35

Case T-851/14: Judgment of the General Court of 13 December 2018 — Slovak Telekom v Commission (Competition — Abuse of dominant position — Slovakian market for broadband telecommunications services — Access by third-party undertakings to the local loop of the incumbent operator on that market — Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement — Single and continuous infringement — Definition of abuse — Refusal to grant access — Margin squeeze — Calculation of margin squeeze — Equally efficient competitor test — Rights of defence — Imputation of an infringement committed by a subsidiary to its parent company — Decisive influence of the parent company over the subsidiary’s commercial policy — Actual exercise of such influence — Burden of proof — Calculation of the fine — 2006 Guidelines on the method of setting fines)

32

2019/C 82/36

Case T-111/15: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Syndicat mixte des aéroports de Charente and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard)

33

2019/C 82/37

Case T-165/15: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Chamber of Commerce and Industry of Pau-Béarn and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard)

34

2019/C 82/38

Case T-284/15: Judgment of the General Court of 13 December 2018 — AlzChem v Commission (State aid — Chemical industry — Decision to continue the operation of an undertaking during insolvency proceedings — Decision finding no State aid — Action for annulment — Individual concern — Admissibility — Concept of State aid — Advantage — Private creditor test — Whether attributable to the State — Duty to state reasons)

34

2019/C 82/39

Case T-558/15: Judgment of the General Court of 13 December 2018 — Iran Insurance v Council (Non-contractual liability — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds — Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures — Material damage — Non-material damage)

35

2019/C 82/40

Case T-559/15: Judgment of the General Court of 13 December 2018 — Post Bank Iran v Council (Non-contractual liability — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds — Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures — Non-material damage)

36

2019/C 82/41

Case T-591/15: Judgment of the General Court of 13 December 2018 — Transavia Airlines v Commission (State aid — Airport and marketing services agreement — Agreement between the Chamber of Commerce and Industry of Pau-Béarn and Transavia — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Whether attributable to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard)

37

2019/C 82/42

Case T-630/15: Judgment of the General Court of 13 December 2018 — Scandlines Danmark and Scandlines Deutschland v Commission (State aid — Public financing of the Fehmarn Belt fixed link rail-road project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest)

37

2019/C 82/43

Case T-631/15: Judgment of the General Court of 13 December 2018 — Stena Line Scandinavia v Commission (State aid — Public financing of the Fehmarn Belt fixed link rail-road project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest)

38

2019/C 82/44

Case T-53/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements between the Chamber of Commerce and Industry of Nîmes-Uzès-Le Vigan and Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Imputability to the State — Chamber of Commerce and Industry — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights — Right of access to the file — Right to be heard)

39

2019/C 82/45

Case T-77/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid incompatible with the internal market and ordering its recovery — Notion of State aid — Advantage — Private investor test — Recovery — Selectivity)

40

2019/C 82/46

Case T-165/16: Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission (State aid — Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services — Airport services — Marketing services — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Notion of State aid — Advantage — Private investor test — Recovery — Article 41 of the Charter of Fundamental Rights of the European Union — Access to the file — Right to be heard)

41

2019/C 82/47

Case T-290/16: Judgment of the General Court of 13 December 2018 — Fruits de Ponent v Commission (Non-contractual liability — Agriculture — Peach and nectarine markets — Disruption during the 2014 season — Russian embargo — Temporary exceptional support measures for producers — Delegated Regulations (EU) Nos 913/2014 and 923/2014 — Rules of law intended to confer rights upon individuals — Duty of diligence and the principle of sound administration — Sufficiently serious breach — Causal link)

42

2019/C 82/48

Joined Cases T-339/16, T-352/16 and T-391/16: Judgment of the General Court of 13 December 2018 — Ville de Paris, Ville de Bruxelles and Ayuntamiento de Madrid v Commission (Environment — Regulation (EU) 2016/646 — Pollutant emissions from light passenger and commercial vehicles (Euro 6) — Fixing, in respect of nitrogen oxide emissions, of not-to-exceed (NTE) values, during tests in real driving conditions (RDE) — Actions for annulment — Powers of a municipal authority concerning environmental protection to restrict the circulation of certain vehicles — Whether directly concerned — Admissibility — Lack of competence of the Commission — Compliance with higher legal norms — Temporal adjustment of the effects of an annulment — Non-contractual liability — Compensation for alleged harm to image and reputation)

42

2019/C 82/49

Case T-530/16: Judgment of the General Court of 13 December 2018 — Schubert and Others v Commission (Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other members of staff — Regulations (EU) No 422/2014 and No 423/2014 — Adjustments of remuneration and pensions for 2011 and 2012 — Duty to state reasons — Proportionality — Legitimate expectations — Rules on dialogue between management and workers)

43

2019/C 82/50

Joined Cases T-543/16 and T-544/16: Judgment of the General Court of 13 December 2018 — Carpenito and Others v Council (Civil service — Remuneration — Annual adjustment of the remuneration and pensions of officials and other EU staff — Regulations (EU) No 422/2014 and No 423/2014 — Adjustments of salaries and pensions for the years 2011 and 2012 — Duty to state reasons — Proportionality — Legitimate expectations — Rules on social dialogue)

44

2019/C 82/51

Case T-591/16: Judgment of the General Court of 13 December 2018 –Wahlström v Frontex (Civil service — Members of the temporary staff — Frontex — Non-renewal of a fixed-term contract — Article 8 of the CEOS — Duty of care — Use of an annulled appraisal report — Manifest error of assessment — Liability — Costs — Equity — Article 135(1) of the Rules of Procedure)

45

2019/C 82/52

Case T-632/16: Judgment of the General Court of 13 December 2018 — Haeberlen v ENISA (Civil service — Remuneration — Annual adjustment of remunerations and pensions of officials and other agents — Regulations (EU) Nos 422/2014 and 423/2014 — Adjustments of salaries and pensions for 2011 and 2012 — Obligation to state reasons — Proportionality — Legitimate expectations — Rules on social dialogue)

46

2019/C 82/53

Case T-672/16: Judgment of the General Court of 13 December 2018 — C=Holdings v EUIPO — Trademarkers (C=commodore) (EU trade mark — Revocation proceedings — International registration designating the European Union — Figurative mark C=commodore — Application for invalidation of the effects of the international registration — Article 158(2) of Regulation (EC) No 207/2009 (now Article 198(2) of Regulation (EU) 2017/1001) — Article 51(1)(a) of Regulation No 207/2009 (now Article 58(1)(a) of Regulation 2017/1001) — No genuine use concerning certain goods and services covered by the international registration — Presence of proper reasons for non-use)

47

2019/C 82/54

Case T-689/16: Judgment of the General Court of 13 December 2018 — Pipiliagkas v Commission (Civil service — Officials — Assignment — Decision with retroactive effect — Article 22a of the Staff Regulations — Authority lacking competence — Liability — Compensation in respect of material and non-material harm)

47

2019/C 82/55

Case T-743/16 RENV: Judgment of the General Court of 13 December 2018 — CX v Commission (Civil service — Officials — Disciplinary measure — Removal from post — Rights of the defence — Duty to have regard for the welfare of officials — Article 22(1) of Annex IX to the Staff Regulations — Articles 41 and 52 of the Charter of Fundamental Rights — Liability — Actual damage — Causal link)

48

2019/C 82/56

Case T-830/16: Judgment of the General Court of 13 December 2018 — Monolith Frost v EUIPO — Dovgan (PLOMBIR) (EU trade mark — Invalidity proceedings — EU word mark PLOMBIR — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Examination of the facts — Article 76(1) of Regulation No 207/2009 (now Article 95(1) of Regulation 2017/1001) — Evidence submitted for the first time before the General Court)

49

2019/C 82/57

Case T-247/17: Judgment of the General Court of 13 December 2018 — Azarov v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and of economic resources — Maintenance of the applicant’s name on the list — Right to property — Right to pursue an economic activity — Manifest error of assessment)

50

2019/C 82/58

Case T-274/17: Judgment of the General Court of 13 December 2018 — Monster Energy v EUIPO — Bösel (MONSTER DIP) (EU trade mark — Opposition proceedings — Application for EU figurative mark MONSTER DIP — Earlier EU word and figurative marks and unregistered sign used in the course of trade, all including the word element monster — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — No likelihood of misleading association — Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001) — No likelihood of dilution of the reputation of the earlier mark — Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001))

50

2019/C 82/59

Case T-537/17: Judgment of the General Court of 13 December 2018 — De Loecker v EEAS (Civil service — EEAS — Temporary agents — Psychological harassment — Request for assistance — Rejection of the request — Right to be heard — Liability)

51

2019/C 82/60

Case T-609/17: Judgment of the General Court of 12 December 2018 — France v Commission (EAGF — Expenditure excluded from financing — Expenditure incurred by France — Export refunds on poultry meat — Flat-rate financial correction — Regulations (EC) No 1290/2005 and (EU) No 1306/2013 — Sound, fair and merchantable quality — Checks — Proportionality)

52

2019/C 82/61

Case T-706/17: Judgment of the General Court of 13 December 2018 — UP v Commission (Civil service — Officials — Serious illness — Application f for part-time work on medical grounds — Rejection of the application — Principle of non-discrimination on grounds of disability — Right to be heard — Principle of sound administration — Duty of care — Liability)

52

2019/C 82/62

Case T-743/17: Judgment of the General Court of 12 December 2018 — Bischoff v EUIPO — Miroglio Fashion (CARACTÈRE) (EU trade mark — Invalidity proceedings — EU word mark CARACTÈRE — Absolute grounds for refusal — No descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001))

53

2019/C 82/63

Case T-821/17: Judgment of the General Court of 12 December 2018 — Vitromed v EUIPO — Vitromed Healthcare (VITROMED Germany) (EU trade mark — Opposition proceedings — Application for EU figurative mark VITROMED Germany — Earlier EU word mark Vitromed — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

53

2019/C 82/64

Case T-76/18: Judgment of the General Court 13 December 2018 — CN v Parliament (Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Right to be heard — Principle of audi alteram partem — Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses — Refusal of the defendant institution to comply with a measure of inquiry of the General Court)

54

2019/C 82/65

Case T-83/18: Judgment of the General Court of 13 December 2018 — CH v Parliament (Civil service — Accredited parliamentary assistants — Article 24 of the Staff Regulations — Request for assistance — Article 12a of the Staff Regulations — Psychological harassment — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Decision rejecting the request for assistance — Right to be heard — Principle of audi alteram partem — Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses — Refusal of the defendant institution to comply with a measure of inquiry of the General Court)

55

2019/C 82/66

Case T-94/18: Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (fit+fun) (EU trade mark — Application for EU word mark fit+fun — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EU) 2017/1001)

55

2019/C 82/67

Case T-98/18: Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (MULTIFIT) (EU trade mark — Application for EU word mark MULTIFIT — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EU) 2017/1001)

56

2019/C 82/68

Case T-102/18: Judgment of the General Court of 13 December 2018 — Knauf v EUIPO (upgrade your personality) (EU trade mark — Application for EU word mark upgrade your personality — Absolute ground for refusal — Lack of distinctive character — Advertising slogan — Article 7(1)(b) of Regulation (EU) 2017/1001)

56

2019/C 82/69

Case T-745/18: Action brought on 20 December 2018 — Covestro Deutschland v Commission

57

2019/C 82/70

Case T-750/18: Action brought on 21 December 2018 — Briois v Parliament

58

2019/C 82/71

Case T-758/18: Action brought on 21 December 2018 — ABLV Bank v SRB

59

2019/C 82/72

Case T-2/19: Action brought on 4 January 2019 — Algebris (UK) and Anchorage Capital Group v SRB

60

2019/C 82/73

Case T-5/19: Action brought on 4 January 2019 — Clatronic International/EUIPO (PROFI CARE)

61

2019/C 82/74

Case T-19/19: Action brought on 11 January 2019 — Fastweb v Commission

61

2019/C 82/75

Case T-20/19: Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep)

64

2019/C 82/76

Case T-21/19: Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep)

64

2019/C 82/77

Case T-22/19: Action brought on 11 January 2019 — Noguer Enríquez and Others v Commission

65

2019/C 82/78

Case T-28/19: Action brought on 15 January 2019 — Karlovarské minerální vody v EUIPO — Aguas de San Martín de Veri (VERITEA)

67

2019/C 82/79

Case T-30/19: Action brought on 15 January 2019 — CRIA and CCCMC v Commission

67

2019/C 82/80

Case T-37/19: Action brought on 21 January 2019 — Cimpress Schweiz v EUIPO — Impress Media (CIMPRESS)

69

2019/C 82/81

Case T-42/19: Action brought on 23 January 2019 — Volkswagen v EUIPO (CROSS)

69

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| EN | For reasons of protection of personal data and/or confidentiality, some information contained in this issue cannot be disclosed anymore and therefore a new authentic version has been published. |
| --- | --- |

EN

For reasons of protection of personal data and/or confidentiality, some information contained in this issue cannot be disclosed anymore and therefore a new authentic version has been published.

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 4.3.2019 | EN | Official Journal of the European Union | C 82/1 |
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4.3.2019

EN

Official Journal of the European Union

C 82/1

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

(2019/C 82/01)

Last publication

OJ C 72, 25.2.2019

Past publications

OJ C 65, 18.2.2019

OJ C 54, 11.2.2019

OJ C 44, 4.2.2019

OJ C 35, 28.1.2019

OJ C 25, 21.1.2019

OJ C 16, 14.1.2019

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 4.3.2019 | EN | Official Journal of the European Union | C 82/2 |
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4.3.2019

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Official Journal of the European Union

C 82/2

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Appeal brought on 22 June 2018 by CBA Spielapparate- und Restaurantbetriebs GmbH against the order of the General Court (Third Chamber) made on 19 April 2018 in Case T-606/17, CBA Spielapparate- und Restaurantbetriebs GmbH v European Commission

(Case C-415/18 P)

(2019/C 82/02)

Language of the case: German

Parties

Appellant: CBA Spielapparate- und Restaurantbetriebs GmbH (represented by: A. Schuster, Rechtsanwalt)

Other party to the proceedings: European Commission

By order of 10 January 2019, the Court of Justice of the European Union (Eighth Chamber) dismissed the appeal as being in part manifestly inadmissible and in part manifestly unfounded and ordered the appellant to bear its own costs.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/2 |
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4.3.2019

EN

Official Journal of the European Union

C 82/2

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Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH

(Case C-682/18)

(2019/C 82/03)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: LF

Defendants: Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH

Questions referred

| 1. | Does the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if






  — | the operator earns advertising revenue by means of the platform, |
| --- | --- | --- |

1.

Does the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if

—

the operator earns advertising revenue by means of the platform,

| — | the upload process takes place automatically and without material being seen in advance or controlled by the operator, |
| --- | --- |

—

the upload process takes place automatically and without material being seen in advance or controlled by the operator,

| — | in accordance with the conditions of use, the operator receives a worldwide, non-exclusive and royalty-free licence for the videos for the duration for which the videos are posted, |
| --- | --- |

—

in accordance with the conditions of use, the operator receives a worldwide, non-exclusive and royalty-free licence for the videos for the duration for which the videos are posted,

| — | in the conditions of use and during the upload process, the operator points out that copyright-infringing content may not be posted, |
| --- | --- |

—

in the conditions of use and during the upload process, the operator points out that copyright-infringing content may not be posted,

| — | the operator provides tools with which rightholders can take steps to block infringing videos, |
| --- | --- |

—

the operator provides tools with which rightholders can take steps to block infringing videos,

| — | on the platform, the operator prepares search results in the form of rankings and content categories, and displays to registered users an overview that is oriented towards previously seen videos and that contains recommended videos which can be displayed to registered users, |
| --- | --- |

—

on the platform, the operator prepares search results in the form of rankings and content categories, and displays to registered users an overview that is oriented towards previously seen videos and that contains recommended videos which can be displayed to registered users,

if the operator is not specifically aware of the availability of copyright-infringing content or, after having become aware, expeditiously deletes that content or expeditiously disables access thereto?

| 2. | If Question 1 is answered in the negative:
  Does the activity of the operator of an internet video platform under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2) |
| --- | --- |

2.

If Question 1 is answered in the negative:

Does the activity of the operator of an internet video platform under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2)

| 3. | If Question 2 is answered in the affirmative:
  Must the actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information is apparent relate to specific illegal activities or information pursuant to Article 14(1) of Directive 2000/31/EC? |
| --- | --- |

3.

If Question 2 is answered in the affirmative:

Must the actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information is apparent relate to specific illegal activities or information pursuant to Article 14(1) of Directive 2000/31/EC?

| 4. | Also if Question 2 is answered in the affirmative:
  Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe a copyright or related right, only if such an infringement has taken place again after notification of a clear infringement has been provided? |
| --- | --- |

4.

Also if Question 2 is answered in the affirmative:

Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe a copyright or related right, only if such an infringement has taken place again after notification of a clear infringement has been provided?

| 5. | If Questions 1 and 2 are answered in the negative:
  Is the operator of an internet video platform under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3) |
| --- | --- |

5.

If Questions 1 and 2 are answered in the negative:

Is the operator of an internet video platform under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3)

| 6. | If Question 5 is answered in the affirmative:
  Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement? |
| --- | --- |

6.

If Question 5 is answered in the affirmative:

Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement?

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

(2)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1).

(3)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/4 |
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4.3.2019

EN

Official Journal of the European Union

C 82/4

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Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — Elsevier Inc. v Cyando AG

(Case C-683/18)

(2019/C 82/04)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Elsevier Inc.

Defendant: Cyando AG

Questions referred

| 1. | (a) | Does the operator of a shared hosting service via which files containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if






  — | the upload process takes place automatically and without being seen in advance or controlled by the operator, |
| --- | --- | --- | --- |

1.

(a)

Does the operator of a shared hosting service via which files containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if

—

the upload process takes place automatically and without being seen in advance or controlled by the operator,

| — | in the conditions of use, the operator indicates that copyright-infringing content may not be posted, |
| --- | --- |

—

in the conditions of use, the operator indicates that copyright-infringing content may not be posted,

| — | it earns revenue through the operation of the service, |
| --- | --- |

—

it earns revenue through the operation of the service,

| — | the service is used for lawful applications, but the operator is aware that a considerable amount of copyright-infringing content (over 9 500 works) is also available, |
| --- | --- |

—

the service is used for lawful applications, but the operator is aware that a considerable amount of copyright-infringing content (over 9 500 works) is also available,

| — | the operator does not offer a directory of the content or a search function, but the unlimited download links provided by it are posted by third parties on the internet in link collections that contain information regarding the content of the files and make it possible to search for specific content, |
| --- | --- |

—

the operator does not offer a directory of the content or a search function, but the unlimited download links provided by it are posted by third parties on the internet in link collections that contain information regarding the content of the files and make it possible to search for specific content,

| — | via the structure of the remuneration for downloads that are paid by it in accordance with demand, it creates an incentive to upload content protected by copyright that users could otherwise only obtain for a charge |
| --- | --- |

—

via the structure of the remuneration for downloads that are paid by it in accordance with demand, it creates an incentive to upload content protected by copyright that users could otherwise only obtain for a charge

and

| — | by providing the possibility to upload files anonymously, the probability of users not being held accountable for copyright infringements is increased? |
| --- | --- |

—

by providing the possibility to upload files anonymously, the probability of users not being held accountable for copyright infringements is increased?

| (b) | Does this assessment change if copyright-infringing offerings are provided by the shared hosting service and account for 90 % to 96 % of the overall use? |
| --- | --- |

(b)

Does this assessment change if copyright-infringing offerings are provided by the shared hosting service and account for 90 % to 96 % of the overall use?

| 2. | If Question 1 is answered in the negative:
  Does the activity of the operator of a shared hosting service under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2) |
| --- | --- |

2.

If Question 1 is answered in the negative:

Does the activity of the operator of a shared hosting service under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2)

| 3. | If Question 2 referred is answered in the affirmative:
  Must the actual knowledge of the unlawful activity or information and the awareness of the facts or circumstances from which the unlawful activity or information is apparent relate to specific unlawful activities or information pursuant to Article 14(1) of Directive 2000/31/EC? |
| --- | --- |

3.

If Question 2 referred is answered in the affirmative:

Must the actual knowledge of the unlawful activity or information and the awareness of the facts or circumstances from which the unlawful activity or information is apparent relate to specific unlawful activities or information pursuant to Article 14(1) of Directive 2000/31/EC?

| 4. | Also if Question 2 is answered in the affirmative:
  Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe copyright or related rights, only if such an infringement has taken place again after notification of a clear infringement has been provided? |
| --- | --- |

4.

Also if Question 2 is answered in the affirmative:

Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe copyright or related rights, only if such an infringement has taken place again after notification of a clear infringement has been provided?

| 5. | If Questions 1 and 2 are answered in the negative:
  Is the operator of a shared hosting service under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3) |
| --- | --- |

5.

If Questions 1 and 2 are answered in the negative:

Is the operator of a shared hosting service under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3)

| 6. | If Question 5 is answered in the affirmative:
  Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer must have acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement? |
| --- | --- |

6.

If Question 5 is answered in the affirmative:

Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer must have acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement?

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

(2)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1).

(3)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/5 |
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4.3.2019

EN

Official Journal of the European Union

C 82/5

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Request for a preliminary ruling from the Juge d’instruction du tribunal de grande instance de Paris (France) lodged on 29 October 2018 — Procureur de la République v X

(Case C-693/18)

(2019/C 82/05)

Language of the case: French

Referring court

Juge d’instruction du tribunal de grande instance de Paris

Parties to the main proceedings

Applicant: Procureur de la République

Defendant: X

Other parties: Parties claiming damages

Questions referred

1.   Interpretation of the concept of ‘design’

| 1(1): | What is covered by the concept of ‘element of design’ in Article 3.10 of Regulation (EC) No 715/2007, (1) which defines ‘defeat device’? |
| --- | --- |

1(1):

| 1(2): | May a program integrated in the engine control calculator or more generally acting on that calculator be considered to be an element of design within the meaning of that article? |
| --- | --- |

1(2):

2.   Interpretation of the concept of ‘emission control system’

| 2(1): | What is covered by the concept of ‘emission control system’ in Article 3.10 of Regulation (EC) No 715/2007, which defines ‘defeat device’? |
| --- | --- |

2(1):

| 2(2): | Does this emission control system include only the technologies and strategies aimed at treating and reducing emissions (in particular of NOx) after they have been created, or does it also incorporate the different technologies and strategies that enable the initial production of emissions to be limited, such as EGR technology? |
| --- | --- |

2(2):

3.   Interpretation of the concept of ‘defeat device’

| 3(1): | Is a device that detects any parameter connected with the conduct of the approval procedures provided for in Regulation (EC) No 715/2007, for the purposes of activating or adjusting upwards, during those procedures, the operation of any part of the emission control system, and thus obtaining approval of the vehicle, a ‘defeat device’ within the meaning of Article 3.10 of Regulation (EC) No 715/2007? |
| --- | --- |

3(1):

| 3(2): | If so, is that defeat device prohibited under Article 5(2) of Regulation (EC) No 715/2007? |
| --- | --- |

3(2):

| 3(3): | May a device as described in Question 3(1) be characterised as a ‘defeat device’ if the upwards adjustment of the activation of the emission control system is effective, not only during the approval procedures, but also on specific occasions when the precise conditions detected for the purpose of adjusting the emission control system upwards during those approval procedures are encountered in actual traffic? |
| --- | --- |

3(3):

4.   Interpretation of the exceptions provided for in Article 5

| 4(1): | What is covered by the three exceptions provided for in Article 5(2) in Chapter 2 of Regulation (EC) No 715/2007? |
| --- | --- |

4(1):

| 4(2): | Might the prohibition of the defeat device activating or adjusting upwards the operation of any part of the emission control system specifically during the approval procedures be disregarded for one of the three reasons listed in Article 5(2)? |
| --- | --- |

4(2):

| 4(3): | Is slowing down the aging or the clogging-up of the engine among the requirements of ‘protecting the engine against damage or accident’ or of ‘safe operation of the vehicle’ that may justify the presence of a defeat device within the meaning of Article 5(2)(a)? |
| --- | --- |

4(3):

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(1)  Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/6 |
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4.3.2019

EN

Official Journal of the European Union

C 82/6

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Appeal brought on 9 November 2018 by Przedsiębiorstwo Produkcyjno-Handlowe ‘Primart’ Marek Łukasiewicz against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-584/17: Primart v EUIPO

(Case C-702/18 P)

(2019/C 82/06)

Language of the case: English

Parties

Appellant: Przedsiębiorstwo Produkcyjno-Handlowe ‘Primart’ Marek Łukasiewicz (represented by: J. Skołuda, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office, Bolton Cile España, SA

Form of order sought

The appellant claims that the Court should:

| — | set aside, in whole, the judgement of the General Court under appeal; |
| --- | --- |

—

set aside, in whole, the judgement of the General Court under appeal;

| — | annul the decision of the Fourth Board of Appeal of 22 June 2017 (R 1933/2016-4); |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of 22 June 2017 (R 1933/2016-4);

| — | order EUIPO and Bolton Cile España, S.A. to pay the costs of the proceedings before the General Court and before the Board of Appeal, as well as order EUIPO to pay the costs of the proceedings before the Court of Justice. |
| --- | --- |

—

order EUIPO and Bolton Cile España, S.A. to pay the costs of the proceedings before the General Court and before the Board of Appeal, as well as order EUIPO to pay the costs of the proceedings before the Court of Justice.

