# Official Journal C 419/14 N

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 419 |
| | |
| English edition | Information and Notices | Volume 5914 November 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 419

English edition

Information and Notices

Volume 5914 November 2016

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2016/C 419/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2016/C 419/01

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

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2016/C 419/02 | Case C-165/14: Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Alfredo Rendón Marín v Administración del Estado (Reference for a preliminary ruling — Citizenship of the Union — Articles 20 and 21 TFEU — Directive 2004/38/EC — Right of a third-country national with a criminal record to reside in a Member State — Parent having sole care of two minor children, who are Union citizens — First child possessing the nationality of the Member State of residence — Second child possessing the nationality of another Member State — National legislation precluding grant of a residence permit to the father because of his criminal record — Refusal of residence capable of resulting in the children being obliged to leave the territory of the European Union) | 2 |
| 2016/C 419/03 | Case C-304/14: Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) — United Kingdom) — Secretary of State for the Home Department v CS (Reference for a preliminary ruling — Citizenship of the Union — Article 20 TFEU — Third-country national having a young dependent child who is a Union citizen — Right to reside in the Member State of which the child is a national — Criminal convictions of the child’s parent — Decision to expel the parent resulting in the indirect expulsion of the child concerned) | 3 |
| 2016/C 419/04 | Joined Cases C-439/14 and C-488/14: Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Curtea de Apel Bucureşti, Curtea de Apel Oradea — Romania) — SC Star Storage SA v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) (C-439/14), SC Max Boegl România SRL and Others v RA Aeroportul Oradea and Others (C-488/14) (Reference for a preliminary ruling — Directives 89/665/EEC and 92/13/EEC — Public procurement — Review procedures — National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a good conduct guarantee — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy) | 3 |
| 2016/C 419/05 | Case C-484/14: Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Landgericht München I — Germany) — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the network — Infringement of rights of rightholders over a protected work — Duty to secure the network — Tortious liability of the trader) | 4 |
| 2016/C 419/06 | Case C-516/14: Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Barlis 06 — Investimentos Imobiliários e Turísticos SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 178(a) — Right of deduction — Conditions of exercise — Article 226(6) and (7) — Details required in invoices — Extent and nature of the services rendered — Date on which the supply of services is made) | 6 |
| 2016/C 419/07 | Case C-518/14: Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Niedersächsisches Finanzgericht — Germany) — Senatex GmbH v Finanzamt Hannover-Nord (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 167, Article 178(a), Article 179 and Article 226(3) — Deduction of input tax — Invoices not showing a tax number or VAT identification number — Legislation of a Member State excluding the ex tunc correction of an invoice) | 6 |
| 2016/C 419/08 | Case C-525/14: Judgment of the Court (Second Chamber) of 22 September 2016 — European Commission v Czech Republic (Failure of a Member State to fulfil obligations — Free movement of goods — Article 34 TFEU — Quantitative restrictions on imports — Measures having equivalent effect — Precious metals hallmarked in a third country in accordance with Netherlands legislation — Import into the Czech Republic after being put into free circulation — Refusal to recognise the hallmark — Consumer protection — Proportionality — Admissibility) | 7 |
| 2016/C 419/09 | Case C-574/14: Judgment of the Court (Fifth Chamber) of 15 September 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — PGE Górnictwo i Energetyka Konwencjonalna S.A. v Prezes Urzędu Regulacji Energetyki (Reference for a preliminary ruling — State aid — Power Purchase Agreements — Compensation paid for voluntary termination — Commission decision finding State aid compatible with the internal market — Assessment of the lawfulness of aid by a national court — Annual adjustment of stranded costs — Point at which an energy generator’s membership of a group of undertakings is taken into account) | 8 |
| 2016/C 419/10 | Case C-592/14: Judgment of the Court (First Chamber) of 21 September 2016 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — European Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills, Attorney General (Reference for a preliminary ruling — Approximation of laws — Cosmetic products — Regulation (EC) No 1223/2009 — Article 18(1)(b) — Cosmetic products containing ingredients, or a combination of ingredients, which have been the subject of animal testing in order to meet the requirements of this Regulation — Prohibition of marketing within the European Union — Scope) | 9 |
| 2016/C 419/11 | Case C-596/14: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Ana de Diego Porras v Ministerio de Defensa (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Concept of employment conditions — Compensation for termination of a contract of employment — Compensation not provided for by the national legislation for temporary employment contracts — Difference of treatment as compared with permanent workers) | 9 |
| 2016/C 419/12 | Joined Cases C-8/15 P to C-10/15 P: Judgment of the Court (Grand Chamber) of 20 September 2016 — Ledra Advertising Ltd (C-8/15 P), Andreas Eleftheriou (C-9/15 P), Eleni Eleftheriou (C-9/15 P), Lilia Papachristofi (C-9/15 P), Christos Theophilou (C-10/15 P), Eleni Theophilou (C-10/15 P) v European Commission, European Central Bank (Appeals — Stability support programme for the Republic of Cyprus — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) — Duties of the European Commission and the European Central Bank — Non-contractual liability of the European Union — Second paragraph of Article 340 TFEU — Conditions — Obligation to ensure that the Memorandum of Understanding is consistent with EU law) | 10 |
| 2016/C 419/13 | Joined Cases C-14/15 and C-116/15: Judgment of the Court (Third Chamber) of 22 September 2016 — European Parliament v Council of the European Union (Actions for annulment — Police and judicial cooperation in criminal matters — Automated data exchange — Registration of vehicles — Dactyloscopic data — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Distinction between legislative acts and implementing measures — Consultation of the European Parliament — Initiative of a Member State or of the European Commission — Voting rules) | 11 |
| 2016/C 419/14 | Case C-16/15: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid) (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 3 to 5 — Successive fixed-term employment contracts within the public health service — Measures to prevent the abusive use of successive fixed-term employment relationships — Penalties — Reclassification of the employment relationship — Right to compensation) | 12 |
| 2016/C 419/15 | Case C-28/15: Judgment of the Court (Second Chamber) of 15 September 2016 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM) (Reference for a preliminary ruling — Common regulatory framework for electronic communications networks and services — Directive 2002/21/EC — Articles 4 and 19 — National Regulatory Authority — Harmonisation measures — Recommendation 2009/396/EC — Legal scope — Directive 2002/19/EC — Articles 8 and 13 — Operator designated as having significant market power on a market — Obligations imposed by national regulatory authorities — Price control and cost accounting obligations — Fixed and mobile call termination rates — Scope of the review that national courts can exercise over the decisions of national regulatory authorities) | 13 |
| 2016/C 419/16 | Case C-91/15: Judgment of the Court (Eighth Chamber) of 22 September 2016 (request for a preliminary ruling from the Gerechtshof Amsterdam — Netherlands) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane (Reference for a preliminary ruling — Assessment of validity — Regulation (EC) No 1051/2009 — Common Customs Tariff — Tariff classification — Combined Nomenclature — Heading 8701 — Tractors — Subheadings 8701 90 11 to 8701 90 39 — Agricultural tractors (excluding pedestrian-controlled tractors) and forestry tractors, wheeled, new — Light four-wheeled all terrain vehicles designed to be used as tractors) | 14 |
| 2016/C 419/17 | Joined Cases C-105/15 P to C-109/15 P: Judgment of the Court (Grand Chamber) of 20 September 2016 — Konstantinos Mallis (C-105/15 P), Elli Konstantinou Malli (C-105/15 P), Tameio Pronoias Prosopikou Trapezis Kyprou (C-106/15 P), Petros Chatzithoma (C-107/15 P), Elenitsa Chatzithoma (C-107/15 P), Lella Chatziioannou (C-108/15 P), Marinos Nikolaou (C-109/15 P) v European Commission, European Central Bank (Appeals — Stability support programme for the Republic of Cyprus — Eurogroup statement concerning, in particular, the restructuring of the banking sector in Cyprus — Actions for annulment) | 14 |
| 2016/C 419/18 | Case C-110/15: Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Microsoft Mobile Sales International Oy, formerly Nokia Italia SpA and Others v Ministero per i beni e le attività culturali (MIBAC) and Others (Reference for a preliminary ruling — Approximation of laws — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Exclusive right of reproduction — Exceptions and limitations — Article 5(2)(b) — Private copying exception — Fair compensation — Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation — Request for reimbursement of compensation confined to the final user) | 15 |
| 2016/C 419/19 | Case C-113/15: Judgment of the Court (Third Chamber) of 22 September 2016 (request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Breitsamer und Ulrich GmbH & Co. KG v Landeshauptstadt München (Reference for a preliminary ruling — Directive 2000/13/EC — Labelling and presentation of foodstuffs — Article 1(3)(b) — Concept of pre-packaged foodstuff — Article 2 — Consumer information and protection — Article 3(1)(8) — Place of origin or provenance of a foodstuff — Article 13(1) — Labelling of a prepackaged foodstuff — Article 13(4) — Packaging or containers the largest surface of which has an area of less than 10 cm2 — Directive 2001/110/EC — Article 2(4) — Indication of the country or countries of origin of honey — Individual portions of honey packaged in cartons supplied to mass caterers — Individual portions sold separately or supplied to ultimate consumers as part of meals for an all-inclusive price — Indication of the country or countries of origin of that honey) | 16 |
| 2016/C 419/20 | Case C-139/15 P: Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain (Appeal — Cohesion Fund — Reduction of financial assistance — Procedure of adoption of the decision by the European Commission — Existence of a time limit — Non-compliance with the time limit laid down — Consequences) | 16 |
| 2016/C 419/21 | Case C-140/15 P: Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain (Appeal — Cohesion Fund — Reduction of financial assistance — Procedure of adoption of the decision by the European Commission — Existence of a time limit — Non-compliance with the time limit laid down — Consequences) | 17 |
| 2016/C 419/22 | Joined Cases C-184/15 and C-197/15: Judgment of the Court (Tenth Chamber) of 14 September 2016 (requests for a preliminary ruling from the Tribunal Superior de Justicia del País Vasco — Spain) — Florentina Martínez Andrés v Servicio Vasco de Salud (C-184/15), Juan Carlos Castrejana López v Ayuntamiento de Vitoria (C-197/15) (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 5 and 8 — Use of successive fixed-term employment contracts — Measures to prevent abuse resulting from the use of successive fixed-term employment contracts or relationships — Penalties — Reclassification of the fixed-term employment relationship as a non-permanent employment contract of indefinite duration — Principle of effectiveness) | 18 |
| 2016/C 419/23 | Case C-221/15: Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Criminal proceedings against Etablissements Fr. Colruyt NV (Reference for a preliminary ruling — Directive 2011/64/EU — Article 15(1) — Free determination, by the manufacturers and importers, of the maximum retail selling prices of manufactured tobacco products — National regulation prohibiting the sale of such products by retailers at prices lower than those indicated on the revenue stamp — Free movement of goods — Article 34 TFEU — Selling arrangements — Article 101 TFEU, read in conjunction with Article 4(3) TEU) | 19 |
| 2016/C 419/24 | Case C-223/15: Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — combit Software GmbH v Commit Business Solutions Ltd (Reference for a preliminary ruling — Regulation (EC) No 207/2009 — European Union trade mark — Unitary character — Finding of a likelihood of confusion in respect of only part of the European Union — Territorial scope of the prohibition referred to in Article 102 of that regulation) | 19 |
| 2016/C 419/25 | Case C-261/15: Judgment of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Vredegerecht te Ieper — Belgium) — Nationale Maatschappij der Belgische Spoorwegen NV v Gregory Demey (Rail transport — Regulation (EC) No 1371/2007 — Passengers’ rights and obligations — Absence of a ticket — Failure to regularise within the prescribed period — Criminal offence) | 20 |
| 2016/C 419/26 | Case C-304/15: Judgment of the Court (Seventh Chamber) of 21 September 2016 — European Commission v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/80/EC — Article 4(3) — Annex VI, Part A — Limitation of emissions of certain pollutants into the air from large combustion plants — Application — Aberthaw Power Station) | 21 |
| 2016/C 419/27 | Case C-400/15: Judgment of the Court (Eighth Chamber) of 15 September 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Landkreis Potsdam-Mittelmark v Finanzamt Brandenburg (Reference for a preliminary ruling — Taxation — Value Added Tax — Sixth Council Directive 77/388/EEC — Right to deduction — Decision 2004/817/EC — Legislative provision of a Member State — Expenditure on goods and services — Extent of use of goods or services for non-economic purposes greater than 90 % of total use — Exclusion of the right to deduct) | 21 |
| 2016/C 419/28 | Case C-442/15 P: Judgment of the Court (Eighth Chamber) of 22 September 2016 — Pensa Pharma SA v European Union Intellectual Property Office, Ferring BV, Farmaceutisk Laboratorium Ferring A/S (Appeal — EU trade mark — Word mark PENSA PHARMA — Figurative mark pensa — Applications for a declaration of invalidity of the holders of the word marks pentasa — Declaration of invalidity — Proceedings before EUIPO — Change in the subject matter of the proceedings — New plea before the General Court) | 22 |
| 2016/C 419/29 | Case C-478/15: Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Peter Radgen, Lilian Radgen v Finanzamt Ettlingen (Reference for a preliminary ruling — Taxation — Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Equal treatment — Income tax — Exemption of income derived from part-time employment as a teacher with a legal person governed by public law established in a Member State of the European Union or in a State to which the Agreement on the European Economic Area of 2 May 1992 applies — Legislation of a Member State excluding from that exemption income derived from such employment with a legal person governed by public law established in Switzerland) | 22 |
| 2016/C 419/30 | Joined Cases C-490/15 P and C-505/15 P: Judgment of the Court (Sixth Chamber) of 14 September 2016 — Ori Martin SA C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Setting of the fines — Regulation (EC) No 1/2003 — Article 23(2) — Presumption of actual exercise of decisive influence by the parent company over the subsidiary — The 2006 Guidelines on the method of setting fines — Principle of non-retroactivity — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy within a reasonable time — Charter of Fundamental Rights — Article 41 — Right to proceedings being conducted within a reasonable time) | 23 |
| 2016/C 419/31 | Case C-519/15 P: Judgment of the Court (Sixth Chamber) of 14 September 2016 — Trafilerie Meridionali SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Setting of the fines — 2006 Guidelines for the setting of fines — Point 35 — Unlimited jurisdiction — Obligation to state reasons — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy within a reasonable time) | 24 |
| 2016/C 419/32 | Case C-595/15 P: Judgment of the Court (Seventh Chamber) of 22 September 2016 — National Iranian Oil Company PTE Ltd (NIOC) and Others v Council of the European Union (Appeal — Restrictive measures taken against the Islamic Republic of Iran — List of persons and entities subject to the freezing of funds and economic resources — Implementing Regulation (EU) No 945/2012 — Legal basis — Meaning of associated entity) | 24 |
| 2016/C 419/33 | Case C-130/16 P: Appeal brought on 1 March 2016 by Anastasia-Soultana Gaki against the order of the General Court (Ninth Chamber) made on 16 December 2015 in Case T-547/15, Anastasia-Soultana Gaki v European Commission | 25 |
| 2016/C 419/34 | Case C-394/16: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG | 25 |
| 2016/C 419/35 | Case C-395/16: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 15 July 2016 — DOCERAM GmbH v CeramTec GmbH | 26 |
| 2016/C 419/36 | Case C-414/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 July 2016 — Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. | 27 |
| 2016/C 419/37 | Case C-418/16 P: Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon | 28 |
| 2016/C 419/38 | Case C-435/16: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2016 — Acacia Srl and Rolando D’Amato v Dr.Ing. h.c. F. Porsche AG | 29 |
| 2016/C 419/39 | Case C-441/16: Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București | 30 |
| 2016/C 419/40 | Case C-473/16: Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 29 August 2016 — F v Bevándorlási és Állampolgársági Hivatal | 31 |
| 2016/C 419/41 | Case C-476/16: Request for a preliminary ruling from the Ministarstvo pomorstva, prometa i infrastrukture — Uprava zračnog prometa, elektroničkih komunikacija i pošte (Croatia) lodged on 30 August 2016 — Hrvatska agencija za civilno zrakoplovstvo v Air Serbia A.D. Beograd, and Dane Kondič, direktor Air Serbia A.D. Beograd | 31 |
| 2016/C 419/42 | Case C-480/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 September 2016 — Fidelity Funds v Skatteministeriet | 32 |
| 2016/C 419/43 | Case C-483/16: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 September 2016 — Zsolt Sziber v ERSTE Bank Hungary Zrt. | 32 |
| 2016/C 419/44 | Case C-490/16: Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 14 September 2016 — A.S. v Republic of Slovenia | 34 |
| | General Court |
| 2016/C 419/45 | Case T-549/14: Judgment of the General Court of 4 October 2016 — Lidl Stiftung v EUIPO — Horno del Espinar (Castello) (EU trade mark — Opposition proceedings — Application for the EU word mark Castello — Earlier national and EU figurative marks Castelló — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 36 |
| 2016/C 419/46 | Case T-724/14: Judgment of the General Court of 5 October 2016 — European Children's Fashion Association and Instituto de Economía Pública v EACEA (Arbitration clause — Grant agreement concluded under the action programme Lifelong Learning (2007-2013) — Brand & Merchandising manager for SMEs in the childrens’ product sector project — Action for annulment — Act not subject to appeal — Act forming part of a purely contractual agreement from which it is indissociable — Inadmissibility — Ineligible expenditure — Reimbursement of the sums paid — Audit report) | 37 |
| 2016/C 419/47 | Case T-70/15: Judgment of the General Court of 30 September 2016 — Trajektna luka Split v Commission (Competition — Abuse of dominant position — Decision finding an infringement of Article 102 TFEU — Setting of fees by the Split Port Authority for port services in respect of domestic traffic at maximum levels — Rejection of a complaint — Case being dealt with by a competition authority of a Member State — No EU interest) | 37 |
| 2016/C 419/48 | Case T-129/15 and T-130/15: Judgment of the General Court of 28 September 2016 — Intesa Sanpaolo v EUIPO (WAVE 2 PAY and WAVE TO PAY) (EU trade mark — Application for EU word marks WAVE 2 PAY and WAVE TO PAY — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009) | 38 |
| 2016/C 419/49 | Case T-335/15: Judgment of the General Court of 29 September 2016 — Universal Protein Supplements v EUIPO (Representation of a body builder) (EU trade mark — Application for registration of an EU figurative mark representing a body-builder — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009) | 39 |
| 2016/C 419/50 | Case T-337/15: Judgment of the General Court of 29 September 2016 — Bach Flower Remedies v EUIPO — Durapharma (RESCUE) (EU trade mark — Invalidity proceedings — EU word mark RESCUE — Absolute ground for refusal — Descriptive character — No distinctive character acquired through use — Article 7(1)(c) and (3) of Regulation (EC) No 207/2009 — Article 52(2) of Regulation No 207/2009) | 39 |
| 2016/C 419/51 | Case T-355/15: Judgment of the General Court of 30 September 2016 — Alpex Pharma v EUIPO — Astex Pharmaceuticals (ASTEX) (EU trade mark — Opposition proceedings — Application for EU word mark ASTEX — Earlier EU word mark ALPEX — No genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76(1) of Regulation No 207/2009) | 40 |
| 2016/C 419/52 | Case T-370/15: Judgment of the General Court of 5 October 2016 — CJ v ECDC (Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard) | 40 |
| 2016/C 419/53 | Case T-395/15: Judgment of the General Court of 5 October 2016 — ECDC v CJ (Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard) | 41 |
| 2016/C 419/54 | Case T-430/15: Order of the General Court of 30 September 2016 — Flowil International Lighting v EUIPO — Lorimod Prod Com (Silvania Food) (EU trade mark — Opposition proceedings — Application for EU figurative trade mark Silvania Food — Earlier EU word marks SYLVANIA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(5) of Regulation No 207/2009) | 42 |
| 2016/C 419/55 | Case T-456/15: Judgment of the General Court of 5 October 2016 — Foodcare v EUIPO — Michalczewski (T.G.R. ENERGY DRINK) (EU trade mark — Invalidity proceedings — EU word mark T.G.R. ENERGY DRINK — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009) | 42 |
| 2016/C 419/56 | Case T-574/15: Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (KOZMeTIKA AFRODITA) (EU trade mark — Opposition proceedings — Application for EU figurative mark KOZMeTIKA AFRODITA — Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 43 |
| 2016/C 419/57 | Case T-575/15: Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (AFRODITA COSMETICS) (EU trade mark — Opposition proceedings — Application for EU figurative mark AFRODITA COSMETICS — Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 43 |
| 2016/C 419/58 | Case T-593/15: Judgment of the General Court of 28 September 2016 — The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW) (EU trade mark — Opposition proceedings — Application for EU word mark THE ART OF RAW — Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 44 |
| 2016/C 419/59 | Case T-73/15: Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car) (European Union trade mark — Withdrawal of the application for registration — No need to adjudicate) | 45 |
| 2016/C 419/60 | Case T-87/15: Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car) (European Union trade mark — Withdrawal of the application for registration — No need to adjudicate) | 45 |
| 2016/C 419/61 | Case T-382/15: Order of the General Court of 26 September 2016 — Greenpeace Energy and Others v Commission (Action for annulment — State aid — Nuclear energy — Aid in support of Hinkley Point C nuclear power station — Contract for difference, agreement of the Secretary of State and credit guarantee — Decision declaring the aid to be compatible with the internal market — Absence of any significant effect on a competitive position — Lack of individual concern — Inadmissibility) | 46 |
| 2016/C 419/62 | Case T-408/16: Action brought on 27 July 2016 — HX v Council | 46 |
| 2016/C 419/63 | Case T-458/16: Action brought on 28 July 2016 — Acquafarm v Commission | 47 |
| 2016/C 419/64 | Case T-637/16: Action brought on 6 September 2016 — Wabco Europe v Commission | 48 |
| 2016/C 419/65 | Case T-639/16 P: Appeal brought on 7 September 2016 by FV against the judgment of the Civil Service Tribunal of 28 June 2016 in Case F-40/15, FV v Council | 49 |
| 2016/C 419/66 | Case T-643/16: Action brought on 11 September 2016 — Gamaa Islamya Egypte v Council | 50 |
| 2016/C 419/67 | Case T-646/16 P: Appeal brought on 6 September 2016 by Erik Simpson against the order of the Civil Service Tribunal of 24 June 2016 in Case F-142/11 RENV Simpson v Council | 51 |
| 2016/C 419/68 | Case T-652/16 P: Appeal brought on 16 September 2016 by HD against the judgment of the Civil Service Tribunal of 21 July 2016 in Case F-136/15, HD v Parliament | 51 |
| 2016/C 419/69 | Case T-671/16: Action brought on 20 September 2016 — Vincent Villeneuve v Commission | 52 |
| 2016/C 419/70 | Case T-674/16: Action brought on 22 September 2016 — Seigneur v ECB | 53 |
| 2016/C 419/71 | Case T-677/16: Action brought on 22 September 2016 — Bowles v ECB | 54 |
| 2016/C 419/72 | Case T-678/16 P: Appeal brought on 23 September 2016 by Sergio Siragusa against the order of the Civil Service Tribunal of 13 July 2016 in Case F-124/15, Siragusa v Council | 55 |
| 2016/C 419/73 | Case T-679/16: Action brought on 26 September 2016 — Athletic Club v Commission | 56 |
| 2016/C 419/74 | Case T-707/16: Action brought on 3 October 2016 — Enoitalia v EUIPO — La Rural Viñedos y Bodegas (ANTONIO RUBINI) | 57 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2016/C 419/02

Case C-165/14: Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Alfredo Rendón Marín v Administración del Estado (Reference for a preliminary ruling — Citizenship of the Union — Articles 20 and 21 TFEU — Directive 2004/38/EC — Right of a third-country national with a criminal record to reside in a Member State — Parent having sole care of two minor children, who are Union citizens — First child possessing the nationality of the Member State of residence — Second child possessing the nationality of another Member State — National legislation precluding grant of a residence permit to the father because of his criminal record — Refusal of residence capable of resulting in the children being obliged to leave the territory of the European Union)

2

2016/C 419/03

Case C-304/14: Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) — United Kingdom) — Secretary of State for the Home Department v CS (Reference for a preliminary ruling — Citizenship of the Union — Article 20 TFEU — Third-country national having a young dependent child who is a Union citizen — Right to reside in the Member State of which the child is a national — Criminal convictions of the child’s parent — Decision to expel the parent resulting in the indirect expulsion of the child concerned)

3

2016/C 419/04

Joined Cases C-439/14 and C-488/14: Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Curtea de Apel Bucureşti, Curtea de Apel Oradea — Romania) — SC Star Storage SA v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) (C-439/14), SC Max Boegl România SRL and Others v RA Aeroportul Oradea and Others (C-488/14) (Reference for a preliminary ruling — Directives 89/665/EEC and 92/13/EEC — Public procurement — Review procedures — National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a good conduct guarantee — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy)

3

2016/C 419/05

Case C-484/14: Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Landgericht München I — Germany) — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the network — Infringement of rights of rightholders over a protected work — Duty to secure the network — Tortious liability of the trader)

4

2016/C 419/06

Case C-516/14: Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Barlis 06 — Investimentos Imobiliários e Turísticos SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 178(a) — Right of deduction — Conditions of exercise — Article 226(6) and (7) — Details required in invoices — Extent and nature of the services rendered — Date on which the supply of services is made)

6

2016/C 419/07

Case C-518/14: Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Niedersächsisches Finanzgericht — Germany) — Senatex GmbH v Finanzamt Hannover-Nord (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Article 167, Article 178(a), Article 179 and Article 226(3) — Deduction of input tax — Invoices not showing a tax number or VAT identification number — Legislation of a Member State excluding the ex tunc correction of an invoice)

6

2016/C 419/08

Case C-525/14: Judgment of the Court (Second Chamber) of 22 September 2016 — European Commission v Czech Republic (Failure of a Member State to fulfil obligations — Free movement of goods — Article 34 TFEU — Quantitative restrictions on imports — Measures having equivalent effect — Precious metals hallmarked in a third country in accordance with Netherlands legislation — Import into the Czech Republic after being put into free circulation — Refusal to recognise the hallmark — Consumer protection — Proportionality — Admissibility)

7

2016/C 419/09

Case C-574/14: Judgment of the Court (Fifth Chamber) of 15 September 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — PGE Górnictwo i Energetyka Konwencjonalna S.A. v Prezes Urzędu Regulacji Energetyki (Reference for a preliminary ruling — State aid — Power Purchase Agreements — Compensation paid for voluntary termination — Commission decision finding State aid compatible with the internal market — Assessment of the lawfulness of aid by a national court — Annual adjustment of stranded costs — Point at which an energy generator’s membership of a group of undertakings is taken into account)

8

2016/C 419/10

Case C-592/14: Judgment of the Court (First Chamber) of 21 September 2016 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — European Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills, Attorney General (Reference for a preliminary ruling — Approximation of laws — Cosmetic products — Regulation (EC) No 1223/2009 — Article 18(1)(b) — Cosmetic products containing ingredients, or a combination of ingredients, which have been the subject of animal testing in order to meet the requirements of this Regulation — Prohibition of marketing within the European Union — Scope)

9

2016/C 419/11

Case C-596/14: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Ana de Diego Porras v Ministerio de Defensa (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Concept of employment conditions — Compensation for termination of a contract of employment — Compensation not provided for by the national legislation for temporary employment contracts — Difference of treatment as compared with permanent workers)

9

2016/C 419/12

Joined Cases C-8/15 P to C-10/15 P: Judgment of the Court (Grand Chamber) of 20 September 2016 — Ledra Advertising Ltd (C-8/15 P), Andreas Eleftheriou (C-9/15 P), Eleni Eleftheriou (C-9/15 P), Lilia Papachristofi (C-9/15 P), Christos Theophilou (C-10/15 P), Eleni Theophilou (C-10/15 P) v European Commission, European Central Bank (Appeals — Stability support programme for the Republic of Cyprus — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) — Duties of the European Commission and the European Central Bank — Non-contractual liability of the European Union — Second paragraph of Article 340 TFEU — Conditions — Obligation to ensure that the Memorandum of Understanding is consistent with EU law)

10

2016/C 419/13

Joined Cases C-14/15 and C-116/15: Judgment of the Court (Third Chamber) of 22 September 2016 — European Parliament v Council of the European Union (Actions for annulment — Police and judicial cooperation in criminal matters — Automated data exchange — Registration of vehicles — Dactyloscopic data — Legal framework applicable following the entry into force of the Treaty of Lisbon — Transitional provisions — Secondary legal basis — Distinction between legislative acts and implementing measures — Consultation of the European Parliament — Initiative of a Member State or of the European Commission — Voting rules)

11

2016/C 419/14

Case C-16/15: Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid) (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 3 to 5 — Successive fixed-term employment contracts within the public health service — Measures to prevent the abusive use of successive fixed-term employment relationships — Penalties — Reclassification of the employment relationship — Right to compensation)

12

2016/C 419/15

Case C-28/15: Judgment of the Court (Second Chamber) of 15 September 2016 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM) (Reference for a preliminary ruling — Common regulatory framework for electronic communications networks and services — Directive 2002/21/EC — Articles 4 and 19 — National Regulatory Authority — Harmonisation measures — Recommendation 2009/396/EC — Legal scope — Directive 2002/19/EC — Articles 8 and 13 — Operator designated as having significant market power on a market — Obligations imposed by national regulatory authorities — Price control and cost accounting obligations — Fixed and mobile call termination rates — Scope of the review that national courts can exercise over the decisions of national regulatory authorities)

13

2016/C 419/16

Case C-91/15: Judgment of the Court (Eighth Chamber) of 22 September 2016 (request for a preliminary ruling from the Gerechtshof Amsterdam — Netherlands) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane (Reference for a preliminary ruling — Assessment of validity — Regulation (EC) No 1051/2009 — Common Customs Tariff — Tariff classification — Combined Nomenclature — Heading 8701 — Tractors — Subheadings 8701 90 11 to 8701 90 39 — Agricultural tractors (excluding pedestrian-controlled tractors) and forestry tractors, wheeled, new — Light four-wheeled all terrain vehicles designed to be used as tractors)

14

2016/C 419/17

Joined Cases C-105/15 P to C-109/15 P: Judgment of the Court (Grand Chamber) of 20 September 2016 — Konstantinos Mallis (C-105/15 P), Elli Konstantinou Malli (C-105/15 P), Tameio Pronoias Prosopikou Trapezis Kyprou (C-106/15 P), Petros Chatzithoma (C-107/15 P), Elenitsa Chatzithoma (C-107/15 P), Lella Chatziioannou (C-108/15 P), Marinos Nikolaou (C-109/15 P) v European Commission, European Central Bank (Appeals — Stability support programme for the Republic of Cyprus — Eurogroup statement concerning, in particular, the restructuring of the banking sector in Cyprus — Actions for annulment)

14

2016/C 419/18

Case C-110/15: Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Microsoft Mobile Sales International Oy, formerly Nokia Italia SpA and Others v Ministero per i beni e le attività culturali (MIBAC) and Others (Reference for a preliminary ruling — Approximation of laws — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Exclusive right of reproduction — Exceptions and limitations — Article 5(2)(b) — Private copying exception — Fair compensation — Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation — Request for reimbursement of compensation confined to the final user)

15

2016/C 419/19

Case C-113/15: Judgment of the Court (Third Chamber) of 22 September 2016 (request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Breitsamer und Ulrich GmbH & Co. KG v Landeshauptstadt München (Reference for a preliminary ruling — Directive 2000/13/EC — Labelling and presentation of foodstuffs — Article 1(3)(b) — Concept of pre-packaged foodstuff — Article 2 — Consumer information and protection — Article 3(1)(8) — Place of origin or provenance of a foodstuff — Article 13(1) — Labelling of a prepackaged foodstuff — Article 13(4) — Packaging or containers the largest surface of which has an area of less than 10 cm2 — Directive 2001/110/EC — Article 2(4) — Indication of the country or countries of origin of honey — Individual portions of honey packaged in cartons supplied to mass caterers — Individual portions sold separately or supplied to ultimate consumers as part of meals for an all-inclusive price — Indication of the country or countries of origin of that honey)

16

2016/C 419/20

Case C-139/15 P: Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain (Appeal — Cohesion Fund — Reduction of financial assistance — Procedure of adoption of the decision by the European Commission — Existence of a time limit — Non-compliance with the time limit laid down — Consequences)

16

2016/C 419/21

Case C-140/15 P: Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain (Appeal — Cohesion Fund — Reduction of financial assistance — Procedure of adoption of the decision by the European Commission — Existence of a time limit — Non-compliance with the time limit laid down — Consequences)

17

2016/C 419/22

Joined Cases C-184/15 and C-197/15: Judgment of the Court (Tenth Chamber) of 14 September 2016 (requests for a preliminary ruling from the Tribunal Superior de Justicia del País Vasco — Spain) — Florentina Martínez Andrés v Servicio Vasco de Salud (C-184/15), Juan Carlos Castrejana López v Ayuntamiento de Vitoria (C-197/15) (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clauses 5 and 8 — Use of successive fixed-term employment contracts — Measures to prevent abuse resulting from the use of successive fixed-term employment contracts or relationships — Penalties — Reclassification of the fixed-term employment relationship as a non-permanent employment contract of indefinite duration — Principle of effectiveness)

18

2016/C 419/23

Case C-221/15: Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Criminal proceedings against Etablissements Fr. Colruyt NV (Reference for a preliminary ruling — Directive 2011/64/EU — Article 15(1) — Free determination, by the manufacturers and importers, of the maximum retail selling prices of manufactured tobacco products — National regulation prohibiting the sale of such products by retailers at prices lower than those indicated on the revenue stamp — Free movement of goods — Article 34 TFEU — Selling arrangements — Article 101 TFEU, read in conjunction with Article 4(3) TEU)

19

2016/C 419/24

Case C-223/15: Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — combit Software GmbH v Commit Business Solutions Ltd (Reference for a preliminary ruling — Regulation (EC) No 207/2009 — European Union trade mark — Unitary character — Finding of a likelihood of confusion in respect of only part of the European Union — Territorial scope of the prohibition referred to in Article 102 of that regulation)

19

2016/C 419/25

Case C-261/15: Judgment of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Vredegerecht te Ieper — Belgium) — Nationale Maatschappij der Belgische Spoorwegen NV v Gregory Demey (Rail transport — Regulation (EC) No 1371/2007 — Passengers’ rights and obligations — Absence of a ticket — Failure to regularise within the prescribed period — Criminal offence)

20

2016/C 419/26

Case C-304/15: Judgment of the Court (Seventh Chamber) of 21 September 2016 — European Commission v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2001/80/EC — Article 4(3) — Annex VI, Part A — Limitation of emissions of certain pollutants into the air from large combustion plants — Application — Aberthaw Power Station)

21

2016/C 419/27

Case C-400/15: Judgment of the Court (Eighth Chamber) of 15 September 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Landkreis Potsdam-Mittelmark v Finanzamt Brandenburg (Reference for a preliminary ruling — Taxation — Value Added Tax — Sixth Council Directive 77/388/EEC — Right to deduction — Decision 2004/817/EC — Legislative provision of a Member State — Expenditure on goods and services — Extent of use of goods or services for non-economic purposes greater than 90 % of total use — Exclusion of the right to deduct)

21

2016/C 419/28

Case C-442/15 P: Judgment of the Court (Eighth Chamber) of 22 September 2016 — Pensa Pharma SA v European Union Intellectual Property Office, Ferring BV, Farmaceutisk Laboratorium Ferring A/S (Appeal — EU trade mark — Word mark PENSA PHARMA — Figurative mark pensa — Applications for a declaration of invalidity of the holders of the word marks pentasa — Declaration of invalidity — Proceedings before EUIPO — Change in the subject matter of the proceedings — New plea before the General Court)

22

2016/C 419/29

Case C-478/15: Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Peter Radgen, Lilian Radgen v Finanzamt Ettlingen (Reference for a preliminary ruling — Taxation — Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Equal treatment — Income tax — Exemption of income derived from part-time employment as a teacher with a legal person governed by public law established in a Member State of the European Union or in a State to which the Agreement on the European Economic Area of 2 May 1992 applies — Legislation of a Member State excluding from that exemption income derived from such employment with a legal person governed by public law established in Switzerland)

22

2016/C 419/30

Joined Cases C-490/15 P and C-505/15 P: Judgment of the Court (Sixth Chamber) of 14 September 2016 — Ori Martin SA C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Setting of the fines — Regulation (EC) No 1/2003 — Article 23(2) — Presumption of actual exercise of decisive influence by the parent company over the subsidiary — The 2006 Guidelines on the method of setting fines — Principle of non-retroactivity — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy within a reasonable time — Charter of Fundamental Rights — Article 41 — Right to proceedings being conducted within a reasonable time)

23

2016/C 419/31

Case C-519/15 P: Judgment of the Court (Sixth Chamber) of 14 September 2016 — Trafilerie Meridionali SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Setting of the fines — 2006 Guidelines for the setting of fines — Point 35 — Unlimited jurisdiction — Obligation to state reasons — Charter of Fundamental Rights of the European Union — Article 47 — Right to an effective remedy within a reasonable time)

24

2016/C 419/32

Case C-595/15 P: Judgment of the Court (Seventh Chamber) of 22 September 2016 — National Iranian Oil Company PTE Ltd (NIOC) and Others v Council of the European Union (Appeal — Restrictive measures taken against the Islamic Republic of Iran — List of persons and entities subject to the freezing of funds and economic resources — Implementing Regulation (EU) No 945/2012 — Legal basis — Meaning of associated entity)

24

2016/C 419/33

Case C-130/16 P: Appeal brought on 1 March 2016 by Anastasia-Soultana Gaki against the order of the General Court (Ninth Chamber) made on 16 December 2015 in Case T-547/15, Anastasia-Soultana Gaki v European Commission

25

2016/C 419/34

Case C-394/16: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG

25

2016/C 419/35

Case C-395/16: Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 15 July 2016 — DOCERAM GmbH v CeramTec GmbH

26

2016/C 419/36

Case C-414/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 July 2016 — Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.

27

2016/C 419/37

Case C-418/16 P: Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon

28

2016/C 419/38

Case C-435/16: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2016 — Acacia Srl and Rolando D’Amato v Dr.Ing. h.c. F. Porsche AG

29

2016/C 419/39

Case C-441/16: Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București

30

2016/C 419/40

Case C-473/16: Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 29 August 2016 — F v Bevándorlási és Állampolgársági Hivatal

31

2016/C 419/41

Case C-476/16: Request for a preliminary ruling from the Ministarstvo pomorstva, prometa i infrastrukture — Uprava zračnog prometa, elektroničkih komunikacija i pošte (Croatia) lodged on 30 August 2016 — Hrvatska agencija za civilno zrakoplovstvo v Air Serbia A.D. Beograd, and Dane Kondič, direktor Air Serbia A.D. Beograd

31

2016/C 419/42

Case C-480/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 September 2016 — Fidelity Funds v Skatteministeriet

32

2016/C 419/43

Case C-483/16: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 September 2016 — Zsolt Sziber v ERSTE Bank Hungary Zrt.

32

2016/C 419/44

Case C-490/16: Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 14 September 2016 — A.S. v Republic of Slovenia

34

General Court

2016/C 419/45

Case T-549/14: Judgment of the General Court of 4 October 2016 — Lidl Stiftung v EUIPO — Horno del Espinar (Castello) (EU trade mark — Opposition proceedings — Application for the EU word mark Castello — Earlier national and EU figurative marks Castelló — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

36

2016/C 419/46

Case T-724/14: Judgment of the General Court of 5 October 2016 — European Children's Fashion Association and Instituto de Economía Pública v EACEA (Arbitration clause — Grant agreement concluded under the action programme Lifelong Learning (2007-2013) — Brand & Merchandising manager for SMEs in the childrens’ product sector project — Action for annulment — Act not subject to appeal — Act forming part of a purely contractual agreement from which it is indissociable — Inadmissibility — Ineligible expenditure — Reimbursement of the sums paid — Audit report)

37

2016/C 419/47

Case T-70/15: Judgment of the General Court of 30 September 2016 — Trajektna luka Split v Commission (Competition — Abuse of dominant position — Decision finding an infringement of Article 102 TFEU — Setting of fees by the Split Port Authority for port services in respect of domestic traffic at maximum levels — Rejection of a complaint — Case being dealt with by a competition authority of a Member State — No EU interest)

37

2016/C 419/48

Case T-129/15 and T-130/15: Judgment of the General Court of 28 September 2016 — Intesa Sanpaolo v EUIPO (WAVE 2 PAY and WAVE TO PAY) (EU trade mark — Application for EU word marks WAVE 2 PAY and WAVE TO PAY — Absolute grounds for refusal — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009)

38

2016/C 419/49

Case T-335/15: Judgment of the General Court of 29 September 2016 — Universal Protein Supplements v EUIPO (Representation of a body builder) (EU trade mark — Application for registration of an EU figurative mark representing a body-builder — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

39

2016/C 419/50

Case T-337/15: Judgment of the General Court of 29 September 2016 — Bach Flower Remedies v EUIPO — Durapharma (RESCUE) (EU trade mark — Invalidity proceedings — EU word mark RESCUE — Absolute ground for refusal — Descriptive character — No distinctive character acquired through use — Article 7(1)(c) and (3) of Regulation (EC) No 207/2009 — Article 52(2) of Regulation No 207/2009)

39

2016/C 419/51

Case T-355/15: Judgment of the General Court of 30 September 2016 — Alpex Pharma v EUIPO — Astex Pharmaceuticals (ASTEX) (EU trade mark — Opposition proceedings — Application for EU word mark ASTEX — Earlier EU word mark ALPEX — No genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76(1) of Regulation No 207/2009)

40

2016/C 419/52

Case T-370/15: Judgment of the General Court of 5 October 2016 — CJ v ECDC (Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard)

40

2016/C 419/53

Case T-395/15: Judgment of the General Court of 5 October 2016 — ECDC v CJ (Appeal — Civil service — Member of the contract staff — Fixed-term contract — Termination — Breakdown in the relationship of trust — Right to be heard)

41

2016/C 419/54

Case T-430/15: Order of the General Court of 30 September 2016 — Flowil International Lighting v EUIPO — Lorimod Prod Com (Silvania Food) (EU trade mark — Opposition proceedings — Application for EU figurative trade mark Silvania Food — Earlier EU word marks SYLVANIA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 8(5) of Regulation No 207/2009)

42

2016/C 419/55

Case T-456/15: Judgment of the General Court of 5 October 2016 — Foodcare v EUIPO — Michalczewski (T.G.R. ENERGY DRINK) (EU trade mark — Invalidity proceedings — EU word mark T.G.R. ENERGY DRINK — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009)

42

2016/C 419/56

Case T-574/15: Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (KOZMeTIKA AFRODITA) (EU trade mark — Opposition proceedings — Application for EU figurative mark KOZMeTIKA AFRODITA — Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

43

2016/C 419/57

Case T-575/15: Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (AFRODITA COSMETICS) (EU trade mark — Opposition proceedings — Application for EU figurative mark AFRODITA COSMETICS — Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

43

2016/C 419/58

Case T-593/15: Judgment of the General Court of 28 September 2016 — The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW) (EU trade mark — Opposition proceedings — Application for EU word mark THE ART OF RAW — Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

44

2016/C 419/59

Case T-73/15: Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car) (European Union trade mark — Withdrawal of the application for registration — No need to adjudicate)

45

2016/C 419/60

Case T-87/15: Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car) (European Union trade mark — Withdrawal of the application for registration — No need to adjudicate)

45

2016/C 419/61

Case T-382/15: Order of the General Court of 26 September 2016 — Greenpeace Energy and Others v Commission (Action for annulment — State aid — Nuclear energy — Aid in support of Hinkley Point C nuclear power station — Contract for difference, agreement of the Secretary of State and credit guarantee — Decision declaring the aid to be compatible with the internal market — Absence of any significant effect on a competitive position — Lack of individual concern — Inadmissibility)