Pleas in law and main arguments

| 1) | In the judgement under appeal the General Court erred in applying Article 76(1) of Regulation No 207/2009 (1) (now Article 95(1) of Regulation 2017/1001 (2)) and Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), by declaring the Appellant’s arguments concerning the weak distinctive character of the earlier mark in the opposition proceedings inadmissible, as they have been put forward for the first time before the Court (paragraphs 87-90 of the judgement under appeal).






  a. | The General Court must assess facts and arguments, even though they were presented for the first time before it, if the EUIPO Board of Appeal should have taken them into account of its own motion. |
| --- | --- | --- |

1)

In the judgement under appeal the General Court erred in applying Article 76(1) of Regulation No 207/2009 (1) (now Article 95(1) of Regulation 2017/1001 (2)) and Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), by declaring the Appellant’s arguments concerning the weak distinctive character of the earlier mark in the opposition proceedings inadmissible, as they have been put forward for the first time before the Court (paragraphs 87-90 of the judgement under appeal).

a.

The General Court must assess facts and arguments, even though they were presented for the first time before it, if the EUIPO Board of Appeal should have taken them into account of its own motion.

| b. | Meaning of a part of a trade mark in an EU language is a well-known fact and as such it should be analysed by the Office of its own motion. As a result, arguments relating to it shall be thoroughly analysed by the General Court, also by assessing the arguments presented for the first time before it. |
| --- | --- |

b.

Meaning of a part of a trade mark in an EU language is a well-known fact and as such it should be analysed by the Office of its own motion. As a result, arguments relating to it shall be thoroughly analysed by the General Court, also by assessing the arguments presented for the first time before it.

| c. | The applicant in the proceedings before the General Court has a right to question assessment of well-known facts made by the EUIPO Board of Appeal, also by presenting new arguments before the General Court and evidence supporting these arguments |
| --- | --- |

c.

The applicant in the proceedings before the General Court has a right to question assessment of well-known facts made by the EUIPO Board of Appeal, also by presenting new arguments before the General Court and evidence supporting these arguments

| d. | By failing to assess facts and arguments the Office should have taken into account of its own motion (including well-known facts relating to the meaning of the trade marks being subject to the opposition proceedings) the General Court infringed the general rules of procedure and came to erroneous assessment of matters relevant in the case before the Board of Appeal. |
| --- | --- |

d.

By failing to assess facts and arguments the Office should have taken into account of its own motion (including well-known facts relating to the meaning of the trade marks being subject to the opposition proceedings) the General Court infringed the general rules of procedure and came to erroneous assessment of matters relevant in the case before the Board of Appeal.

| 2) | If the Court has taken into account the well-known fact that the word ‘PRIMA’ has a laudatory meaning (as stated by the Opposition Division and the Appellant), meaning ‘first, foremost/best, chief, principal’ it should have come to a different conclusion relating to likelihood of confusion between the trade marks ES-2578815 ‘PRIMA’ and EUTMA-013682299 ‘PRIMART MAREK ŁUKASIEWICZ’, namely it should consider that no likelihood of confusing between these trade marks exists.






  a. | The marks under study coincide in an element that is of low distinctiveness, and do not have an independent role in the opposed trade mark. This, together with medium degree of visual similarity, lack of conceptual similarity and low degree of phonetic similarity (or even lack of it) excludes the likelihood of confusion between those marks. |
| --- | --- | --- |

2)

If the Court has taken into account the well-known fact that the word ‘PRIMA’ has a laudatory meaning (as stated by the Opposition Division and the Appellant), meaning ‘first, foremost/best, chief, principal’ it should have come to a different conclusion relating to likelihood of confusion between the trade marks ES-2578815 ‘PRIMA’ and EUTMA-013682299 ‘PRIMART MAREK ŁUKASIEWICZ’, namely it should consider that no likelihood of confusing between these trade marks exists.

a.

The marks under study coincide in an element that is of low distinctiveness, and do not have an independent role in the opposed trade mark. This, together with medium degree of visual similarity, lack of conceptual similarity and low degree of phonetic similarity (or even lack of it) excludes the likelihood of confusion between those marks.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009, L 78, p. 1).

(2)  Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017, L 154, p. 1).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/8 |
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4.3.2019

EN

Official Journal of the European Union

C 82/8

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Appeal brought on 14 November 2018 by ACTC GmbH against the judgment of the General Court (Ninth Chamber) delivered on 13 September 2018 in Case T-94/17: ACTC v EUIPO

(Case C-714/18 P)

(2019/C 82/07)

Language of the case: English

Parties

Appellant: ACTC GmbH (represented by: V. Hoene, Rechtsanwältin, D. Eickemeier, Rechtsanwalt, S. Gantenbrink, Rechtsanwältin)

Other parties to the proceedings: European Union Intellectual Property Office, Taiga AB

Form of order sought

The appellant claims that the Court should:

| — | set aside the decision of the General Court of September 13, 2018 in case T-94/17 and annul the decision of the Defendant in case R 693/2015-4. |
| --- | --- |

—

set aside the decision of the General Court of September 13, 2018 in case T-94/17 and annul the decision of the Defendant in case R 693/2015-4.

alternatively

| — | set aside the judgment referred to in paragraph 1 and refer the case back to the General Court, |
| --- | --- |

—

set aside the judgment referred to in paragraph 1 and refer the case back to the General Court,

and

| — | impose the costs of the proceedings to the Defendant. |
| --- | --- |

—

impose the costs of the proceedings to the Defendant.

Pleas in law and main arguments

The General Court has infringed Art. 8(1)(b) and Art. 42(2) EUTMR in several aspects by affirming similarity of signs, and — as a consequence of the incorrect assessment of the evidence of proof of use — similarity of goods. There is no likelihood of confusion between the marks at issue.

| 1. | The General Court incorrectly found that the lntervener had fulfilled the use requirements concerning all goods of class 25 the earlier mark is registered for. The requirements are only fulfilled related to the goods ‘clothing; outerclothing, underwear, headgear for wear and headwear, gloves; belts and socks; all aforementioned goods to be used as special weather protective outdoor clothing for the purpose of protection against cold, windy and/or rainy weather conditions only; working overalls’. Contrary to the findings of the General Court, this is an independent subcategory of goods in class 25 so that proof of use had been submitted only for these goods of class 25. |
| --- | --- |

1.

The General Court incorrectly found that the lntervener had fulfilled the use requirements concerning all goods of class 25 the earlier mark is registered for. The requirements are only fulfilled related to the goods ‘clothing; outerclothing, underwear, headgear for wear and headwear, gloves; belts and socks; all aforementioned goods to be used as special weather protective outdoor clothing for the purpose of protection against cold, windy and/or rainy weather conditions only; working overalls’. Contrary to the findings of the General Court, this is an independent subcategory of goods in class 25 so that proof of use had been submitted only for these goods of class 25.

| 2. | As a consequence of the incorrect assessment of the use requirements, the General Court came incorrectly to the conclusion that the goods ‘Clothing’ and ‘headgear’ appearing in the lists of both trademarks were identical. |
| --- | --- |

2.

As a consequence of the incorrect assessment of the use requirements, the General Court came incorrectly to the conclusion that the goods ‘Clothing’ and ‘headgear’ appearing in the lists of both trademarks were identical.

| 3. | The General Court erroneously decided that the BoA had been correct to find that the signs at issue were visually similar as the signs at issue were of the same length and had four letters in common. The unusual composition of the contested mark (asymmetric consonants and unusual spelling ‘igh’) and the consequences for visual similarity as argued by the Appellant was not discussed by the General Court. Of course, the average consumer perceives a mark as a whole. However, the unusual composition of the contested mark has a considerable influence on its overall impression which was not taken into account by the General Court. |
| --- | --- |

3.

The General Court erroneously decided that the BoA had been correct to find that the signs at issue were visually similar as the signs at issue were of the same length and had four letters in common. The unusual composition of the contested mark (asymmetric consonants and unusual spelling ‘igh’) and the consequences for visual similarity as argued by the Appellant was not discussed by the General Court. Of course, the average consumer perceives a mark as a whole. However, the unusual composition of the contested mark has a considerable influence on its overall impression which was not taken into account by the General Court.

| 4. | The General Court also failed in deciding that the marks at issue were phonetically identical because the Appellant had not adduced evidence to suggest that the sound of the first syllables ‘ti’ and ‘TAl’ were not identical for the English-speaking public and that there was nothing to separate the pronunciation of the signs at issue. It is — on the contrary — the case that the General Court has assumed without any evidence and incorrectly that the sequence of letters ‘ti’ was always pronounced ‘tai’. There is no evidence for this assessment. A word ‘ti’ does not exist in the English language. The sequence of letters is therefore always pronounced only in accordance with the linguistic rules applicable to the word in question. We may take it for granted that innumerable words exist in which the letter sequence ‘ti’ is not pronounced like ‘tai’, such as ‘trick’, ‘ticket’, ‘till’, ‘timbal’, ‘timberland’, ‘tin’, ‘tincture’, ‘tinder’, ‘tip’, ‘trigger’ and many more as well as the contested trademark ‘tigha’. The famous English children's book Winnie-the-Pooh contains as one of the main characters an animal named ‘Tigger’, pronounced [tɪɡə]. Thus, whenever the vowel after ‘ti’ is pronounced short, there is no pronunciation like ‘tai’. This is what the Appellant had said from the outset. Neither the Defendant nor the lntervener have submitted evidence to the contrary. It was therefore not for the Appellant to adduce proof of the obvious. |
| --- | --- |

4.

The General Court also failed in deciding that the marks at issue were phonetically identical because the Appellant had not adduced evidence to suggest that the sound of the first syllables ‘ti’ and ‘TAl’ were not identical for the English-speaking public and that there was nothing to separate the pronunciation of the signs at issue. It is — on the contrary — the case that the General Court has assumed without any evidence and incorrectly that the sequence of letters ‘ti’ was always pronounced ‘tai’. There is no evidence for this assessment. A word ‘ti’ does not exist in the English language. The sequence of letters is therefore always pronounced only in accordance with the linguistic rules applicable to the word in question. We may take it for granted that innumerable words exist in which the letter sequence ‘ti’ is not pronounced like ‘tai’, such as ‘trick’, ‘ticket’, ‘till’, ‘timbal’, ‘timberland’, ‘tin’, ‘tincture’, ‘tinder’, ‘tip’, ‘trigger’ and many more as well as the contested trademark ‘tigha’. The famous English children's book Winnie-the-Pooh contains as one of the main characters an animal named ‘Tigger’, pronounced [tɪɡə]. Thus, whenever the vowel after ‘ti’ is pronounced short, there is no pronunciation like ‘tai’. This is what the Appellant had said from the outset. Neither the Defendant nor the lntervener have submitted evidence to the contrary. It was therefore not for the Appellant to adduce proof of the obvious.

| 5. | The General Court incorrectly stated that the Appellant had failed to demonstrate that TAIGA has a clear and specific meaning for the relevant public (EU-consumers) in a whole. This is not correct. The Appellant stated undisputed that TAIGA is a lexically noted word of the French language. It should be undisputed and known to the courts that France lies in Southern Europe. Due to the undisputed size of TAIGA as a landscape and its significance for the world as a whole, TAIGA (especially together with the term TUNDRA) belongs to general education throughout Europe and beyond. |
| --- | --- |

5.

The General Court incorrectly stated that the Appellant had failed to demonstrate that TAIGA has a clear and specific meaning for the relevant public (EU-consumers) in a whole. This is not correct. The Appellant stated undisputed that TAIGA is a lexically noted word of the French language. It should be undisputed and known to the courts that France lies in Southern Europe. Due to the undisputed size of TAIGA as a landscape and its significance for the world as a whole, TAIGA (especially together with the term TUNDRA) belongs to general education throughout Europe and beyond.

| 6. | Apart from that, according to the case-law of the General Court, it is sufficient, that a term is understood in a part of the European Union, such as the ltalian-speaking public. Here, the General Court acknowledged conceptual dissimilarity between ‘Granini’ and ‘Panini’ because of the missing meaning of ‘Granini’ whereas ‘Panini’ had the meaning of an ltalian sandwich. |
| --- | --- |

6.

Apart from that, according to the case-law of the General Court, it is sufficient, that a term is understood in a part of the European Union, such as the ltalian-speaking public. Here, the General Court acknowledged conceptual dissimilarity between ‘Granini’ and ‘Panini’ because of the missing meaning of ‘Granini’ whereas ‘Panini’ had the meaning of an ltalian sandwich.

| 7. | The judgement of 14 October 2003, T-292/01, paragraph 54 — BASS cited by the General Court contains no single indication that the word in question must be understood throughout the whole European Union. It must therefore pointed out that the assessment of the General Court is not supported by the case law to BASS. It is correct when the General Court acknowledged that a large part of the relevant public within Europe knows and understands the term TAIGA. |
| --- | --- |

7.

The judgement of 14 October 2003, T-292/01, paragraph 54 — BASS cited by the General Court contains no single indication that the word in question must be understood throughout the whole European Union. It must therefore pointed out that the assessment of the General Court is not supported by the case law to BASS. It is correct when the General Court acknowledged that a large part of the relevant public within Europe knows and understands the term TAIGA.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/9 |
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4.3.2019

EN

Official Journal of the European Union

C 82/9

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 November 2018 — Segler-Vereinigung Cuxhaven e.V. v Finanzamt Cuxhaven

(Case C-715/18)

(2019/C 82/08)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Segler-Vereinigung Cuxhaven e.V.

Defendant: Finanzamt Cuxhaven

Question referred

Does the tax rate reduction for the letting of places on camping or caravan sites under Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (‘the VAT Directive’), in conjunction with Annex III, No 12, to that directive, also cover the letting of boat moorings?

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

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/10 |
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4.3.2019

EN

Official Journal of the European Union

C 82/10

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Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira

(Case C-751/18)

(2019/C 82/09)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Totalmédia — Marketing Directo e Publicidade S.A.

Defendant: Autoridade Tributária e Aduaneira

Questions referred

| 1. | If after the ‘reverse merger’ in question, the interest and other financial charges on the loans taken out with third parties or associates (which but for the merger would be deductible by the company now being acquired), in order to purchase the shares of the subsidiary which is now the acquiring company, and transferred as a result of the merger, are interpreted as ceasing to be deductible for tax purposes from the profits of the acquiring company, will Article 23(1)(c) of the Corporation Tax Code, in the version in force in 2013, be compatible with EU law, in particular in the sense that that non-deductibility of the financial charges may constitute an impediment or restriction to the merger operations encompassed by Council Directive 2009/133/EC, (1) infringing the principles and objectives of that directive, as well as Article 4 thereof? |
| --- | --- |

1.

If after the ‘reverse merger’ in question, the interest and other financial charges on the loans taken out with third parties or associates (which but for the merger would be deductible by the company now being acquired), in order to purchase the shares of the subsidiary which is now the acquiring company, and transferred as a result of the merger, are interpreted as ceasing to be deductible for tax purposes from the profits of the acquiring company, will Article 23(1)(c) of the Corporation Tax Code, in the version in force in 2013, be compatible with EU law, in particular in the sense that that non-deductibility of the financial charges may constitute an impediment or restriction to the merger operations encompassed by Council Directive 2009/133/EC, (1) infringing the principles and objectives of that directive, as well as Article 4 thereof?

| 2. | If the first question is answered to the effect that that non-deduction of financial charges for tax purposes is compatible with the Directive, will that answer remain unchanged by the fact that such a correction was not made on the basis of the anti-abuse provision of the Directive (Article 15) or national law reproducing it (Article 73(10) of the Corporation Tax Code), but another provision of national law (Article 23 of the Corporation Tax Code)? |
| --- | --- |

2.

If the first question is answered to the effect that that non-deduction of financial charges for tax purposes is compatible with the Directive, will that answer remain unchanged by the fact that such a correction was not made on the basis of the anti-abuse provision of the Directive (Article 15) or national law reproducing it (Article 73(10) of the Corporation Tax Code), but another provision of national law (Article 23 of the Corporation Tax Code)?

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(1)  Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ 2009 L 310, p. 34).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/10 |
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4.3.2019

EN

Official Journal of the European Union

C 82/10

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Appeal brought on 3 December 2018 by Päivi Leino-Sandberg against the order of the General Court (Seventh Chamber) delivered on 20 September 2018 in Case T-421/17: Leino-Sandberg v Parliament

(Case C-761/18 P)

(2019/C 82/10)

Language of the case: English

Parties

Appellant: Päivi Leino-Sandberg (represented by: O. W. Brouwer, advocaat, S. Schubert, Rechtsanwalt)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

| — | set aside the order of the General Court of 20 September 2018 in Case T-421/17; |
| --- | --- |

—

set aside the order of the General Court of 20 September 2018 in Case T-421/17;

| — | make use of its power under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice to give final judgment in the matter, and |
| --- | --- |

—

make use of its power under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice to give final judgment in the matter, and

| — | order the European Parliament to pay the costs of the proceedings, including the costs of any intervening parties. |
| --- | --- |

—

order the European Parliament to pay the costs of the proceedings, including the costs of any intervening parties.

Pleas in law and main arguments

First ground of appeal: errors of law in the contested order when it holds that there is no longer a purpose to the action, and therefore no need to adjudicate. The appellant submits that the contested order incorrectly does not apply the legal test set out in Case C-57/16 P, ClientEarth v. Commission (EU:C:2018:660) under which it should have concluded that because the European Parliament has not withdrawn the contested decision, the purpose of the action remained.

Second ground of appeal: errors of law and procedure in the contested order when it holds that there is no longer an interest in bringing proceedings. The appellant submits that the contested order misapplies the legal test set out in established case-law, including Case C-57/16 P, under which it should have concluded that the unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case, and that therefore the interest in bringing proceedings remained.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/11 |
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4.3.2019

EN

Official Journal of the European Union

C 82/11

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Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO

(Case C-766/18 P)

(2019/C 82/11)

Language of the case: English

Parties

Appellant: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (represented by: S. Malynicz QC, S. Baran, Barrister, V. Marsland, Solicitor)

Other parties to the proceedings: European Union Intellectual Property Office, M. J. Dairies EOOD

Form of order sought

The appellant claims that the Court should:

| — | Allow the appeal against the judgment of the General Court in Case T-328/17, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v. European Intellectual Property Office (EUIPO), EU:T:2018:594, and grant the appellant’s application for annulment; |
| --- | --- |

—

Allow the appeal against the judgment of the General Court in Case T-328/17, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v. European Intellectual Property Office (EUIPO), EU:T:2018:594, and grant the appellant’s application for annulment;

| — | Order the Office and intervener to bear their own costs, and pay those of the appellant. |
| --- | --- |

—

Order the Office and intervener to bear their own costs, and pay those of the appellant.

Pleas in law and main arguments

| 1. | The General Court erred in failing to accord to the HALLOUMI Collective Mark the proper status and protection that the EUTMR requies for such collective marks, in infringement of Art 74 EUTMR; |
| --- | --- |

1.

The General Court erred in failing to accord to the HALLOUMI Collective Mark the proper status and protection that the EUTMR requies for such collective marks, in infringement of Art 74 EUTMR;

| 2. | In particular the General Court erred in applying a completely unmodified approach to the assessment of the distinctiveness of the HALLOUMI Collective Mark contrary to Arts 8(1)(b) and 74 EUTMR; |
| --- | --- |

2.

In particular the General Court erred in applying a completely unmodified approach to the assessment of the distinctiveness of the HALLOUMI Collective Mark contrary to Arts 8(1)(b) and 74 EUTMR;

| 3. | The General Court incorrectly appraised and applied the effect of this court’s decision in Joined Cases C-673/15 P to C-676/15 P, The Tea Board v. EUIPO (‘Tea Board’), and its reasoned order in C-392/12 P, Foundation for the Protection of the Traditional Cheese of Cyprus Named Halloumi v. OHIM (‘HELLIM’), and failed to give proper effect to the judgment in C-196/11 P, Formula One Licensing v. OHIM, EU:C:2012:314 (‘F1’); and |
| --- | --- |

3.

The General Court incorrectly appraised and applied the effect of this court’s decision in Joined Cases C-673/15 P to C-676/15 P, The Tea Board v. EUIPO (‘Tea Board’), and its reasoned order in C-392/12 P, Foundation for the Protection of the Traditional Cheese of Cyprus Named Halloumi v. OHIM (‘HELLIM’), and failed to give proper effect to the judgment in C-196/11 P, Formula One Licensing v. OHIM, EU:C:2012:314 (‘F1’); and

| 4. | The General Court wrongly failed to remit the case to the Boards of Appeal for reconsideration in light of its finding that the 4BoA had made at least — even on the General Court’s view — two errors in their assessment of the likelihood of confusion. In so doing it infringed Art 8(1)(b) and/or Art 72(2) EUTMR. |
| --- | --- |

4.

The General Court wrongly failed to remit the case to the Boards of Appeal for reconsideration in light of its finding that the 4BoA had made at least — even on the General Court’s view — two errors in their assessment of the likelihood of confusion. In so doing it infringed Art 8(1)(b) and/or Art 72(2) EUTMR.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/12 |
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4.3.2019

EN

Official Journal of the European Union

C 82/12

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Appeal brought on 5 December 2018 by the Republic of Cyprus against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-384/17: Cyprus v EUIPO

(Case C-767/18 P)

(2019/C 82/12)

Language of the case: English

Parties

Appellant: Republic of Cyprus (represented by: S. Malynicz QC, S. Baran, Barrister, V. Marsland, Solicitor)

Other party to the proceedings: European Union Intellectual Property Office, M. J. Dairies EOOD

Form of order sought

The appellant claims that the Court should:

| — | allow the appeal against the judgment of the General Court in Case T-384/17, Republic of Cyprus v EUIPO, EU:T:2018:593, and grant the application for annulment; |
| --- | --- |

—

allow the appeal against the judgment of the General Court in Case T-384/17, Republic of Cyprus v EUIPO, EU:T:2018:593, and grant the application for annulment;

| — | order the Office and intervener to bear their own costs and pay those of the appellant. |
| --- | --- |

—

order the Office and intervener to bear their own costs and pay those of the appellant.