46

2016/C 419/62

Case T-408/16: Action brought on 27 July 2016 — HX v Council

46

2016/C 419/63

Case T-458/16: Action brought on 28 July 2016 — Acquafarm v Commission

47

2016/C 419/64

Case T-637/16: Action brought on 6 September 2016 — Wabco Europe v Commission

48

2016/C 419/65

Case T-639/16 P: Appeal brought on 7 September 2016 by FV against the judgment of the Civil Service Tribunal of 28 June 2016 in Case F-40/15, FV v Council

49

2016/C 419/66

Case T-643/16: Action brought on 11 September 2016 — Gamaa Islamya Egypte v Council

50

2016/C 419/67

Case T-646/16 P: Appeal brought on 6 September 2016 by Erik Simpson against the order of the Civil Service Tribunal of 24 June 2016 in Case F-142/11 RENV Simpson v Council

51

2016/C 419/68

Case T-652/16 P: Appeal brought on 16 September 2016 by HD against the judgment of the Civil Service Tribunal of 21 July 2016 in Case F-136/15, HD v Parliament

51

2016/C 419/69

Case T-671/16: Action brought on 20 September 2016 — Vincent Villeneuve v Commission

52

2016/C 419/70

Case T-674/16: Action brought on 22 September 2016 — Seigneur v ECB

53

2016/C 419/71

Case T-677/16: Action brought on 22 September 2016 — Bowles v ECB

54

2016/C 419/72

Case T-678/16 P: Appeal brought on 23 September 2016 by Sergio Siragusa against the order of the Civil Service Tribunal of 13 July 2016 in Case F-124/15, Siragusa v Council

55

2016/C 419/73

Case T-679/16: Action brought on 26 September 2016 — Athletic Club v Commission

56

2016/C 419/74

Case T-707/16: Action brought on 3 October 2016 — Enoitalia v EUIPO — La Rural Viñedos y Bodegas (ANTONIO RUBINI)

57

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| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 14.11.2016 | EN | Official Journal of the European Union | C 419/1 |
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14.11.2016

EN

Official Journal of the European Union

C 419/1

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

(2016/C 419/01)

Last publication

OJ C 410, 7.11.2016

Past publications

OJ C 402, 31.10.2016

OJ C 392, 24.10.2016

OJ C 383, 17.10.2016

OJ C 371, 10.10.2016

OJ C 364, 3.10.2016

OJ C 350, 26.9.2016

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 14.11.2016 | EN | Official Journal of the European Union | C 419/2 |
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14.11.2016

EN

Official Journal of the European Union

C 419/2

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Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Alfredo Rendón Marín v Administración del Estado

(Case C-165/14) (1)

((Reference for a preliminary ruling - Citizenship of the Union - Articles 20 and 21 TFEU - Directive 2004/38/EC - Right of a third-country national with a criminal record to reside in a Member State - Parent having sole care of two minor children, who are Union citizens - First child possessing the nationality of the Member State of residence - Second child possessing the nationality of another Member State - National legislation precluding grant of a residence permit to the father because of his criminal record - Refusal of residence capable of resulting in the children being obliged to leave the territory of the European Union))

(2016/C 419/02)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellant: Alfredo Rendón Marín

Respondent: Administración del Estado

Operative part of the judgment

Article 21 TFEU and 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 must be interpreted as precluding national legislation which requires a third-country national to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record where he is the parent of a minor child who is a Union citizen and a national of a Member State other than the host Member State and who is his dependant and resides with him in the host Member State.

Article 20 TFEU must be interpreted as precluding the same national legislation which requires a third-country national who is a parent of minor children who are Union citizens in his sole care to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record, where that refusal has the consequence of requiring those children to leave the territory of the European Union.

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(1)  OJ C 175, 10.6.2014.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/3 |
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14.11.2016

EN

Official Journal of the European Union

C 419/3

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Judgment of the Court (Grand Chamber) of 13 September 2016 (request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) — United Kingdom) — Secretary of State for the Home Department v CS

(Case C-304/14) (1)

((Reference for a preliminary ruling - Citizenship of the Union - Article 20 TFEU - Third-country national having a young dependent child who is a Union citizen - Right to reside in the Member State of which the child is a national - Criminal convictions of the child’s parent - Decision to expel the parent resulting in the indirect expulsion of the child concerned))

(2016/C 419/03)

Language of the case: English

Referring court

Upper Tribunal (Immigration and Asylum Chamber)

Parties to the main proceedings

Appellant: Secretary of State for the Home Department

Respondent: CS

Operative part of the judgment

Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

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(1)  OJ C 315, 15.9.2014.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/3 |
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14.11.2016

EN

Official Journal of the European Union

C 419/3

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Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Curtea de Apel Bucureşti, Curtea de Apel Oradea — Romania) — SC Star Storage SA v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) (C-439/14), SC Max Boegl România SRL and Others v RA Aeroportul Oradea and Others (C-488/14)

(Joined Cases C-439/14 and C-488/14) (1)

((Reference for a preliminary ruling - Directives 89/665/EEC and 92/13/EEC - Public procurement - Review procedures - National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a ‘good conduct guarantee’ - Charter of Fundamental Rights of the European Union - Article 47 - Right to an effective remedy))

(2016/C 419/04)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti, Curtea de Apel Oradea

Parties to the main proceedings

Applicants: SC Star Storage SA (C-439/14), SC Max Boegl România SRL, SC UTI Grup SA, Astaldi SpA, SC Construcții Napoca SA (C-488/14)

Defendants: Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) (C-439/14), RA Aeroportul Oradea, SC Porr Construct SRL, Teerag-Asdag Aktiengesellschaft SC Col-Air Trading SRL, AVZI SA, Trameco SA, Iamsat Muntenia SA (C-488/14)

Operative part of the judgment

Article 1(1) to (3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Article 1(1) to (3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, and read in the light of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which makes the admissibility of any action against an act of the contracting authority subject to the obligation for the applicant to constitute a good conduct guarantee that it provides to the contracting authority, if that guarantee must be refunded to the applicant whatever the outcome of the action.

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(1)  OJ C 448, 15.12.2014.

OJ C 26, 26.01.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/4 |
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14.11.2016

EN

Official Journal of the European Union

C 419/4

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Judgment of the Court (Third Chamber) of 15 September 2016 (request for a preliminary ruling from the Landgericht München I — Germany) — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH

(Case C-484/14) (1)

((Reference for a preliminary ruling - Information society - Free movement of services - Commercial wireless local area network (WLAN) - Made available to the general public free of charge - Liability of intermediary service providers - Mere conduit - Directive 2000/31/EC - Article 12 - Limitation of liability - Unknown user of the network - Infringement of rights of rightholders over a protected work - Duty to secure the network - Tortious liability of the trader))

(2016/C 419/05)

Language of the case: German

Referring court

Landgericht München I

Parties to the main proceedings

Applicant: Tobias Mc Fadden

Defendant: Sony Music Entertainment Germany GmbH

Operative part of the judgment

| 1. | Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a service such as that at issue in the main proceedings, provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider. |
| --- | --- |

1.

Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a service such as that at issue in the main proceedings, provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider.

| 2. | Article 12(1) of Directive 2000/31 must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied. |
| --- | --- |

2.

Article 12(1) of Directive 2000/31 must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied.

| 3. | Article 12(1) of Directive 2000/31 must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1) of Directive 2000/31. |
| --- | --- |

3.

Article 12(1) of Directive 2000/31 must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1) of Directive 2000/31.

| 4. | Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are no conditions, other than the one mentioned in that provision, to which a service provider supplying access to a communication network is subject. |
| --- | --- |

4.

Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are no conditions, other than the one mentioned in that provision, to which a service provider supplying access to a communication network is subject.

| 5. | Article 12(1) of Directive 2000/31 must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue. |
| --- | --- |

5.

Article 12(1) of Directive 2000/31 must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue.

| 6. | Having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, must be interpreted as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain. |
| --- | --- |

6.

Having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, must be interpreted as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain.

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(1)  OJ C 46, 9.2.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/6 |
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14.11.2016

EN

Official Journal of the European Union

C 419/6

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Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Barlis 06 — Investimentos Imobiliários e Turísticos SA v Autoridade Tributária e Aduaneira

(Case C-516/14) (1)

((Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - Article 178(a) - Right of deduction - Conditions of exercise - Article 226(6) and (7) - Details required in invoices - Extent and nature of the services rendered - Date on which the supply of services is made))

(2016/C 419/06)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Barlis 06 — Investimentos Imobiliários e Turísticos SA

Defendant: Autoridade Tributária e Aduaneira

Operative part of the judgment

Article 226 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that invoices mentioning only ‘legal services rendered from [a date] until the present date’, such as those at issue in the main proceedings, do not a priori comply with the requirements of point 6 of that article and that invoices mentioning only ‘legal services rendered until the present date’ do not a priori comply either with the requirements of point 6 or with those of point 7 of that article, which is, however, for the referring tribunal to ascertain.

Article 178(a) of Directive 2006/112 must be interpreted as precluding the national tax authorities from refusing the right to deduct value added tax solely because the taxable person holds an invoice which does not satisfy the conditions required by Article 226(6) and (7) of that directive, even though those authorities have available all the necessary information for ascertaining whether the substantive conditions for the exercise of that right are satisfied.

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(1)  OJ C 34, 2.2.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/6 |
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14.11.2016

EN

Official Journal of the European Union

C 419/6

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Judgment of the Court (Fourth Chamber) of 15 September 2016 (request for a preliminary ruling from the Niedersächsisches Finanzgericht — Germany) — Senatex GmbH v Finanzamt Hannover-Nord

(Case C-518/14) (1)

((Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - Article 167, Article 178(a), Article 179 and Article 226(3) - Deduction of input tax - Invoices not showing a tax number or VAT identification number - Legislation of a Member State excluding the ex tunc correction of an invoice))

(2016/C 419/07)

Language of the case: German

Referring court

Niedersächsisches Finanzgericht

Parties to the main proceedings

Applicant: Senatex GmbH

Defendant: Finanzamt Hannover-Nord

Operative part of the judgment

Article 167, Article 178(a), Article 179 and Article 226(3) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which the correction of an invoice in relation to a detail which must be mentioned, namely the value added tax identification number, does not have retroactive effect, so that the right to deduct value added tax exercised on the basis of the corrected invoice relates not to the year in which the invoice was originally drawn up but to the year in which it was corrected.

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(1)  OJ C 34, 2.2.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/7 |
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14.11.2016

EN

Official Journal of the European Union

C 419/7

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Judgment of the Court (Second Chamber) of 22 September 2016 — European Commission v Czech Republic

(Case C-525/14) (1)

((Failure of a Member State to fulfil obligations - Free movement of goods - Article 34 TFEU - Quantitative restrictions on imports - Measures having equivalent effect - Precious metals hallmarked in a third country in accordance with Netherlands legislation - Import into the Czech Republic after being put into free circulation - Refusal to recognise the hallmark - Consumer protection - Proportionality - Admissibility))

(2016/C 419/08)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: P. Němečková, E. Manhaeve and G. Wilms, acting as Agents)

Defendant: Czech Republic (represented by: M. Smolek, T. Müller, J. Vláčil and J. Očková, acting as Agents)

Intervener in support of the defendant: French Republic (represented by: D. Colas and R. Coesme, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Declares that, by refusing to recognise the hallmarks of the WaarborgHolland assay office, the Czech Republic has failed to fulfil its obligations under Article 34 TFEU; |
| --- | --- |

1.

Declares that, by refusing to recognise the hallmarks of the WaarborgHolland assay office, the Czech Republic has failed to fulfil its obligations under Article 34 TFEU;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders the European Commission, the Czech Republic and the French Republic to bear their own costs. |
| --- | --- |

3.

Orders the European Commission, the Czech Republic and the French Republic to bear their own costs.

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(1)  OJ C 46, 9.2.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/8 |
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14.11.2016

EN

Official Journal of the European Union

C 419/8

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Judgment of the Court (Fifth Chamber) of 15 September 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — PGE Górnictwo i Energetyka Konwencjonalna S.A. v Prezes Urzędu Regulacji Energetyki

(Case C-574/14) (1)

((Reference for a preliminary ruling - State aid - Power Purchase Agreements - Compensation paid for voluntary termination - Commission decision finding State aid compatible with the internal market - Assessment of the lawfulness of aid by a national court - Annual adjustment of stranded costs - Point at which an energy generator’s membership of a group of undertakings is taken into account))

(2016/C 419/09)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: PGE Górnictwo i Energetyka Konwencjonalna S.A.

Defendant: Prezes Urzędu Regulacji Energetyki

Operative part of the judgment

| 1. | Article 107 TFEU and Article 4(3) TEU, read together with Article 4(2) of Commission Decision 2009/287/EC of 25 September 2007 on State aid awarded by Poland as part of Power Purchase Agreements and the State aid which Poland is planning to award concerning compensation for the voluntary termination of Power Purchase Agreements must be interpreted as precluding, where the European Commission has assessed a State aid scheme in the light of the Commission Communication of 26 July 2001 relating to the methodology for analysing State aid linked to stranded costs and classified it as being compatible with the internal market before its implementation, the national authorities and courts from reviewing in turn, at the time the State aid in question is implemented, whether it is consistent with the principles set out in that methodology; |
| --- | --- |

1.

Article 107 TFEU and Article 4(3) TEU, read together with Article 4(2) of Commission Decision 2009/287/EC of 25 September 2007 on State aid awarded by Poland as part of Power Purchase Agreements and the State aid which Poland is planning to award concerning compensation for the voluntary termination of Power Purchase Agreements must be interpreted as precluding, where the European Commission has assessed a State aid scheme in the light of the Commission Communication of 26 July 2001 relating to the methodology for analysing State aid linked to stranded costs and classified it as being compatible with the internal market before its implementation, the national authorities and courts from reviewing in turn, at the time the State aid in question is implemented, whether it is consistent with the principles set out in that methodology;

| 2. | Article 4(1) and (2) of Decision 2009/287, read in the light of the Commission Communication of 26 July 2001 relating to the methodology for analysing State aid linked to stranded costs, must be interpreted as meaning that, in circumstances such as those in the main proceedings, when calculating the annual adjustment of the stranded costs compensation to be paid to a generator that is a member of a group of undertakings, account must be taken of that group membership and, therefore, the financial results of that group, on the date when adjustment is carried out. |
| --- | --- |

2.

Article 4(1) and (2) of Decision 2009/287, read in the light of the Commission Communication of 26 July 2001 relating to the methodology for analysing State aid linked to stranded costs, must be interpreted as meaning that, in circumstances such as those in the main proceedings, when calculating the annual adjustment of the stranded costs compensation to be paid to a generator that is a member of a group of undertakings, account must be taken of that group membership and, therefore, the financial results of that group, on the date when adjustment is carried out.

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(1)  OJ C 89, 16.3.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/9 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/9

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Judgment of the Court (First Chamber) of 21 September 2016 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — European Federation for Cosmetic Ingredients v Secretary of State for Business, Innovation and Skills, Attorney General

(Case C-592/14) (1)

((Reference for a preliminary ruling - Approximation of laws - Cosmetic products - Regulation (EC) No 1223/2009 - Article 18(1)(b) - Cosmetic products containing ingredients, or a combination of ingredients, which have been the subject of animal testing ‘in order to meet the requirements of this Regulation’ - Prohibition of marketing within the European Union - Scope))

(2016/C 419/10)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Applicant: European Federation for Cosmetic Ingredients

Defendants: Secretary of State for Business, Innovation and Skills, Attorney General

Intervening parties: Cruelty Free International, formerly British Union for the Abolition of Vivisection, European Coalition to End Animal Experiments

Operative part of the judgment

Article 18(1)(b) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products must be interpreted as meaning that it may prohibit the placing on the European Union market of cosmetic products containing some ingredients that have been tested on animals outside the European Union, in order to market cosmetic products in third countries, if the resulting data is used to prove the safety of those products for the purposes of placing them on the EU market.

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(1)  OJ C 81, 9.3.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/9 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/9

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Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Ana de Diego Porras v Ministerio de Defensa

(Case C-596/14) (1)

((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Principle of non-discrimination - Concept of ‘employment conditions’ - Compensation for termination of a contract of employment - Compensation not provided for by the national legislation for temporary employment contracts - Difference of treatment as compared with permanent workers))

(2016/C 419/11)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Applicant: Ana de Diego Porras

Defendant: Ministerio de Defensa

Operative part of the judgment

| 1. | Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the termination of his fixed-term employment contract. |
| --- | --- |

1.

Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as meaning that the concept of ‘employment conditions’ covers the compensation that the employer must pay to an employee on account of the termination of his fixed-term employment contract.

| 2. | Clause 4 of the framework agreement on fixed-term work annexed to Directive 1999/70 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which fails to provide any compensation for termination of a contract of employment to a worker employed under a temporary replacement contract while allowing such compensation to be granted, inter alia, to comparable workers employed under a contract of indefinite duration. The mere fact that the worker has carried out his work on the basis of a temporary replacement contract cannot constitute an objective ground justifying the failure to grant such compensation to that worker. |
| --- | --- |

2.

Clause 4 of the framework agreement on fixed-term work annexed to Directive 1999/70 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which fails to provide any compensation for termination of a contract of employment to a worker employed under a temporary replacement contract while allowing such compensation to be granted, inter alia, to comparable workers employed under a contract of indefinite duration. The mere fact that the worker has carried out his work on the basis of a temporary replacement contract cannot constitute an objective ground justifying the failure to grant such compensation to that worker.

---

(1)  OJ C 96, 23.3.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/10 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/10

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Judgment of the Court (Grand Chamber) of 20 September 2016 — Ledra Advertising Ltd (C-8/15 P), Andreas Eleftheriou (C-9/15 P), Eleni Eleftheriou (C-9/15 P), Lilia Papachristofi (C-9/15 P), Christos Theophilou (C-10/15 P), Eleni Theophilou (C-10/15 P) v European Commission, European Central Bank

(Joined Cases C-8/15 P to C-10/15 P) (1)

((Appeals - Stability support programme for the Republic of Cyprus - Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM) - Duties of the European Commission and the European Central Bank - Non-contractual liability of the European Union - Second paragraph of Article 340 TFEU - Conditions - Obligation to ensure that the Memorandum of Understanding is consistent with EU law))

(2016/C 419/12)

Language of the case: English

Parties

Appellants: Ledra Advertising Ltd (C-8/15 P), Andreas Eleftheriou (C-9/15 P), Eleni Eleftheriou (C-9/15 P), Lilia Papachristofi (C-9/15 P), Christos Theophilou (C-10/15 P), Eleni Theophilou (C-10/15 P) (represented by: A. Paschalides, dikigoros, A. Paschalidou, Barrister, and A. Riza QC, instructed by C. Paschalides, Solicitor)

Other parties to the proceedings: European Commission (represented by: J.-P. Keppenne and M. Konstantinidis, acting as Agents), European Central Bank (represented by: K. Laurinavičius and O. Heinz, acting as Agents, and H.-G. Kamann, Rechtsanwalt)

Operative part of the judgment

The Court:

| 1. | Sets aside the orders of the General Court of the European Union of 10 November 2014, Ledra Advertising v Commission and ECB (T-289/13, EU:T:2014:981), of 10 November 2014, Eleftheriou and Papachristofi v Commission and ECB (T-291/13, not published, EU:T:2014:978), and of 10 November 2014, Theophilou v Commission and ECB (T-293/13, not published, EU:T:2014:979); |
| --- | --- |

1.

Sets aside the orders of the General Court of the European Union of 10 November 2014, Ledra Advertising v Commission and ECB (T-289/13, EU:T:2014:981), of 10 November 2014, Eleftheriou and Papachristofi v Commission and ECB (T-291/13, not published, EU:T:2014:978), and of 10 November 2014, Theophilou v Commission and ECB (T-293/13, not published, EU:T:2014:979);

| 2. | Dismisses the actions brought before the General Court in Cases T-289/13, T-291/13 and T-293/13; |
| --- | --- |

2.

Dismisses the actions brought before the General Court in Cases T-289/13, T-291/13 and T-293/13;

| 3. | Orders Ledra Advertising Ltd, Andreas Eleftheriou, Eleni Eleftheriou, Lilia Papachristofi, Christos Theophilou, Eleni Theophilou, the European Commission and the European Central Bank (ECB) each to bear their own costs incurred both at first instance and on appeal. |
| --- | --- |

3.

Orders Ledra Advertising Ltd, Andreas Eleftheriou, Eleni Eleftheriou, Lilia Papachristofi, Christos Theophilou, Eleni Theophilou, the European Commission and the European Central Bank (ECB) each to bear their own costs incurred both at first instance and on appeal.

---

(1)  OJ C 171, 26.5.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/11 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/11

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Judgment of the Court (Third Chamber) of 22 September 2016 — European Parliament v Council of the European Union

(Joined Cases C-14/15 and C-116/15) (1)

((Actions for annulment - Police and judicial cooperation in criminal matters - Automated data exchange - Registration of vehicles - Dactyloscopic data - Legal framework applicable following the entry into force of the Treaty of Lisbon - Transitional provisions - Secondary legal basis - Distinction between legislative acts and implementing measures - Consultation of the European Parliament - Initiative of a Member State or of the European Commission - Voting rules))

(2016/C 419/13)

Language of the case: French

Parties

Applicant: European Parliament (represented by: F. Drexler, A. Caiola and M. Pencheva, acting as Agents)

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

Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze and A. Lippstreu, acting as Agents), and Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, E. Karlsson and L. Swedenborg, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Annuls Council Decision 2014/731/EU of 9 October 2014 on the launch of automated data exchange with regard to Vehicle Registration Data (VRD) in Malta, Council Decision 2014/743/EU of 21 October 2014 on the launch of automated data exchange with regard to vehicle registration data (VRD) in Cyprus, Council Decision 2014/744/EU of 21 October 2014 on the launch of automated data exchange with regard to Vehicle Registration Data (VRD) in Estonia, and Council Decision 2014/911/EU of 4 December 2014 on the launch of automated data exchange with regard to dactyloscopic data in Latvia; |
| --- | --- |

1.