Pleas in law and main arguments

| 1. | The General Court erred in considering that the Board of Appeal was correct to transpose the conclusions from the General Court’s earlier HELLIM and XAΛΛOYMI and HALLOUMI judgments to the present case. Those cases were not concerned with certification marks but different kinds of marks, namely collective and ordinary EU trade marks respectively. The essential function of such marks is to act as an indication of the commercial origin of the goods (a plurality of traders linked by membership of an association in the case of a collective mark). Certification marks, by contrast, do not have the essential function of indicating origin, but of distinguishing a class of goods, namely goods which are certified in that they in fact comply with and have been authorised to be made under the regulations for permitted use of the HALLOUMI certification mark. Moreover the relevant public in those earlier General Court judgments was different to the relevant public in the present case. |
| --- | --- |

1.

The General Court erred in considering that the Board of Appeal was correct to transpose the conclusions from the General Court’s earlier HELLIM and XAΛΛOYMI and HALLOUMI judgments to the present case. Those cases were not concerned with certification marks but different kinds of marks, namely collective and ordinary EU trade marks respectively. The essential function of such marks is to act as an indication of the commercial origin of the goods (a plurality of traders linked by membership of an association in the case of a collective mark). Certification marks, by contrast, do not have the essential function of indicating origin, but of distinguishing a class of goods, namely goods which are certified in that they in fact comply with and have been authorised to be made under the regulations for permitted use of the HALLOUMI certification mark. Moreover the relevant public in those earlier General Court judgments was different to the relevant public in the present case.

| 2. | The General Court wrongly held that an earlier national mark — the national certification mark in this case — wholly lacked distinctive character as distinguishing goods which are certified from those which were not; wrongly holding the mark to be descriptive; wrongly undermining the national protection of the national mark; and wrongly calling into question in EUIPO opposition proceedings the validity of the said mark. |
| --- | --- |

2.

The General Court wrongly held that an earlier national mark — the national certification mark in this case — wholly lacked distinctive character as distinguishing goods which are certified from those which were not; wrongly holding the mark to be descriptive; wrongly undermining the national protection of the national mark; and wrongly calling into question in EUIPO opposition proceedings the validity of the said mark.

| 3. | The General Court erred in the comparison of the marks and the assessment of the likelihood of confusion. It wrongly approached these questions as if the earlier mark were an origin-indicating trade mark rather than a certification mark. It failed to accord the earlier mark any distinctiveness as a certification mark, i.e. as distinguishing goods which in fact complied with the standards of the certification mark and were in fact made by producers authorised by the certification mark holder. It also failed to consider how certification marks are typically used (i.e. invariably along with a distinctive name, trade mark or logo). It failed to consider the meaning and significance of the contested EUTM, in particular by failing to consider whether the ‘HALLOUMI’ element had an independent distinctive character in the later mark as a sign indicating, contrary to fact, that the goods covered by the contested EUTM were certified. |
| --- | --- |

3.

The General Court erred in the comparison of the marks and the assessment of the likelihood of confusion. It wrongly approached these questions as if the earlier mark were an origin-indicating trade mark rather than a certification mark. It failed to accord the earlier mark any distinctiveness as a certification mark, i.e. as distinguishing goods which in fact complied with the standards of the certification mark and were in fact made by producers authorised by the certification mark holder. It also failed to consider how certification marks are typically used (i.e. invariably along with a distinctive name, trade mark or logo). It failed to consider the meaning and significance of the contested EUTM, in particular by failing to consider whether the ‘HALLOUMI’ element had an independent distinctive character in the later mark as a sign indicating, contrary to fact, that the goods covered by the contested EUTM were certified.

| 4. | The General Court failed to consider national provisions and case law as to the scope and effect of national certification marks. The conditions and modalities of Member States’ laws on certification marks were not harmonised under the Trade Marks Directives 89/104 (1) or 2008/95 (2) and yet the EUTMR provides that such national marks can form the basis of earlier rights which prevent registration of EUTMs. Such rights should be considered in the light of national case law and national provisions, by analogy with the various national rights under Article 8(4) EUTMR (which rights are also not harmonised and vary greatly in their nature, scope and effect from Member State to Member State). |
| --- | --- |

4.

The General Court failed to consider national provisions and case law as to the scope and effect of national certification marks. The conditions and modalities of Member States’ laws on certification marks were not harmonised under the Trade Marks Directives 89/104 (1) or 2008/95 (2) and yet the EUTMR provides that such national marks can form the basis of earlier rights which prevent registration of EUTMs. Such rights should be considered in the light of national case law and national provisions, by analogy with the various national rights under Article 8(4) EUTMR (which rights are also not harmonised and vary greatly in their nature, scope and effect from Member State to Member State).

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(1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989, L 40, p. 1).

(2)  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 (OJ 2008, L 299, p. 25).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/13 |
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4.3.2019

EN

Official Journal of the European Union

C 82/13

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Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 10 December 2018 — U.B. and T.V. v Eurowings GmbH

(Case C-776/18)

(2019/C 82/13)

Language of the case: German

Referring court

Amtsgericht Erding

Parties to the main proceedings

Applicants: U.B., T.V.

Defendant: Eurowings GmbH

Question referred

In the event of a cancellation within the meaning of Article 5 of Regulation (EC) No 261/2004, (1) is it to be assumed that there has been an offer to re-route allowing passengers to reach their final destination no more than two hours after their scheduled time of arrival also in the case where replacement transportation is provided to an airport other than that named in the booking confirmation, if that other airport is located in the same region?

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(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/14 |
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4.3.2019

EN

Official Journal of the European Union

C 82/14

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Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — EU v Caisse pour l’avenir des enfants

(Case C-801/18)

(2019/C 82/14)

Language of the case: French

Referring court

Conseil supérieur de la Sécurité sociale

Parties to the main proceedings

Appellant: EU

Respondent: Caisse pour l’avenir des enfants

Questions referred

| 1. | Are the competent social security authorities of one Member State (in this case the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) required, pursuant to their Community obligations under Article 45 TFEU, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (1) and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (2) in particular Article 4 thereof, to pay family benefits to a national of a second Member State when, under identical conditions for the grant of those benefits, those competent authorities recognise the entitlement of their own nationals and residents to family benefits, pursuant to a bilateral international convention concluded between the first Member State (Luxembourg) and the third country (Brazil)? |
| --- | --- |

1.

Are the competent social security authorities of one Member State (in this case the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) required, pursuant to their Community obligations under Article 45 TFEU, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (1) and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (2) in particular Article 4 thereof, to pay family benefits to a national of a second Member State when, under identical conditions for the grant of those benefits, those competent authorities recognise the entitlement of their own nationals and residents to family benefits, pursuant to a bilateral international convention concluded between the first Member State (Luxembourg) and the third country (Brazil)?

| 2. | In the affirmative, and in the event that the approach taken in the judgment in Gottardo (3) is extended to the context of family benefits, can the competent social security authority, more particularly the competent authority for family benefits — in this case, the Caisse pour l’avenir des enfants (Children’s Future Fund), the national agency of the Grand-Duchy of Luxembourg for family benefits — rely on objective grounds based on considerations relating to the extremely heavy financial and administrative burdens faced by the authority in question to justify a difference in treatment between nationals of countries that are contracting parties (to the bilateral convention concerned) and other nationals of European Union Member States? |
| --- | --- |

2.

In the affirmative, and in the event that the approach taken in the judgment in Gottardo (3) is extended to the context of family benefits, can the competent social security authority, more particularly the competent authority for family benefits — in this case, the Caisse pour l’avenir des enfants (Children’s Future Fund), the national agency of the Grand-Duchy of Luxembourg for family benefits — rely on objective grounds based on considerations relating to the extremely heavy financial and administrative burdens faced by the authority in question to justify a difference in treatment between nationals of countries that are contracting parties (to the bilateral convention concerned) and other nationals of European Union Member States?

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(1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

(2)  OJ 2004 L 166, p. 1.

(3)  Judgment of 15 January 2002, Gottardo (C-55/00, EU:C:2002:16).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/15 |
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4.3.2019

EN

Official Journal of the European Union

C 82/15

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Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW

(Case C-802/18)

(2019/C 82/15)

Language of the case: French

Referring court

Conseil supérieur de la Sécurité sociale

Parties to the main proceedings

Appellant: Caisse pour l’avenir des enfants

Respondents: FV, GW

Questions referred

| 1. | Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 of the Code de la sécurité sociale (Social Security Code) be treated as a social advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation 492/2011 on freedom of movement for workers within the Union? (1) |
| --- | --- |

1.

Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 of the Code de la sécurité sociale (Social Security Code) be treated as a social advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation 492/2011 on freedom of movement for workers within the Union? (1)

| 2. | If they are so treated, the definition of member of the family applicable under Article 1(i) of Regulation 883/2004 (2) is at odds with the broader definition of family member in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council (3) when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a member of the family, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of member of the family under Article 1(i) of Regulation 883/2004 prevail given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances? |
| --- | --- |

2.

If they are so treated, the definition of member of the family applicable under Article 1(i) of Regulation 883/2004 (2) is at odds with the broader definition of family member in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council (3) when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a member of the family, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of member of the family under Article 1(i) of Regulation 883/2004 prevail given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances?

| 3. | If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council is applicable to family benefits and more precisely to Luxembourg family allowances, can the exclusion of the child of a spouse from the definition of a member of the family be considered indirect discrimination that is justified in view of the domestic objective of the Member State of safeguarding the personal right of the child and the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48 % of its family benefits? |
| --- | --- |

3.

If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council is applicable to family benefits and more precisely to Luxembourg family allowances, can the exclusion of the child of a spouse from the definition of a member of the family be considered indirect discrimination that is justified in view of the domestic objective of the Member State of safeguarding the personal right of the child and the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48 % of its family benefits?

---

(1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).

(2)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

(3)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/15 |
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4.3.2019

EN

Official Journal of the European Union

C 82/15

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 20 December 2018 — AAS BALTA v UAB GRIFS AG

(Case C-803/18)

(2019/C 82/16)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellant in cassation: AAS BALTA

Other party to the proceedings in cassation: UAB GRIFS AG

Question referred

Must Articles 15(5) and 16(5) of Regulation (EU) No 1215/2012 (1) 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 be construed as meaning that, in the case of large-risk insurance, an agreement conferring jurisdiction included in the insurance contract concluded between the policyholder and the insurer may be relied on against a person insured under that contract who has not expressly subscribed to that clause and who is habitually resident or established in a Member State other than that of the policyholder and the insurer?

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

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/16 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/16

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Request for a preliminary ruling from the Krajský súd v Trnave (Slovakia) lodged on 21 December 2018 — DHL Logistics (Slovakia), spol. s r.o. v Finančné riaditeľstvo Slovenskej republiky

(Case C-810/18)

(2019/C 82/17)

Language of the case: Slovak

Referring court

Krajský súd v Trnave

Parties to the main proceedings

Appellant: DHL Logistics (Slovakia), spol. s r.o.

Respondent: Finančné riaditeľstvo Slovenskej republiky

Question referred

Must the wording of Combined Nomenclature subheading 8525 80 91 set out in Annex I to Council Regulation (EEC) No 2658/87 (1) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff resulting from the Explanatory Notes published pursuant to that regulation in 2011 (2) (Commission Communication 2011/C 137/01) be interpreted as meaning that goods such as the digital video camera recorders at issue in the present case may also be classified under that subheading even though they are capable of capturing and recording video images only of a quality of less than 800 x 600 pixels, specifically, 720 x 576 pixels, given that their other function — the capturing and recording of still images — is limited to a still image quality of 1 600 x 1 200 pixels (1,92 megapixels)?

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(1)  OJ 1987 L 256, p. 1.

(2)  OJ 2011 C 137, p. 1.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/17 |
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4.3.2019

EN

Official Journal of the European Union

C 82/17

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Appeal brought on 21 December 2018 by Vereniging tot Behoud van Natuurmonumenten in Nederland and Others against the judgment of the General Court (Second Chamber) of 15 October 2018 in Case T-79/16, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission

(Case C-817/18 P)

(2019/C 82/18)

Language of the case: Dutch

Parties

Appellants: Vereniging tot Behoud van Natuurmonumenten in Nederland, Stichting Het Groninger Landschap, It Fryske Gea, Stichting Het Drentse Landschap, Stichting Het Overijssels Landschap, Stichting Het Geldersch Landschap, Stichting Flevo-Landschap, Stichting Het Utrechts Landschap, Stichting Landschap Noord-Holland, Stichting Het Zuid-Hollands Landschap, Stichting Het Zeeuwse Landschap, Stichting Het Noordbrabants Landschap, Stichting Het Limburgs Landschap (represented by: P. Kuypers, M. de Wit, advocaten)

Other parties to the proceedings: European Commission, Vereniging Gelijkberechtiging Grondbezitters, Exploitatiemaatschappij De Berghaaf BV, Stichting Het Nationale Park De Hoge Veluwe, BV Landgoed Den Alerdinck II, Landgoed Ampsen BV, Pallandt van Keppel Stichting, Landgoed Kasteel Keppel BV, Baron van Lynden, Stichting het Lijndensche Fonds voor Kerk en Zending, Landgoed Welna BV, Landgoed ‘Huis te Maarn’ BV, Vicariestichting De Vijf Capellarijen / Ambachtsheerlijkheid Kloetinge, Maatschappij tot Exploitatie van het Landgoed Tongeren onder Epe BV, Landgoed Anderstein NV, Landgoed Bekspring BV, Landgoed Nijenhuis en Westerflier BV, Landgoed Caprera BV, Landgoed Schapenduinen BV, Stichting Schapenduinen, Landgoed de Noetselenberg BV

Form of order sought

| — | Set aside the judgment under appeal (judgment delivered in Case T-79/16); |
| --- | --- |

—

Set aside the judgment under appeal (judgment delivered in Case T-79/16);

| — | Order the VGG to pay the costs at first instance and in the appeal; |
| --- | --- |

—

Order the VGG to pay the costs at first instance and in the appeal;

| — | In the alternative, should the case be referred back to the General Court, reserve the costs at first instance and in the appeal for final judgment. |
| --- | --- |

—

In the alternative, should the case be referred back to the General Court, reserve the costs at first instance and in the appeal for final judgment.

Grounds of appeal and main arguments

First ground: the General Court erred in law by declaring VGG’s action admissible

The test that the VGG must satisfy in order to be deemed an interested party — that there be a competitive relationship between the VGG and the applicants; that the provided aid threatens to influence the VGG’s situation concretely and will distort the competitive relationship in question — was misapplied by the General Court.

The General Court connects the admissibility of the VGG and its members directly to the admissibility of Stichting Het Nationale Park De Hoge Veluwe, the only complainant remaining from 2008.

In doing so, however, the General Court did not state or insufficiently stated the activities in respect of which the applicants and Stichting Het Nationale Park De Hoge Veluwe compete with each other concretely. The General Court thus wrongly assumed that a competitive relationship exists between Stichting Het Nationale Park De Hoge Veluwe.

Operating on the assumption that a competitive relationship exist, the General Court then made the finding, wrongly, that the aid has had concrete consequences for the competitive position of the VGG members and has distorted it.

On the basis of the assessment of the admissibility of Stichting Het Nationale Park De Hoge Veluwe, the General Court was not entitled to arrive at the conclusion according to which the VGG is admissible in its appeal.

Second ground: the General Court wrongly accepted the existence of ‘serious difficulties’

The finding of the General Court that there has been an infringement of the procedural rights laid down in Article 108(2) TFEU is incorrect. In finding that the Commission encountered ‘serious difficulties’ in assessing the compatibility of the PNB scheme (Regeling bijdragen Particuliere Terreinbeherende Natuurbeschermingsorganisaties) with State aid law, the General Court misapplied the law.

Thus, the classification of services of general economic interest (SGEI) as ‘atypical’ and ‘global’ in the decision is not indicative of serious difficulties; the absence of separate accounting is no indication of serious difficulties; and there lacked no mechanism for avoiding overcompensation.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/18 |
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4.3.2019

EN

Official Journal of the European Union

C 82/18

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Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 24 December 2018 — Trendsetteuse SARL v DCA SARL

(Case C-828/18)

(2019/C 82/19)

Language of the case: French

Referring court

Tribunal de commerce de Paris

Parties to the main proceedings

Applicant: Trendsetteuse SARL

Defendant: DCA SARL

Question referred

Should Article 1(2) of Directive 86/653/EEC of 18 December 1986 (1) on the status of commercial agents be interpreted as meaning that a self-employed intermediary who is acting as an agent on behalf of and in the name of his principal, but does not have the power to change the prices and contractual conditions of his principal’s sales contracts, does not have the authority to negotiate those contracts for the purposes of that article, and consequently cannot be classified as a commercial agent and benefit from the status provided for in the Directive?

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(1)  Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/18 |
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4.3.2019

EN

Official Journal of the European Union

C 82/18

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Request for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 December 2018 — Crédit Logement SA v OE

(Case C-829/18)

(2019/C 82/20)

Language of the case: French

Referring court

Tribunal de grande instance de Paris

Parties to the main proceedings

Applicant: Crédit Logement SA

Defendant: OE

Questions referred

| 1. | Must Directive 93/13/EEC of 5 April 1993 (1) and the principle of effectiveness of [EU] law be interpreted as precluding the application of a rule of national law preventing the courts from assessing whether a term in a contract entered into with a trader is unfair, where the trade guarantor guaranteeing performance of the contract informed the debtor/consumer that it was going to proceed to payment and the debtor/consumer did not inform the trade guarantor of the exceptions to be raised? |
| --- | --- |

1.

Must Directive 93/13/EEC of 5 April 1993 (1) and the principle of effectiveness of [EU] law be interpreted as precluding the application of a rule of national law preventing the courts from assessing whether a term in a contract entered into with a trader is unfair, where the trade guarantor guaranteeing performance of the contract informed the debtor/consumer that it was going to proceed to payment and the debtor/consumer did not inform the trade guarantor of the exceptions to be raised?

| 2. | Is the reference in the body of the contract to the fact that the foreign exchange risk lies with the borrower, supplemented by amortisation tables, capable of rendering the term ‘plain and intelligible’ for the purpose of the directive, where no simulations have been provided illustrating different scenarios, including negative ones, relating to exchange rate movements? |
| --- | --- |

2.

Is the reference in the body of the contract to the fact that the foreign exchange risk lies with the borrower, supplemented by amortisation tables, capable of rendering the term ‘plain and intelligible’ for the purpose of the directive, where no simulations have been provided illustrating different scenarios, including negative ones, relating to exchange rate movements?

| 3. | Does the burden of proving that the consumer was provided with the necessary information for ensuring that the term at issue was plain and intelligible and of proving that that term was plain and intelligible lie with the trader or the consumer? |
| --- | --- |

3.

Does the burden of proving that the consumer was provided with the necessary information for ensuring that the term at issue was plain and intelligible and of proving that that term was plain and intelligible lie with the trader or the consumer?

| 4. | If the court finds that Articles 1.2.1 to 1.2.9 and 2.8 of the contract are unfair because they were not drafted in sufficiently plain and intelligible language, should all the financial terms, including the term concerning interest, be declared not written? Or should only those terms concerning the variation of the exchange rate and the term concerning currency be declared not written, retaining a fixed-interest rate, in euros? Or should another option be considered? |
| --- | --- |

4.

If the court finds that Articles 1.2.1 to 1.2.9 and 2.8 of the contract are unfair because they were not drafted in sufficiently plain and intelligible language, should all the financial terms, including the term concerning interest, be declared not written? Or should only those terms concerning the variation of the exchange rate and the term concerning currency be declared not written, retaining a fixed-interest rate, in euros? Or should another option be considered?

| 5. | In considering the previous question, is it necessary for the court to satisfy itself that the penalty thus imposed is effective, proportionate and dissuasive? |
| --- | --- |

5.

In considering the previous question, is it necessary for the court to satisfy itself that the penalty thus imposed is effective, proportionate and dissuasive?

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

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/19 |
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4.3.2019

EN

Official Journal of the European Union

C 82/19

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Request for a preliminary ruling from the tribunal de l’entreprise de Liège (Belgium) lodged on 31 December 2018 — SI, Brompton Bicycle Ltd v Chedech / Get2Get

(Case C-833/18)

(2019/C 82/21)

Language of the case: French

Referring court

Tribunal de l’entreprise de Liège

Parties to the main proceedings

Applicants: SI, Brompton Bicycle Ltd

Defendant: Chedech / Get2Get

Questions referred

| — | Must EU law, in particular Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) which determines, inter alia, the various exclusive rights conferred on copyright holders, in Articles 2 to 5 thereof, be interpreted as excluding from copyright protection works whose shape is necessary to achieve a technical result? |
| --- | --- |

—

Must EU law, in particular Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) which determines, inter alia, the various exclusive rights conferred on copyright holders, in Articles 2 to 5 thereof, be interpreted as excluding from copyright protection works whose shape is necessary to achieve a technical result?

| — | In order to assess whether a shape is necessary to achieve a technical result, must account be taken of the following criteria:






  — | The existence of other possible shapes which allow the same technical result to be achieved? |
| --- | --- | --- |

—

In order to assess whether a shape is necessary to achieve a technical result, must account be taken of the following criteria:

—

The existence of other possible shapes which allow the same technical result to be achieved?

| — | The effectiveness of the shape in achieving that result? |
| --- | --- |

—

The effectiveness of the shape in achieving that result?

| — | The intention of the alleged infringer to achieve that result? |
| --- | --- |

—

The intention of the alleged infringer to achieve that result?

| — | The existence of an earlier, now expired, patent on the process for achieving the technical result sought? |
| --- | --- |

—

The existence of an earlier, now expired, patent on the process for achieving the technical result sought?

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

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/20 |
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4.3.2019

EN

Official Journal of the European Union

C 82/20

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Appeal brought on 7 January 2019 by Mylène Troszczynski against the judgment of the General Court (Sixth Chamber) delivered on 8 November 2018 in Case T-550/17, Troszczynski v Parliament

(Case C-12/19 P)

(2019/C 82/22)

Language of the case: French

Parties

Appellant: Mylène Troszczynski (represented by: F. Wagner, avocat)

Other party to the proceedings: European Parliament

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment delivered by the Sixth Chamber of the General Court of the European Union on 8 November 2018 in Case T-550/17; |
| --- | --- |

—

set aside the judgment delivered by the Sixth Chamber of the General Court of the European Union on 8 November 2018 in Case T-550/17;

and accordingly,

| — | annul the decision of the European Parliament of 14 June 2017 adopting Report No A8-0218/2017 of the Committee on Legal Affairs on the request for waiver of the immunity and privileges of Mylène Troszczynski, a Member of the European Parliament; |
| --- | --- |

—

annul the decision of the European Parliament of 14 June 2017 adopting Report No A8-0218/2017 of the Committee on Legal Affairs on the request for waiver of the immunity and privileges of Mylène Troszczynski, a Member of the European Parliament;

| — | make an appropriate order as to the amount to be awarded to the appellant in respect of the costs of the proceedings; |
| --- | --- |

—

make an appropriate order as to the amount to be awarded to the appellant in respect of the costs of the proceedings;

| — | order the European Parliament to pay all costs. |
| --- | --- |

—

order the European Parliament to pay all costs.

Pleas in law and main arguments

| 1. | The General Court’s analysis of the second plea in law
  The General Court does not consider that the disputed tweet of Mylene Troszczynski constitutes the expression of an opinion in the performance of parliamentary duties on the ground that it relates to a specific event, deemed to have taken place in France, which cannot be regarded as constituting the taking of a general position on current topical issues or issues dealt with by the Parliament, which are conditions required in order for an opinion to be protected under the Protocol.
  The General Court errs manifestly in its assessment, since:






  — | each Member of Parliament is an elected representative in his country, he represents his electors and must maintain a link with them during his mandate, inter alia by making reference to facts that interest or concern them, |
| --- | --- | --- |

1.

The General Court’s analysis of the second plea in law

The General Court does not consider that the disputed tweet of Mylene Troszczynski constitutes the expression of an opinion in the performance of parliamentary duties on the ground that it relates to a specific event, deemed to have taken place in France, which cannot be regarded as constituting the taking of a general position on current topical issues or issues dealt with by the Parliament, which are conditions required in order for an opinion to be protected under the Protocol.

The General Court errs manifestly in its assessment, since:

—

each Member of Parliament is an elected representative in his country, he represents his electors and must maintain a link with them during his mandate, inter alia by making reference to facts that interest or concern them,

| — | principle No 2 of Notice to Members 11/2003 does not make such a distinction, |
| --- | --- |

—

principle No 2 of Notice to Members 11/2003 does not make such a distinction,

| — | the wearing of full veils in public places concerns the electorate of France and of all European countries and such an external manifestation of adherence to Islam is a subject of general interest that relates to public life and the rights of women, |
| --- | --- |

—

the wearing of full veils in public places concerns the electorate of France and of all European countries and such an external manifestation of adherence to Islam is a subject of general interest that relates to public life and the rights of women,

| — | the General Court ought to have applied the principles of the Patriciello judgment. |
| --- | --- |

—

the General Court ought to have applied the principles of the Patriciello judgment.

| 2. | The General Court’s analysis of the third plea in law
  It has been established, and accepted by the General Court, that Mylène Troszczynski is not the author of the tweet at issue and that she erased it as soon as she had become aware of it. Nevertheless, the General Court considers that those two facts need not be taken into account in determining whether the conditions for the waiver of parliamentary immunity are fulfilled.
  The General Court makes a manifest error of assessment:






  — | by asserting that it is not for the Parliament to know whether the allegations against the Member of Parliament in question are established, even though the Parliament does examine the facts by acknowledging in its decision that Mylène Troszczynski is not the author of the tweet, |
| --- | --- | --- |

2.

The General Court’s analysis of the third plea in law

It has been established, and accepted by the General Court, that Mylène Troszczynski is not the author of the tweet at issue and that she erased it as soon as she had become aware of it. Nevertheless, the General Court considers that those two facts need not be taken into account in determining whether the conditions for the waiver of parliamentary immunity are fulfilled.

The General Court makes a manifest error of assessment:

—

by asserting that it is not for the Parliament to know whether the allegations against the Member of Parliament in question are established, even though the Parliament does examine the facts by acknowledging in its decision that Mylène Troszczynski is not the author of the tweet,

| — | in so far as it fails to draw the legal consequences from certain of the documents annexed to the report of the Committee on Legal Affairs, namely the excerpts from the Law of 29 July 1881, and in particular Article 42 thereof, |
| --- | --- |

—

in so far as it fails to draw the legal consequences from certain of the documents annexed to the report of the Committee on Legal Affairs, namely the excerpts from the Law of 29 July 1881, and in particular Article 42 thereof,

| — | in so far as the order for reference before the Criminal Court of 26 April 2018 reflects the persecution of an elected representative by a member of the national legal service and thus an intention to harm that elected representative politically, a characteristic element of fumus persecutionis. |
| --- | --- |

—

in so far as the order for reference before the Criminal Court of 26 April 2018 reflects the persecution of an elected representative by a member of the national legal service and thus an intention to harm that elected representative politically, a characteristic element of fumus persecutionis.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/21 |
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4.3.2019

EN

Official Journal of the European Union

C 82/21

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Appeal brought on 21 January 2019 by Marion Le Pen against the judgment of the General Court (Sixth Chamber) of 28 November 2018 in Case T-161/17, Le Pen v Parliament

(Case C-38/19 P)

(2019/C 82/23)

Language of the case: French

Parties

Appellant: Marion Anne Perrine, known as Marine, Le Pen (represented by: R. Bosselut, avocat)

Other party to the proceedings: European Parliament

Form of order sought

The appellant submits that the Court should:

| — | Set aside the judgment delivered on 28 November 2018 by the Sixth Chamber of the General Court of the European Union in Case T-161/17. |
| --- | --- |

—

Set aside the judgment delivered on 28 November 2018 by the Sixth Chamber of the General Court of the European Union in Case T-161/17.

Accordingly:

| — | Annul the decision of the Secretary General of the Parliament of 6 January 2017, taken pursuant to Article 68 of Decision 2009/C 159/01 of the European Parliament Bureau of 19 May and 9 July 2008‘concerning implementing measures for the Statute of Members of the European Parliament’, as amended, finding that there was a debt in the amount of EUR 41 554; |
| --- | --- |

—

Annul the decision of the Secretary General of the Parliament of 6 January 2017, taken pursuant to Article 68 of Decision 2009/C 159/01 of the European Parliament Bureau of 19 May and 9 July 2008‘concerning implementing measures for the Statute of Members of the European Parliament’, as amended, finding that there was a debt in the amount of EUR 41 554;

| — | Annul debit note No 2017-22 of 11 January 2017, informing the appellant that a debt had been established against her pursuant to the decision of the Secretary General of 6 January 2017, recovery of sums unduly paid for parliamentary assistance, application of Article 68 of the Implementing Measures for the Statute for Members of the European Parliament and Articles 78, 79 and 80 of the Financial Regulation; |
| --- | --- |

—

Annul debit note No 2017-22 of 11 January 2017, informing the appellant that a debt had been established against her pursuant to the decision of the Secretary General of 6 January 2017, recovery of sums unduly paid for parliamentary assistance, application of Article 68 of the Implementing Measures for the Statute for Members of the European Parliament and Articles 78, 79 and 80 of the Financial Regulation;

| — | Order the Parliament to pay all of the costs. |
| --- | --- |

—

Order the Parliament to pay all of the costs.

Grounds of appeal and main arguments

| A — | Ground involving an issue of public policy: Infringement of EU Law — Errors of law — Infringement of substantive requirements — Infringement of the rights of the defence
  It is submitted that the Secretary General failed to conduct a personal hearing of the appellant and also failed to forward the file, particularly the European Anti-Fraud Office (OLAF) report.
  The appellant’s rights of defence have been infringed by the General Court, particularly in the light of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR. |
| --- | --- |

A —

Ground involving an issue of public policy: Infringement of EU Law — Errors of law — Infringement of substantive requirements — Infringement of the rights of the defence

It is submitted that the Secretary General failed to conduct a personal hearing of the appellant and also failed to forward the file, particularly the European Anti-Fraud Office (OLAF) report.

The appellant’s rights of defence have been infringed by the General Court, particularly in the light of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR.

| B — | Infringement of EU law — Errors of law — Breach of the principles of the protection of legitimate expectations and of legal certainty — Error in the characterisation of the legal nature of the facts, distortion of the facts and of the evidence
  The General Court distorted the meaning of the evidence produced as an annex by the appellant in her letter of 14 March 2016 addressed to OLAF.
  It cannot be argued that the sums paid on the basis of the ‘artificial’ contract were not used in a manner compliant with the Implementing Measures for the Statute for Members of the European Parliament. There is therefore neither distortion of the purpose or nature of those funds, and no harm has been caused to the European Parliament. |
| --- | --- |

B —

Infringement of EU law — Errors of law — Breach of the principles of the protection of legitimate expectations and of legal certainty — Error in the characterisation of the legal nature of the facts, distortion of the facts and of the evidence

The General Court distorted the meaning of the evidence produced as an annex by the appellant in her letter of 14 March 2016 addressed to OLAF.

It cannot be argued that the sums paid on the basis of the ‘artificial’ contract were not used in a manner compliant with the Implementing Measures for the Statute for Members of the European Parliament. There is therefore neither distortion of the purpose or nature of those funds, and no harm has been caused to the European Parliament.

| C — | Misuse of powers — Fumus persecutionis

  The discrimination and unfairness against, and the withholding of evidence from, the appellant, as well as the infringement of her rights of defence, attributable to the Secretary General of the European Parliament, constitute, and ought to have constituted in the view taken by the General Court, ‘objective, relevant and consistent factors and actions taken with the exclusive purpose, or at any rate the main purpose, of achieving ends other than those pleaded or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’; furthermore, they reveal, and are vitiated by, a fumus persecutionis to the detriment of the appellant. |
| --- | --- |

C —

Misuse of powers — Fumus persecutionis

The discrimination and unfairness against, and the withholding of evidence from, the appellant, as well as the infringement of her rights of defence, attributable to the Secretary General of the European Parliament, constitute, and ought to have constituted in the view taken by the General Court, ‘objective, relevant and consistent factors and actions taken with the exclusive purpose, or at any rate the main purpose, of achieving ends other than those pleaded or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’; furthermore, they reveal, and are vitiated by, a fumus persecutionis to the detriment of the appellant.

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General Court

| 4.3.2019 | EN | Official Journal of the European Union | C 82/23 |
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4.3.2019

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Official Journal of the European Union

C 82/23

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Judgment of the General Court of 13 December 2018 — Comune di Milano v Commission

(Case T-167/13) (1)

((State aid - Ground-handling services - Capital injections provided by SEA in favour of SEA Handling - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of aid - Imputability to the State - Private investor test - Principle of the right to be heard - Rights of the defence - Right to good administration - Legitimate expectations))

(2019/C 82/24)

Language of the case: Italian

Parties

Applicant: Comune di Milano (Italy) (represented by: S. Grassani and A. Franchi, lawyers)

Defendant: European Commission (represented by: G. Conte and D. Grespan, acting as Agents)

Re:

Action pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2015/1225 of 19 December 2012 regarding injections of capital by SEA SpA into SEA Handling SpA [SA.21420 (C 14/10) (ex NN 25/10) (ex CP 175/06)] (OJ 2015 L 201, p. 1).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Comune di Milano to pay the costs, including those relating to the interim proceedings. |
| --- | --- |

2.

Orders the Comune di Milano to pay the costs, including those relating to the interim proceedings.

---

(1)  OJ C 129, 4.5.2013.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/23 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/23

---

Judgment of the General Court of 12 December 2018 — Deutsche Umwelthilfe v Commission

(Case T-498/14) (1)

((Access to documents - Documents related to correspondence between the European Commission and car manufacturers concerning refrigerant R1234yf used in motor vehicles - Documents not included - New plea put forward in the course of the proceedings - Inadmissibility - Measure of inquiry ordering the production of the contested documents in accordance with Article 104 of the Rules of Procedure - Derogation to the principle of adversarial proceedings - Regulation (EC) No 1049/2001 - Exception relating to the protection of commercial interests - Public interest in disclosure - Balance - Regulation (EC) No 1367/2006 - Article 6(1) - Overriding public interest justifying disclosure of the environmental information or relating to emissions into the environment - General proposition - Partial refusal to grant access - No need to adjudicate))

(2019/C 82/25)

Language of the case: German

Parties

Applicant: Deutsche Umwelthilfe eV (Radolfzell, Germany) (represented by: R. Klinger and R. Geulen, lawyers)

Defendant: European Commission (represented by: initially F. Clotuche-Duvieusart and J. Vondung, then F. Clotuche-Duvieusart and H. Krämer, acting as Agents, in cooperation initially with R. van der Hout and A. Köhler, then R. van der Hout and C. Wagner, lawyers)

Re:

Application on the basis of Article 263 TFEU seeking the annulment in part of Commission Decision GESTDEM 2014/547 of 2 June 2014, confirming the refusal to grant access to all the documents related to correspondence between the European Commission, on the one hand, and the undertakings Honeywell et DuPont or car manufacturers, on the other hand, during the period from September 2011 until April 2012 and from September 2012 until the end of January 2014, concerning refrigerant R1234yf used in motor vehicles.

Operative part of the judgment

The Court:

| 1. | Rules that there is no longer any need to adjudicate on the application for annulment in part of Commission Decision GESTDEM 2014/547 of 2 June 2014, in so far as it concerns the initially redacted parts of document No 34 which, subsequently, were made public; |
| --- | --- |

1.

Rules that there is no longer any need to adjudicate on the application for annulment in part of Commission Decision GESTDEM 2014/547 of 2 June 2014, in so far as it concerns the initially redacted parts of document No 34 which, subsequently, were made public;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Deutsche Umwelthilfe eV to pay the costs. |
| --- | --- |

3.

Orders Deutsche Umwelthilfe eV to pay the costs.

---

(1)  OJ C 329, 22.9.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/24 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/24

---

Judgment of the General Court of 12 December 2018 — Biogaran v Commission

(Case T-677/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Articles 101 TFEU and 102 TFEU - Agreements intended to delay, or even prevent, the market entry of generic versions of perindopril - Participation of a subsidiary in the infringement committed by its parent company - Imputation of the infringement - Joint and several liability - Ceiling of the fine))

(2019/C 82/26)

Language of the case: French

Parties

Applicant: Biogaran (Colombes, France) (represented by: T. Reymond, O. de Juvigny and J. Jourdan, lawyers)

Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Biogaran to pay the costs.

---

(1)  OJ C 395, 10.11.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/25 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/25

---

Judgment of the General Court of 12 December 2018 — Teva UK and Others v Commission

(Case T-679/14) (1)

((Competition - Agreements, decisions and concerted practices - Perindopril market, medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Principle of impartiality - Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions - Patent dispute settlement and exclusive purchasing agreement - Potential competition - Restriction of competition by object - Balance between competition law and patent law - Conditions for exemption under Article 101(3) TFEU - Fines))

(2019/C 82/27)

Language of the case: English

Parties

Applicants: Teva UK Ltd (West Yorkshire, United Kingdom), Teva Pharmaceuticals Europe BV (Utrecht, Netherlands), Teva Pharmaceutical Industries Ltd (Jerusalem, Israel) (represented by D Tayar and A. Richard, lawyers)

Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by G. Peretz, Barrister)

Intervener in support of the applicants: European Generic medicines Association AISBL (EGA) (Brussels, Belgium) (represented by S.-P. Brankin, Solicitor, and E. Wijckmans, lawyer)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for reduction of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Teva UK Ltd, Teva Pharmaceuticals Europe BV and Teva Pharmaceutical Industries Ltd to pay, in addition to their own costs, the costs incurred by the Commission; |
| --- | --- |

2.

Orders Teva UK Ltd, Teva Pharmaceuticals Europe BV and Teva Pharmaceutical Industries Ltd to pay, in addition to their own costs, the costs incurred by the Commission;

| 3. | Orders the European Generic medicines Association AISBL (EGA) to bear its own costs. |
| --- | --- |

3.

Orders the European Generic medicines Association AISBL (EGA) to bear its own costs.

---

(1)  OJ C 409, 17.11.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/26 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/26

---

Judgment of the General Court of 12 December 2018 — Lupin v Commission

(Case T-680/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Technology acquisition agreement - Restriction of competition by object - Balance between competition law and patent law - Fines))

(2019/C 82/28)

Language of the case: English

Parties

Applicant: Lupin Ltd (Maharashtra, India) (represented initially by M. Pullen, R. Fawcett-Feuillette, Solicitors, M. Hoskins QC, V. Wakefield, Barrister and M. Boles, Solicitor, and subsequently by M. Hoskins, V. Wakefield, M. Boles, K. Vernon and S. Smith, Solicitors, and lastly by M. Hoskins, V. Wakefield, S. Smith and C. Wall, Solicitor)

Defendant: European Commission (represented initially by F. Castilla Contreras, B. Mongin and T. Vecchi, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by B. Rayment, Barrister)

Re:

Application under Article 263 TFEU for partial annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant, and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Lupin Ltd to pay the costs. |
| --- | --- |

2.

Orders Lupin Ltd to pay the costs.

---

(1)  OJ C 439, 8.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/26 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/26

---

Judgment of the General Court of 12 December 2018 — Mylan Laboratories and Mylan v Commission

(Case T-682/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Potential competition - Restriction of competition by object - Balance between competition law and patent law - Imputation of the unlawful conduct - Fines))

(2019/C 82/29)

Language of the case: English

Parties

Applicants: Mylan Laboratories Ltd (Hyderabad, India) and Mylan, Inc. (Canonsburg, Pennsylvania, United States) (represented by S. Kon, C. Firth and C. Humpe, Solicitors)

Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi, and B. Mongin and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by S. Kingston, Barrister-at-law)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for annulment or reduction of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mylan Laboratories Ltd and Mylan, Inc. to pay the costs. |
| --- | --- |

2.

Orders Mylan Laboratories Ltd and Mylan, Inc. to pay the costs.

---

(1)  OJ C 431, 1.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/27 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/27

---

Judgment of the General Court of 12 December 2018 — Krka v Commission

(Case T-684/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Licensing agreement - Technology acquisition agreement - Restriction of competition by object - Restriction of competition by effect - Balance between competition law and patent law))

(2019/C 82/30)

Language of the case: English

Parties

Applicant: Krka Tovarna Zdravil d.d. (Novo Mesto, Slovenia) (represented by T. Ilešič and M. Kocmut, lawyers)

Defendant: European Commission (represented by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, assisted by D. Bailey, Barrister)

Re:

Application under Article 263 TFEU for partial annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Krka Tovarna Zdravil d.d. participated in the agreements referred to in that article; |
| --- | --- |

1.

Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Krka Tovarna Zdravil d.d. participated in the agreements referred to in that article;

| 2. | Annuls Article 7(4)(a) of Decision C(2014) 4955 final; |
| --- | --- |

2.

Annuls Article 7(4)(a) of Decision C(2014) 4955 final;

| 3. | Annuls Articles 8 and 9 of Decision C(2014) 4955 final, in so far as they concern Krka Tovarna Zdravil; |
| --- | --- |

3.

Annuls Articles 8 and 9 of Decision C(2014) 4955 final, in so far as they concern Krka Tovarna Zdravil;

| 4. | Orders the Commission to pay the costs. |
| --- | --- |

4.

Orders the Commission to pay the costs.

---

(1)  OJ C 431, 1.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/28 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/28

---

Judgment of the General Court of 12 December 2018 — Servier and Others v Commission

(Case T-691/14) (1)

((Competition - Agreements, decisions and concerted practices - Abuse of a dominant position - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Articles 101 and 102 TFEU - Principle of impartiality - Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions - Right to an effective remedy - Shortness of the period for lodging an action in view of the length of the contested decision - Patent dispute settlement agreements - Licence agreements - Technology acquisition agreements - Exclusive purchasing agreement - Potential competition - Restriction of competition by object - Restriction of competition by effect - Balance between competition law and patent law - Classification as separate infringements or as a single infringement - Definition of the relevant market at the level of the molecule of the medicinal product concerned - Fines - Cumulation of fines imposed under Articles 101 and 102 TFEU - Principle that offences and penalties must have a proper legal basis - Value of sales - Methods of calculation in the event of overlapping infringements on the same markets))

(2019/C 82/31)

Language of the case: French

Parties

Applicants: Servier SAS (Suresnes, France), Servier Laboratories Ltd (Wexham, United Kingdom), Les Laboratoires Servier SAS (Suresnes) (represented initially by I. S. Forrester QC, J. Killick, Barrister, O. de Juvigny, lawyer, and M. Utges Manley, Solicitor, then by J. Killick, O. de Juvigny, M. Utges Manley, J. Jourdan and T. Reymond, lawyers)

Defendant: European Commission (represented initially by T. Christoforou, B. Mongin, C. Vollrath, F. Castilla Contreras and T. Vecchi, then by T. Christoforou, B. Mongin, C. Vollrath, F. Castilla Contreras and J. Norris-Usher, acting as Agents)

Intervener in support of the applicants: European Federation of Pharmaceutical Industries and Associations (EFPIA) (Geneva, Switzerland) (represented by F. Carlin, Barrister, N. Niejahr and C. Paillard, lawyers)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for reduction of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Servier SAS and Laboratoires Servier SAS participated in the agreements referred to in that article; |
| --- | --- |

1.

Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Servier SAS and Laboratoires Servier SAS participated in the agreements referred to in that article;

| 2. | Annuls Article 6 of Decision C(2014) 4955 final; |
| --- | --- |

2.

Annuls Article 6 of Decision C(2014) 4955 final;

| 3. | Annuls Article 7(4)(b) and (6) of Decision C(2014) 4955 final; |
| --- | --- |

3.

Annuls Article 7(4)(b) and (6) of Decision C(2014) 4955 final;

| 4. | Sets the amount of the fine imposed on Servier and on Laboratoires Servier in respect of the infringement referred to in Article 2 of Decision C(2014) 4955 final, as set out in Article 7(2)(b) thereof, at EUR 55 385 190; |
| --- | --- |

4.

Sets the amount of the fine imposed on Servier and on Laboratoires Servier in respect of the infringement referred to in Article 2 of Decision C(2014) 4955 final, as set out in Article 7(2)(b) thereof, at EUR 55 385 190;

| 5. | Dismisses the action as to the remainder; |
| --- | --- |

5.

Dismisses the action as to the remainder;

| 6. | Orders Servier, Servier Laboratories Ltd and Laboratoires Servier, to pay, in addition to their own costs, the costs incurred by the Commission. |
| --- | --- |

6.

Orders Servier, Servier Laboratories Ltd and Laboratoires Servier, to pay, in addition to their own costs, the costs incurred by the Commission.

| 7. | Orders the European Federation of Pharmaceutical Industries and Associations (EFPIA) to bear its own costs. |
| --- | --- |

7.

Orders the European Federation of Pharmaceutical Industries and Associations (EFPIA) to bear its own costs.

---

(1)  OJ C 462, 22.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/29 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/29

---

Judgment of the General Court of 12 December 2018 — Niche Generics v Commission

(Case T-701/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Administrative procedure - Legal professional privilege protecting communications between lawyers and their clients - Potential competition - Restriction of competition by object - Objective necessity of the restriction - Balance between competition law and patent law - Conditions for exemption under Article 101(3) TFEU - Fines - 10 % cap - Imputation of the unlawful conduct))

(2019/C 82/32)

Language of the case: English

Parties

Applicant: Niche Generics Ltd (Hitchin, United Kingdom) (represented by E. Batchelor, M. Healy, K. Cousins, Solicitors, and F. Carlin, Barrister)

Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by S. Kingston, Barrister-at-law)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Niche Generics Ltd to pay the costs. |
| --- | --- |

2.

Orders Niche Generics Ltd to pay the costs.

---

(1)  OJ C 431, 1.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/30 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/30

---

Judgment of the General Court of 12 December 2018 — Unichem Laboratories v Commission

(Case T-705/14) (1)

((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Commission’s territorial jurisdiction - Imputation of the unlawful conduct - Administrative procedure - Legal professional privilege protecting communications between lawyers and their clients - Potential competition - Restriction of competition by object - Objective necessity of the restriction - Balance between competition law and patent law - Conditions for exemption under Article 101(3) TFEU - Fines))

(2019/C 82/33)

Language of the case: English

Parties

Applicant: Unichem Laboratories Ltd (Mumbai, India) (represented by S. Mobley, K. Shaw, K. Cousins, M. Healy, H. Sheraton, and E. Batchelor, Solicitors)

Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by S. Kingston, Barrister-at-law)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Unichem Laboratories Ltd to pay the costs. |
| --- | --- |

2.

Orders Unichem Laboratories Ltd to pay the costs.

---

(1)  OJ C 448, 15.12.2014.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/30 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/30

---

Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission

(Case T-827/14) (1)

((Competition - Abuse of a dominant position - Slovak market for broadband telecommunications services - Access by third-party undertakings to the ‘local loop’ of the incumbent operator on that market - Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement - Single and continuous infringement - Definition of ‘abuse’ - Refusal to grant access - Margin squeeze - Calculation of margin squeeze - Equally efficient competitor test - Rights of defence - Imputation to a parent company of an infringement committed by its subsidiary - Decisive influence of the parent company over the subsidiary’s commercial policy - Actual exercise of such influence - Burden of proof - Calculation of the amount of the fine - 2006 Guidelines on the method of setting fines - Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence))

(2019/C 82/34)

Language of the case: German

Parties

Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: K. Apel and D. Schroeder, lawyers)

Defendant: European Commission (represented by: M. Kellerbauer, L. Malferrari, C. Vollrath and L. Wildpanner, acting as Agents)

Intervener in support of the defendant: Slovanet, a.s. (Bratislava, Slovakia) (represented by: P. Tisaj, lawyer)

Re:

Application under Article 263 TFEU for annulment, in whole or in part, of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014 and by Commission Decision C(2015) 2484 final of 17 April 2015, in so far as that decision concerns the applicant, and, in the alternative, for annulment or reduction of the amount of the fines imposed on the applicant by that decision.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Deutsche Telekom AG imposed unfair tariffs which did not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss; |
| --- | --- |

1.

Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Deutsche Telekom AG imposed unfair tariffs which did not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss;

| 2. | Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 838 000 and the amount of the fine imposed on Deutsche Telekom alone at EUR 31 070 000; |
| --- | --- |

2.

Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 838 000 and the amount of the fine imposed on Deutsche Telekom alone at EUR 31 070 000;

| 3. | Fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 061 963 and the amount of the fine imposed on Deutsche Telekom alone at EUR 19 030 981; |
| --- | --- |

3.

Fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 061 963 and the amount of the fine imposed on Deutsche Telekom alone at EUR 19 030 981;

| 4. | Dismisses the action as to the remainder; |
| --- | --- |

4.

Dismisses the action as to the remainder;

| 5. | Orders Deutsche Telekom to pay four fifths of its own costs, four fifths of the costs of the European Commission and four fifths of the costs of Slovanet, a.s.; |
| --- | --- |

5.

Orders Deutsche Telekom to pay four fifths of its own costs, four fifths of the costs of the European Commission and four fifths of the costs of Slovanet, a.s.;

| 6. | Orders the Commission to pay one fifth of its own costs and one fifth of the costs incurred by Deutsche Telekom; |
| --- | --- |

6.

Orders the Commission to pay one fifth of its own costs and one fifth of the costs incurred by Deutsche Telekom;

| 7. | Orders Slovanet to bear one fifth of its own costs. |
| --- | --- |

7.

Orders Slovanet to bear one fifth of its own costs.

---

(1)  OJ C 96, 23.3.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/32 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/32

---

Judgment of the General Court of 13 December 2018 — Slovak Telekom v Commission

(Case T-851/14) (1)

((Competition - Abuse of dominant position - Slovakian market for broadband telecommunications services - Access by third-party undertakings to the ‘local loop’ of the incumbent operator on that market - Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement - Single and continuous infringement - Definition of ‘abuse’ - Refusal to grant access - Margin squeeze - Calculation of margin squeeze - Equally efficient competitor test - Rights of defence - Imputation of an infringement committed by a subsidiary to its parent company - Decisive influence of the parent company over the subsidiary’s commercial policy - Actual exercise of such influence - Burden of proof - Calculation of the fine - 2006 Guidelines on the method of setting fines))

(2019/C 82/35)

Language of the case: English

Parties

Applicant: Slovak Telekom, a.s. (Bratislava, Slovakia) (represented by: D. Geradin, lawyer, and R. O’Donoghue QC)

Defendant: European Commission (represented initially by: M. Farley, L. Malferrari and G. Koleva, and subsequently by M. Farley, M. Kellerbauer, L. Malferrari and C. Vollrath, acting as Agents)

Intervener in support of the defendant: Slovanet, a.s. (Bratislava) (represented by: P. Tisaj, lawyer)

Re:

Action under Article 263 TFEU seeking, primarily, the annulment, insofar as it concerns the applicant, of Commission Decision C(2014) 7465 final of 15 October 2014 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014 and by Commission Decision C(20 15) 2484 final of 17 April 2015, and, in the alternative, the reduction of the fine imposed on the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Slovak Telekom, a.s., imposed unfair tariffs which do not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss; |
| --- | --- |

1.

Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Slovak Telekom, a.s., imposed unfair tariffs which do not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss;

| 2. | Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Slovak Telekom at EUR 38 838 000; |
| --- | --- |

2.

Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Slovak Telekom at EUR 38 838 000;

| 3. | Fixes the amount of the fine imposed jointly and severally on Slovak Telekom at EUR 38 061 963; |
| --- | --- |

3.

Fixes the amount of the fine imposed jointly and severally on Slovak Telekom at EUR 38 061 963;

| 4. | Dismisses the action as to the remainder; |
| --- | --- |

4.

Dismisses the action as to the remainder;

| 5. | Orders Slovak Telekom to bear four fifths of its own costs, four fifths of the costs of the European Commission and four-fifths of the costs of Slovanet, a.s.; |
| --- | --- |

5.

Orders Slovak Telekom to bear four fifths of its own costs, four fifths of the costs of the European Commission and four-fifths of the costs of Slovanet, a.s.;

| 6. | Orders the Commission to bear one fifth of its own costs and one fifth of the costs incurred by Slovak Telekom; |
| --- | --- |

6.

Orders the Commission to bear one fifth of its own costs and one fifth of the costs incurred by Slovak Telekom;

| 7. | Orders Slovanet to bear one fifth of its own costs. |
| --- | --- |

7.

Orders Slovanet to bear one fifth of its own costs.

---

(1)  OJ C 127, 20.4.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/33 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/33

---

Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission

(Case T-111/15) (1)

((State aid - Agreements between the Syndicat mixte des aéroports de Charente and Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid incompatible with the internal market and ordering its recovery - Notion of State aid - Imputability to the State - Chamber of Commerce and Industry - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights - Right of access to the file - Right to be heard))

(2019/C 82/36)

Language of the case: English

Parties

Applicants: Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor)

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

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2015/1226 of 23 July 2014 on State aid SA.33963 (2012/C) (ex 2012/NN) implemented by France in favour of Angoulême Chamber of Commerce and Industry, SNC-Lavalin, Ryanair and Airport Marketing Services (OJ 2015 L 201, p. 48).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 178, 1.6.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/34 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/34

---

Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission

(Case T-165/15) (1)

((State aid - Agreements between the Chamber of Commerce and Industry of Pau-Béarn and Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid incompatible with the internal market and ordering its recovery - Notion of State aid - Imputability to the State - Chamber of Commerce and Industry - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights - Right of access to the file - Right to be heard))

(2019/C 82/37)

Language of the case: English

Parties

Applicants: Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor)

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

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C 53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (OJ 2015 L 201, p. 109).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 228, 13.7.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/34 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/34

---

Judgment of the General Court of 13 December 2018 — AlzChem v Commission

(Case T-284/15) (1)

((State aid - Chemical industry - Decision to continue the operation of an undertaking during insolvency proceedings - Decision finding no State aid - Action for annulment - Individual concern - Admissibility - Concept of State aid - Advantage - Private creditor test - Whether attributable to the State - Duty to state reasons))

(2019/C 82/38)

Language of the case: English

Parties

Applicant: AlzChem AG (Trostberg, Germany) (represented by: initially P. Alexiadis, Solicitor, A. Borsos and I. Georgiopoulos, lawyers, and subsequently P. Alexiadis, A. Borsos, E. Kazili, P. Oravec et K. Csach, lawyers)

Defendant: European Commission (represented by: G. Conte and L. Armati, acting as Agents)

Interveners in support of the defendant: Slovak Republic (represented by: B. Ricziová, acting as Agent); and Fortischem a.s. (Nováky, Slovakia) (represented by: C. Arhold, P. Hodál and M. Staroň, lawyers)

Re:

Application pursuant to Article 263 TFEU seeking the annulment of Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71).

Operative part of the judgment

The Court:

| 1. | Annuls Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ; |
| --- | --- |

1.

Annuls Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ;

| 2. | Orders the European Commission to bear its own costs and to pay those of AlzChem AG; |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay those of AlzChem AG;

| 3. | Orders the Slovak Republic and Fortischem a.s. to bear their own costs. |
| --- | --- |

3.

Orders the Slovak Republic and Fortischem a.s. to bear their own costs.

---

(1)  OJ C 302, 14.9.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/35 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/35

---

Judgment of the General Court of 13 December 2018 — Iran Insurance v Council

(Case T-558/15) (1)

((Non-contractual liability - Common foreign and security policy - Restrictive measures against Iran - Freezing of funds - Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures - Material damage - Non-material damage))

(2019/C 82/39)

Language of the case: English

Parties

Applicant: Iran Insurance Company (Tehran, Iran) (represented by: D. Luff, lawyer)

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

Intervener in support of the defendant: European Commission (represented by: F. Ronkes Agerbeek and R. Tricot, acting as Agents)

Re:

Application pursuant to Article 268 TFEU for compensation for the material and non-material damage allegedly suffered by the applicant following the adoption of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 281, p. 81), of Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), by which the applicant’s name was included and maintained on the lists of persons and entities subject to restrictive measures.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Iran Insurance Company to bear its own costs and to pay those incurred by the Council of the European Union; |
| --- | --- |

2.

Orders Iran Insurance Company to bear its own costs and to pay those incurred by the Council of the European Union;

| 3. | Orders the European Commission to bear its own costs. |
| --- | --- |

3.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 27, 25.1.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/36 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/36

---

Judgment of the General Court of 13 December 2018 — Post Bank Iran v Council

(Case T-559/15) (1)

((Non-contractual liability - Common foreign and security policy - Restrictive measures against Iran - Freezing of funds - Inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to restrictive measures - Non-material damage))

(2019/C 82/40)

Language of the case: English

Parties

Applicant: Post Bank Iran (Tehran, Iran) (represented by: D. Luff, lawyer)

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

Intervener in support of the defendant: European Commission (represented by: F. Ronkes Agerbeek and R. Tricot, acting as Agents)

Re:

Application pursuant to Article 268 TFEU for compensation for the damage allegedly suffered by the applicant following the adoption of Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 281, p. 81), of Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1), of Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71), of Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation No 961/2010 (OJ 2011 L 319, p. 11), and of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation No 961/2010 (OJ 2012 L 88, p. 1), by which the applicant’s name was included and maintained on the lists of persons and entities subject to restrictive measures.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Post Bank Iran to bear its own costs and to pay those incurred by the Council of the European Union; |
| --- | --- |

2.

Orders Post Bank Iran to bear its own costs and to pay those incurred by the Council of the European Union;

| 3. | Orders the European Commission to bear its own costs. |
| --- | --- |

3.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 27, 25.1.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/37 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/37

---

Judgment of the General Court of 13 December 2018 — Transavia Airlines v Commission

(Case T-591/15) (1)

((State aid - Airport and marketing services agreement - Agreement between the Chamber of Commerce and Industry of Pau-Béarn and Transavia - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of State aid - Whether attributable to the State - Chamber of Commerce and Industry - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights - Right of access to the file - Right to be heard))

(2019/C 82/41)

Language of the case: Dutch

Parties

Applicant: Transavia Airlines CV (Schiphol, Netherlands) (represented by: R. Elkerbout and M. Baneke, lawyers)

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

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C 53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (OJ 2015 L 201, p. 109).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Transavia Airlines CV to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders Transavia Airlines CV to bear its own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 398, 30.11.2015.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/37 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/37

---

Judgment of the General Court of 13 December 2018 — Scandlines Danmark and Scandlines Deutschland v Commission

(Case T-630/15) (1)

((State aid - Public financing of the Fehmarn Belt fixed link rail-road project - Individual aid - Decision not to raise any objections - Decision finding no State aid and declaring the aid compatible with the internal market - Definition of State aid - Adverse effect on competition and effect on trade between Member States - Conditions governing compatibility - Aid to promote the execution of an important project of common European interest - Necessity of the aid - Incentive effect - Proportionality of the aid - Serious difficulties justifying the initiation of the formal investigation procedure - Obligation to state reasons - Communication on State aid to promote the execution of important projects of common European interest))

(2019/C 82/42)

Language of the case: English

Parties

Applicants: Scandlines Danmark ApS (Copenhagen, Denmark) and Scandlines Deutschland GmbH (Hamburg, Germany) (represented by: initially L. Sandberg-Mørch and M.-E. Vitali, and subsequently L. Sandberg-Mørch, lawyers)

Defendant: European Commission (represented by: L. Armati, L. Flynn and S. Noë, acting as Agents)

Interveners in support of the applicant: Naturschutzbund Deutschland (NABU) eV (Stuttgart, Germany) (represented by: T. Hohmuth, lawyer); and Föreningen Svensk Sjöfart (Gothenburg, Sweden) (represented by: L. Sandberg-Mørch and J. Buendía Sierra, lawyers)

Intervener in support of the defendant: Kingdom of Denmark (represented by: initially C. Thorning, and subsequently J. Nymann-Lindegren, acting as Agents, and R. Holdgaard, lawyer)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link; |
| --- | --- |

1.

Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission to bear its own costs and to pay the costs incurred by Scandlines Danmark ApS and Scandlines Deutschland GmbH; |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay the costs incurred by Scandlines Danmark ApS and Scandlines Deutschland GmbH;

| 4. | Orders the Kingdom of Denmark, Föreningen Svensk Sjöfart and Naturschutzbund Deutschland (NABU) eV to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark, Föreningen Svensk Sjöfart and Naturschutzbund Deutschland (NABU) eV to bear their own costs.

---

(1)  OJ C 59, 15.2.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/38 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/38

---

Judgment of the General Court of 13 December 2018 — Stena Line Scandinavia v Commission

(Case T-631/15) (1)

((State aid - Public financing of the Fehmarn Belt fixed link rail-road project - Individual aid - Decision not to raise any objections - Decision finding no State aid and declaring the aid compatible with the internal market - Definition of State aid - Adverse effect on competition and effect on trade between Member States - Conditions governing compatibility - Aid to promote the execution of an important project of common European interest - Necessity of the aid - Incentive effect - Proportionality of the aid - Serious difficulties justifying the initiation of the formal investigation procedure - Obligation to state reasons - Communication on State aid to promote the execution of important projects of common European interest))

(2019/C 82/43)

Language of the case: English

Parties

Applicant: Stena Line Scandinavia AB (Gothenburg, Sweden) (represented by: P. Alexiadis, Solicitor, and L. Sandberg-Mørch, lawyer)

Defendant: European Commission (represented by: L. Armati, L. Flynn and S. Noë, acting as Agents)

Intervener in support of the applicant: Föreningen Svensk Sjöfart (Gothenburg) (represented by: L. Sandberg-Mørch and J. Buendía Sierra, lawyers)

Intervener in support of the defendant: Kingdom of Denmark (represented by: initially C. Thorning, and subsequently J. Nymann-Lindegren, acting as Agents, and R. Holdgaard, lawyer)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link; |
| --- | --- |

1.

Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission to bear its own costs and to pay the costs incurred by Stena Line Scandinavia AB; |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay the costs incurred by Stena Line Scandinavia AB;

| 4. | Orders the Kingdom of Denmark and Föreningen Svensk Sjöfart to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark and Föreningen Svensk Sjöfart to bear their own costs.

---

(1)  OJ C 59, 15.2.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/39 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/39

---

Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission

(Case T-53/16) (1)

((State aid - Agreements between the Chamber of Commerce and Industry of Nîmes-Uzès-Le Vigan and Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid incompatible with the internal market and ordering its recovery - Notion of State aid - Imputability to the State - Chamber of Commerce and Industry - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights - Right of access to the file - Right to be heard))

(2019/C 82/44)

Language of the case: English

Parties

Applicants: Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor)

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

Intervener in support of the defendant: Council of the European Union (represented by: S. Boelaert, S. Petrova and J. Kneale, acting as Agents)

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Decision (EU) 2016/633 of 23 July 2014 on State aid SA.33961 (2012/C) (ex 2012/NN) implemented by France in favour of Nîmes-Uzès-Le Vigan Chamber of Commerce and Industry, Veolia Transport Aéroport de Nîmes, Ryanair Limited and Airport Marketing Services Limited (OJ 2016 L 113, p. 32).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

---

(1)  OJ C 145, 25.4.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/40 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/40

---

Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission

(Case T-77/16) (1)

((State aid - Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid incompatible with the internal market and ordering its recovery - Notion of State aid - Advantage - Private investor test - Recovery - Selectivity))

(2019/C 82/45)

Language of the case: English

Parties

Applicants: Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor)

Defendant: Commission (represented by: L. Armati, L. Flynn and S. Noë, acting as Agents)

Interveners in support of the defendant: Republic of Latvia (represented initially by: D. Pelše, J. Treijs-Gigulis and I. Kalniņš, and subsequently by I. Kucina, acting as Agents) and Council of the European Union (represented by: S. Boelaert and S. Petrova, acting as Agents)

Re:

Action under Article 263 TFEU for partial annulment of Commission Decision (EU) 2016/152 of 1 October 2014 on State aid SA 27339 (12/C) (ex 11/NN) implemented by Germany for Zweibrücken airport and airlines using the airport (OJ 2016 L 34, p. 68).

Operative part of the judgment

The Court:

| 1. | Annuls Article 1(2) of Commission Decision (EU) 2016/152 of 1 October 2014 on State aid SA 27339 (12/C) (ex 11/NN) implemented by Germany for Zweibrücken airport and airlines using the airport, and Articles 3, 4 and 5 of that decision, in so far as they concern Ryanair DAC and Airport Marketing Services Ltd; |
| --- | --- |

1.

Annuls Article 1(2) of Commission Decision (EU) 2016/152 of 1 October 2014 on State aid SA 27339 (12/C) (ex 11/NN) implemented by Germany for Zweibrücken airport and airlines using the airport, and Articles 3, 4 and 5 of that decision, in so far as they concern Ryanair DAC and Airport Marketing Services Ltd;

| 2. | Orders the European Commission to bear its own costs and to pay the costs incurred by Ryanair and Airport Marketing Services; |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay the costs incurred by Ryanair and Airport Marketing Services;

| 3. | Orders the Council of the European Union to pay its own costs; |
| --- | --- |

3.

Orders the Council of the European Union to pay its own costs;

| 4. | Orders the Republic of Latvia to bear its own costs. |
| --- | --- |

4.

Orders the Republic of Latvia to bear its own costs.

---

(1)  OJ C 165, 10.5.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/41 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/41

---

Judgment of the General Court of 13 December 2018 — Ryanair and Airport Marketing Services v Commission

(Case T-165/16) (1)

((State aid - Agreements concluded with the airline Ryanair and its subsidiary Airport Marketing Services - Airport services - Marketing services - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Notion of State aid - Advantage - Private investor test - Recovery - Article 41 of the Charter of Fundamental Rights of the European Union - Access to the file - Right to be heard))

(2019/C 82/46)

Language of the case: English

Parties

Applicants: Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland), Airport Marketing Services Ltd (Dublin) (represented by: G. Berrisch, E. Vahida, I.-G. Metaxas-Maranghidis, lawyers, and B. Byrne, Solicitor)

Defendant: European Commission (represented by: L. Flynn, L. Armati, and S. Noë, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by: S. Boelaert and S. Petrova, acting as Agents)

Re:

Action under Article 263 TFEU for the partial annulment of Commission Decision (EU) 2016/287 of 15 October 2014 on State aid SA.26500 — 2012/C (ex 2011/NN, ex CP 227/2008) implemented by Germany for Flugplatz Altenburg-Nobitz GmbH and Ryanair Ltd (OJ 2016 L 59, p. 22).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders Ryanair DAC and Airport Marketing Services Ltd to bear their own costs and to pay those incurred by the European Commission;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

---

(1)  OJ C 222, 20.6.2016.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/42 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/42

---

Judgment of the General Court of 13 December 2018 — Fruits de Ponent v Commission

(Case T-290/16) (1)

((Non-contractual liability - Agriculture - Peach and nectarine markets - Disruption during the 2014 season - Russian embargo - Temporary exceptional support measures for producers - Delegated Regulations (EU) Nos 913/2014 and 923/2014 - Rules of law intended to confer rights upon individuals - Duty of diligence and the principle of sound administration - Sufficiently serious breach - Causal link))

(2019/C 82/47)

Language of the case: Spanish

Parties

Applicant: Fruits de Ponent, SCCL (Alcarràs, Spain) (represented by M. Roca Junyent, J. Mier Albert, R. Vallina Hoset and A. Sellés Marco, lawyers)

Defendant: European Commission (represented initially by I. Galindo Martín and K. Skelly, and subsequently by I. Galindo Martín, acting as Agents)

Re:

Action pursuant to Article 268 TFEU seeking compensation for the damage allegedly sustained by three of the applicant’s members on account of acts and omissions of the Commission, in the context of the adoption of Commission Delegated Regulation (EU) No 913/2014 of 21 August 2014 laying down temporary exceptional support measures for producers of peaches and nectarines (OJ 2014 L 248, p. 1) and Commission Delegated Regulation (EU) No 932/2014 of 29 August 2014 laying down temporary exceptional support measures for producers of certain fruit and vegetables and amending Delegated Regulation (EU) No 913/2014 (OJ 2014 L 259, p. 2).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Fruits de Ponent, SCCL to pay the costs. |
| --- | --- |

2.

Orders Fruits de Ponent, SCCL to pay the costs.

---

(1)  OJ C 270, 25.7.2016.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/42 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/42

---

Judgment of the General Court of 13 December 2018 — Ville de Paris, Ville de Bruxelles and Ayuntamiento de Madrid v Commission

(Joined Cases T-339/16, T-352/16 and T-391/16) (1)

((Environment - Regulation (EU) 2016/646 - Pollutant emissions from light passenger and commercial vehicles (Euro 6) - Fixing, in respect of nitrogen oxide emissions, of not-to-exceed (NTE) values, during tests in real driving conditions (RDE) - Actions for annulment - Powers of a municipal authority concerning environmental protection to restrict the circulation of certain vehicles - Whether directly concerned - Admissibility - Lack of competence of the Commission - Compliance with higher legal norms - Temporal adjustment of the effects of an annulment - Non-contractual liability - Compensation for alleged harm to image and reputation))

(2019/C 82/48)

Languages of the cases: Spanish and French

Parties

Applicant in Case T-339/16: Ville de Paris (France) (represented by: J. Assous, lawyer)

Applicant in Case T-352/16: Ville de Bruxelles (Belgium) (represented by: M. Uyttendaele and S. Kaisergruber, lawyers)

Applicant in Case T-391/16: Ayuntamiento de Madrid (Spain) (represented by: F. Zunzunegui Pastor, lawyer

Defendant: European Commission (represented by: A.C. Becker, E. Sanfrutos Cano and J.-F. Brakeland, acting as Agents)

Re:

First, applications based on Article 263 TFEU seeking annulment of Commission Regulation (EU) 2016/646 of 20 April 2016 amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) (OJ 2016 L 109, p. 1) and, secondly, application based on Article 268 TFEU seeking compensation for damage that the City of Paris allegedly suffered as a result of the adoption of that regulation.

Operative part of the judgment

The Court:

| 1. | Annuls point 2 of Annex II to Commission Regulation (EU) 2016/646 of 20 April 2016 amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) in so far as it fixes, in points 2.1.1 and 2.1.2 of Annex III A to Commission Regulation No 692/2008 of 18 July 2008 implementing Regulation (EC) No 715/2007, the final conformity factor CFpollutant and the temporary conformity factor CFpollutant for the mass of oxides of nitrogen; |
| --- | --- |

1.

Annuls point 2 of Annex II to Commission Regulation (EU) 2016/646 of 20 April 2016 amending Regulation (EC) No 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) in so far as it fixes, in points 2.1.1 and 2.1.2 of Annex III A to Commission Regulation No 692/2008 of 18 July 2008 implementing Regulation (EC) No 715/2007, the final conformity factor CFpollutant and the temporary conformity factor CFpollutant for the mass of oxides of nitrogen;

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

2.

Dismisses the actions as to the remainder;

| 3. | Maintains the effects of the annulled provision under paragraph 1 of the present operative part until the adoption within a reasonable period of a new regulation replacing those provisions, that period not to exceed 12 months from the date on which the present judgment takes effect; |
| --- | --- |

3.

Maintains the effects of the annulled provision under paragraph 1 of the present operative part until the adoption within a reasonable period of a new regulation replacing those provisions, that period not to exceed 12 months from the date on which the present judgment takes effect;

| 4. | Orders the European Commission to bear its own costs and to pay half of the costs incurred by the Ville de Paris, the Ville de Bruxelles and the Ayuntamiento de Madrid. |
| --- | --- |

4.