Annuls Council Decision 2014/731/EU of 9 October 2014 on the launch of automated data exchange with regard to Vehicle Registration Data (VRD) in Malta, Council Decision 2014/743/EU of 21 October 2014 on the launch of automated data exchange with regard to vehicle registration data (VRD) in Cyprus, Council Decision 2014/744/EU of 21 October 2014 on the launch of automated data exchange with regard to Vehicle Registration Data (VRD) in Estonia, and Council Decision 2014/911/EU of 4 December 2014 on the launch of automated data exchange with regard to dactyloscopic data in Latvia;

| 2. | Maintains the effects of Decisions 2014/731, 2014/743, 2014/744 and 2014/911 until the entry into force of new acts intended to replace them; |
| --- | --- |

2.

Maintains the effects of Decisions 2014/731, 2014/743, 2014/744 and 2014/911 until the entry into force of new acts intended to replace them;

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

3.

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

| 4. | Orders the Federal Republic of Germany and the Kingdom of Sweden to bear their own costs. |
| --- | --- |

4.

Orders the Federal Republic of Germany and the Kingdom of Sweden to bear their own costs.

---

(1)  OJ C 96, 23.3.2015.

OJ C 146, 4.5.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/12 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/12

---

Judgment of the Court (Tenth Chamber) of 14 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 4 de Madrid — Spain) — María Elena Pérez López v Servicio Madrileño de Salud (Comunidad de Madrid)

(Case C-16/15) (1)

((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clauses 3 to 5 - Successive fixed-term employment contracts within the public health service - Measures to prevent the abusive use of successive fixed-term employment relationships - Penalties - Reclassification of the employment relationship - Right to compensation))

(2016/C 419/14)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 4 de Madrid

Parties to the main proceedings

Applicant: María Elena Pérez López

Defendant: Servicio Madrileño de Salud (Comunidad de Madrid)

Operative part of the judgment

| 1. | Clause 5(1)(a) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that:






  — | the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent; |
| --- | --- | --- |

1.

Clause 5(1)(a) of the framework agreement on fixed-term work, concluded on 18 March 1999, set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding the application of national legislation, such as that at issue in the main proceedings, by the authorities of the Member State concerned in such a way that:

—

the renewal of successive fixed-term employment contracts in the public health sector is deemed to be justified by ‘objective grounds’, within the meaning of that clause, on the ground that those contracts are founded on legal provisions allowing them to be renewed in order to ensure the provision of certain services of a temporary, auxiliary or extraordinary nature when, in fact, those needs are fixed and permanent;

| — | there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned. |
| --- | --- |

—

there is no obligation on the competent authority to create additional permanent posts in order to bring an end to the employment of occasional regulated staff and it is permitted to fill the permanent posts created by hiring ‘temporary’ staff, so that the precarious situation of workers is perpetuated, where there is a structural deficit of regulated staff posts in that sector in the Member State concerned.

| 2. | Clause 5 of the framework agreement on fixed-term work set out in the Annex to Directive 1999/70 must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court. |
| --- | --- |

2.

Clause 5 of the framework agreement on fixed-term work set out in the Annex to Directive 1999/70 must be interpreted as meaning that it does not preclude, in principle, national legislation which requires that the contractual relationship is to terminate on the date provided by the fixed-term contract and that all outstanding remuneration is to be paid, without prejudice to a possible reappointment, provided that that legislation does not compromise the objective and practical effect of that framework agreement, which is a matter to be determined by the referring court.

| 3. | The Court of Justice of the European Union manifestly lacks jurisdiction to answer the fourth question referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain). |
| --- | --- |

3.

The Court of Justice of the European Union manifestly lacks jurisdiction to answer the fourth question referred for a preliminary ruling by the Juzgado de lo Contencioso-Administrativo No 4 de Madrid (Administrative Court No 4, Madrid, Spain).

---

(1)  OJ C 96, 23.3.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/13 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/13

---

Judgment of the Court (Second Chamber) of 15 September 2016 (request for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) — Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM)

(Case C-28/15) (1)

((Reference for a preliminary ruling - Common regulatory framework for electronic communications networks and services - Directive 2002/21/EC - Articles 4 and 19 - National Regulatory Authority - Harmonisation measures - Recommendation 2009/396/EC - Legal scope - Directive 2002/19/EC - Articles 8 and 13 - Operator designated as having significant market power on a market - Obligations imposed by national regulatory authorities - Price control and cost accounting obligations - Fixed and mobile call termination rates - Scope of the review that national courts can exercise over the decisions of national regulatory authorities))

(2016/C 419/15)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicants: Koninklijke KPN NV, KPN BV, T-Mobile Netherlands BV, Tele2 Nederland BV, Ziggo BV, Vodafone Libertel BV, Ziggo Services BV, formerly UPC Nederland BV, Ziggo Zakelijk Services BV, formerly UPC Business BV

Defendant: Autoriteit Consument en Markt (ACM)

Operative part of the judgment

| 1. | Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Articles 8 and 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140, must be interpreted as meaning that a national court, hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services, may depart from Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU advocating the ‘pure Bulric’ (Bottom-Up Long-Run Incremental Costs) cost model as the appropriate price regulation measure in the termination market only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question. |
| --- | --- |

1.

Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Articles 8 and 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140, must be interpreted as meaning that a national court, hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services, may depart from Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU advocating the ‘pure Bulric’ (Bottom-Up Long-Run Incremental Costs) cost model as the appropriate price regulation measure in the termination market only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question.

| 2. | EU law must be interpreted as meaning that a national court hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services can assess the proportionality of that obligation in the light of the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140, and Article 13 of Directive 2002/19, as amended by Directive 2009/140, and take into account the fact that the obligation has the effect of promoting the interests of end-users on a retail market which has not been earmarked for regulation.
  A national court may not, when carrying out a judicial review of a decision of the national regulatory authority, require that authority to demonstrate that the obligation actually attains the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140. |
| --- | --- |

2.

EU law must be interpreted as meaning that a national court hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services can assess the proportionality of that obligation in the light of the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140, and Article 13 of Directive 2002/19, as amended by Directive 2009/140, and take into account the fact that the obligation has the effect of promoting the interests of end-users on a retail market which has not been earmarked for regulation.

A national court may not, when carrying out a judicial review of a decision of the national regulatory authority, require that authority to demonstrate that the obligation actually attains the objectives set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140.

---

(1)  OJ C 138, 27.4.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/14 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/14

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Judgment of the Court (Eighth Chamber) of 22 September 2016 (request for a preliminary ruling from the Gerechtshof Amsterdam — Netherlands) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane

(Case C-91/15) (1)

((Reference for a preliminary ruling - Assessment of validity - Regulation (EC) No 1051/2009 - Common Customs Tariff - Tariff classification - Combined Nomenclature - Heading 8701 - Tractors - Subheadings 8701 90 11 to 8701 90 39 - Agricultural tractors (excluding pedestrian-controlled tractors) and forestry tractors, wheeled, new - Light four-wheeled all terrain vehicles designed to be used as tractors))

(2016/C 419/16)

Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Applicant: Kawasaki Motors Europe NV

Defendant: Inspecteur van de Belastingdienst/Douane

Operative part of the judgment

Paragraph 2 of the annex to Commission Regulation (EC) No 1051/2009 of 3 November 2009 concerning the classification of certain goods in the Combined Nomenclature is invalid in so far as it classifies the vehicle described in that paragraph under subheading 8107 90 90 of that Combined Nomenclature, as amended by Commission Regulation (EC) No 948/2009 of 30 September 2009, and not under one of subheadings 8701 90 11 to 8701 90 39 of that Combined Nomenclature, which correspond to the engine power of that vehicle.

---

(1)  OJ C 146, 4.5.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/14 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/14

---

Judgment of the Court (Grand Chamber) of 20 September 2016 — Konstantinos Mallis (C-105/15 P), Elli Konstantinou Malli (C-105/15 P), Tameio Pronoias Prosopikou Trapezis Kyprou (C-106/15 P), Petros Chatzithoma (C-107/15 P), Elenitsa Chatzithoma (C-107/15 P), Lella Chatziioannou (C-108/15 P), Marinos Nikolaou (C-109/15 P) v European Commission, European Central Bank

(Joined Cases C-105/15 P to C-109/15 P) (1)

((Appeals - Stability support programme for the Republic of Cyprus - Eurogroup statement concerning, in particular, the restructuring of the banking sector in Cyprus - Actions for annulment))

(2016/C 419/17)

Language of the case: Greek

Parties

Appellants: Konstantinos Mallis (C-105/15 P), Elli Konstantinou Malli (C-105/15 P), Tameio Pronoias Prosopikou Trapezis Kyprou (C-106/15 P), Petros Chatzithoma (C-107/15 P), Elenitsa Chatzithoma (C-107/15 P), Lella Chatziioannou (C-108/15 P), Marinos Nikolaou (C-109/15 P) (represented by: E. Efstathiou, K. Efstathiou and K. Liasidou, dikigoroi)

Other parties to the proceedings: European Commission (represented by: J.-P. Keppenne and M. Konstantinidis, acting as Agents), European Central Bank (ECB) (represented by: A. Koutsoukou, O. Heinz and K. Laurinavičius, acting as Agents, and H.G. Kamann, Rechtsanwalt)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals in Cases C-105/15 P to C-109/15 P; |
| --- | --- |

1.

Dismisses the appeals in Cases C-105/15 P to C-109/15 P;

| 2. | Orders Konstantinos Mallis, Elli Konstantinou Malli, Tameio Pronoias Prosopikou Trapezis Kyprou, Petros Chatzithoma, Elenitsa Chatzithoma, Lella Chatziioannou and Marinos Nikolaou to pay the costs. |
| --- | --- |

2.

Orders Konstantinos Mallis, Elli Konstantinou Malli, Tameio Pronoias Prosopikou Trapezis Kyprou, Petros Chatzithoma, Elenitsa Chatzithoma, Lella Chatziioannou and Marinos Nikolaou to pay the costs.

---

(1)  OJ C 178, 1.6.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/15 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/15

---

Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Microsoft Mobile Sales International Oy, formerly Nokia Italia SpA and Others v Ministero per i beni e le attività culturali (MIBAC) and Others

(Case C-110/15) (1)

((Reference for a preliminary ruling - Approximation of laws - Intellectual property - Copyright and related rights - Directive 2001/29/EC - Exclusive right of reproduction - Exceptions and limitations - Article 5(2)(b) - Private copying exception - Fair compensation - Conclusion of agreements governed by private law to determine the criteria for exemption from payment of fair compensation - Request for reimbursement of compensation confined to the final user))

(2016/C 419/18)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Microsoft Mobile Sales International Oy, formerly Nokia Italia SpA, Hewlett-Packard Italiana Srl, Telecom Italia SpA, Samsung Electronics Italia SpA, Dell SpA, Fastweb SpA, Sony Mobile Communications Italy SpA, Wind Telecomunicazioni SpA

Defendants: Ministero per i beni e le attività culturali (MIBAC), Società italiana degli autori ed editori (SIAE), Istituto per la tutela dei diritti degli artisti interpreti esecutori (IMAIE), in liquidation, Associazione nazionale industrie cinematografiche audiovisive e multimediali (ANICA), Associazione produttori televisivi (APT)

Interveners: Assotelecomunicazioni (Asstel), Vodafone Omnitel NV, H3G SpA, Movimento Difesa del Cittadino, Assoutenti, Adiconsum, Cittadinanza Attiva, Altroconsumo

Operative part of the judgment

EU law, in particular, Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media.

---

(1)  OJ C 178, 1.6.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/16 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/16

---

Judgment of the Court (Third Chamber) of 22 September 2016 (request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Breitsamer und Ulrich GmbH & Co. KG v Landeshauptstadt München

(Case C-113/15) (1)

((Reference for a preliminary ruling - Directive 2000/13/EC - Labelling and presentation of foodstuffs - Article 1(3)(b) - Concept of ‘pre-packaged foodstuff’ - Article 2 - Consumer information and protection - Article 3(1)(8) - Place of origin or provenance of a foodstuff - Article 13(1) - Labelling of a prepackaged foodstuff - Article 13(4) - Packaging or containers the largest surface of which has an area of less than 10 cm2 - Directive 2001/110/EC - Article 2(4) - Indication of the country or countries of origin of honey - Individual portions of honey packaged in cartons supplied to mass caterers - Individual portions sold separately or supplied to ultimate consumers as part of meals for an all-inclusive price - Indication of the country or countries of origin of that honey))

(2016/C 419/19)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Breitsamer und Ulrich GmbH & Co. KG

Defendant: Landeshauptstadt München

Intervening party: Landesanwaltschaft Bayern

Operative part of the judgment

Article 1(3)(b) of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs must be interpreted as meaning that each of the individual portions of honey presented in the form of portion-cups closed by an aluminium seal and packed in cartons supplied to mass caterers constitutes a ‘pre-packaged foodstuff’ where the mass caterers sell those portions separately or offer them for sale to the ultimate consumer as part of pre-prepared meals for an all-inclusive price.

---

(1)  OJ C 198, 15.6.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/16 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/16

---

Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain

(Case C-139/15 P) (1)

((Appeal - Cohesion Fund - Reduction of financial assistance - Procedure of adoption of the decision by the European Commission - Existence of a time limit - Non-compliance with the time limit laid down - Consequences))

(2016/C 419/20)

Language of the case: Spanish

Parties

Appellant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, acting as Agents)

Other party to the proceedings: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

Intervener in support of the defendant: Kingdom of the Netherlands (represented by: B. Koopman and M. Bulterman, acting as Agents)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the European Commission to pay the costs; |
| --- | --- |

2.

Orders the European Commission to pay the costs;

| 3. | Orders the Kingdom of the Netherlands to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands to bear its own costs.

---

(1)  OJ C 155, 11.5.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/17 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/17

---

Judgment of the Court (Tenth Chamber) of 21 September 2016 — European Commission v Kingdom of Spain

(Case C-140/15 P) (1)

((Appeal - Cohesion Fund - Reduction of financial assistance - Procedure of adoption of the decision by the European Commission - Existence of a time limit - Non-compliance with the time limit laid down - Consequences))

(2016/C 419/21)

Language of the case: Spanish

Parties

Appellant: European Commission (represented by: S. Pardo Quintillán and D. Recchia, acting as Agents)

Other party to the proceedings: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

Intervener in support of the defendant: Kingdom of the Netherlands (represented by: B. Koopman and M. Bulterman, acting as Agents)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the European Commission to pay the costs; |
| --- | --- |

2.

Orders the European Commission to pay the costs;

| 3. | Orders the Kingdom of the Netherlands to bear its own costs. |
| --- | --- |

3.

Orders the Kingdom of the Netherlands to bear its own costs.

---

(1)  OJ C 155, 11.5.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/18 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/18

---

Judgment of the Court (Tenth Chamber) of 14 September 2016 (requests for a preliminary ruling from the Tribunal Superior de Justicia del País Vasco — Spain) — Florentina Martínez Andrés v Servicio Vasco de Salud (C-184/15), Juan Carlos Castrejana López v Ayuntamiento de Vitoria (C-197/15)

(Joined Cases C-184/15 and C-197/15) (1)

((Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clauses 5 and 8 - Use of successive fixed-term employment contracts - Measures to prevent abuse resulting from the use of successive fixed-term employment contracts or relationships - Penalties - Reclassification of the fixed-term employment relationship as a ‘non-permanent employment contract of indefinite duration’ - Principle of effectiveness))

(2016/C 419/22)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia del País Vasco

Parties to the main proceedings

Applicants: Florentina Martínez Andrés (C-184/15), Juan Carlos Castrejana López (C-197/15)

Defendants: Servicio Vasco de Salud (C-184/15), Ayuntamiento de Vitoria (C-197/15)

Operative part of the judgment

| 1. | Clause 5(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, from being applied by the national courts of the Member State concerned in such a manner that, in the event of abuse resulting from the use of successive fixed-term employment contracts, a right to maintain the employment relationship is granted to persons employed by the authorities under an employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed by those authorities under administrative law, unless there is another effective measure in the national law to penalise such abuses with regard to the latter staff, which it is for the national court to determine. |
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1.

Clause 5(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, from being applied by the national courts of the Member State concerned in such a manner that, in the event of abuse resulting from the use of successive fixed-term employment contracts, a right to maintain the employment relationship is granted to persons employed by the authorities under an employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed by those authorities under administrative law, unless there is another effective measure in the national law to penalise such abuses with regard to the latter staff, which it is for the national court to determine.

| 2. | The provisions of the framework agreement on fixed-term work which is set out in the annex to Directive 1999/70, read in conjunction with the principle of effectiveness, must be interpreted as precluding national procedural rules which require a fixed-term worker to bring a new action in order to determine the appropriate penalty where abuse resulting from the use of successive fixed-term employment contracts has been established by a judicial authority, to the extent that it results in procedural disadvantages for that worker, in terms, inter alia, of cost, duration and the rules of representation, liable to render excessively difficult the exercise of the rights conferred on him by EU law. |
| --- | --- |

2.

The provisions of the framework agreement on fixed-term work which is set out in the annex to Directive 1999/70, read in conjunction with the principle of effectiveness, must be interpreted as precluding national procedural rules which require a fixed-term worker to bring a new action in order to determine the appropriate penalty where abuse resulting from the use of successive fixed-term employment contracts has been established by a judicial authority, to the extent that it results in procedural disadvantages for that worker, in terms, inter alia, of cost, duration and the rules of representation, liable to render excessively difficult the exercise of the rights conferred on him by EU law.

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(1)  OJ C 236, 20.7.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/19 |
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14.11.2016

EN

Official Journal of the European Union

C 419/19

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Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Hof van beroep te Brussel — Belgium) — Criminal proceedings against Etablissements Fr. Colruyt NV

(Case C-221/15) (1)

((Reference for a preliminary ruling - Directive 2011/64/EU - Article 15(1) - Free determination, by the manufacturers and importers, of the maximum retail selling prices of manufactured tobacco products - National regulation prohibiting the sale of such products by retailers at prices lower than those indicated on the revenue stamp - Free movement of goods - Article 34 TFEU - Selling arrangements - Article 101 TFEU, read in conjunction with Article 4(3) TEU))

(2016/C 419/23)

Language of the case: Dutch

Referring court

Hof van beroep te Brussel — Belgium

Party in the main proceedings

Etablissements Fr. Colruyt NV

Operative part of the judgment

| 1. | Article 15(1) of Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the manufacturer or importer. |
| --- | --- |

1.

Article 15(1) of Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the manufacturer or importer.

| 2. | Article 34 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the importer. |
| --- | --- |

2.

Article 34 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products, in so far as that price has been freely determined by the importer.

| 3. | Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products. |
| --- | --- |

3.

Article 101 TFEU, read in conjunction with Article 4(3) TEU, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which prohibits retailers from selling tobacco products at a unit price lower than the price indicated by the manufacturer or importer on the revenue stamp affixed to those products.

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(1)  OJ C 262, 10.8.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/19 |
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14.11.2016

EN

Official Journal of the European Union

C 419/19

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Judgment of the Court (Second Chamber) of 22 September 2016 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — combit Software GmbH v Commit Business Solutions Ltd

(Case C-223/15) (1)

((Reference for a preliminary ruling - Regulation (EC) No 207/2009 - European Union trade mark - Unitary character - Finding of a likelihood of confusion in respect of only part of the European Union - Territorial scope of the prohibition referred to in Article 102 of that regulation))

(2016/C 419/24)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: combit Software GmbH

Defendant: Commit Business Solutions Ltd

Operative part of the judgment

Article 1(2), Article 9(1)(b) and Article 102(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark must be interpreted as meaning that, where an EU trade mark court finds that the use of a sign creates a likelihood of confusion with an EU trade mark in one part of the European Union whilst not creating such a likelihood in another part thereof, that court must conclude that there is an infringement of the exclusive right conferred by that trade mark and issue an order prohibiting the use in question for the entire area of the European Union with the exception of the part in respect of which there has been found to be no likelihood of confusion.

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(1)  OJ C 294, 7.9.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/20 |
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14.11.2016

EN

Official Journal of the European Union

C 419/20

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Judgment of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Vredegerecht te Ieper — Belgium) — Nationale Maatschappij der Belgische Spoorwegen NV v Gregory Demey

(Case C-261/15) (1)

((Rail transport - Regulation (EC) No 1371/2007 - Passengers’ rights and obligations - Absence of a ticket - Failure to regularise within the prescribed period - Criminal offence))

(2016/C 419/25)

Language of the case: Dutch

Referring court

Vredegerecht te Ieper

Parties to the main proceedings

Applicant: Nationale Maatschappij der Belgische Spoorwegen NV

Defendant: Gregory Demey

Operative part of the judgment

The final sentence of Article 6(2) of Appendix A to the Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999, in Annex I to Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, must be interpreted as not precluding national provisions which lay down that a person making a train journey while not in possession of a ticket for that purpose, who fails to regularise his situation within the periods laid down in those provisions, does not have a contractual relationship with the railway undertaking.

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(1)  OJ C 270, 17.8.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/21 |
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14.11.2016

EN

Official Journal of the European Union

C 419/21

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Judgment of the Court (Seventh Chamber) of 21 September 2016 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-304/15) (1)

((Failure of a Member State to fulfil obligations - Directive 2001/80/EC - Article 4(3) - Annex VI, Part A - Limitation of emissions of certain pollutants into the air from large combustion plants - Application - Aberthaw Power Station))

(2016/C 419/26)

Language of the case: English

Parties

Applicant: European Commission (represented by: K. Mifsud-Bonnici and S. Petrova, acting as Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: J. Kraehling and L. Christie, acting as Agents, and by G. Facenna QC)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing correctly to apply to Aberthaw Power Station (United Kingdom) Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under Article 4(3) of that directive, read in conjunction with Part A of Annex VI thereto; |
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1.

Declares that, by failing correctly to apply to Aberthaw Power Station (United Kingdom) Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under Article 4(3) of that directive, read in conjunction with Part A of Annex VI thereto;

| 2. | Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs. |
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2.

Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

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(1)  OJ C 302, 14.9.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/21 |
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14.11.2016

EN

Official Journal of the European Union

C 419/21

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Judgment of the Court (Eighth Chamber) of 15 September 2016 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Landkreis Potsdam-Mittelmark v Finanzamt Brandenburg

(Case C-400/15) (1)

((Reference for a preliminary ruling - Taxation - Value Added Tax - Sixth Council Directive 77/388/EEC - Right to deduction - Decision 2004/817/EC - Legislative provision of a Member State - Expenditure on goods and services - Extent of use of goods or services for non-economic purposes greater than 90 % of total use - Exclusion of the right to deduct))

(2016/C 419/27)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Landkreis Potsdam-Mittelmark

Defendant: Finanzamt Brandenburg

Operative part of the judgment

Article 1 of Council Decision 2004/817/EC of 19 November 2004 authorising Germany to apply a measure derogating from Article 17 of Sixth Directive 77/388/EEC on the harmonisation of the laws of the Member States relating to turnover taxes must be interpreted as meaning that it does not apply to a situation in which the goods or services that an undertaking acquires are used, to an extent greater than 90 %, for non-economic activities, which fall outside the scope of value added tax.

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(1)  OJ C 363, 3.11.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/22 |
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14.11.2016

EN

Official Journal of the European Union

C 419/22

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Judgment of the Court (Eighth Chamber) of 22 September 2016 — Pensa Pharma SA v European Union Intellectual Property Office, Ferring BV, Farmaceutisk Laboratorium Ferring A/S

(Case C-442/15 P) (1)

((Appeal - EU trade mark - Word mark PENSA PHARMA - Figurative mark pensa - Applications for a declaration of invalidity of the holders of the word marks pentasa - Declaration of invalidity - Proceedings before EUIPO - Change in the subject matter of the proceedings - New plea before the General Court))

(2016/C 419/28)

Language of the case: English

Parties

Appellant: Pensa Pharma SA (represented by: R. Kunze and G. Würtenberger, Rechtsanwälte)

Other party to the proceedings: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent), Ferring BV, Farmaceutisk Laboratorium Ferring A/S (represented by: I. Fowler, Solicitor, and D. Slopek, Rechtsanwalt)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
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1.

Dismisses the appeal;

| 2. | Orders Pensa Pharma SA to pay the costs. |
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2.

Orders Pensa Pharma SA to pay the costs.

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(1)  OJ C 414, 14.12.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/22 |
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14.11.2016

EN

Official Journal of the European Union

C 419/22

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Judgment of the Court (Sixth Chamber) of 21 September 2016 (request for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Peter Radgen, Lilian Radgen v Finanzamt Ettlingen

(Case C-478/15) (1)

((Reference for a preliminary ruling - Taxation - Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons - Equal treatment - Income tax - Exemption of income derived from part-time employment as a teacher with a legal person governed by public law established in a Member State of the European Union or in a State to which the Agreement on the European Economic Area of 2 May 1992 applies - Legislation of a Member State excluding from that exemption income derived from such employment with a legal person governed by public law established in Switzerland))

(2016/C 419/29)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicants: Peter Radgen, Lilian Radgen

Defendant: Finanzamt Ettlingen

Operative part of the judgment

The provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, concerning the equal treatment of employees must be interpreted as precluding the legislation of a Member State, such as the legislation at issue in the main proceedings, under which a resident national with unlimited liability to income tax who has exercised the right to freedom of movement in order to work as an employee on a part-time basis in the teaching profession for a legal person governed by public law established in Switzerland is denied a tax exemption in respect of the income from that employment whereas such an exemption would be granted if that person had been so employed by a legal person governed by public law established in that Member State, in another Member State of the European Union or in another State to which the Agreement on the European Economic Area of 2 May 1992 applies.

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(1)  OJ C 16, 18.1.2016.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/23 |
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14.11.2016

EN

Official Journal of the European Union

C 419/23

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Judgment of the Court (Sixth Chamber) of 14 September 2016 — Ori Martin SA C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) v European Commission

(Joined Cases C-490/15 P and C-505/15 P) (1)

((Appeal - Competition - Agreements, decisions and concerted practices - European prestressing steel market - Fines - Setting of the fines - Regulation (EC) No 1/2003 - Article 23(2) - Presumption of actual exercise of decisive influence by the parent company over the subsidiary - The 2006 Guidelines on the method of setting fines - Principle of non-retroactivity - Charter of Fundamental Rights of the European Union - Article 47 - Right to an effective remedy within a reasonable time - Charter of Fundamental Rights - Article 41 - Right to proceedings being conducted within a reasonable time))

(2016/C 419/30)

Language of the case: Italian

Parties

Appellants: Ori Martin SA (C-490/15 P), Siderurgica Latina Martin SpA (SLM) (C-505/15 P) (represented by: G. Belotti and P. Ziotti, avvocati)

Other party to the proceedings: European Commission (represented by: V. Bottka, G. Conte and P. Rossi, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeals in cases C-490/15 P and C-505/15 P; |
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1.

Dismisses the appeals in cases C-490/15 P and C-505/15 P;

| 2. | Orders Ori Martin SA to pay the costs in Case C-490/15 P; |
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2.

Orders Ori Martin SA to pay the costs in Case C-490/15 P;

| 3. | Orders Siderurgica Latina Martin SpA (SLM) to pay the costs in Case C-505/15 P. |
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3.

Orders Siderurgica Latina Martin SpA (SLM) to pay the costs in Case C-505/15 P.

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(1)  OJ C 406, 7.12.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/24 |
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14.11.2016

EN

Official Journal of the European Union

C 419/24

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Judgment of the Court (Sixth Chamber) of 14 September 2016 — Trafilerie Meridionali SpA v European Commission

(Case C-519/15 P) (1)

((Appeal - Competition - Agreements, decisions and concerted practices - European prestressing steel market - Fines - Setting of the fines - 2006 Guidelines for the setting of fines - Point 35 - Unlimited jurisdiction - Obligation to state reasons - Charter of Fundamental Rights of the European Union - Article 47 - Right to an effective remedy within a reasonable time))

(2016/C 419/31)

Language of the case: Italian

Parties

Appellant: Trafilerie Meridionali SpA (represented by: P. M. Ferrari and G. Lamicela, avvocati)

Other party to the proceedings: European Commission (represented by: V. Bottka, G. Conte and P. Rossi, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
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1.

Dismisses the appeal;

| 2. | Orders Trafilerie Meridionali SpA to pay the costs. |
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2.

Orders Trafilerie Meridionali SpA to pay the costs.

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(1)  OJ C 406, 7.12.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/24 |
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14.11.2016

EN

Official Journal of the European Union

C 419/24

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Judgment of the Court (Seventh Chamber) of 22 September 2016 — National Iranian Oil Company PTE Ltd (NIOC) and Others v Council of the European Union

(Case C-595/15 P) (1)

((Appeal - Restrictive measures taken against the Islamic Republic of Iran - List of persons and entities subject to the freezing of funds and economic resources - Implementing Regulation (EU) No 945/2012 - Legal basis - Meaning of associated entity))

(2016/C 419/32)

Language of the case: French

Parties

Appellants: National Iranian Oil Company PTE Ltd (NIOC), National Iranian Oil Company International Affairs Ltd (NIOC International Affairs), Iran Fuel Conservation Organization (IFCO), Karoon Oil & Gas Production Co., Petroleum Engineering & Development Co. (PEDEC), Khazar Exploration and Production Co. (KEPCO), National Iranian Drilling Co. (NIDC), South Zagros Oil & Gas Production Co., Maroun Oil & Gas Co., Masjed-Soleyman Oil & Gas Co. (MOGC), Gachsaran Oil & Gas Co., Aghajari Oil & Gas Production Co. (AOGPC), Arvandan Oil & Gas Co. (AOGC), West Oil & Gas Production Co., East Oil & Gas Production Co. (EOGPC), Iranian Oil Terminals Co. (IOTC), Pars Special Economic Energy Zone (PSEEZ) (represented by: J.-M. Thouvenin, avocat)

Other party to the proceedings: Council of the European Union (represented by: V. Piessevaux and M. Bishop, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
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1.

Dismisses the appeal;

| 2. | Orders National Iranian Oil Company PTE Ltd (NIOC), National Iranian Oil Company International Affairs Ltd (NIOC International Affairs), Iran Fuel Conservation Organization (IFCO), Karoon Oil & Gas Production Co., Petroleum Engineering & Development Co. (PEDEC), Khazar Exploration and Production Co. (KEPCO), National Iranian Drilling Co. (NIDC), South Zagros Oil & Gas Production Co., Maroun Oil & Gas Co., Masjed-Soleyman Oil & Gas Co. (MOGC), Gachsaran Oil & Gas Co., Aghajari Oil & Gas Production Co. (AOGPC), Arvandan Oil & Gas Co. (AOGC), West Oil & Gas Production Co., East Oil & Gas Production Co. (EOGPC), Iranian Oil Terminals Co. (IOTC) and Pars Special Economic Energy Zone (PSEEZ) to bear their own costs and to pay those incurred by the Council of the European Union. |
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2.

Orders National Iranian Oil Company PTE Ltd (NIOC), National Iranian Oil Company International Affairs Ltd (NIOC International Affairs), Iran Fuel Conservation Organization (IFCO), Karoon Oil & Gas Production Co., Petroleum Engineering & Development Co. (PEDEC), Khazar Exploration and Production Co. (KEPCO), National Iranian Drilling Co. (NIDC), South Zagros Oil & Gas Production Co., Maroun Oil & Gas Co., Masjed-Soleyman Oil & Gas Co. (MOGC), Gachsaran Oil & Gas Co., Aghajari Oil & Gas Production Co. (AOGPC), Arvandan Oil & Gas Co. (AOGC), West Oil & Gas Production Co., East Oil & Gas Production Co. (EOGPC), Iranian Oil Terminals Co. (IOTC) and Pars Special Economic Energy Zone (PSEEZ) to bear their own costs and to pay those incurred by the Council of the European Union.

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(1)  OJ C 59, 15.02.2016.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/25 |
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14.11.2016

EN

Official Journal of the European Union

C 419/25

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Appeal brought on 1 March 2016 by Anastasia-Soultana Gaki against the order of the General Court (Ninth Chamber) made on 16 December 2015 in Case T-547/15, Anastasia-Soultana Gaki v European Commission

(Case C-130/16 P)

(2016/C 419/33)

Language of the case: German

Parties

Appellant: Anastasia-Soultana Gaki (represented by: A. Heinen, lawyer)

Other party to the proceedings: European Commission

By order of 22 September 2016, the Court of Justice of the European Union (Tenth Chamber) dismissed the appeal and ordered the appellant to bear her own costs.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/25 |
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14.11.2016

EN

Official Journal of the European Union

C 419/25

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Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 14 July 2016 — FMS Wertmanagement AöR v Heta Asset Resolution AG

(Case C-394/16)

(2016/C 419/34)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant: FMS Wertmanagement AöR

Defendant: Heta Asset Resolution AG

Questions referred

| 1. | Is Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, (1) and in particular Articles 1(1) and 2(1).2 and 2(1).23 thereof, in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and the Council on prudential requirements for credit institutions and investment firms, (2) to be interpreted as meaning that its scope of application also covers a divestment unit (divestment company), which, at the time when Directive 2014/59/EU entered into force on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (‘a CRR Institution’), but ceased to be so prior to the expiry on 31 December 2014 of the period provided for transposition of Directive 2014/59/EU into national law, and no longer has a banking licence for conducting banking transactions, but is entitled to carry out (banking) transactions, solely on the basis of a statutory licence, for the sole purpose of portfolio divestment? |
| --- | --- |

1.

Is Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms, (1) and in particular Articles 1(1) and 2(1).2 and 2(1).23 thereof, in conjunction with Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and the Council on prudential requirements for credit institutions and investment firms, (2) to be interpreted as meaning that its scope of application also covers a divestment unit (divestment company), which, at the time when Directive 2014/59/EU entered into force on 2 July 2014, was still a credit institution within the meaning of Article 4(1)(1) of Regulation (EU) No 575/2013 (‘a CRR Institution’), but ceased to be so prior to the expiry on 31 December 2014 of the period provided for transposition of Directive 2014/59/EU into national law, and no longer has a banking licence for conducting banking transactions, but is entitled to carry out (banking) transactions, solely on the basis of a statutory licence, for the sole purpose of portfolio divestment?

| 2. | Is Directive 2014/59/EU, in particular Article 43(2)(b) and Article 37(6) thereof, to be interpreted as meaning that a measure which corresponds to the bail-in tool of Article 43 of Directive 2014/59/EU also comes within its substantive scope of application if, in consequence of a national provision of the home Member State, it is applied in a case in which there is no longer any realistic prospect of restoring the viability of the divestment unit, which has already sold the parts which are to continue to operate after the entry into force of Directive 2014/59/EU on 2 July 2014 but before the expiry of the transposition period on 31 December 2014, and no further services having systemic consequences are to be transferred to a bridge institution and also no further parts of the institution are to be disposed of or transferred, and instead the divestment unit serves only to administer the assets, rights and liabilities for the purpose of an orderly, proactive and best-value divestment of those individual assets, rights and liabilities (portfolio divestment)? |
| --- | --- |

2.

Is Directive 2014/59/EU, in particular Article 43(2)(b) and Article 37(6) thereof, to be interpreted as meaning that a measure which corresponds to the bail-in tool of Article 43 of Directive 2014/59/EU also comes within its substantive scope of application if, in consequence of a national provision of the home Member State, it is applied in a case in which there is no longer any realistic prospect of restoring the viability of the divestment unit, which has already sold the parts which are to continue to operate after the entry into force of Directive 2014/59/EU on 2 July 2014 but before the expiry of the transposition period on 31 December 2014, and no further services having systemic consequences are to be transferred to a bridge institution and also no further parts of the institution are to be disposed of or transferred, and instead the divestment unit serves only to administer the assets, rights and liabilities for the purpose of an orderly, proactive and best-value divestment of those individual assets, rights and liabilities (portfolio divestment)?

| 3. | Is Article 3(2) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions (3) (as amended by Article 117 of Directive 2014/59/EU) to be interpreted as meaning that a reduction in the liabilities of a divestment unit which is carried out by an administrative authority of the divestment unit’s home Member State, those liabilities being governed by a different national law, and the reduction of the interest rate and the postponement of liabilities in the Member State whose law governs the obligations and in which the creditor in question has its seat, are fully effective without any further formalities, or is this subject to the conditions that the divestment unit (divestment company) comes within the scope ratione personæ of Directive 2014/59/EU (see Question 1) and the measure which is taken is within the scope ratione materiæ of application of Directive 2014/59/EU?
  Does the term ‘fully effective ... without any further formalities’ mean that the court of a Member State which is required to decide whether to recognise the measures taken pursuant to the law of the home Member State within the framework of the law governing the liabilities has no power to examine whether those measures are compatible with Directive 2014/59/EU? |
| --- | --- |

3.

Is Article 3(2) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding-up of credit institutions (3) (as amended by Article 117 of Directive 2014/59/EU) to be interpreted as meaning that a reduction in the liabilities of a divestment unit which is carried out by an administrative authority of the divestment unit’s home Member State, those liabilities being governed by a different national law, and the reduction of the interest rate and the postponement of liabilities in the Member State whose law governs the obligations and in which the creditor in question has its seat, are fully effective without any further formalities, or is this subject to the conditions that the divestment unit (divestment company) comes within the scope ratione personæ of Directive 2014/59/EU (see Question 1) and the measure which is taken is within the scope ratione materiæ of application of Directive 2014/59/EU?

Does the term ‘fully effective ... without any further formalities’ mean that the court of a Member State which is required to decide whether to recognise the measures taken pursuant to the law of the home Member State within the framework of the law governing the liabilities has no power to examine whether those measures are compatible with Directive 2014/59/EU?

---

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

(2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

(3)  Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/26 |
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Official Journal of the European Union

C 419/26

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Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 15 July 2016 — DOCERAM GmbH v CeramTec GmbH

(Case C-395/16)

(2016/C 419/35)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: DOCERAM GmbH

Defendant: CeramTec GmbH

Questions referred

| 1. | Does a technical function that precludes protection within the meaning of Article 8(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1) also exist if the design effect is of no significance for the product design, but the (technical) functionality is the sole factor that dictates the design? |
| --- | --- |

1.

Does a technical function that precludes protection within the meaning of Article 8(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (1) also exist if the design effect is of no significance for the product design, but the (technical) functionality is the sole factor that dictates the design?

| 2. | If the Court answers Question 1 in the affirmative:
  From which point of view is it to be assessed whether the individual design features of a product have been chosen solely on the basis of considerations of functionality? Is an ‘objective observer’ required and, if so, how is such an observer to be defined? |
| --- | --- |

2.

If the Court answers Question 1 in the affirmative:

From which point of view is it to be assessed whether the individual design features of a product have been chosen solely on the basis of considerations of functionality? Is an ‘objective observer’ required and, if so, how is such an observer to be defined?

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(1)  OJ 2002 L 3, p. 1.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/27 |
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Official Journal of the European Union

C 419/27

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Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 July 2016 — Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.

(Case C-414/16)

(2016/C 419/36)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: Vera Egenberger

Defendant: Evangelisches Werk für Diakonie und Entwicklung e.V.

Questions referred

| 1. | Is Article 4(2) of Directive 2000/78/EC (1) to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos? |
| --- | --- |

1.

Is Article 4(2) of Directive 2000/78/EC (1) to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos?

| 2. | If the first question is answered in the negative:
  In a case such as the present, is it necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement? |
| --- | --- |

2.

If the first question is answered in the negative:

In a case such as the present, is it necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement?

| 3. | If the first question is answered in the negative, further:
  What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC? |
| --- | --- |

3.

If the first question is answered in the negative, further:

What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC?

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(1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/28 |
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Appeal brought on 28 July 2016 by mobile.de GmbH, formerly mobile.international GmbH, against the judgment of the General Court (Eighth Chamber) delivered on 12 May 2016 in Joined Cases T-322/14 and T-325/14, mobile.international v EUIPO — Rezon

(Case C-418/16 P)

(2016/C 419/37)

Language of the case: German

Parties

Appellant: mobile.de GmbH, formerly mobile.international GmbH (represented by: T. Lührig, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office, Rezon OOD

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Eighth Chamber of the General Court of 12 May 2012 in Joined Cases T-322/14 and T-325/14; |
| --- | --- |

—

set aside the judgment of the Eighth Chamber of the General Court of 12 May 2012 in Joined Cases T-322/14 and T-325/14;

| — | order the European Union Intellectual Property Office to pay the costs of the proceedings. |
| --- | --- |

—

order the European Union Intellectual Property Office to pay the costs of the proceedings.

Grounds of appeal and main arguments

The judgment under appeal infringes Article 57(2) of Regulation (EC) No 207/2009, (1) read in conjunction with Rules 22(2) and 40(6) of Regulation (EC) No 2868/95, (2) because it interprets the well-defined concept of ‘proof of use’ in Article 57(2) of Regulation No 207/2009 and in Rules 22(2) and 40(6) of Regulation No 2868/95 differently, contrary to the generally recognised interpretative principles of legal methodology. The divergent interpretation of the same term in Regulation No 207/2009 and in Regulation No 2868/95 is incompatible with the principles of legal certainty and legal clarity. Moreover, the General Court disregards the fact that Rules 40(6) and 22(2) of Regulation No 2868/95 exclude a late submission of evidence of use in cancellation proceedings and that EUIPO has no discretion in that regard. Article 57(1) of Regulation No 207/2009 is not applicable and EUIPO has not made use of it, with the result that the decision of the Boards of Appeal and of the General Court cannot be based on it.

The judgment under appeal also infringes Article 76(2) of Regulation No 207/2009 inasmuch as the General Court erred in law by assuming that Article 76(2) of Regulation No 207/2009 was applicable, even though Rules 40(6) and 22(2) of Regulation No 2868/95 preclude its applicability to invalidity proceedings due to the systematic interpretation of Rule 50(1)(3) of Regulation No 2868/95.

Moreover, the requirements of Article 76(2) of Regulation No 207/2009 were not satisfied because the intervener did not at any point in the proceedings put forward any legitimate reason for the late submission of the invoices that had been available to it from the outset. The General Court therefore incorrectly applied Article 76(2) of Regulation No 207/2009, because the stage of the proceedings reached and the surrounding circumstances already meant that no account could be taken of the evidence that had been submitted late. In addition, the General Court distorted the facts by wrongly setting out the factual background, with the result that the invoices submitted at the appeal stage did not constitute ‘additional’ or ‘clarifying’ evidence in that regard.

The General Court did not examine either the phonetic or the conceptual differences between the signs actually used and, on the whole, did not base itself on the overall impression of the signs, but rather took into account only individual elements, therefore incorrectly applying Article 15(1)(a) of Regulation No 207/2009.

The General Court took into account manifestly irrelevant evidence, even though that evidence was undated or fell outside the relevant period. By doing so, the General Court incorrectly applied Article 57(2) of Regulation No 207/2009, read in conjunction with Rule 22(3) and (4) of Regulation No 2868/95.

The General Court erred in law in assuming that it was not required to examine the objection of abuse of law. The General Court failed entirely to examine the objection of prescription.

Finally, the judgment under appeal infringes Article 64(1) of Regulation No 207/2009 since the General Court disregarded the fact that the Boards of Appeal ought logically to have set aside and remitted the decisions of the Cancellation Division only in respect of the services consisting of ‘advertising related to vehicles’ and, with regard to the remaining services in respect of which use had not been proved, ought to have given a final decision and ought to have expressed the partial rejection of the requests for cancellation on the ground of absence of proof of use by way of a ruling capable of having legal force.