Orders the European Commission to bear its own costs and to pay half of the costs incurred by the Ville de Paris, the Ville de Bruxelles and the Ayuntamiento de Madrid.

---

(1)  OJ C 314, 29.8.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/43 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/43

---

Judgment of the General Court of 13 December 2018 — Schubert and Others v Commission

(Case T-530/16) (1)

((Civil service - Remuneration - Annual adjustment of the remuneration and pensions of officials and other members of staff - Regulations (EU) No 422/2014 and No 423/2014 - Adjustments of remuneration and pensions for 2011 and 2012 - Duty to state reasons - Proportionality - Legitimate expectations - Rules on dialogue between management and workers))

(2019/C 82/49)

Language of the case: French

Parties

Applicants: Ludwig Schubert (Overijse, Belgium) and the six other applicants whose names are annexed to the judgment (represented by: C. Bernard-Glanz, N. Flandin and S. Rodrigues, lawyers)

Defendant: European Commission (represented initially by: J. Currall and G. Gattinara, and subsequently G. Gattinara and L. Radu Bouyon, acting as Agents)

Interveners in support of the defendant: European Parliament (represented by: E. Taneva and M. Ecker, acting as Agents); and Council of the European Union (represented initially by: M. Bauer and M. Veiga, and subsequently M. Bauer and R. Meyer, acting as Agents),

Re:

Action under Article 270 TFEU for (i) annulment of the decisions of the Commission to apply to the applicants’ salaries or pensions the adjustment of 0 % for 2011, provided for by Regulation (EU) No 422/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2011 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 5), and the adjustment of 0,8 % for 2012, provided for by Regulation (EU) No 423/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2012 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 12), and (ii) compensation for the damage allegedly suffered by the applicants as a result of those decisions.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicants to bear their own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the applicants to bear their own costs and to pay those incurred by the European Commission;

| 3. | Orders the Council of the European Union and the European Parliament to bear their own respective costs. |
| --- | --- |

3.

Orders the Council of the European Union and the European Parliament to bear their own respective costs.

---

(1)  OJ C 96, 23.3.2015 (case initially registered before the European Union Civil Service Tribunal under Case No F-4/15 and transferred to the General Court of the European Union on 1.9.2016).

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/44 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/44

---

Judgment of the General Court of 13 December 2018 — Carpenito and Others v Council

(Joined Cases T-543/16 and T-544/16) (1)

((Civil service - Remuneration - Annual adjustment of the remuneration and pensions of officials and other EU staff - Regulations (EU) No 422/2014 and No 423/2014 - Adjustments of salaries and pensions for the years 2011 and 2012 - Duty to state reasons - Proportionality - Legitimate expectations - Rules on social dialogue))

(2019/C 82/50)

Language of the case: French

Parties

Applicant in Case T-543/16: Renzo Carpenito (Overijse, Belgium) (represented by: M. Velardo, lawyer)

Applicants in Case T-544/16: Maria Kannellopoulou (Cranves-Sales, France), José Carlos Lechado García (Brussels, Belgium), Bernd Loescher (Rhode-Saint-Genèse, Belgium), Evelina Milenova (Brussels) (represented by: M. Velardo, lawyer)

Defendant: Council of the European Union (represented initially by M. Bauer and M. Veiga and subsequently by M. Bauer and R. Meyer, acting as Agents)

Intervener in support of the defendant: European Parliament (represented by: M. Ecker and E. Taneva, acting as Agents)

Re:

Action under Article 270 TFEU seeking, first, annulment of the Council decisions to apply to the applicants’ salaries or pensions the 0 % adjustment for the year 2011 provided for in Regulation (EU) No 422/2014 of the European Parliament and of the Council of 16 April 2014, adjusting with effect from 1 July 2011 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 5), and the 0,8 % adjustment for the year 2012, provided for in Regulation (EU) No 423/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2012 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 12), and, secondly, compensation for the damage allegedly suffered by the applicants as a result of those decisions.

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

| 2. | Orders the applicants to bear their own costs and to pay the costs incurred by the Council of the European Union; |
| --- | --- |

2.

Orders the applicants to bear their own costs and to pay the costs incurred by the Council of the European Union;

| 3. | Orders the European Parliament to pay its own costs. |
| --- | --- |

3.

Orders the European Parliament to pay its own costs.

---

(1)  OJ C 146, 4.5.2015 (case initially registered before the European Union Civil Service Tribunal under Case No F-31/15 and transferred to the General Court of the European Union on 1.9.2016).

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/45 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/45

---

Judgment of the General Court of 13 December 2018 –Wahlström v Frontex

(Case T-591/16) (1)

((Civil service - Members of the temporary staff - Frontex - Non-renewal of a fixed-term contract - Article 8 of the CEOS - Duty of care - Use of an annulled appraisal report - Manifest error of assessment - Liability - Costs - Equity - Article 135(1) of the Rules of Procedure))

(2019/C 82/51)

Language of the case: English

Parties

Applicant: Kari Wahlström (Espoo (Finland)) (represented by: S. Pappas, lawyer)

Defendant: European Border and Coast Guard Agency (Frontex) (represented by: H. Caniard and S. Drew, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Action under Article 270 TFEU seeking, first, annulment of the decision of 26 June 2015 not to renew the applicant’s contract as a member of the temporary staff of Frontex and, secondly, compensation for the harm allegedly suffered by the applicant due to the loss of salary consequent thereon and the loss of corresponding pension rights.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders each party to bear its own costs. |
| --- | --- |

2.

Orders each party to bear its own costs.

---

(1)  OJ C 251, 11.7.2016 (case initially registered at the European Union Civil Service Tribunal as Case F-21/16 and transferred to the General Court of the European Union on 1.9.2016).

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/46 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/46

---

Judgment of the General Court of 13 December 2018 — Haeberlen v ENISA

(Case T-632/16) (1)

((Civil service - Remuneration - Annual adjustment of remunerations and pensions of officials and other agents - Regulations (EU) Nos 422/2014 and 423/2014 - Adjustments of salaries and pensions for 2011 and 2012 - Obligation to state reasons - Proportionality - Legitimate expectations - Rules on social dialogue))

(2019/C 82/52)

Language of the case: French

Parties

Applicant: Thomas Haeberlen (Swisttal, Germany) (represented initially by L. Levi and A. Tymen, subsequently by L. Levi and last by L. Levi and C. Bernard-Glanz, lawyers)

Defendant: European Union Agency for Network and Information Security (represented by: A. Ryan, acting as Agent, and D. Waelbroeck and A. Duron, lawyers)

Interveners in support of the defendant: European Parliament (represented by: E. Taneva and M. Ecker, acting as Agents); and Council of the European Union (represented by: M. Bauer and R. Meyer, acting as Agents)

Re:

Application based on Article 270 TFEU seeking, first, annulment of the decision of ENISA of 21 October 2015, ordering the applicant to pay the sum of EUR 3 133,19, following the application to his remuneration of the adjustment of 0 % for 2011 provided for in Regulation (EU) No 422/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2011 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 5), and the adjustment of 0.8 % for 2012 provided for in Regulation (EU) No 423/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2012 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 12), and, second, compensation for the non-material harm the applicant allegedly suffered as a result of that decision.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Thomas Haeberlen to bear his own costs and to pay those incurred by the European Union Agency for Network and Information Security; |
| --- | --- |

2.

Orders Mr Thomas Haeberlen to bear his own costs and to pay those incurred by the European Union Agency for Network and Information Security;

| 3. | Orders the Council of the European Union and the European Parliament to bear their own costs. |
| --- | --- |

3.

Orders the Council of the European Union and the European Parliament to bear their own costs.

---

(1)  OJ C 410, 7.11.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/47 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/47

---

Judgment of the General Court of 13 December 2018 — C=Holdings v EUIPO — Trademarkers (C=commodore)

(Case T-672/16) (1)

((EU trade mark - Revocation proceedings - International registration designating the European Union - Figurative mark C=commodore - Application for invalidation of the effects of the international registration - Article 158(2) of Regulation (EC) No 207/2009 (now Article 198(2) of Regulation (EU) 2017/1001) - Article 51(1)(a) of Regulation No 207/2009 (now Article 58(1)(a) of Regulation 2017/1001) - No genuine use concerning certain goods and services covered by the international registration - Presence of proper reasons for non-use))

(2019/C 82/53)

Language of the case: English

Parties

Applicant: C=Holdings BV (Oldenzaal, Netherlands) (represented by: initially P. Maeyaert and K. Neefs and then P. Maeyaert and J. Muyldermans, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Trademarkers NV (Antwerp, Belgium)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 13 July 2016 (Case R 2585/2015-4), relating to revocation proceedings between Trademarkers and C=Holdings.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 July 2016 (Case R 2585/2015-4), relating to revocation proceedings between Trademarkers NV and C=Holdings BV, in so far as the Board of Appeal dismissed the appeal of C=Holdings as regards the existence of proper reasons for non-use of the international registration of which it is the proprietor; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 July 2016 (Case R 2585/2015-4), relating to revocation proceedings between Trademarkers NV and C=Holdings BV, in so far as the Board of Appeal dismissed the appeal of C=Holdings as regards the existence of proper reasons for non-use of the international registration of which it is the proprietor;

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

2.

Orders EUIPO to pay the costs.

---

(1)  OJ C 410, 7.11.2016.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/47 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/47

---

Judgment of the General Court of 13 December 2018 — Pipiliagkas v Commission

(Case T-689/16) (1)

((Civil service - Officials - Assignment - Decision with retroactive effect - Article 22a of the Staff Regulations - Authority lacking competence - Liability - Compensation in respect of material and non-material harm))

(2019/C 82/54)

Language of the case: French

Parties

Applicant: Nikolaos Pipiliagkas (Brussels, Belgium) (represented initially by J.-N. Louis and N. de Montigny and subsequently by J.-N. Louis, lawyers)

Defendant: European Commission (represented initially by C. Berardis-Kayser and G. Gattinara and subsequently by G. Gattinara and L. Radu Bouyon, acting as Agents)

Re:

Action on the basis of Article 270 TFEU seeking, first, annulment of the decision of 22 December 2015 of the Head of Unit ‘Career and performance management’ of the Commission’s Directorate-General for Human Resources and Security, concerning the reassignment of the applicant with retroactive effect, and, secondly, compensation for the material and non-material harm which he claims to have suffered.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of 22 December 2015 of the Head of Unit ‘Career and performance management’ of the Commission’s Directorate-General for Human Resources and Security, concerning the reassignment of Mr Nikolaos Pipiliagkas with effect from 1 January 2013; |
| --- | --- |

1.

Annuls the decision of 22 December 2015 of the Head of Unit ‘Career and performance management’ of the Commission’s Directorate-General for Human Resources and Security, concerning the reassignment of Mr Nikolaos Pipiliagkas with effect from 1 January 2013;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the Commission to bear its own costs and half of the costs of Mr Pipiliagkas; |
| --- | --- |

3.

Orders the Commission to bear its own costs and half of the costs of Mr Pipiliagkas;

| 4. | Orders Mr Pipiliagkas to bear half of his own costs. |
| --- | --- |

4.

Orders Mr Pipiliagkas to bear half of his own costs.

---

(1)  OJ C 441, 28.11.2016.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/48 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/48

---

Judgment of the General Court of 13 December 2018 — CX v Commission

(Case T-743/16 RENV) (1)

((Civil service - Officials - Disciplinary measure - Removal from post - Rights of the defence - Duty to have regard for the welfare of officials - Article 22(1) of Annex IX to the Staff Regulations - Articles 41 and 52 of the Charter of Fundamental Rights - Liability - Actual damage - Causal link))

(2019/C 82/55)

Language of the case: French

Parties

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

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

Re:

Action pursuant to Article 270 TFUE seeking, first, annulment of the Decision of 16 October 2013 in which the Commission found that the applicant was guilty of two instances of serious misconduct and, consequently, removed him from his post without reduction pro tempore to his entitlement to a retirement pension and, second, compensation for the harm allegedly suffered by the applicant on account of that decision.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of 16 October 2013 by which the Commission removed CX from his post without reduction pro tempore to his entitlement to a retirement pension; |
| --- | --- |

1.

Annuls the decision of 16 October 2013 by which the Commission removed CX from his post without reduction pro tempore to his entitlement to a retirement pension;

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

2.

Dismisses the action as to the remainder.

| 3. | Orders each party to bear its own costs. |
| --- | --- |

3.

Orders each party to bear its own costs.

---

(1)  OJ C 85, 22.3.2014 (case initially registered before the European Union Civil Service Tribunal under Case No F-5/14 and transferred to the General Court of the European Union on 1.9.2016).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/49 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/49

---

Judgment of the General Court of 13 December 2018 — Monolith Frost v EUIPO — Dovgan (PLOMBIR)

(Case T-830/16) (1)

((EU trade mark - Invalidity proceedings - EU word mark PLOMBIR - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) - Examination of the facts - Article 76(1) of Regulation No 207/2009 (now Article 95(1) of Regulation 2017/1001) - Evidence submitted for the first time before the General Court))

(2019/C 82/56)

Language of the case: German

Parties

Applicant: Monolith Frost GmbH (Leopoldshöhe, Germany) (represented by: E. Liebich and S. Labesius, lawyers)

Defendant: European Union Intellectual Property Office (represented by: A. Söder, D. Walicka and M. Fischer, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Dovgan GmbH (Hamburg, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 22 September 2016 (Case R 1812/2015-4) relating to invalidity proceedings between Monolith Frost and Dovgan.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 September 2016 (Case R 1812/2015-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 September 2016 (Case R 1812/2015-4);

| 2. | Orders EUIPO to bear its own costs and to pay those incurred by Monolith Frost GmbH, including the costs necessarily incurred by Monolith Frost for the purpose of the proceedings before the Board of Appeal of EUIPO; |
| --- | --- |

2.

Orders EUIPO to bear its own costs and to pay those incurred by Monolith Frost GmbH, including the costs necessarily incurred by Monolith Frost for the purpose of the proceedings before the Board of Appeal of EUIPO;

| 3. | Orders Dovgan GmbH to bear its own costs. |
| --- | --- |

3.

Orders Dovgan GmbH to bear its own costs.

---

(1)  OJ C 22, 23.1.2017.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/50 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/50

---

Judgment of the General Court of 13 December 2018 — Azarov v Council

(Case T-247/17) (1)

((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and of economic resources - Maintenance of the applicant’s name on the list - Right to property - Right to pursue an economic activity - Manifest error of assessment))

(2019/C 82/57)

Language of the case: German

Parties

Applicant: Mykola Yanovych Azarov (Kiev, Ukraine) (represented by: G. Lansky and A. Egger, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix and F. Naert, acting as Agents)

Re:

Action under Article 263 TFEU seeking annulment of Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 34), and of Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 1), in so far as the applicant’s name has been maintained on the list of persons, entities and bodies covered by those restrictive measures.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Mykola Yanovych Azarov to pay the costs. |
| --- | --- |

2.

Orders Mr Mykola Yanovych Azarov to pay the costs.

---

(1)  OJ C 195, 19.6.2017.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/50 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/50

---

Judgment of the General Court of 13 December 2018 — Monster Energy v EUIPO — Bösel (MONSTER DIP)

(Case T-274/17) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark MONSTER DIP - Earlier EU word and figurative marks and unregistered sign used in the course of trade, all including the word element ‘monster’ - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - No likelihood of misleading association - Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001) - No likelihood of dilution of the reputation of the earlier mark - Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)))

(2019/C 82/58)

Language of the case: English

Parties

Applicant: Monster Energy Company (Corona, California, United States) (represented by: P. Brownlow, Solicitor)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Marco Bösel (Bad Fallingbostel, Germany)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 13 December 2016 (Case R 1062/2016-2), relating to opposition proceedings between Monster Energy Company and Marco Bösel.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Monster Energy Company to pay the costs. |
| --- | --- |

2.

Orders Monster Energy Company to pay the costs.

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(1)  OJ C 221, 10.7.2017.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/51 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/51

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Judgment of the General Court of 13 December 2018 — De Loecker v EEAS

(Case T-537/17) (1)

((Civil service - EEAS - Temporary agents - Psychological harassment - Request for assistance - Rejection of the request - Right to be heard - Liability))

(2019/C 82/59)

Language of the case: French

Parties

Applicant: Stéphane De Loecker (Brussels, Belgium) (represented by: initially J. N. Louis and N. de Montigny, then J. N. Louis, lawyers)

Defendant: European External Action Service (represented by: S. Marquardt and R. Spac, acting as Agents)

Re:

Application on the basis of 270 TFEU and seeking, firstly, the annulment of the decision of the EEAS of 10 October 2016 rejecting the applicant’s request for assistance made under Articles 12a and 24 of the Staff Regulations of Officials of the European Union and, secondly, compensation for the harm allegedly suffered by the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls the Decision of the European External Action Service (EEAS) of 10 October 2016 rejecting Mr Stéphane De Loecker request for assistance made under Articles 12a and 24 of the Staff Regulations of Officials of the European Union; |
| --- | --- |

1.

Annuls the Decision of the European External Action Service (EEAS) of 10 October 2016 rejecting Mr Stéphane De Loecker request for assistance made under Articles 12a and 24 of the Staff Regulations of Officials of the European Union;

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

2.

Dismisses the action as to the remainder;

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

3.

Orders the EEAS to pay the costs.

---

(1)  OJ C 347, 16.10.2017.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/52 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/52

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Judgment of the General Court of 12 December 2018 — France v Commission

(Case T-609/17) (1)

((EAGF - Expenditure excluded from financing - Expenditure incurred by France - Export refunds on poultry meat - Flat-rate financial correction - Regulations (EC) No 1290/2005 and (EU) No 1306/2013 - Sound, fair and merchantable quality - Checks - Proportionality))

(2019/C 82/60)

Language of the case: French

Parties

Applicant: French Republic (represented by: F. Alabrune, D. Colas, B. Fodda and E. de Moustier, acting as Agents)

Defendant: European Commission (represented by: A. Lewis and D. Bianchi, acting as Agents)

Re:

Action under Article 263 TFEU for annulment in part of Commission Implementing Decision (EU) 2017/1144 of 26 June 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 165, p. 37), in so far as it excludes payments made by the French Republic under the EAGF in the amount of EUR 120 901 216,61.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the French Republic to pay the costs. |
| --- | --- |

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 382, 13.11.2017.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/52 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/52

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Judgment of the General Court of 13 December 2018 — UP v Commission

(Case T-706/17) (1)

((Civil service - Officials - Serious illness - Application f for part-time work on medical grounds - Rejection of the application - Principle of non-discrimination on grounds of disability - Right to be heard - Principle of sound administration - Duty of care - Liability))

(2019/C 82/61)

Language of the case: French

Parties

Applicant: UP (represented by: M. Casado Garcia-Hirschfeld, lawyer)

Defendant: European Commission (represented by: T. Bohr and B. Mongin, acting as Agents)

Re:

Application based on Article 270 TFEU and seeking, first, annulment of the Commission Decision of 26 April 2017 refusing to grant the applicant part-time work on medical grounds and, secondly, compensation for the material and non-material harm allegedly suffered by the applicant.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders UP to bear his own costs as well as those incurred by the European Commission. |
| --- | --- |

2.

Orders UP to bear his own costs as well as those incurred by the European Commission.

---

(1)  OJ C 5, 8.1.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/53 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/53

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Judgment of the General Court of 12 December 2018 — Bischoff v EUIPO — Miroglio Fashion (CARACTÈRE)

(Case T-743/17) (1)

((EU trade mark - Invalidity proceedings - EU word mark CARACTÈRE - Absolute grounds for refusal - No descriptive character - Distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001)))

(2019/C 82/62)

Language of the case: French

Parties

Applicant: Bischoff GmbH (Muggensturm, Germany) (represented by: D. Régnier, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Pétrequin and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Miroglio Fashion Srl (Alba, Italy) (represented by: O. Vanner, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 20 July 2017 (Case R 328/2016-1), relating to invalidity proceedings between Bischoff and Miroglio Fashion.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Bischoff GmbH to pay the costs.

---

(1)  OJ C 13, 15.1.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/53 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/53

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Judgment of the General Court of 12 December 2018 — Vitromed v EUIPO — Vitromed Healthcare (VITROMED Germany)

(Case T-821/17) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark VITROMED Germany - Earlier EU word mark Vitromed - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))

(2019/C 82/63)

Language of the case: German

Parties

Applicant: Vitromed GmbH (Jena, Germany) (represented by: M. Linß, lawyer)

Defendant: European Union Intellectual Property Office (represented by: A. Graul, D. Walicka and M. Fischer, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Vitromed Healthcare (Jaipur, India) (represented by: J. Schmidt, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 26 September 2017 (Case R 2402/2016-2) relating to opposition proceedings between Vitromed Healthcare and Vitromed.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Vitromed GmbH to pay the costs.

---

(1)  OJ C 52, 12.2.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/54 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/54

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Judgment of the General Court 13 December 2018 — CN v Parliament

(Case T-76/18) (1)

((Civil service - Accredited parliamentary assistants - Article 24 of the Staff Regulations - Request for assistance - Article 12a of the Staff Regulations - Psychological harassment - Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace - Decision rejecting the request for assistance - Right to be heard - Principle of audi alteram partem - Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses - Refusal of the defendant institution to comply with a measure of inquiry of the General Court))

(2019/C 82/64)

Language of the case: French

Parties

Applicant: CN (represented by: C. Bernard-Glanz and A. Tymen, lawyers)

Defendant: European Parliament (represented by: D. Boytha and E. Taneva, acting as Agents)

Re:

Application based on Article 270 TFEU seeking, first, annulment of the decision of the Parliament of 20 March 2017 by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by the applicant on 13 February 2013 and, second, compensation for the loss he has allegedly suffered.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CN on 13 February 2013; |
| --- | --- |

1.

Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CN on 13 February 2013;

| 2. | Orders the Parliament to pay CN, in respect of non-material harm suffered, an amount of EUR 8 500; |
| --- | --- |

2.

Orders the Parliament to pay CN, in respect of non-material harm suffered, an amount of EUR 8 500;

| 3. | Dismisses the action as to the remainder; |
| --- | --- |

3.

Dismisses the action as to the remainder;

| 4. | Orders the Parliament to pay the costs. |
| --- | --- |

4.

Orders the Parliament to pay the costs.

---

(1)  OJ C 134, 16.4.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/55 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/55

---

Judgment of the General Court of 13 December 2018 — CH v Parliament

(Case T-83/18) (1)

((Civil service - Accredited parliamentary assistants - Article 24 of the Staff Regulations - Request for assistance - Article 12a of the Staff Regulations - Psychological harassment - Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace - Decision rejecting the request for assistance - Right to be heard - Principle of audi alteram partem - Refusal to disclose the opinion of the Advisory Committee and the minutes of the hearing of witnesses - Refusal of the defendant institution to comply with a measure of inquiry of the General Court))

(2019/C 82/65)

Language of the case: French

Parties

Applicant: CH (represented by: C. Bernard-Glanz and A. Tymen, lawyers)

Defendant: European Parliament (represented by: D. Boytha and E. Taneva, acting as Agents)

Re:

Application based on Article 270 TFEU seeking, first, annulment of the decision of the Parliament of 20 March 2017 by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by the applicant on 22 December 2011 and, second, compensation for the loss she has allegedly suffered.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CH on 22 December 2011; |
| --- | --- |

1.

Annuls the decision of the European Parliament of 20 March 2017, by which the authority empowered to conclude contracts of employment of that institution rejected the request for assistance made by CH on 22 December 2011;

| 2. | Orders the Parliament to pay CH, in respect of non-material harm suffered, an amount of EUR 8 500; |
| --- | --- |

2.

Orders the Parliament to pay CH, in respect of non-material harm suffered, an amount of EUR 8 500;

| 3. | Dismisses the action as to the remainder; |
| --- | --- |

3.

Dismisses the action as to the remainder;

| 4. | Orders the Parliament to pay the costs. |
| --- | --- |

4.

Orders the Parliament to pay the costs.

---

(1)  OJ C 134, 16.4.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/55 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/55

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Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (fit+fun)

(Case T-94/18) (1)

((EU trade mark - Application for EU word mark fit+fun - Absolute ground for refusal - Lack of distinctiveness - Article 7(1)(b) of Regulation (EU) 2017/1001))

(2019/C 82/66)

Language of the case: German

Parties

Applicant: Multifit Tiernahrungs GmbH (Krefeld, Germany) (represented by: N. Weber and L. Thiel, lawyers)

Defendant: European Union Intellectual Property Office (represented by: M. Fischer, D. Walicka, M. Eberl and A. Sesma Merino, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 7 December 2017 (Case R 847/2017-1) concerning the registration of the word mark fit+fun as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Multifit Tiernahrungs GmbH to pay the costs. |
| --- | --- |

2.

Orders Multifit Tiernahrungs GmbH to pay the costs.

---

(1)  OJ C 134, 16.4.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/56 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/56

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Judgment of the General Court of 13 December 2018 — Multifit v EUIPO (MULTIFIT)

(Case T-98/18) (1)

((EU trade mark - Application for EU word mark MULTIFIT - Absolute ground for refusal - Lack of distinctiveness - Article 7(1)(b) of Regulation (EU) 2017/1001))

(2019/C 82/67)

Language of the case: German

Parties

Applicant: Multifit Tiernahrungs GmbH (Krefeld, Germany) (represented by: N. Weber and L. Thiel, lawyers)

Defendant: European Union Intellectual Property Office (represented by: A. Sesma Merino, D. Walicka, M. Fischer and M. Eberl, acting as Agents)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 15 November 2017 (Case R 846/2017-1), concerning an application for registration of the word sign MULTIFIT as a European Union trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Multifit Tiernahrungs GmbH to pay the costs. |
| --- | --- |

2.

Orders Multifit Tiernahrungs GmbH to pay the costs.

---

(1)  OJ C 134, 16.4.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/56 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/56

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Judgment of the General Court of 13 December 2018 — Knauf v EUIPO (upgrade your personality)

(Case T-102/18) (1)

((EU trade mark - Application for EU word mark upgrade your personality - Absolute ground for refusal - Lack of distinctive character - Advertising slogan - Article 7(1)(b) of Regulation (EU) 2017/1001))

(2019/C 82/68)

Language of the case: German

Parties

Applicant: Martin Knauf (Berlin, Germany) (represented by: H. Jaeger, lawyer)

Defendant: European Union Intellectual Property Office (represented by: R. Manea and A. Folliard-Monguiral, acting as Agents)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 18 December 2017 (Case R 1011/2017–4) concerning an application for registration of the word sign upgrade your personality as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Martin Knauf to bear his own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Orders Martin Knauf to bear his own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

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(1)  OJ C 134, 16.4.2018.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/57 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/57

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Action brought on 20 December 2018 — Covestro Deutschland v Commission

(Case T-745/18)

(2019/C 82/69)

Language of the case: German

Parties

Applicant: Covestro Deutschland AG (Leverkusen, Germany) (represented by: M. Küper, J. Otter, C. Anger and M. Goldberg, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2018) 3166 final of 28 May 2018 on aid scheme SA.34045 (2013/C) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 of the Stromnetzentgeltverordnung (Ordinance on Electricity Network Charges; ‘the StromNEV’), in particular the classification of the full exemption of baseload consumers from network charges in 2012 and 2013 as aid, the finding that it is incompatible with the internal market and the order for immediate recovery from the beneficiaries pursuant to the minimum charge rule under the second sentence of Paragraph 19(2) of the StromNEV in the version of 3 September 2010, and |
| --- | --- |

—

annul Commission Decision C(2018) 3166 final of 28 May 2018 on aid scheme SA.34045 (2013/C) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 of the Stromnetzentgeltverordnung (Ordinance on Electricity Network Charges; ‘the StromNEV’), in particular the classification of the full exemption of baseload consumers from network charges in 2012 and 2013 as aid, the finding that it is incompatible with the internal market and the order for immediate recovery from the beneficiaries pursuant to the minimum charge rule under the second sentence of Paragraph 19(2) of the StromNEV in the version of 3 September 2010, and

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The action is based on the following pleas in law.

| 1. | Unreasonable length of the proceedings






  — | In the context of the first plea in law, the applicant claims that the length of the proceedings of 62 months exceeds by more than double the period set out in Article 9(6) of the Aid Procedure Regulation. (1) |
| --- | --- | --- |

1.

Unreasonable length of the proceedings

—

In the context of the first plea in law, the applicant claims that the length of the proceedings of 62 months exceeds by more than double the period set out in Article 9(6) of the Aid Procedure Regulation. (1)

| 2. | The exemption from network charges does not constitute aid under Article 107(1) TFEU






  — | In the context of the second plea in law, it is submitted that there is no favourable treatment, since appropriate consideration is given as a result of the network-stabilising effect of the baseload consumers. Furthermore, the exemption was not financed through State resources. |
| --- | --- | --- |

2.

The exemption from network charges does not constitute aid under Article 107(1) TFEU

—

In the context of the second plea in law, it is submitted that there is no favourable treatment, since appropriate consideration is given as a result of the network-stabilising effect of the baseload consumers. Furthermore, the exemption was not financed through State resources.

| 3. | Compatibility with the internal market (justification, Article 107(3) TFEU)






  — | In the context of the third plea in law, it is claimed that the full exemption of baseload consumers remedies a serious disturbance in the German economy. Particularly energy-intensive industries should remain competitive and be deterred from moving abroad. |
| --- | --- | --- |

3.

Compatibility with the internal market (justification, Article 107(3) TFEU)

—

In the context of the third plea in law, it is claimed that the full exemption of baseload consumers remedies a serious disturbance in the German economy. Particularly energy-intensive industries should remain competitive and be deterred from moving abroad.

| 4. | Unlawfulness of the order for recovery






  — | In the context of the fourth plea in law, the applicant submits that the recovery of a minimum charge in the amount of 20 % of the published network charges with reference to the version of Paragraph 19(2) of the StromNEV applicable until 3 August 2011 is arbitrary and at variance with the principle of non-discrimination. |
| --- | --- | --- |

4.

Unlawfulness of the order for recovery

—

In the context of the fourth plea in law, the applicant submits that the recovery of a minimum charge in the amount of 20 % of the published network charges with reference to the version of Paragraph 19(2) of the StromNEV applicable until 3 August 2011 is arbitrary and at variance with the principle of non-discrimination.

| — | It is further claimed that only the determination of the network charges by means of the physical path ensures the observance of the cost-causality principle and the payment of reasonable and non-discriminatory network charges. |
| --- | --- |

—

It is further claimed that only the determination of the network charges by means of the physical path ensures the observance of the cost-causality principle and the payment of reasonable and non-discriminatory network charges.

| — | The recovery order also infringes the principle of non-discrimination in that the Commission failed to take into account the transitional arrangement in Paragraph 32(3) of the StromNEV. |
| --- | --- |

—

The recovery order also infringes the principle of non-discrimination in that the Commission failed to take into account the transitional arrangement in Paragraph 32(3) of the StromNEV.

| — | Lastly, it is claimed that baseload consumers and atypical network users within the meaning of the first sentence of Paragraph 19(2) of the StromNEV differ substantially. The fact that both groups of network users, notwithstanding their differences, have to pay a minimum charge in the amount of 20 % is not objectively justified. |
| --- | --- |

—

Lastly, it is claimed that baseload consumers and atypical network users within the meaning of the first sentence of Paragraph 19(2) of the StromNEV differ substantially. The fact that both groups of network users, notwithstanding their differences, have to pay a minimum charge in the amount of 20 % is not objectively justified.

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(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/58 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/58

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Action brought on 21 December 2018 — Briois v Parliament

(Case T-750/18)

(2019/C 82/70)

Language of the case: French

Parties

Applicant: Steeve Briois (Hénin-Beaumont, France) (represented by: F. Wagner, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Parliament of 24 October 2018 on the request for waiver of the immunity of Steeve Briois (2018/2075 IMM) to adopt the report of the Committee on Legal Affairs A8-0349/2018; |
| --- | --- |

—

annul the decision of the European Parliament of 24 October 2018 on the request for waiver of the immunity of Steeve Briois (2018/2075 IMM) to adopt the report of the Committee on Legal Affairs A8-0349/2018;

| — | order the European Parliament to pay all the costs of the proceedings. |
| --- | --- |

—

order the European Parliament to pay all the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union (‘the Protocol’), in so far as the wording used by Mr Briois, which has given rise to criminal proceedings in his Member State of origin, constitutes the expression of an opinion in the performance of parliamentary duties within the meaning of that provision. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 8 of Protocol No 7 on the Privileges and Immunities of the European Union (‘the Protocol’), in so far as the wording used by Mr Briois, which has given rise to criminal proceedings in his Member State of origin, constitutes the expression of an opinion in the performance of parliamentary duties within the meaning of that provision.

| 2. | Second plea in law, alleging infringement of Article 9 of the Protocol, in so far as the Parliament misconstrued both the letter and the spirit of that provision by adopting the decision to waive the immunity of Mr Briois and thus vitiated that decision. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 9 of the Protocol, in so far as the Parliament misconstrued both the letter and the spirit of that provision by adopting the decision to waive the immunity of Mr Briois and thus vitiated that decision.

| 3. | Third plea in law, alleging breach of the principles of equal treatment and of good administration.
  In the first place, the applicant claims that the Parliament has infringed the principle of equal treatment in his regard by treating him differently from other Members of Parliament in comparable situations and that the Parliament has therefore also infringed the principle of good administration under which the competent institution is required to examine carefully and impartially all the relevant aspects of each individual case.
  In the second place, the applicant claims that there is a body of evidence supporting the conclusion that there is a clear case of fumus persecutionis against him. |
| --- | --- |

3.

Third plea in law, alleging breach of the principles of equal treatment and of good administration.

In the first place, the applicant claims that the Parliament has infringed the principle of equal treatment in his regard by treating him differently from other Members of Parliament in comparable situations and that the Parliament has therefore also infringed the principle of good administration under which the competent institution is required to examine carefully and impartially all the relevant aspects of each individual case.

In the second place, the applicant claims that there is a body of evidence supporting the conclusion that there is a clear case of fumus persecutionis against him.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/59 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/59

---

Action brought on 21 December 2018 — ABLV Bank v SRB

(Case T-758/18)

(2019/C 82/71)

Language of the case: English

Parties

Applicant: ABLV Bank AS (Riga, Latvia) (represented by: O. Behrends, M. Kirchner and L. Feddern, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the SRB of 17 October 2018 with respect to ABLV Bank as regards the SRB’s refusal to recalculate and to repay that bank’s ex ante contributions to the Single Resolution Fund; |
| --- | --- |

—

annul the decision of the SRB of 17 October 2018 with respect to ABLV Bank as regards the SRB’s refusal to recalculate and to repay that bank’s ex ante contributions to the Single Resolution Fund;

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

—

order the defendant to bear the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the SRB failed to give sufficient weight to the pro rata temporis nature of Fund contributions. |
| --- | --- |

1.

First plea in law, alleging that the SRB failed to give sufficient weight to the pro rata temporis nature of Fund contributions.

| 2. | Second plea in law, alleging that the SRB failed to take into account the SRB’s own express recognition that Fund contributions are refundable on a pro rata temporis basis. |
| --- | --- |

2.

Second plea in law, alleging that the SRB failed to take into account the SRB’s own express recognition that Fund contributions are refundable on a pro rata temporis basis.

| 3. | Third plea in law, alleging that the SRB failed to take into account the express recognition in Article 12(1) of Commission Delegated Regulation 2015/63 (1) that only partial payments are owed if the conditions are met only during part of the relevant year. |
| --- | --- |

3.

Third plea in law, alleging that the SRB failed to take into account the express recognition in Article 12(1) of Commission Delegated Regulation 2015/63 (1) that only partial payments are owed if the conditions are met only during part of the relevant year.

| 4. | Fourth plea in law, alleging that the SRB erroneously relied on Article 70(4) of Regulation 806/2014. (2) |
| --- | --- |

4.

Fourth plea in law, alleging that the SRB erroneously relied on Article 70(4) of Regulation 806/2014. (2)

| 5. | Fifth plea in law, alleging that the SRB relied on an erroneous interpretation of Article 12(2) of Commission Delegated Regulation 2015/63. |
| --- | --- |

5.

Fifth plea in law, alleging that the SRB relied on an erroneous interpretation of Article 12(2) of Commission Delegated Regulation 2015/63.

| 6. | Sixth plea in law, alleging that the SRB violated the principles of legal certainty and legitimate expectations. |
| --- | --- |

6.

Sixth plea in law, alleging that the SRB violated the principles of legal certainty and legitimate expectations.

| 7. | Seventh plea in law, alleging that the SRB violated the principle of proportionality. |
| --- | --- |

7.

Seventh plea in law, alleging that the SRB violated the principle of proportionality.

| 8. | Eighth plea in law, alleging that the SRB violated the nemo auditur principle. |
| --- | --- |

8.

Eighth plea in law, alleging that the SRB violated the nemo auditur principle.

| 9. | Ninth plea in law, alleging that the SRB failed to take into account the relevance of its prior actions. |
| --- | --- |

9.

Ninth plea in law, alleging that the SRB failed to take into account the relevance of its prior actions.

| 10. | Tenth plea in law, alleging that the SRB violated Articles 16 and 17 of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

10.

Tenth plea in law, alleging that the SRB violated Articles 16 and 17 of the Charter of Fundamental Rights of the European Union.

---

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

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

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/60 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/60

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Action brought on 4 January 2019 — Algebris (UK) and Anchorage Capital Group v SRB

(Case T-2/19)

(2019/C 82/72)

Language of the case: English

Parties

Applicants: Algebris (UK) Ltd (London, United Kingdom) and Anchorage Capital Group LLC (New York, New York, United States) (represented by: T. Soames, lawyer, R. East, Solicitor, N. Chesaites, and D. Mackersie, Barristers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicants claim that the Court should:

| — | annul the SRB’s decision to the effect that ex-post definitive valuations of Banco Popular Español S.A. were not required pursuant to Article 20(11) of Regulation (EU) No 806/2014; (1) |
| --- | --- |

—

annul the SRB’s decision to the effect that ex-post definitive valuations of Banco Popular Español S.A. were not required pursuant to Article 20(11) of Regulation (EU) No 806/2014; (1)

| — | order the SRB to pay the applicants’ legal costs. |
| --- | --- |

—

order the SRB to pay the applicants’ legal costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the SRB’s decision that ex-post definitive valuations of Banco Popular Español S.A. were not required pursuant to Article 20(11) of Regulation 806/2014 rests on an error of law in breach of Article 20(11) and/or Article 20(12) of that Regulation, which requires an ex-post definitive valuation in circumstances where a provisional valuation that did not meet the requirements of Article 20(1) and (4) to (9) of Regulation 806/2014 is relied on to take resolution measures. |
| --- | --- |

1.

First plea in law, alleging that the SRB’s decision that ex-post definitive valuations of Banco Popular Español S.A. were not required pursuant to Article 20(11) of Regulation 806/2014 rests on an error of law in breach of Article 20(11) and/or Article 20(12) of that Regulation, which requires an ex-post definitive valuation in circumstances where a provisional valuation that did not meet the requirements of Article 20(1) and (4) to (9) of Regulation 806/2014 is relied on to take resolution measures.

| 2. | Second plea in law, alleging that the SRB committed manifest errors of assessment in its application of Article 20(11) of Regulation 806/2014 in the contested decision, because, in adopting the contested decision, the SRB proceeded on the erroneous basis that no ex-post definitive valuations are required in this case. |
| --- | --- |

2.

Second plea in law, alleging that the SRB committed manifest errors of assessment in its application of Article 20(11) of Regulation 806/2014 in the contested decision, because, in adopting the contested decision, the SRB proceeded on the erroneous basis that no ex-post definitive valuations are required in this case.

| 3. | Third plea in law, alleging that, insofar as the contested decision implies a decision by the SRB not to increase the value of the EUR 1 consideration paid by Banco Santander, S.A., this amounts to an error of law and/or manifest error of assessment in breach of Article 20(11) and (12) of Regulation 806/2014. |
| --- | --- |

3.

Third plea in law, alleging that, insofar as the contested decision implies a decision by the SRB not to increase the value of the EUR 1 consideration paid by Banco Santander, S.A., this amounts to an error of law and/or manifest error of assessment in breach of Article 20(11) and (12) of Regulation 806/2014.

| 4. | Fourth plea in law, alleging that the SRB has breached its obligation to provide reasons for the contested decision, contrary to Article 296 TFEU. |
| --- | --- |

4.

Fourth plea in law, alleging that the SRB has breached its obligation to provide reasons for the contested decision, contrary to Article 296 TFEU.

---

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

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/61 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/61

---

Action brought on 4 January 2019 — Clatronic International/EUIPO (PROFI CARE)

(Case T-5/19)

(2019/C 82/73)

Language of the case: English

Parties

Applicant: Clatronic International GmbH (Kempen, Germany) (represented by: O. Löffel, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: International registration designating the European Union in respect of the figurative sign PROFI CARE — Application for registration No 1 372 358

Contested decision: Decision of the First Board of Appeal of EUIPO of 15 October 2018 in Case R 504/2018-1

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order EUIPO to pay the costs.

Pleas in law

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

—

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

| — | Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/61 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/61

---

Action brought on 11 January 2019 — Fastweb v Commission

(Case T-19/19)

(2019/C 82/74)

Language of the case: Italian

Parties

Applicant: Fastweb SpA (Milan, Italy) (represented by: M. Merola, L. Armati, A. Guarino and E. Cerchi, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 31 August 2018 by which the Commission authorised the merger in Case M.9041 — HUTCHINSON/WIND TRE pursuant to Article 6(1)(b) and Article 6(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the Regulation’); |
| --- | --- |

—

annul the decision of 31 August 2018 by which the Commission authorised the merger in Case M.9041 — HUTCHINSON/WIND TRE pursuant to Article 6(1)(b) and Article 6(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the Regulation’);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Articles 2 and 8 of the Regulation: manifest error of assessment and shortcomings in the Commission’s investigation in that the Commission considered that the entry of a new Mobile Network Operator (MNO) was in itself sufficient to resolve the horizontal effects of the merger, without considering the factors that had brought about the success of H3G.






  — | In that regard, the applicant alleges a manifest error of assessment and shortcomings in the Commission’s investigation in that the Commission considered that the entry of a new MNO was in itself sufficient to resolve the horizontal effects of the merger, without considering the factors that had brought about the success of the entry of H3G. In Case M.7758, the Commission had already, in particular, not concerned itself with verifying whether the new MNO had (whether on the retail market or on the wholesale market) operating capacity, economic conditions and incentives at its disposal that were at least equivalent, as a whole, to those of H3G, which in its early years operated within a rapidly-expanding market. In addition, the Commission should have taken into consideration the effect produced on competitive dynamics by the one-sidedness of the termination rate available to H3G, which gave it a significant advantage with respect to other MNOs. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Articles 2 and 8 of the Regulation: manifest error of assessment and shortcomings in the Commission’s investigation in that the Commission considered that the entry of a new Mobile Network Operator (MNO) was in itself sufficient to resolve the horizontal effects of the merger, without considering the factors that had brought about the success of H3G.

—

In that regard, the applicant alleges a manifest error of assessment and shortcomings in the Commission’s investigation in that the Commission considered that the entry of a new MNO was in itself sufficient to resolve the horizontal effects of the merger, without considering the factors that had brought about the success of the entry of H3G. In Case M.7758, the Commission had already, in particular, not concerned itself with verifying whether the new MNO had (whether on the retail market or on the wholesale market) operating capacity, economic conditions and incentives at its disposal that were at least equivalent, as a whole, to those of H3G, which in its early years operated within a rapidly-expanding market. In addition, the Commission should have taken into consideration the effect produced on competitive dynamics by the one-sidedness of the termination rate available to H3G, which gave it a significant advantage with respect to other MNOs.

| 2. | Second plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment of the MNO package.






  — | In that regard, the applicant alleges a manifest error of assessment as regards the package of commitments. In particular, the comparison with H3G’s frequency holdings pre-merger in itself raises serious doubts regarding the adequacy of the proposed spectrum allocation. In addition, the Commission relied on future, uncertain events, such as the participation of the new MNO in future calls for tenders, without, however, taking into account the high costs connected with the impending renewal and refarming of the transferred frequencies. The Commission accepted the transfer of an inadequate number of sites, relying on uncertain agreements with the Tower Companies. Lastly, the transitional agreement concluded with the notifying parties, which has a structure based on capacity, strongly reduces the incentive to invest. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment of the MNO package.

—

In that regard, the applicant alleges a manifest error of assessment as regards the package of commitments. In particular, the comparison with H3G’s frequency holdings pre-merger in itself raises serious doubts regarding the adequacy of the proposed spectrum allocation. In addition, the Commission relied on future, uncertain events, such as the participation of the new MNO in future calls for tenders, without, however, taking into account the high costs connected with the impending renewal and refarming of the transferred frequencies. The Commission accepted the transfer of an inadequate number of sites, relying on uncertain agreements with the Tower Companies. Lastly, the transitional agreement concluded with the notifying parties, which has a structure based on capacity, strongly reduces the incentive to invest.

| 3. | Third plea in law, alleging infringement of Articles 2 and 8 of the Regulation, manifest error of assessment and failure to conduct a proper inquiry by basing the analysis of the merger and the commitments on the incorrect assumption that price is the only significant competitive factor, disregarding quality and convergence.






  — | The applicant refers to the failure to conduct a proper inquiry in that the Commission based the analysis of the merger and the commitments on the incorrect assumption that price is the only significant competitive factor in the relevant market. The Commission disregarded the fact that network coverage and quality are of comparable importance and should not have confined itself to a static analysis of the preferences of a very biased sample of users in the ‘low spender’ category. In addition, the Commission also disregarded the potential importance of the convergence, which is decisive for a new entrant, which requires additional bargaining levers compared with an established operator (such as H3G). The selection of an acquirer capable of addressing the converging demand would have ensured greater effectiveness and sustainability of the commitments over time. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Articles 2 and 8 of the Regulation, manifest error of assessment and failure to conduct a proper inquiry by basing the analysis of the merger and the commitments on the incorrect assumption that price is the only significant competitive factor, disregarding quality and convergence.

—

The applicant refers to the failure to conduct a proper inquiry in that the Commission based the analysis of the merger and the commitments on the incorrect assumption that price is the only significant competitive factor in the relevant market. The Commission disregarded the fact that network coverage and quality are of comparable importance and should not have confined itself to a static analysis of the preferences of a very biased sample of users in the ‘low spender’ category. In addition, the Commission also disregarded the potential importance of the convergence, which is decisive for a new entrant, which requires additional bargaining levers compared with an established operator (such as H3G). The selection of an acquirer capable of addressing the converging demand would have ensured greater effectiveness and sustainability of the commitments over time.

| 4. | Fourth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and failure to conduct a proper inquiry in that the Commission failed to consider that the merger pursued an anti-competitive objective.






  — | The applicant claims in that regard that whereas, on the one hand, the Commission accepted that, for the parties, the reasons underlying the merger was market repair, on the other hand, it did not undertake any analysis of the anti-competitive coordination pursued by the parties by means of the merger. The new decision is therefore vitiated by that serious failure to conduct a proper inquiry. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and failure to conduct a proper inquiry in that the Commission failed to consider that the merger pursued an anti-competitive objective.

—

The applicant claims in that regard that whereas, on the one hand, the Commission accepted that, for the parties, the reasons underlying the merger was market repair, on the other hand, it did not undertake any analysis of the anti-competitive coordination pursued by the parties by means of the merger. The new decision is therefore vitiated by that serious failure to conduct a proper inquiry.

| 5. | Fifth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment as regards the suitability of the commitments intended to meet the concerns regarding coordinated action on the retail market and failure to conduct a proper inquiry also in respect of the compliance of roaming agreements and the national multi-operator core network (MOCN) with Article 101 TFEU.