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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)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/29 |
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C 419/29

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Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 4 August 2016 — Acacia Srl and Rolando D’Amato v Dr.Ing. h.c. F. Porsche AG

(Case C-435/16)

(2016/C 419/38)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellants on a point of law: Acacia Srl, Rolando D’Amato

Respondent on a point of law: Dr.Ing. h.c. F. Porsche AG

Questions referred

| 1. | Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 (1) limited to fixed shape parts, namely those parts whose shape is in principle immutably determined by the appearance of the product as a whole and cannot therefore be freely selected by the customer, such as rims for motor vehicles? |
| --- | --- |

1.

Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 (1) limited to fixed shape parts, namely those parts whose shape is in principle immutably determined by the appearance of the product as a whole and cannot therefore be freely selected by the customer, such as rims for motor vehicles?

| 2. | If Question 1 is answered in the negative:
  Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 limited only to the supply of products of an identical design, which thus correspond also in colour and size to the original products? |
| --- | --- |

2.

If Question 1 is answered in the negative:

Is the application of the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 limited only to the supply of products of an identical design, which thus correspond also in colour and size to the original products?

| 3. | If Question 1 is answered in the negative:
  Does the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 apply in favour of the supplier of a product that fundamentally infringes the design at issue only if this supplier objectively ensures that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? |
| --- | --- |

3.

If Question 1 is answered in the negative:

Does the bar to protection as provided for in Article 110(1) of Regulation (EC) No 6/2002 apply in favour of the supplier of a product that fundamentally infringes the design at issue only if this supplier objectively ensures that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole?

| 4. | If Question 3 is answered in the affirmative:
  Which measures must the supplier of a product that fundamentally infringes the design at issue take in order to objectively ensure that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? Is it enough:






  (a) | that the supplier includes a note in the sales brochure to the effect that any sale takes place exclusively for repair purposes so as to restore the original appearance of the product as a whole; or |
| --- | --- | --- |

4.

If Question 3 is answered in the affirmative:

Which measures must the supplier of a product that fundamentally infringes the design at issue take in order to objectively ensure that his product can be purchased exclusively for repair purposes and not for other purposes as well, such as the upgrading or customisation of the product as a whole? Is it enough:

(a)

that the supplier includes a note in the sales brochure to the effect that any sale takes place exclusively for repair purposes so as to restore the original appearance of the product as a whole; or

| (b) | is it necessary that the supplier make delivery conditional on the customer (traders and consumers) declaring in writing that the product supplied is to be used for repair purposes only? |
| --- | --- |

(b)

is it necessary that the supplier make delivery conditional on the customer (traders and consumers) declaring in writing that the product supplied is to be used for repair purposes only?

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(1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/30 |
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Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (Romania) lodged on 8 August 2016 — SMS group GmbH v Direcţia Generală Regională a Finanțelor Publice a Municipiului București

(Case C-441/16)

(2016/C 419/39)

Language of the case: Romanian

Referring court

Înalta Curte de Casaţie şi Justiţie

Parties to the main proceedings

Applicant: SMS group GmbH

Defendant: Direcţia Generală Regională a Finanțelor Publice a Municipiului București

Questions referred

| 1. | Must Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, (1) in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, (2) be interpreted as precluding a practice of a national tax administration which considers that there is no objective evidence to confirm the declared intention of the taxable person to use the goods imported in connection with its economic activity in the case where, on the date of the actual importation, the contract for the performance of which the taxable person had purchased and imported the goods was suspended, with the serious risk that the subsequent supply/transaction for which the imported goods were intended would no longer be carried out? |
| --- | --- |

1.

Must Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, (1) in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, (2) be interpreted as precluding a practice of a national tax administration which considers that there is no objective evidence to confirm the declared intention of the taxable person to use the goods imported in connection with its economic activity in the case where, on the date of the actual importation, the contract for the performance of which the taxable person had purchased and imported the goods was suspended, with the serious risk that the subsequent supply/transaction for which the imported goods were intended would no longer be carried out?

| 2. | Does proof of the subsequent circulation of the imported goods, that is to say, establishment of the fact that the imported goods were actually intended for the taxable transactions of the taxable person, constitute, and if so in what way, an additional condition required for the purposes of refunding VAT, different from those listed in Articles 3 and 4 of Directive 79/1072/EEC and prohibited by Article 6 thereof, or necessary information on the essential condition for refunding relating to the use of the imported goods in connection with taxable transactions, which the tax authority may request under Article 6 thereof? |
| --- | --- |

2.

Does proof of the subsequent circulation of the imported goods, that is to say, establishment of the fact that the imported goods were actually intended for the taxable transactions of the taxable person, constitute, and if so in what way, an additional condition required for the purposes of refunding VAT, different from those listed in Articles 3 and 4 of Directive 79/1072/EEC and prohibited by Article 6 thereof, or necessary information on the essential condition for refunding relating to the use of the imported goods in connection with taxable transactions, which the tax authority may request under Article 6 thereof?

| 3. | Can Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, be interpreted as meaning that the right to a refund of VAT may be denied in the case where the subsequent transaction planned, in connection with which the imported goods were intended to be used, is no longer carried out? In those circumstances, does the actual intended use of the goods, that is to say, whether they were used in any event, in what way and in which territory, namely in that of the Member State in which the VAT was paid or outside that State, have any relevance? |
| --- | --- |

3.

Can Articles 2, 3, 4 and 5 of Directive 79/1072/EEC, in conjunction with Article 17(2) and (3)(a) of Directive 77/388/EEC, be interpreted as meaning that the right to a refund of VAT may be denied in the case where the subsequent transaction planned, in connection with which the imported goods were intended to be used, is no longer carried out? In those circumstances, does the actual intended use of the goods, that is to say, whether they were used in any event, in what way and in which territory, namely in that of the Member State in which the VAT was paid or outside that State, have any relevance?

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(1)  Eighth Council Directive of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11).

(2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/31 |
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Official Journal of the European Union

C 419/31

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Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 29 August 2016 — F v Bevándorlási és Állampolgársági Hivatal

(Case C-473/16)

(2016/C 419/40)

Language of the case: Hungarian

Referring court

Szegedi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: F

Defendant: Bevándorlási és Állampolgársági Hivatal

Questions referred

| 1. | In the light of Article 1 of the Charter of Fundamental Rights of the European Union, must Article 4 of Directive 2004/83/EC (1) be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to LGBTI applicants for asylum, when in order to formulate that opinion no questions are asked about the applicant for asylum’s sexual habits and that applicant is not subject to a physical examination? |
| --- | --- |

1.

In the light of Article 1 of the Charter of Fundamental Rights of the European Union, must Article 4 of Directive 2004/83/EC (1) be interpreted as not precluding a forensic psychologist’s expert opinion based on projective personality tests from being sought and evaluated, in relation to LGBTI applicants for asylum, when in order to formulate that opinion no questions are asked about the applicant for asylum’s sexual habits and that applicant is not subject to a physical examination?

| 2. | If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive 2004/83 be interpreted, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the applicant for asylum’s claims, irrespective of the particular characteristics of those methods? |
| --- | --- |

2.

If the expert opinion referred to in question 1 may not be used as proof, must Article 4 of Directive 2004/83 be interpreted, in the light of Article 1 of the Charter of Fundamental Rights of the European Union, as meaning that when the asylum application is based on persecution on grounds of sexual orientation, neither the national administrative authorities nor the courts have any possibility of examining, by expert methods, the truthfulness of the applicant for asylum’s claims, irrespective of the particular characteristics of those methods?

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(1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/31 |
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Request for a preliminary ruling from the Ministarstvo pomorstva, prometa i infrastrukture — Uprava zračnog prometa, elektroničkih komunikacija i pošte (Croatia) lodged on 30 August 2016 — Hrvatska agencija za civilno zrakoplovstvo v Air Serbia A.D. Beograd, and Dane Kondič, direktor Air Serbia A.D. Beograd

(Case C-476/16)

(2016/C 419/41)

Language of the case: Croatian

Referring court

Ministarstvo pomorstva, prometa i infrastrukture — Uprava zračnog prometa, elektroničkih komunikacija i pošte

Parties to the main proceedings

Applicant: Hrvatska agencija za civilno zrakoplovstvo

Defendant: Air Serbia A.D. Beograd, and Dane Kondič, direktor Air Serbia A.D. Beograd

Question referred

Is the practice of an airline of a signatory to the Multilateral Agreement on the Establishment of a European common aviation area (ECAA) which consists in providing commercial air transportation services departing from one of the Member States of the European Union, via its country of origin as a transfer point where passengers and their luggage are transhipped to another aircraft belonging to the same company, and travelling to a Member State of the European Union or a third country on the basis of an autonomous transport ticket which indicates two different flight numbers consistent with the interpretation of EU law in general and with the interpretation of Article 3(1)(a)(i) of Protocol VI included in Annex V of the ECAA in particular?

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/32 |
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Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 5 September 2016 — Fidelity Funds v Skatteministeriet

(Case C-480/16)

(2016/C 419/42)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Fidelity Funds

Defendant: Skatteministeriet

Intervener: NN (L) SICAV

Question referred

Is a tax regime, such as that in the main proceedings, under which non-Danish undertakings for collective investment covered by Council Directive 85/611/EEC (1) (the UCITS Directive) are taxed at source on dividends from Danish companies, contrary to Article 56 TEC (Article 63 TFEU) on free movement of capital or Article 49 TEC (Article 56 TFEU) on freedom to provide services, where equivalent Danish undertakings for collective investment can obtain an exemption for tax at source, either because they in fact make a minimum distribution to their members in return for retention of tax at source, or technically a minimum distribution is calculated, on which tax at source is retained in relation to the undertakings’ members?

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(1)  Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ 1985 L 375, p. 3).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/32 |
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Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 September 2016 — Zsolt Sziber v ERSTE Bank Hungary Zrt.

(Case C-483/16)

(2016/C 419/43)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: Zsolt Sziber

Defendant: ERSTE Bank Hungary Zrt.

Other party to the proceedings: Mónika Szeder

Questions referred

| 1. | Must the following provisions of EU law, namely, Article 129a (1) and (2) of the Treaty establishing the European Community (Treaty of Rome), read in the light of Article 129a (3) of that treaty; Article 38 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2); Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) read in the light of Article 8 of that directive and recital 47 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, (2) be interpreted as precluding rules of national law (and their application) which impose additional requirements prejudicial to a party to proceedings, whether applicant or defendant, that, between 1 May 2004 and 26 July 2014, entered into a credit agreement, in the capacity of a consumer, containing an unfair contractual term which allows a unilateral increase in interest rates, costs or commissions or containing a bid-offer spread, on the basis that under those additional requirements, in order for the rights arising from the invalidity of those contracts concluded with consumers to be upheld before the courts and, in particular, in order for the court to be able to examine the substance of a case, a civil litigation document must be presented (primarily a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim) and it must comply with mandatory content requirements, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements? |
| --- | --- |

1.

Must the following provisions of EU law, namely, Article 129a (1) and (2) of the Treaty establishing the European Community (Treaty of Rome), read in the light of Article 129a (3) of that treaty; Article 38 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2); Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) read in the light of Article 8 of that directive and recital 47 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, (2) be interpreted as precluding rules of national law (and their application) which impose additional requirements prejudicial to a party to proceedings, whether applicant or defendant, that, between 1 May 2004 and 26 July 2014, entered into a credit agreement, in the capacity of a consumer, containing an unfair contractual term which allows a unilateral increase in interest rates, costs or commissions or containing a bid-offer spread, on the basis that under those additional requirements, in order for the rights arising from the invalidity of those contracts concluded with consumers to be upheld before the courts and, in particular, in order for the court to be able to examine the substance of a case, a civil litigation document must be presented (primarily a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim) and it must comply with mandatory content requirements, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?

| 2. | Regardless of whether the Court of Justice answers Question 1, which is formulated in more general terms than this second question, in the affirmative or the negative, must the provisions of EU law listed in Question 1 be interpreted as precluding the following obligatory additional requirements [(a) to (c)] from applying to a party to proceedings that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1:






  (a) | in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, the party does not only request the court to declare wholly or partially invalid the credit agreement entered into with consumers as referred to in Question 1, but also requests the court to apply the legal consequences associated with the total invalidity of the contract, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements? |
| --- | --- | --- |

2.

Regardless of whether the Court of Justice answers Question 1, which is formulated in more general terms than this second question, in the affirmative or the negative, must the provisions of EU law listed in Question 1 be interpreted as precluding the following obligatory additional requirements [(a) to (c)] from applying to a party to proceedings that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1:

(a)

in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, the party does not only request the court to declare wholly or partially invalid the credit agreement entered into with consumers as referred to in Question 1, but also requests the court to apply the legal consequences associated with the total invalidity of the contract, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?

| (b) | in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, whilst requesting the court to declare the total invalidity of the credit agreement entered into with consumers, as referred to in Question 1, no request is made, in the context of legal consequences associated with total invalidity, for legal restoration of the situation prior to the conclusion of the credit agreement, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements? |
| --- | --- |

(b)

in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where, in that document, whilst requesting the court to declare the total invalidity of the credit agreement entered into with consumers, as referred to in Question 1, no request is made, in the context of legal consequences associated with total invalidity, for legal restoration of the situation prior to the conclusion of the credit agreement, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?

| (c) | in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where that document includes, in relation to the period from the start of the contractual legal relationship to the date the court is seised, a settlement calculation carried out using an extremely complex mathematical methodology (as prescribed by national provisions) which must also take into account the rules regulating currency conversion into forints, as well as including a detailed breakdown represented in a mathematically verifiable way; indicating the payments due under the credit agreement, payments made by the applicant, the payments due leaving aside the void clause, and the difference between those figures; and specifying the grand total that the party that entered into the credit agreement, in the capacity of a consumer, as referred to in Question 1, still owes the credit institution or paid in excess, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements? |
| --- | --- |

(c)

in judicial proceedings, a claim, an amendment of a claim or a plea of invalidity relied on by way of defence — contesting the order against the consumer — an amendment of that plea, a counterclaim by the defendant or an amendment of that counterclaim which must be presented by a party to proceedings, whether applicant or defendant, that has entered into a credit agreement, in the capacity of a consumer, as referred to in Question 1, is only admissible — that is to say, will only be examined as to its substance — where that document includes, in relation to the period from the start of the contractual legal relationship to the date the court is seised, a settlement calculation carried out using an extremely complex mathematical methodology (as prescribed by national provisions) which must also take into account the rules regulating currency conversion into forints, as well as including a detailed breakdown represented in a mathematically verifiable way; indicating the payments due under the credit agreement, payments made by the applicant, the payments due leaving aside the void clause, and the difference between those figures; and specifying the grand total that the party that entered into the credit agreement, in the capacity of a consumer, as referred to in Question 1, still owes the credit institution or paid in excess, whereas a party to proceedings that has not entered into a credit agreement, in the capacity of a consumer, or that entered into a credit agreement of a different nature to that described above, between 1 May 2004 and 26 July 2014, in the capacity of a consumer, is not required to present such a document complying with mandatory content requirements?

| 3. | Must the provisions of EU law listed in Question 1 be interpreted as meaning that infringement of those rules by means of the imposition of the additional requirements listed in Questions 1 and 2 also constitutes an infringement of Articles 20, 21 and 47 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2), taking into account (here and also partly with regard to Questions 1 and 2) that the courts of the Member States must apply EU law in the field of consumer protection even in cases which do not contain any cross-border elements, that is to say, in purely domestic situations, in accordance with the judgments of the Court of Justice of 5 December 2000, Guimont, C-448/98, EU:C:2000:663, paragraph 23, 10 May 2012, Duomo Gpa and Others, C-357/10 to C-359/10, EU:C:2012:283, paragraph 28, and the order of 3 July 2014, Tudoran, C-92/14, EU:C:2014:2051, paragraph 39? Or should the situation be regarded as a cross-border situation merely because the credit agreements referred to in Question 1 are ‘foreign currency based credit agreements’? |
| --- | --- |

3.

Must the provisions of EU law listed in Question 1 be interpreted as meaning that infringement of those rules by means of the imposition of the additional requirements listed in Questions 1 and 2 also constitutes an infringement of Articles 20, 21 and 47 of the Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 2), taking into account (here and also partly with regard to Questions 1 and 2) that the courts of the Member States must apply EU law in the field of consumer protection even in cases which do not contain any cross-border elements, that is to say, in purely domestic situations, in accordance with the judgments of the Court of Justice of 5 December 2000, Guimont, C-448/98, EU:C:2000:663, paragraph 23, 10 May 2012, Duomo Gpa and Others, C-357/10 to C-359/10, EU:C:2012:283, paragraph 28, and the order of 3 July 2014, Tudoran, C-92/14, EU:C:2014:2051, paragraph 39? Or should the situation be regarded as a cross-border situation merely because the credit agreements referred to in Question 1 are ‘foreign currency based credit agreements’?

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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).

(2)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/34 |
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14.11.2016

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Official Journal of the European Union

C 419/34

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Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 14 September 2016 — A.S. v Republic of Slovenia

(Case C-490/16)

(2016/C 419/44)

Language of the case: Slovenian

Referring court

Vrhovno sodišče Republike Slovenije

Parties to the main proceedings

Applicant: A.S.

Defendant: Republic of Slovenia

Questions referred

| (1) | Does judicial protection under Article 27 of Regulation No 604/2013 concern also the interpretation of the conditions of the criterion under Article 13(1) in respect of a decision that the Member State will not examine the application for international protection, that another Member State has already assumed responsibility for examining the applicant’s application on the same basis and where the applicant challenges this? |
| --- | --- |

(1)

Does judicial protection under Article 27 of Regulation No 604/2013 concern also the interpretation of the conditions of the criterion under Article 13(1) in respect of a decision that the Member State will not examine the application for international protection, that another Member State has already assumed responsibility for examining the applicant’s application on the same basis and where the applicant challenges this?

| (2) | Is the condition of irregular crossing under Article 13(1) of Regulation No 604/2013 to be interpreted independently or in conjunction with Article 3(2) of Directive 2008/115 on return and Article 5 of the Schengen Borders Code which define illegal crossing of the border and must that interpretation be applied in relation to Article 13(1) of Regulation No 604/2013? |
| --- | --- |

(2)

Is the condition of irregular crossing under Article 13(1) of Regulation No 604/2013 to be interpreted independently or in conjunction with Article 3(2) of Directive 2008/115 on return and Article 5 of the Schengen Borders Code which define illegal crossing of the border and must that interpretation be applied in relation to Article 13(1) of Regulation No 604/2013?

| (3) | In view of the answer to the second question, is the concept of irregular crossing under Article 13(1) of Regulation No 604/2013 in the circumstances of the present case to be interpreted as meaning that there is no irregular crossing of the border where the public authorities of a Member State organise the crossing of the border with the aim of transit to another Member State of the EU? |
| --- | --- |

(3)

In view of the answer to the second question, is the concept of irregular crossing under Article 13(1) of Regulation No 604/2013 in the circumstances of the present case to be interpreted as meaning that there is no irregular crossing of the border where the public authorities of a Member State organise the crossing of the border with the aim of transit to another Member State of the EU?

| (4) | In the event that the answer to the third question is in the affirmative, is Article 13(1) of Regulation No 604/2013 consequently to be interpreted as meaning that it prohibits sending a national of a third State back to the State where he initially entered EU territory? |
| --- | --- |

(4)

In the event that the answer to the third question is in the affirmative, is Article 13(1) of Regulation No 604/2013 consequently to be interpreted as meaning that it prohibits sending a national of a third State back to the State where he initially entered EU territory?

| (5) | Is Article 27 of Regulation No 604/2013 to be interpreted as meaning that the time-limits of Article 13(1) and Article 29(2) do not run where the applicant exercises the right to judicial protection, a fortiori where that implies also a question for a preliminary ruling or where the national court is awaiting the answer of the Court of Justice of the European Union to such a question which has been submitted in another case? In the alternative, would the time-limits run in such a case, the Member State responsible however not being entitled to refuse reception? |
| --- | --- |

(5)

Is Article 27 of Regulation No 604/2013 to be interpreted as meaning that the time-limits of Article 13(1) and Article 29(2) do not run where the applicant exercises the right to judicial protection, a fortiori where that implies also a question for a preliminary ruling or where the national court is awaiting the answer of the Court of Justice of the European Union to such a question which has been submitted in another case? In the alternative, would the time-limits run in such a case, the Member State responsible however not being entitled to refuse reception?

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General Court

| 14.11.2016 | EN | Official Journal of the European Union | C 419/36 |
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Official Journal of the European Union

C 419/36

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Judgment of the General Court of 4 October 2016 — Lidl Stiftung v EUIPO — Horno del Espinar (Castello)

(Case T-549/14) (1)

((EU trade mark - Opposition proceedings - Application for the EU word mark Castello - Earlier national and EU figurative marks Castelló - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 419/45)

Language of the case: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: M. Wolter, M. Kefferpütz and A. Marx, lawyers)

Defendant: European Union Intellectual Property Office (represented initially by P. Geroulakos and D. Botis, subsequently by D. Botis and lastly by D. Gája, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Horno del Espinar, SL (El Espinar, Spain)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 22 April 2014 (Joined Cases R 1233/2013-2 and R 1258/2013-2) relating to opposition proceedings between Horno del Espinar and Lidl Stiftung & Co.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 April 2014 (Joined Cases R 1233/2013-2 and R 1258/2013-2) relating to opposition proceedings between Horno del Espinar, SL and Lidl Stiftung & Co. KG insofar as the Board of Appeal held that there was a likelihood of confusion as regards the frozen fruit and vegetables in Class 29 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended; |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 April 2014 (Joined Cases R 1233/2013-2 and R 1258/2013-2) relating to opposition proceedings between Horno del Espinar, SL and Lidl Stiftung & Co. KG insofar as the Board of Appeal held that there was a likelihood of confusion as regards the frozen fruit and vegetables in Class 29 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Lidl Stiftung & Co. to bear, in addition to its own costs, three quarters of the costs incurred by EUIPO; |
| --- | --- |

3.

Orders Lidl Stiftung & Co. to bear, in addition to its own costs, three quarters of the costs incurred by EUIPO;

| 4. | Orders EUIPO to bear one quarter of its own costs. |
| --- | --- |

4.

Orders EUIPO to bear one quarter of its own costs.