  — | The applicant complains that the suitability of the commitments intended to meet the concerns regarding coordinated action on the retail market was incorrectly assessed. In order to be able to act in a truly aggressive way and ‘break’ the collusive equilibrium, the new entrant would have to be able to act independently of other MNOs. However, the formula selected for the making available of resources (roaming agreements and national MOCN) creates a close degree of dependence between new MNO and the Joint Venture for a protracted period, as demonstrated by the most recent auctions for the award of frequencies in Italy and, more generally, the commercial policies of all MNOs. The contested decision is further vitiated by a failure to carry out a proper inquiry as regards the compatibility of the roaming agreements and national MOCN with Article 101 TFEU. |
| --- | --- | --- |

5.

Fifth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment as regards the suitability of the commitments intended to meet the concerns regarding coordinated action on the retail market and failure to conduct a proper inquiry also in respect of the compliance of roaming agreements and the national multi-operator core network (MOCN) with Article 101 TFEU.

—

The applicant complains that the suitability of the commitments intended to meet the concerns regarding coordinated action on the retail market was incorrectly assessed. In order to be able to act in a truly aggressive way and ‘break’ the collusive equilibrium, the new entrant would have to be able to act independently of other MNOs. However, the formula selected for the making available of resources (roaming agreements and national MOCN) creates a close degree of dependence between new MNO and the Joint Venture for a protracted period, as demonstrated by the most recent auctions for the award of frequencies in Italy and, more generally, the commercial policies of all MNOs. The contested decision is further vitiated by a failure to carry out a proper inquiry as regards the compatibility of the roaming agreements and national MOCN with Article 101 TFEU.

| 6. | Sixth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment as regards the suitability of the commitments intended to respond to the competition concerns on the wholesale access market and call origination on mobile networks.






  — | The applicant claims in that regard that the Commission erred in its reconstruction of the counter-factual scenario and in considering that Iliad will have an incentive to offer such services notwithstanding (i) the lack of measures to that effect and (ii) that operator’s experience in France. On the contrary, the commitments encourage the new MNO to target and acquire specifically and solely the customers of Mobile Virtual Network Operators. |
| --- | --- | --- |

6.

Sixth plea in law, alleging infringement of Articles 2 and 8 of the Regulation and manifest error of assessment as regards the suitability of the commitments intended to respond to the competition concerns on the wholesale access market and call origination on mobile networks.

—

The applicant claims in that regard that the Commission erred in its reconstruction of the counter-factual scenario and in considering that Iliad will have an incentive to offer such services notwithstanding (i) the lack of measures to that effect and (ii) that operator’s experience in France. On the contrary, the commitments encourage the new MNO to target and acquire specifically and solely the customers of Mobile Virtual Network Operators.

| 7. | Seventh plea in law, alleging infringement of Article 8(2) of the Regulation, errors of assessment and breach of the principle of sound administration.






  — | The applicant alleges in that regard infringement of Article 8(2) of the Regulation (error of assessment) and breach of the principle of sound administration (failure to conduct a proper inquiry) in that it accepted Iliad as a suitable acquirer without taking into consideration the risks to the effectiveness of the commitments relating to the entry of an operator with Iliad’s characteristics and without adequate guarantees having been provided in the commitments, in particular with regard to network coverage/quality. |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of Article 8(2) of the Regulation, errors of assessment and breach of the principle of sound administration.

—

The applicant alleges in that regard infringement of Article 8(2) of the Regulation (error of assessment) and breach of the principle of sound administration (failure to conduct a proper inquiry) in that it accepted Iliad as a suitable acquirer without taking into consideration the risks to the effectiveness of the commitments relating to the entry of an operator with Iliad’s characteristics and without adequate guarantees having been provided in the commitments, in particular with regard to network coverage/quality.

| 8. | Eighth plea in law, alleging manifest error of assessment and failure to conduct a proper inquiry in that the Commission failed to assess in any way the reasons underlying the new merger.






  — | The applicant claims in that regard that the Commission itself, already in the 2016 decision, had indicated that ‘market repair’ was the reason for the merger, without nevertheless analysing the implications. In the new decision, the Commission, once again, did not take that essential fact into consideration or carry out any assessment of the objectives of the new operation, including with respect to the fulfilment of the reasons underlying the original operation. Furthermore, the Commission — in breach of its own practice and case-law — failed to assess the immediate effects of the removal of competitive pressure on the market linked to the co-decision power of VEON. |
| --- | --- | --- |

8.

Eighth plea in law, alleging manifest error of assessment and failure to conduct a proper inquiry in that the Commission failed to assess in any way the reasons underlying the new merger.

—

The applicant claims in that regard that the Commission itself, already in the 2016 decision, had indicated that ‘market repair’ was the reason for the merger, without nevertheless analysing the implications. In the new decision, the Commission, once again, did not take that essential fact into consideration or carry out any assessment of the objectives of the new operation, including with respect to the fulfilment of the reasons underlying the original operation. Furthermore, the Commission — in breach of its own practice and case-law — failed to assess the immediate effects of the removal of competitive pressure on the market linked to the co-decision power of VEON.

| 9. | Ninth plea in law, alleging manifest error of assessment in that the Commission did not consider it necessary, in the light of the changing market conditions, to adjust the commitments.






  — | The applicant submits in this regard that the Commission expressed the view that there had been no significant changes in the relevant market compared to the time of adoption of the 2016 decision in Case M.7758, without, however, giving adequate reasons. |
| --- | --- | --- |

9.

Ninth plea in law, alleging manifest error of assessment in that the Commission did not consider it necessary, in the light of the changing market conditions, to adjust the commitments.

—

The applicant submits in this regard that the Commission expressed the view that there had been no significant changes in the relevant market compared to the time of adoption of the 2016 decision in Case M.7758, without, however, giving adequate reasons.

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/64 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/64

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Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep)

(Case T-20/19)

(2019/C 82/75)

Language of the case: English

Parties

Applicant: Pablosky, SL (Madrid, Spain) (represented by: A. Tarí Lázaro, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: docPrice GmbH (Koblenz, Germany)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark mediFLEX easystep — Application for registration No 15 730 872

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 8 November 2018 in Case R 77/2018-4

Form of order sought

The applicant claims that the Court should:

| — | reverse the contested decision; |
| --- | --- |

—

reverse the contested decision;

| — | reject the EUTM No 15 730 872 in its entirety as regards products included in classes 10 and 25; |
| --- | --- |

—

reject the EUTM No 15 730 872 in its entirety as regards products included in classes 10 and 25;

| — | award the costs to the applicant. |
| --- | --- |

—

award the costs to the applicant.

Plea in law

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

—

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

---

| 4.3.2019 | EN | Official Journal of the European Union | C 82/64 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/64

---

Action brought on 11 January 2019 — Pablosky v EUIPO — docPrice (mediFLEX easystep)

(Case T-21/19)

(2019/C 82/76)

Language of the case: English

Parties

Applicant: Pablosky, SL (Madrid, Spain) (represented by: A. Tarí Lázaro, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: docPrice GmbH (Koblenz, Germany)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark mediFLEX easystep — Application for registration No 15 730 898

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 8 November 2018 in Case R 76/2018-4

Form of order sought

The applicant claims that the Court should:

| — | reverse the contested decision; |
| --- | --- |

—

reverse the contested decision;

| — | reject the EUTM No 15 730 898 in its entirety as regards products included in classes 10 and 25; |
| --- | --- |

—

reject the EUTM No 15 730 898 in its entirety as regards products included in classes 10 and 25;

| — | award the costs to the applicant. |
| --- | --- |

—

award the costs to the applicant.

Plea in law

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

—

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

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| 4.3.2019 | EN | Official Journal of the European Union | C 82/65 |
| --- | --- | --- | --- |

4.3.2019

EN

Official Journal of the European Union

C 82/65

---

Action brought on 11 January 2019 — Noguer Enríquez and Others v Commission

(Case T-22/19)

(2019/C 82/77)

Language of the case: Spanish

Parties

Applicants: Roser Noguer Enríquez (Andorra la Vella, Andorra),  TB (*1), Successors D’Higini Cierco García, SA (Andorra la Vella), Cierco Martínez 2 2003, SL (Andorra la Vella) (represented by: J. Álvarez González and S. San Felipe Menéndez, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should admit the action to establish the non-contractual liability of the European Union for damage caused by the European Commission in the performance of its duties, as set out in Articles 268 and 340(2) TFEU, and, after the appropriate legal procedures have been completed and the proceedings established to that effect have been dealt with, should deliver judgment declaring that the European Union has incurred non-contractual liability for the negligent and permissive conduct of the European Commission, order that the applicants be awarded compensation in the amount of EUR 50 220 800 in accordance with the calculations and quantification set out in the expert report accompanying the written application or, in the alternative, in the amount resulting from the expert opinion issued by the expert designated by the Court, together with interest at the statutory rate, and order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants raise the following pleas in law.

| 1. | Infringement of the Monetary Agreement between the European Union and the Principality of Andorra and incorrect transposition by the Principality of Andorra, with the Commission’s consent, of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council. (1) Specifically, the Commission:






  — | failed to fulfil its obligation to verify the ‘one-sided’, premature, self-serving and inadequate transposition of Directive 2014/59/EU carried out by the Principality of Andorra, which deliberately omitted to include the rights and guarantees of shareholders and depositors imposed by EU legislation as necessary counterbalances in intervention processes of the kind in question and even included additional discriminatory measures with regard to other shareholders; and |
| --- | --- | --- |

1.

Infringement of the Monetary Agreement between the European Union and the Principality of Andorra and incorrect transposition by the Principality of Andorra, with the Commission’s consent, of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council. (1) Specifically, the Commission:

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failed to fulfil its obligation to verify the ‘one-sided’, premature, self-serving and inadequate transposition of Directive 2014/59/EU carried out by the Principality of Andorra, which deliberately omitted to include the rights and guarantees of shareholders and depositors imposed by EU legislation as necessary counterbalances in intervention processes of the kind in question and even included additional discriminatory measures with regard to other shareholders; and

| — | failed to fulfil its obligation to report to the Joint Committee, and where necessary to the Court of Justice of the European Union, the Principality of Andorra’s infringement of the Agreement arising from the unlawful transposition of Directive 2014/59/EU, which deprived the applicants of ownership of their shares without the slightest justification on the relevant public interest ground, without respect for fundamental principles such as that of proportionality and without providing for any type of indemnification or compensation as required by law. This results in a significant infringement of overriding principles of the rule of law and/or a system of law and fundamental rights. Indeed, nor did the Commission report (not even as of the present day) the Principality of Andorra’s infringement for the purposes of terminating the Agreement. |
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failed to fulfil its obligation to report to the Joint Committee, and where necessary to the Court of Justice of the European Union, the Principality of Andorra’s infringement of the Agreement arising from the unlawful transposition of Directive 2014/59/EU, which deprived the applicants of ownership of their shares without the slightest justification on the relevant public interest ground, without respect for fundamental principles such as that of proportionality and without providing for any type of indemnification or compensation as required by law. This results in a significant infringement of overriding principles of the rule of law and/or a system of law and fundamental rights. Indeed, nor did the Commission report (not even as of the present day) the Principality of Andorra’s infringement for the purposes of terminating the Agreement.

| 2. | Infringement of the applicants’ fundamental rights and guarantees, recognised both in the Charter of Fundamental Rights of the European Union and in the Convention for the Protection of Human Rights and Fundamental Freedoms, inter alia: the right to property, the right to sound administration, the right to effective legal protection, the principle of legitimate expectations and the principle of legal certainty.






  — | In that regard, it is claimed that the European Commission’s failure to fulfil its obligations had the result that, following the resolution of the institution Banca Privada de Andorra (Private Bank of Andorra, ‘the BPA’), all the shareholders, including the applicants, who own 75,52 % of the shares in the company, were deprived of all their capital without receiving any compensation in return or being able to oppose it. |
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2.

Infringement of the applicants’ fundamental rights and guarantees, recognised both in the Charter of Fundamental Rights of the European Union and in the Convention for the Protection of Human Rights and Fundamental Freedoms, inter alia: the right to property, the right to sound administration, the right to effective legal protection, the principle of legitimate expectations and the principle of legal certainty.

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In that regard, it is claimed that the European Commission’s failure to fulfil its obligations had the result that, following the resolution of the institution Banca Privada de Andorra (Private Bank of Andorra, ‘the BPA’), all the shareholders, including the applicants, who own 75,52 % of the shares in the company, were deprived of all their capital without receiving any compensation in return or being able to oppose it.

| — | It is also claimed that the inaction of the principal guarantor of the Agreement meant that the applicants’ right to receive, following the resolution of the BPA, what they would have obtained following ordinary insolvency or bankruptcy proceedings was not recognised in Andorran legislation. That right is recognised explicitly and exhaustively in the legislation of the European Union for the recovery and resolution of credit institutions and investment firms, which the Principality of Andorra was required to transpose by virtue of the Agreement. |
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It is also claimed that the inaction of the principal guarantor of the Agreement meant that the applicants’ right to receive, following the resolution of the BPA, what they would have obtained following ordinary insolvency or bankruptcy proceedings was not recognised in Andorran legislation. That right is recognised explicitly and exhaustively in the legislation of the European Union for the recovery and resolution of credit institutions and investment firms, which the Principality of Andorra was required to transpose by virtue of the Agreement.

| — | Lastly, neither (i) the right of the shareholders to an assessment of the situation in which they have been placed following the resolution of a financial institution and of the compensation, if any, which has been granted to them, nor (ii) the right to oppose, and defend themselves against, that result of the resolution of the institution, has been incorporated into the Andorran legal order. |
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Lastly, neither (i) the right of the shareholders to an assessment of the situation in which they have been placed following the resolution of a financial institution and of the compensation, if any, which has been granted to them, nor (ii) the right to oppose, and defend themselves against, that result of the resolution of the institution, has been incorporated into the Andorran legal order.

| 3. | Infringement by the European Commission of its most essential duty to safeguard respect for and the application of EU law and the Treaties of the European Union, in accordance with Article 17 of the Treaty on European Union, by allowing third countries flagrantly to infringe their terms, clearly undermining legal certainty, the credibility of the EU institutions and the legitimate expectations that citizens have in respect of those institutions. |
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3.

Infringement by the European Commission of its most essential duty to safeguard respect for and the application of EU law and the Treaties of the European Union, in accordance with Article 17 of the Treaty on European Union, by allowing third countries flagrantly to infringe their terms, clearly undermining legal certainty, the credibility of the EU institutions and the legitimate expectations that citizens have in respect of those institutions.

| 4. | Conduct on the part of the European Union which entails a sufficiently serious breach of rules of law conferring rights on and/or protecting individuals, which cannot be justified on the basis of the degree of discretion which those rules allow or their complexity or imprecision. The Commission’s negligence caused the applicants specific, actual and certain material damage, there being a clear causal link between the Commission’s conduct and that damage. |
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4.

Conduct on the part of the European Union which entails a sufficiently serious breach of rules of law conferring rights on and/or protecting individuals, which cannot be justified on the basis of the degree of discretion which those rules allow or their complexity or imprecision. The Commission’s negligence caused the applicants specific, actual and certain material damage, there being a clear causal link between the Commission’s conduct and that damage.

| 5. | In the alternative, it is alleged that the European Commission has incurred liability on account of its negligence in the negotiation and signing of the Monetary Agreement with the Principality of Andorra, which did not provide for defence and/or complaint mechanisms for the individuals concerned. |
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5.

In the alternative, it is alleged that the European Commission has incurred liability on account of its negligence in the negotiation and signing of the Monetary Agreement with the Principality of Andorra, which did not provide for defence and/or complaint mechanisms for the individuals concerned.

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

(1)  OJ 2014 L 173, p. 190.

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Action brought on 15 January 2019 — Karlovarské minerální vody v EUIPO — Aguas de San Martín de Veri (VERITEA)

(Case T-28/19)

(2019/C 82/78)

Language in which the application was lodged: Czech

Parties

Applicant: Karlovarské minerální vody a.s. (Karlovy Vary, Czech Republic) (represented by: J. Mrázek, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Aguas de San Martín de Veri, SA (Bisaurri, Spain)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant in the proceedings before the General Court

Trade mark at issue: Application for registration of the European Union trade mark VERITEA — Application No 15 592 876

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 8 November 2018 in Case R 499/2018-5

Form of order sought

The applicant claims that the Court should:

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

| — | reject the opponent’s opposition; |
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reject the opponent’s opposition;

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

Plea in law

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

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

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Action brought on 15 January 2019 — CRIA and CCCMC v Commission

(Case T-30/19)

(2019/C 82/79)

Language of the case: English

Parties

Applicants: China Rubber Industry Association (CRIA) (Beijing, China) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC) (Beijing) (represented by: R. Antonini, E. Monard and B. Maniatis, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163, in so far as it relates to the applicants and their relevant members; and |
| --- | --- |

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annul Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163, in so far as it relates to the applicants and their relevant members; and

| — | order the Commission to bear the costs of these proceedings. |
| --- | --- |

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order the Commission to bear the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that by making the injury analysis on the basis of the ‘weighted’ data of the sampled companies, the contested Regulation violates Articles 3(1), (2), (5) and (8) and 17 of the Regulation (EU) 2016/1036 of the European Parliament and of the Council (‘basic Regulation’). (1) Even if assuming the weighting would be allowed, the way in which it was done results in violations of Articles 3(2), (3) and (5) and 9(4) of the basic Regulation. |
| --- | --- |

1.

First plea in law, alleging that by making the injury analysis on the basis of the ‘weighted’ data of the sampled companies, the contested Regulation violates Articles 3(1), (2), (5) and (8) and 17 of the Regulation (EU) 2016/1036 of the European Parliament and of the Council (‘basic Regulation’). (1) Even if assuming the weighting would be allowed, the way in which it was done results in violations of Articles 3(2), (3) and (5) and 9(4) of the basic Regulation.

| 2. | Second plea in law, alleging that the inclusion of retreaded tyres does not allow the Commission to obtain any basis to logically progress its inquiry, in violation of Articles 3(1), (2), (5), (6) and 4(1) of the basic Regulation. The injury and causation analysis that ignores the segmentation between new and retreaded tyres is not based on positive evidence and does not amount to an objective examination in violation of Article 3(2), (5) and (6) of the basic Regulation. |
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2.

Second plea in law, alleging that the inclusion of retreaded tyres does not allow the Commission to obtain any basis to logically progress its inquiry, in violation of Articles 3(1), (2), (5), (6) and 4(1) of the basic Regulation. The injury and causation analysis that ignores the segmentation between new and retreaded tyres is not based on positive evidence and does not amount to an objective examination in violation of Article 3(2), (5) and (6) of the basic Regulation.

| 3. | Third plea in law, alleging that the assessment of the price effects (price undercutting and underselling) and determination the injury elimination level violates Articles 3(2), 3(3) and 9(4) of the basic Regulation, by failing to take into account the significantly higher cost per kilometre of a new tyre as compared to a retreaded tyre and by relying on constructed export prices. |
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3.

Third plea in law, alleging that the assessment of the price effects (price undercutting and underselling) and determination the injury elimination level violates Articles 3(2), 3(3) and 9(4) of the basic Regulation, by failing to take into account the significantly higher cost per kilometre of a new tyre as compared to a retreaded tyre and by relying on constructed export prices.

| 4. | Fourth plea in law, alleging that the incoherencies, inconsistencies and absence of a positive and/or objective evidentiary basis of the causation analysis violates Articles 3(2) and (6) of the basic Regulation. The contested Regulation also fails to appropriately examine other known factors to ensure that the injury caused by those other factors is not attributed to the dumped imports contrary to Article 3(2) and (7) of the basic Regulation. |
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4.

Fourth plea in law, alleging that the incoherencies, inconsistencies and absence of a positive and/or objective evidentiary basis of the causation analysis violates Articles 3(2) and (6) of the basic Regulation. The contested Regulation also fails to appropriately examine other known factors to ensure that the injury caused by those other factors is not attributed to the dumped imports contrary to Article 3(2) and (7) of the basic Regulation.

| 5. | Fifth plea in law, alleging that the Commission violated the rights of defence of the applicants and Articles 6(7), 19(1), 19(2), 19(3), 20(2), 20(4) of the basic Regulation by failing to disclose and provide the Applicants with access to information relevant to the injury and dumping determinations. |
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5.

Fifth plea in law, alleging that the Commission violated the rights of defence of the applicants and Articles 6(7), 19(1), 19(2), 19(3), 20(2), 20(4) of the basic Regulation by failing to disclose and provide the Applicants with access to information relevant to the injury and dumping determinations.

| 6. | Sixth plea in law, alleging that the adjustment for indirect taxes violates Article 2(10)(b) and 2(7)(a) of the basic Regulation. |
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6.

Sixth plea in law, alleging that the adjustment for indirect taxes violates Article 2(10)(b) and 2(7)(a) of the basic Regulation.

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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, 30.6.2016, p. 21).

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Action brought on 21 January 2019 — Cimpress Schweiz v EUIPO — Impress Media (CIMPRESS)

(Case T-37/19)

(2019/C 82/80)

Language in which the application was lodged: German

Parties

Applicant: Cimpress Schweiz GmbH (Winterthur, Switzerland) (represented by: C. Eckhartt, P. Böhner and A. von Mühlendahl, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Impress Media GmbH (Mönchengladbach, Germany)

Details of the proceedings before EUIPO

Applicant for the mark at issue: Applicant

Mark at issue: EU word mark CIMPRESS — EU mark No 13 147 624

Proceedings before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 30 October 2018 in Joined Cases R 1716/2017-2 and R 1786/2017-2

Form of order sought

The applicant claims that the Court should:

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

| — | on the applicant’s appeal, annul the decision of the Opposition Division of 13 June 2017 in Case B 2 493 933 and reject the opposition brought by Impress Media GmbH against registration of the mark CIMPRESS No 13 147 624; |
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on the applicant’s appeal, annul the decision of the Opposition Division of 13 June 2017 in Case B 2 493 933 and reject the opposition brought by Impress Media GmbH against registration of the mark CIMPRESS No 13 147 624;

| — | order EUIPO and Impress Media GmbH, should it intervene in these proceedings, to pay the costs of the proceedings, including the costs incurred by the applicant in the proceedings before the Board of Appeal. |
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order EUIPO and Impress Media GmbH, should it intervene in these proceedings, to pay the costs of the proceedings, including the costs incurred by the applicant in the proceedings before the Board of Appeal.

Plea in law

| — | Infringement of Article 8(2)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

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Infringement of Article 8(2)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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Action brought on 23 January 2019 — Volkswagen v EUIPO (CROSS)

(Case T-42/19)

(2019/C 82/81)

Language of the case: German

Parties

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: F. Thiering and L. Steidle, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for EU word mark CROSS — Application No 16 366 528

Contested decision: Decision of the First Board of Appeal of EUIPO of 14 November 2018 in Case R 2500/2017-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision, in so far as it dismissed the applicant’s complaint, and allow registration of EU trade mark application No 163 66 528 for all of the goods and services; |
| --- | --- |

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annul the contested decision, in so far as it dismissed the applicant’s complaint, and allow registration of EU trade mark application No 163 66 528 for all of the goods and services;

| — | alternatively, annul the contested decision, in so far as it dismissed the applicant’s complaint, and refer the case back to the First Board of Appeal of EUIPO; |
| --- | --- |

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alternatively, annul the contested decision, in so far as it dismissed the applicant’s complaint, and refer the case back to the First Board of Appeal of EUIPO;

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

—

order EUIPO to pay the costs.

Pleas in law

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

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

| — | Infringement of the principle of equal treatment and breach of the obligation to state reasons. |
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Infringement of the principle of equal treatment and breach of the obligation to state reasons.

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