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(1)  OJ C 351, 6.10.2014.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/37 |
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14.11.2016

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Official Journal of the European Union

C 419/37

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Judgment of the General Court of 5 October 2016 — European Children's Fashion Association and Instituto de Economía Pública v EACEA

(Case T-724/14) (1)

((Arbitration clause - Grant agreement concluded under the action programme ‘Lifelong Learning (2007-2013)’ - ‘Brand & Merchandising manager for SMEs in the childrens’ product sector’ project - Action for annulment - Act not subject to appeal - Act forming part of a purely contractual agreement from which it is indissociable - Inadmissibility - Ineligible expenditure - Reimbursement of the sums paid - Audit report))

(2016/C 419/46)

Language of the case: French

Parties

Applicants: European Children’s Fashion Association (Valencia, Spain) and Instituto de Economía Pública (Valencia) (represented by: A. Haegeman, lawyer)

Defendant: Education, Audiovisual and Culture Executive Agency (EACEA) (represented by: H. Monet and A. Jaume, acting as Agents)

Re:

Primarily, application, pursuant to Article 272 TFEU, seeking a declaration that the first application is not required to reimburse the sum paid to it by EACEA under the agreement for the execution of the ‘Brand & Merchandising Manager for SMEs in the Children’s Product Sector’ project, or, in the alternative, application for annulment, firstly, of EACEA’s pre-information letter of 1 August 2014 informing the first applicant that it had to reimburse the sum of EUR 82 378,81 following the audit of the that project and, secondly, of debit note No 3241401420, issued by EACEA on 5 August 2014, seeking the reimbursement of that sum.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders European Children’s Fashion Association and Instituto de Economía Pública to pay the costs. |
| --- | --- |

2.

Orders European Children’s Fashion Association and Instituto de Economía Pública to pay the costs.

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(1)  OJ C 7, 12.1.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/37 |
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14.11.2016

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Official Journal of the European Union

C 419/37

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Judgment of the General Court of 30 September 2016 — Trajektna luka Split v Commission

(Case T-70/15) (1)

((Competition - Abuse of dominant position - Decision finding an infringement of Article 102 TFEU - Setting of fees by the Split Port Authority for port services in respect of domestic traffic at maximum levels - Rejection of a complaint - Case being dealt with by a competition authority of a Member State - No EU interest))

(2016/C 419/47)

Language of the case: English

Parties

Applicant: Trajektna luka Split d.d. (Split, Croatia) (represented by: M. Bauer, H.-J. Freund and S. Hankiewicz, lawyers)

Defendant: European Commission (represented by: C. Giolito, C. Urraca Caviedes and I. Zaloguin, acting as Agents)

Re:

Application pursuant to Article 263 TFEU for the annulment of Commission Decision C(2014) 9236 final of 28 November 2014, rejecting the complaint lodged by the applicant concerning infringements of Article 102 TFEU allegedly committed by the Split Port Authority or of Articles 102 and 106 TFEU committed by the Republic of Croatia or the Split Port Authority (Case AT.40199 — Port of Split).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Trajektna luka Split d.d. to pay the costs. |
| --- | --- |

2.

Orders Trajektna luka Split d.d. to pay the costs.

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(1)  OJ C 118, 13.4.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/38 |
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14.11.2016

EN

Official Journal of the European Union

C 419/38

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Judgment of the General Court of 28 September 2016 — Intesa Sanpaolo v EUIPO (WAVE 2 PAY and WAVE TO PAY)

(Case T-129/15 and T-130/15) (1)

((EU trade mark - Application for EU word marks WAVE 2 PAY and WAVE TO PAY - Absolute grounds for refusal - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009))

(2016/C 419/48)

Language of the case: Italian

Parties

Applicant: Intesa Sanpaolo SpA (Turin, Italy) (represented by: P. Pozzi and F. Cecchi, lawyers)

Defendant: European Union Intellectual Property Office (represented by: initially P. Bullock and L. Rampini, then L. Rampini, acting as Agents)

Re:

Action brought against two decisions of the Fifth Board of Appeal of EUIPO of 19 January 2015 (Cases, respectively, R 1857/2014-5 and R 1864/2014-5), concerning two applications for registration of the word signs, respectively, WAVE 2 PAY and WAVE TO PAY as EU trade marks.

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

| 2. | Orders Intesa Sanpaolo SpA to pay the costs. |
| --- | --- |

2.

Orders Intesa Sanpaolo SpA to pay the costs.

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(1)  OJ C 155, 2.7.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/39 |
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14.11.2016

EN

Official Journal of the European Union

C 419/39

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Judgment of the General Court of 29 September 2016 — Universal Protein Supplements v EUIPO (Representation of a body builder)

(Case T-335/15) (1)

((EU trade mark - Application for registration of an EU figurative mark representing a body-builder - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))

(2016/C 419/49)

Language of the case: English

Parties

Applicant: Universal Protein Supplements Corp. (New Brunswick, New Jersey, United States) (represented by: S. Malynicz QC)

Defendant: European Union Intellectual Property Office (represented by: initially by H. O’Neill, and subsequently by A. Folliard-Monguiral, acting as Agents)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 March 2015 (Case R 2958/2014-5) concerning an application for registration of a figurative sign representing a body-builder as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Universal Protein Supplements Corp. to pay the costs. |
| --- | --- |

2.

Orders Universal Protein Supplements Corp. to pay the costs.

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(1)  OJ C 279, 24.8.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/39 |
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14.11.2016

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Official Journal of the European Union

C 419/39

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Judgment of the General Court of 29 September 2016 — Bach Flower Remedies v EUIPO — Durapharma (RESCUE)

(Case T-337/15) (1)

((EU trade mark - Invalidity proceedings - EU word mark RESCUE - Absolute ground for refusal - Descriptive character - No distinctive character acquired through use - Article 7(1)(c) and (3) of Regulation (EC) No 207/2009 - Article 52(2) of Regulation No 207/2009))

(2016/C 419/50)

Language of the case: English

Parties

Applicant: Bach Flower Remedies Ltd (Wimbledon, United Kingdom) (represented by: I. Fowler, Solicitor)

Defendant: European Union Intellectual Property Office (represented by: M. Simandlova and A. Schifko, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Durapharma ApS (Stenstrup, Denmark)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 26 March 2015 (Case R 2551/2013-1), relating to invalidity proceedings between Durapharma and Bach Flower Remedies.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Bach Flower Remedies Ltd to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Orders Bach Flower Remedies Ltd to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

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(1)  OJ C 294, 7.9.2015.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/40 |
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14.11.2016

EN

Official Journal of the European Union

C 419/40

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Judgment of the General Court of 30 September 2016 — Alpex Pharma v EUIPO — Astex Pharmaceuticals (ASTEX)

(Case T-355/15) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark ASTEX - Earlier EU word mark ALPEX - No genuine use of the earlier mark - Article 42(2) of Regulation (EC) No 207/2009 - Article 75 of Regulation No 207/2009 - Article 76(1) of Regulation No 207/2009))

(2016/C 419/51)

Language of the case: English

Parties

Applicant: Alpex Pharma SA (Mezzovico-Vira, Switzerland) (represented by: C. Bacchini, M. Mazzitelli and E. Rondinelli, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Astex Pharmaceuticals, Inc. (Plesanton, United States)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 28 April 2015 (Case R 593/2014-2), relating to opposition proceedings between Alpex Pharma and Astex Pharmaceuticals.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Alpex Pharma, SA, to pay the costs. |
| --- | --- |

2.

Orders Alpex Pharma, SA, to pay the costs.

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(1)  OJ C 294, 7.9.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/40 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/40

---

Judgment of the General Court of 5 October 2016 — CJ v ECDC

(Case T-370/15) (1)

((Appeal - Civil service - Member of the contract staff - Fixed-term contract - Termination - Breakdown in the relationship of trust - Right to be heard))

(2016/C 419/52)

Language of the case: English

Parties

Appellant: CJ (Agios Stefanos, Greece) (represented by: V. Kolias, lawyer)

Other party to the proceedings: European Centre for Disease Prevention and Control (ECDC) (represented by: J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015, CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38), seeking to have that judgment set aside in part

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015 in CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38) so far as that appeal concerns Case F-159/12; |
| --- | --- |

1.

Dismisses the appeal against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015 in CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38) so far as that appeal concerns Case F-159/12;

| 2. | Declares that CJ shall bear his own costs and orders him to pay those incurred by the European Centre for Disease Prevention and Control (ECDC) in the present proceedings, in so far as those costs relate to Case F-159/12; |
| --- | --- |

2.

Declares that CJ shall bear his own costs and orders him to pay those incurred by the European Centre for Disease Prevention and Control (ECDC) in the present proceedings, in so far as those costs relate to Case F-159/12;

| 3. | Sets aside points 3 and 5 of the operative part of the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015 in CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38); |
| --- | --- |

3.

Sets aside points 3 and 5 of the operative part of the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015 in CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38);

| 4. | Refers the present case, in so far as it concerns Case F-161/12, to a chamber other than that which has ruled on the present appeal; |
| --- | --- |

4.

Refers the present case, in so far as it concerns Case F-161/12, to a chamber other than that which has ruled on the present appeal;

| 5. | Reserves the costs relating to the present proceedings in so far as they relate to Case F-161/12. |
| --- | --- |

5.

Reserves the costs relating to the present proceedings in so far as they relate to Case F-161/12.

---

(1)  OJ C 311, 21.9.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/41 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/41

---

Judgment of the General Court of 5 October 2016 — ECDC v CJ

(Case T-395/15) (1)

((Appeal - Civil service - Member of the contract staff - Fixed-term contract - Termination - Breakdown in the relationship of trust - Right to be heard))

(2016/C 419/53)

Language of the case: English

Parties

Appellant: European Centre for Disease Prevention and Control (represented by: J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, lawyers)

Other party to the proceedings: CJ (Agios Stefanos, Greece) (represented by: V. Kolias, lawyer)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 29 April 2015, CJ v ECDC (F-159/12 and F-161/12, EU:F:2015:38), seeking to have that judgment set aside in part.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the European Centre for Disease Prevention and Control (ECDC) to pay the costs. |
| --- | --- |

2.

Orders the European Centre for Disease Prevention and Control (ECDC) to pay the costs.

---

(1)  OJ C 311, 21.9.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/42 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/42

---

Order of the General Court of 30 September 2016 — Flowil International Lighting v EUIPO — Lorimod Prod Com (Silvania Food)

(Case T-430/15) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative trade mark Silvania Food - Earlier EU word marks SYLVANIA - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 8(5) of Regulation No 207/2009))

(2016/C 419/54)

Language of the case: English

Parties

Applicant: Flowil International Lighting (Holding) BV (Amsterdam, Netherlands) (represented by: J. Güell Serra, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO: SC Lorimod Prod Com, Srl (Simleul Silvaniei, Romania)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 8 May 2015 (Case R 616/2014-2), concerning opposition proceedings between Flowil International Lighting (Holding) and SC Lorimod Prod Com.

Operative part of the order

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

1.

Dismisses the action.

| 2. | Orders Flowil International Lighting (Holding) BV to pay the costs. |
| --- | --- |

2.

Orders Flowil International Lighting (Holding) BV to pay the costs.

---

(1)  OJ C 320, 28.9.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/42 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/42

---

Judgment of the General Court of 5 October 2016 — Foodcare v EUIPO — Michalczewski (T.G.R. ENERGY DRINK)

(Case T-456/15) (1)

((EU trade mark - Invalidity proceedings - EU word mark T.G.R. ENERGY DRINK - Bad faith - Article 52(1)(b) of Regulation (EC) No 207/2009))

(2016/C 419/55)

Language of the case: English

Parties

Applicant: Foodcare sp. z o.o. (Zabierzów, Poland) (represented by: A. Matusik, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, Agent)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Dariusz Michalczewski (Gdańsk, Poland) (represented by: B. Matusiewicz-Kulig, M. Czerwińska and M. Marek, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 12 May 2015 (Case R 265/2014-2), relating to invalidity proceedings between Mr Michalczewski and Foodcare.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Foodcare sp. z o.o. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Mr Dariusz Michalczewski. |
| --- | --- |

2.

Orders Foodcare sp. z o.o. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Mr Dariusz Michalczewski.

---

(1)  OJ C 328, 5.10.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/43 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/43

---

Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (KOZMeTIKA AFRODITA)

(Case T-574/15) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark KOZMeTIKA AFRODITA - Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 419/56)

Language of the case: Slovenian

Parties

Applicant: Kozmetika Afrodita d.o.o. (Rogaška Slatina, Slovenia) (represented by: B. Grešak, lawyer)

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

Other parties to the proceedings before the Board of Appeal of EUIPO: Pedro Núñez Martín (Madrid, Spain) and Carmen Guillermina Machado Montesinos (Madrid)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 July 2015 (case R 2577/2014-4) relating to opposition proceedings between, on the one hand, Mr Núñez Martín and Ms Machado Montesinos and, on the other, Kozmetika Afrodita.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Kozmetika Afrodita d.o.o. to pay the costs. |
| --- | --- |

2.

Orders Kozmetika Afrodita d.o.o. to pay the costs.

---

(1)  OJ C 406, 7.12.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/43 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/43

---

Judgment of the General Court of 28 September 2016 — Kozmetika Afrodita v EUIPO — Núñez Martín and Machado Montesinos (AFRODITA COSMETICS)

(Case T-575/15) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark AFRODITA COSMETICS - Earlier national word mark EXOTIC AFRODITA MYSTIC MUSK OIL and earlier national figurative mark AFRODITA MYSTIC MUSK OIL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 419/57)

Language of the case: Slovenian

Parties

Applicant: Kozmetika Afrodita d.o.o. (Rogaška Slatina, Slovenia) (represented by: B. Grešak, lawyer)

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

Other parties to the proceedings before the Board of Appeal of EUIPO: Pedro Núñez Martín (Madrid, Spain) and Carmen Guillermina Machado Montesinos (Madrid)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 July 2015 (case R 2578/2014-4) relating to opposition proceedings between, on the one hand, Mr Núñez Martín and Ms Machado Montesinos and, on the other, Kozmetika Afrodita.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Kozmetika Afrodita d.o.o. to pay the costs. |
| --- | --- |

2.

Orders Kozmetika Afrodita d.o.o. to pay the costs.

---

(1)  OJ C 406, 7.12.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/44 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/44

---

Judgment of the General Court of 28 September 2016 — The Art Company B & S v EUIPO — G-Star Raw (THE ART OF RAW)

(Case T-593/15) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark THE ART OF RAW - Earlier national and EU figurative marks art and earlier EU figurative mark The Art Company - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 419/58)

Language of the case: English

Parties

Applicant: The Art Company B & S, SA (Quel, Spain) (represented by: J. Villamor Muguerza, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: G-Star Raw CV (Amsterdam, Netherlands)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1980/2014-1), relating to opposition proceedings between The Art Company B & S and G-Star Raw.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders The Art Company B & S, SA to pay the costs. |
| --- | --- |

2.

Orders The Art Company B & S, SA to pay the costs.

---

(1)  OJ C 414, 14.12.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/45 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/45

---

Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car)

(Case T-73/15) (1)

((European Union trade mark - Withdrawal of the application for registration - No need to adjudicate))

(2016/C 419/59)

Language of the case: English

Parties

Applicant: Aston Martin Lagonda Ltd (Gaydon, United Kingdom) (represented by: D. Farnsworth, Solicitor)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 11 December 2014 (Case R 1796/2014-2) relating to the applicant’s Community trade mark application

Operative part of the order

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

1.

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

| 2. | Aston Martin Lagonda Ltd shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Aston Martin Lagonda Ltd shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO).

---

(1)  OJ C 118, 13.4.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/45 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/45

---

Order of the General Court of 16 September 2016 — Aston Martin Lagonda v EUIPO (Representation of a grille on the front of a car)

(Case T-87/15) (1)

((European Union trade mark - Withdrawal of the application for registration - No need to adjudicate))

(2016/C 419/60)

Language of the case: English

Parties

Applicant: Aston Martin Lagonda Ltd (Gaydon, United Kingdom) (represented by: D. Farnsworth, Solicitor)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 11 December 2014 (Case R 1797/2014-2) relating to the applicant’s Community trade mark application

Operative part of the order

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

1.

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

| 2. | Aston Martin Lagonda Ltd shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Aston Martin Lagonda Ltd shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO).

---

(1)  OJ C 138, 27.4.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/46 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/46

---

Order of the General Court of 26 September 2016 — Greenpeace Energy and Others v Commission

(Case T-382/15) (1)

((Action for annulment - State aid - Nuclear energy - Aid in support of Hinkley Point C nuclear power station - Contract for difference, agreement of the Secretary of State and credit guarantee - Decision declaring the aid to be compatible with the internal market - Absence of any significant effect on a competitive position - Lack of individual concern - Inadmissibility))

(2016/C 419/61)

Language of the case: German

Parties

Applicants: Greenpeace Energy eG (Hamburg, Germany) and the nine other applicants whose names are set out in the annex to the order (represented by: D. Fouquet and J. Nysten, lawyers)

Defendant: European Commission (represented by: É. Gippini Fournier, T. Maxian Rusche and P. Němečková, acting as Agents)

Re:

Application under Article 263 TFEU for the annulment of Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station (OJ 2015 L 109, p. 44).

Operative part of the order

The Court orders as follows:

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

1.

The action is dismissed as inadmissible.

| 2. | There is no need to rule on the applications for leave to intervene submitted by NNB Generation Company Limited, the Slovak Republic, Hungary, the United Kingdom of Great Britain and Northern Ireland, the French Republic, the Czech Republic and the Republic of Poland. |
| --- | --- |

2.

There is no need to rule on the applications for leave to intervene submitted by NNB Generation Company Limited, the Slovak Republic, Hungary, the United Kingdom of Great Britain and Northern Ireland, the French Republic, the Czech Republic and the Republic of Poland.

| 3. | Greenpeace Energy eG and the other applicants whose names are set out in the annex shall bear their own costs and pay those incurred by the European Commission, with the exception of the costs relating to the applications for leave to intervene. |
| --- | --- |

3.

Greenpeace Energy eG and the other applicants whose names are set out in the annex shall bear their own costs and pay those incurred by the European Commission, with the exception of the costs relating to the applications for leave to intervene.

| 4. | Greenpeace Energy and the other applicants whose names are set out in the annex, the Commission, NNB Generation Company Limited, the Slovak Republic, Hungary, the United Kingdom of Great Britain and Northern Ireland, the French Republic, the Czech Republic and the Republic of Poland shall bear their own respective costs relating to the applications for leave to intervene. |
| --- | --- |

4.

Greenpeace Energy and the other applicants whose names are set out in the annex, the Commission, NNB Generation Company Limited, the Slovak Republic, Hungary, the United Kingdom of Great Britain and Northern Ireland, the French Republic, the Czech Republic and the Republic of Poland shall bear their own respective costs relating to the applications for leave to intervene.

---

(1)  OJ C 337, 12.10.2015.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/46 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/46

---

Action brought on 27 July 2016 — HX v Council

(Case T-408/16)

(2016/C 419/62)

Language of the case: Bulgarian

Parties

Applicant: HX (Damascus, Syria) (represented by: S. Koev, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | hold the present action to be admissible and well founded, and hold all the pleas it contains to be well founded; |
| --- | --- |

—

hold the present action to be admissible and well founded, and hold all the pleas it contains to be well founded;

| — | examine the present action under the accelerated procedure; |
| --- | --- |

—

examine the present action under the accelerated procedure;

| — | declare that the contested acts may be annulled in part since the part of the acts which should be annulled can be separated from the act as a whole, and accordingly annul the following:






  — | Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria, in so far as it concerns the applicant, and |
| --- | --- | --- |

—

declare that the contested acts may be annulled in part since the part of the acts which should be annulled can be separated from the act as a whole, and accordingly annul the following:

—

Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria, in so far as it concerns the applicant, and

| — | Council Implementing Regulation (EU) 2016/840 of 27 May 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as it concerns the applicant; |
| --- | --- |

—

Council Implementing Regulation (EU) 2016/840 of 27 May 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as it concerns the applicant;

| — | order the Council to pay the entirety of the costs. |
| --- | --- |

—

order the Council to pay the entirety of the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a manifest infringement of the right not to be tried or punished twice for the same criminal offence (Article 50 of the Charter of Fundamental Rights of the European Union). |
| --- | --- |

1.

First plea in law, alleging a manifest infringement of the right not to be tried or punished twice for the same criminal offence (Article 50 of the Charter of Fundamental Rights of the European Union).

| 2. | Second plea in law, alleging a manifest infringement of the rights of the defence and the right to a fair trial. |
| --- | --- |

2.

Second plea in law, alleging a manifest infringement of the rights of the defence and the right to a fair trial.

| 3. | Third plea in law, alleging infringement of the obligation to state reasons. |
| --- | --- |

3.

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

| 4. | Fourth plea in law, alleging infringement of the right to effective judicial protection. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the right to effective judicial protection.

| 5. | Fifth plea in law, alleging an error of assessment on the part of the Council. |
| --- | --- |

5.

Fifth plea in law, alleging an error of assessment on the part of the Council.

| 6. | Sixth plea in law, alleging an infringement of the right to property, of the principle of proportionality and of the freedom to conduct a business. |
| --- | --- |

6.

Sixth plea in law, alleging an infringement of the right to property, of the principle of proportionality and of the freedom to conduct a business.

| 7. | Seventh plea in law, alleging infringement of the right to a normal life. |
| --- | --- |

7.

Seventh plea in law, alleging infringement of the right to a normal life.

| 8. | Eighth plea in law, alleging a serious infringement of the right to the protection of reputation. |
| --- | --- |

8.

Eighth plea in law, alleging a serious infringement of the right to the protection of reputation.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/47 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/47

---

Action brought on 28 July 2016 — Acquafarm v Commission

(Case T-458/16)

(2016/C 419/63)

Language of the case: Spanish

Parties

Applicant: Acquafarm, SL (Huelva, Spain) (represented by: A. Pérez Moreno, lawyer)

Defendant: European Commission

Form of order sought

The applicant requests that the General Court award it compensation for the damage caused by the lack of coordination of administrative action relating to the aquaculture facility, located in Gibraleón (Huelva), which resulted in serious injury to the legitimate expectations placed in that entity, arising as a result of the grant of aid for the implementation of an aquaculture project, which, in parallel, the European Union makes unviable as a result of a ban on the export of the species for the breeding of which the facilities are being built.

Pleas in law and main arguments

The applicant in the present proceedings is a company dedicated to research, innovation and industrial development in the field of aquaculture; it was created in 2004 for the implementation of an aquaculture project for the breeding and marketing of the Cherax Cuadricarinatus shellfish (Australian freshwater lobster). That project was awarded the corresponding aid from the European Union in accordance with the provisions set out in Commission Regulation (EC) No 498/2007 of 26 March 2007 laying down detailed rules for the implementation of Council Regulation (EC) No 1198/2006 on the European Fisheries Fund (OJ 2007 L 120, p. 1).

In support of its action, the applicant relies on Article 340 of the Treaty on the Functioning of the European Union and, for consideration thereof, on Spanish law on administrative responsibility, as stated in Article 106 of the Constitution and Articles 139 and following of Ley 30/92, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común (Law 30/92 of 26 November on the legal rules governing public authorities and the common administrative procedure).

In that regard, the applicant states that:

| — | The aid received had been allocated to works in the aquaculture industry, since neither the implementation of the project carried out with that aid or the investments made had ever met any obstacles. |
| --- | --- |

—

The aid received had been allocated to works in the aquaculture industry, since neither the implementation of the project carried out with that aid or the investments made had ever met any obstacles.

| — | Once the project was in the final stages of implementation, the company received notification from Australia that it was not possible to import the relevant species to the European Union as a result of the provisions of Commission Regulation (EC) No 1251/2008 of 12 December 2008 implementing Council Directive 2006/88/EC as regards conditions and certification requirements for the placing on the market and the import into the Community of aquaculture animals and products thereof and laying down a list of vector species (OJ 2008 L 337, p. 41). |
| --- | --- |

—

Once the project was in the final stages of implementation, the company received notification from Australia that it was not possible to import the relevant species to the European Union as a result of the provisions of Commission Regulation (EC) No 1251/2008 of 12 December 2008 implementing Council Directive 2006/88/EC as regards conditions and certification requirements for the placing on the market and the import into the Community of aquaculture animals and products thereof and laying down a list of vector species (OJ 2008 L 337, p. 41).

| — | As a result, the company has suffered various forms of injury, as made clear in the evidence adduced, amounting to a total of EUR five million. |
| --- | --- |

—

As a result, the company has suffered various forms of injury, as made clear in the evidence adduced, amounting to a total of EUR five million.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/48 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/48

---

Action brought on 6 September 2016 — Wabco Europe v Commission

(Case T-637/16)

(2016/C 419/64)

Language of the case: English

Parties

Applicant: Wabco Europe (Brussels, Belgium) (represented by: E. Righini and S. Völcker, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the application for annulment admissible; |
| --- | --- |

—

declare the application for annulment admissible;

| — | annul, in whole or in part, the decision (1); and |
| --- | --- |

—

annul, in whole or in part, the decision (1); and

| — | 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 six pleas in law.

| 1. | First plea in law, alleging that the decision must be annulled because it is vitiated by errors in law and in fact in identifying the alleged State aid measure and categorising it as an aid scheme; |
| --- | --- |

1.

First plea in law, alleging that the decision must be annulled because it is vitiated by errors in law and in fact in identifying the alleged State aid measure and categorising it as an aid scheme;

| 2. | Second plea in law, alleging that the decision must be annulled because the Commission has erred in law and in fact in considering the measure selective under Article 107 TFEU; |
| --- | --- |

2.

Second plea in law, alleging that the decision must be annulled because the Commission has erred in law and in fact in considering the measure selective under Article 107 TFEU;

| 3. | Third plea in law, alleging that the decision must be annulled because the Commission has erred in law and in fact in considering that the measure grants the applicant an advantage under Article 107 TFEU; |
| --- | --- |

3.

Third plea in law, alleging that the decision must be annulled because the Commission has erred in law and in fact in considering that the measure grants the applicant an advantage under Article 107 TFEU;

| 4. | Fourth plea in law, alleging that the decision must be annulled because the Commission’s inadequate and contradictory statement of reasons infringes Article 296 TFEU; |
| --- | --- |

4.

Fourth plea in law, alleging that the decision must be annulled because the Commission’s inadequate and contradictory statement of reasons infringes Article 296 TFEU;

| 5. | Fifth plea in law, alleging that the decision must be annulled because the Commission has breached the principle of good administration in failing to assess carefully and impartially all the elements of the case; |
| --- | --- |

5.

Fifth plea in law, alleging that the decision must be annulled because the Commission has breached the principle of good administration in failing to assess carefully and impartially all the elements of the case;

| 6. | Sixth plea in law, alleging that the decision must be annulled because the Commission has misused of its power in establishing its own arm’s length principle through a State aid decision. |
| --- | --- |

6.

Sixth plea in law, alleging that the decision must be annulled because the Commission has misused of its power in establishing its own arm’s length principle through a State aid decision.

---

(1)  Commission’s Decision C(2015) 9837 final of 11 January 2016 in State aid case SA.37667 — Excess Profit exemption in Belgium (the ‘decision’)

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/49 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/49

---

Appeal brought on 7 September 2016 by FV against the judgment of the Civil Service Tribunal of 28 June 2016 in Case F-40/15, FV v Council

(Case T-639/16 P)

(2016/C 419/65)

Language of the case: French

Parties

Appellant: FV (Rhode-St-Genèse, Belgium) (represented by L. Levi, lawyer)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

| — | Set aside the judgment of the European Union Civil Service Tribunal of 28 June 2016 in Case F-40/15; |
| --- | --- |

—

Set aside the judgment of the European Union Civil Service Tribunal of 28 June 2016 in Case F-40/15;

| — | Consequently, uphold the claims of the appellant at first instance and, accordingly:






  — | annul the staff report drawn up on the appellant for 2013; |
| --- | --- | --- |

—

Consequently, uphold the claims of the appellant at first instance and, accordingly:

—

annul the staff report drawn up on the appellant for 2013;

| — | order the Council of the European Union to pay the costs; |
| --- | --- |

—

order the Council of the European Union to pay the costs;

| — | Order the other party to the proceedings to pay all the costs of both instances. |
| --- | --- |

—

Order the other party to the proceedings to pay all the costs of both instances.

Pleas in law and main arguments

In support of the appeal, the appellant relies on three grounds of appeal.

| 1. | First ground of appeal, alleging that the judgment under appeal was delivered by a formation of the Tribunal composed in infringement of Article 27(3) of the Rules of Procedure of the CST.
  The appellant is of the view that that infringement is characterised by the fact that Council Decision 2016/454 appointing three Judges to the European Union Civil Service Tribunal is itself vitiated by a lack of jurisdiction, an infringement of Articles 257 TFEU and 281 TFEU, an infringement of Annex I to Protocol No 3 to the Statute of the Court of Justice, an infringement of Article 13(2) TEU and an infringement of Council Decision 2005/150/EC of 18 January 2005 concerning the conditions and arrangements governing the submission and processing of applications for appointment as a judge of the European Union Civil Service Tribunal. |
| --- | --- |

1.

First ground of appeal, alleging that the judgment under appeal was delivered by a formation of the Tribunal composed in infringement of Article 27(3) of the Rules of Procedure of the CST.

The appellant is of the view that that infringement is characterised by the fact that Council Decision 2016/454 appointing three Judges to the European Union Civil Service Tribunal is itself vitiated by a lack of jurisdiction, an infringement of Articles 257 TFEU and 281 TFEU, an infringement of Annex I to Protocol No 3 to the Statute of the Court of Justice, an infringement of Article 13(2) TEU and an infringement of Council Decision 2005/150/EC of 18 January 2005 concerning the conditions and arrangements governing the submission and processing of applications for appointment as a judge of the European Union Civil Service Tribunal.

| 2. | Second ground of appeal, alleging infringement of the review, by the first judge, of the manifest error of assessment, infringement of the obligation to state reasons placed on the defendant, infringement of the obligation to state reasons on the first judge, distortion of the file and infringement of the Guide to Staff Reports. |
| --- | --- |

2.

Second ground of appeal, alleging infringement of the review, by the first judge, of the manifest error of assessment, infringement of the obligation to state reasons placed on the defendant, infringement of the obligation to state reasons on the first judge, distortion of the file and infringement of the Guide to Staff Reports.

| 3. | Third ground of appeal, alleging infringement of the duty of care and a distortion of the file. |
| --- | --- |

3.

Third ground of appeal, alleging infringement of the duty of care and a distortion of the file.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/50 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/50

---

Action brought on 11 September 2016 — Gamaa Islamya Egypte v Council

(Case T-643/16)

(2016/C 419/66)

Language of the case: French

Parties

Applicant: Gamaa Islamya Egypte (Egypt) (represented by: L. Glock, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision (CFSP) 2016/1136 of 12 July 2016 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2015/2430 (OJ L 188, 13.7.2016, p. 21), in so far as it concerns Gamaa Islamya Egypte; |
| --- | --- |

—

annul Council Decision (CFSP) 2016/1136 of 12 July 2016 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2015/2430 (OJ L 188, 13.7.2016, p. 21), in so far as it concerns Gamaa Islamya Egypte;

| — | annul Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2015/2425 (OJ L 188, 13.7.2016, p. 1) in so far as it concerns Gamaa Islamya Egypte; |
| --- | --- |

—

annul Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2015/2425 (OJ L 188, 13.7.2016, p. 1) in so far as it concerns Gamaa Islamya Egypte;

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

—

order the Council to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four plea(s) in law.

| 1. | First plea in law, alleging infringement of Article 1(5) of Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP; OJ 2001, L 344, p. 93; ‘Common Position 2001/931’). |
| --- | --- |

1.

First plea in law, alleging infringement of Article 1(5) of Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (2001/931/CFSP; OJ 2001, L 344, p. 93; ‘Common Position 2001/931’).

| 2. | Second plea in law, alleging infringement of Article 1(4) of Common Position 2001/931. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 1(4) of Common Position 2001/931.

| 3. | Third plea in law, alleging that the Council committed errors as to the accuracy of the allegations made against the applicant. |
| --- | --- |

3.

Third plea in law, alleging that the Council committed errors as to the accuracy of the allegations made against the applicant.

| 4. | Fourth plea in law, alleging that the Council committed an error of assessment as to whether the applicant is a ‘terrorist group’. |
| --- | --- |

4.

Fourth plea in law, alleging that the Council committed an error of assessment as to whether the applicant is a ‘terrorist group’.

| 5. | Fifth plea in law, alleging infringement of Article 1(6) of Common Position 2001/931. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of Article 1(6) of Common Position 2001/931.

| 6. | Sixth plea in law, alleging infringement of the duty to state reasons |
| --- | --- |

6.

Sixth plea in law, alleging infringement of the duty to state reasons

| 7. | Seventh plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection. |
| --- | --- |

7.

Seventh plea in law, alleging infringement of the rights of the defence and of the right to effective judicial protection.

| 8. | Eighth plea in law, alleging a failure to authenticate the statement of reasons. |
| --- | --- |

8.

Eighth plea in law, alleging a failure to authenticate the statement of reasons.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/51 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/51

---

Appeal brought on 6 September 2016 by Erik Simpson against the order of the Civil Service Tribunal of 24 June 2016 in Case F-142/11 RENV Simpson v Council

(Case T-646/16 P)

(2016/C 419/67)

Language of the case: English

Parties

Appellant: Erik Simpson (Brussels, Belgium) (represented by: M. Velardo, lawyer)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

The appellant claims that the Court should:

| — | set aside the order of the European Union Civil Service Tribunal (‘CST’) of 24 June 2016 in Case 142/11 RENV Erik Simpson v Council, insofar as it rejects the annulment of the decision of the Council of the European Union of 9 December 2010 and declares that the applicant has to bear its own costs and the costs of the Council; |
| --- | --- |

—

set aside the order of the European Union Civil Service Tribunal (‘CST’) of 24 June 2016 in Case 142/11 RENV Erik Simpson v Council, insofar as it rejects the annulment of the decision of the Council of the European Union of 9 December 2010 and declares that the applicant has to bear its own costs and the costs of the Council;

| — | refer the case to the First Instance Judge, if needed; and |
| --- | --- |

—

refer the case to the First Instance Judge, if needed; and

| — | order the Council to pay the costs of these proceedings. |
| --- | --- |

—

order the Council to pay the costs of these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that, regarding the obligation to state grounds the CST has made an error in law, has infringed the European law, has not provided its order with the prescribed grounds and has distorted evidence. |
| --- | --- |

1.

First plea in law, alleging that, regarding the obligation to state grounds the CST has made an error in law, has infringed the European law, has not provided its order with the prescribed grounds and has distorted evidence.

| 2. | Second plea in law, alleging that, regarding the principle of equal treatment and the manifest error of appraisal the appellant alleges that the CST has distorted evidence, has made an error in law, has infringed the European law and has not provided the contested order with a sufficient motivation. |
| --- | --- |

2.

Second plea in law, alleging that, regarding the principle of equal treatment and the manifest error of appraisal the appellant alleges that the CST has distorted evidence, has made an error in law, has infringed the European law and has not provided the contested order with a sufficient motivation.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/51 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/51

---

Appeal brought on 16 September 2016 by HD against the judgment of the Civil Service Tribunal of 21 July 2016 in Case F-136/15, HD v Parliament

(Case T-652/16 P)

(2016/C 419/68)

Language of the case: French

Parties

Appellant: HD (Aach, Germany) (represented by: C. Bernard-Glanz, lawyer)

Other party to the proceedings: European Parliament

Form of order sought by the appellant

The appellant claims that the Court should:

| — | declare the present appeal admissible; |
| --- | --- |

—

declare the present appeal admissible;

| — | set aside the judgment of the European Union Civil Service Tribunal of 21 July 2016, HD v Parliament (F-136/15); |
| --- | --- |

—

set aside the judgment of the European Union Civil Service Tribunal of 21 July 2016, HD v Parliament (F-136/15);

| — | grant the appellant’s claim for annulment made at first instance; |
| --- | --- |

—

grant the appellant’s claim for annulment made at first instance;

| — | order the Parliament to pay the costs of both instances. |
| --- | --- |

—

order the Parliament to pay the costs of both instances.

Pleas in law and main arguments

In support of the appeal, the appellant relies on two grounds.

| 1. | First ground of appeal, alleging distortion of the facts and evidence, manifest error of assessment and infringement of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001, L 8, p. 1). |
| --- | --- |

1.

First ground of appeal, alleging distortion of the facts and evidence, manifest error of assessment and infringement of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001, L 8, p. 1).

| 2. | Second ground of appeal, alleging a failure to state reasons for the judgment under appeal. |
| --- | --- |

2.

Second ground of appeal, alleging a failure to state reasons for the judgment under appeal.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/52 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/52

---

Action brought on 20 September 2016 — Vincent Villeneuve v Commission

(Case T-671/16)

(2016/C 419/69)

Language of the case: French

Parties

Applicant: Vincent Villeneuve (Montpellier, France) (represented by: C. Mourato, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the selection board for Open Competition EPSO/AD/303/15 (AD 7) of 5 November 2015 concerning the applicant; |
| --- | --- |

—

annul the decision of the selection board for Open Competition EPSO/AD/303/15 (AD 7) of 5 November 2015 concerning the applicant;

| — | order the defendant to pay the costs of the present proceedings pursuant to Article 134 of the Rules of Procedure of the General Court. |
| --- | --- |

—

order the defendant to pay the costs of the present proceedings pursuant to Article 134 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the obligation to state reasons, in that the contested decision does not explain the reasons why the applicant does not have sufficient professional experience in the field of the competition for his application to be admitted to the next stage of that competition. |
| --- | --- |

1.

First plea in law, alleging infringement of the obligation to state reasons, in that the contested decision does not explain the reasons why the applicant does not have sufficient professional experience in the field of the competition for his application to be admitted to the next stage of that competition.

| 2. | Second plea in law, alleging a manifest error of assessment by the selection board, in that the verification of the minimum professional experience in the field of the competition which the selection board was initially required to conduct could not relate to the applicant’s suitability for the vacancy and to the selection criteria set out in that regard given that the verification stage for the admission criteria takes place during the final stages of the competition. |
| --- | --- |

2.

Second plea in law, alleging a manifest error of assessment by the selection board, in that the verification of the minimum professional experience in the field of the competition which the selection board was initially required to conduct could not relate to the applicant’s suitability for the vacancy and to the selection criteria set out in that regard given that the verification stage for the admission criteria takes place during the final stages of the competition.

| 3. | Third plea in law, alleging infringement of Articles 27 and 29(1) of the Staff Regulations, Article 5 of Annex III to the Staff Regulations and paragraphs 2.3 and 2.4 of the General rules governing open competitions and also procedural defects and a consequent manifest error of assessment. |
| --- | --- |

3.

Third plea in law, alleging infringement of Articles 27 and 29(1) of the Staff Regulations, Article 5 of Annex III to the Staff Regulations and paragraphs 2.3 and 2.4 of the General rules governing open competitions and also procedural defects and a consequent manifest error of assessment.

| 4. | Fourth plea in law, alleging infringement of the principle of equal treatment of candidates with regard to the selection based on qualifications. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the principle of equal treatment of candidates with regard to the selection based on qualifications.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/53 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/53

---

Action brought on 22 September 2016 — Seigneur v ECB

(Case T-674/16)

(2016/C 419/70)

Language of the case: French

Parties

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

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

| — | declare the application admissible and well founded; |
| --- | --- |

—

declare the application admissible and well founded;

accordingly:

| — | annul the decision of the Chief Service Officer (CSO), adopted on 29 February 2016 under the authority of the management board and notified to staff on 11 March 2016, to exclude the applicant from the additional salary increase (ASI) exercise for the year 2016; |
| --- | --- |

—

annul the decision of the Chief Service Officer (CSO), adopted on 29 February 2016 under the authority of the management board and notified to staff on 11 March 2016, to exclude the applicant from the additional salary increase (ASI) exercise for the year 2016;

| — | annul the decision rejecting the special appeal dated 5 July 2016 and received on 13 July 2016; |
| --- | --- |

—

annul the decision rejecting the special appeal dated 5 July 2016 and received on 13 July 2016;

| — | order the payment of compensation for the non-material damage sustained by the applicant consisting in the loss of a chance of obtaining an ASI in 2016 evaluated at EUR 52 920; |
| --- | --- |

—

order the payment of compensation for the non-material damage sustained by the applicant consisting in the loss of a chance of obtaining an ASI in 2016 evaluated at EUR 52 920;

| — | order the payment of compensation for non-material damage assessed on an ex aequo et bono basis at EUR 15 000; |
| --- | --- |

—

order the payment of compensation for non-material damage assessed on an ex aequo et bono basis at EUR 15 000;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the principle of non-discrimination, Articles 12 and 21 of the Charter of Fundamental Rights and Article 51 of the conditions of employment of ECB staff, the right to career and promotion prospects as well as the principle of legal certainty. |
| --- | --- |

1.

First plea in law, alleging infringement of the principle of non-discrimination, Articles 12 and 21 of the Charter of Fundamental Rights and Article 51 of the conditions of employment of ECB staff, the right to career and promotion prospects as well as the principle of legal certainty.

| 2. | Second plea in law, alleging the inability of the Chief Services Officer to decide not to follow the procedure set out in Circular No 1/2011 of 14 February 2011 concerning additional salary increases in respect of the applicant. |
| --- | --- |

2.

Second plea in law, alleging the inability of the Chief Services Officer to decide not to follow the procedure set out in Circular No 1/2011 of 14 February 2011 concerning additional salary increases in respect of the applicant.

| 3. | Third plea in law, alleging lack of consultation of the Staff Committee. |
| --- | --- |

3.

Third plea in law, alleging lack of consultation of the Staff Committee.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/54 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/54

---

Action brought on 22 September 2016 — Bowles v ECB

(Case T-677/16)

(2016/C 419/71)

Language of the case: French

Parties

Applicant: Carlos Bowles (Frankfurt am Main, Germany) (represented by: L. Levi et M. Vandenbussche, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

| — | declare the application admissible and well founded; |
| --- | --- |

—

declare the application admissible and well founded;

accordingly:

| — | annul the decision of the CSO, adopted on 29 February 2016 under the authority of the management board and notified to staff on 11 March 2016, to exclude the applicant from the ASI exercise for the year 2016; |
| --- | --- |

—

annul the decision of the CSO, adopted on 29 February 2016 under the authority of the management board and notified to staff on 11 March 2016, to exclude the applicant from the ASI exercise for the year 2016;

| — | annul the decision rejecting the special appeal dated 5 July 2016 and received on 13 July 2016; |
| --- | --- |

—

annul the decision rejecting the special appeal dated 5 July 2016 and received on 13 July 2016;

| — | order the payment of compensation for the non-material damage sustained by the applicant consisting in the loss of a chance of obtaining an ASI in 2016 evaluated at EUR 49 102; |
| --- | --- |

—

order the payment of compensation for the non-material damage sustained by the applicant consisting in the loss of a chance of obtaining an ASI in 2016 evaluated at EUR 49 102;

| — | order the payment of compensation for non-material damage assessed on an ex aequo et bono basis at EUR 15 000; |
| --- | --- |

—

order the payment of compensation for non-material damage assessed on an ex aequo et bono basis at EUR 15 000;

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

—

order the defendant to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the principle of non-discrimination, Articles 12 and 21 of the Charter of Fundamental Rights (‘the Charter’) and Article 51 of the conditions of employment of ECB staff (‘the conditions of employment’), of the right to career and promotion prospects as well as of the principle of legal certainty.






  — | The applicant submits that the judgment of the Civil Service Tribunal (‘CST’) of 15 December 2015 in Case F-94/14, Bowles v ECB, has not yet been implemented by the ECB. In particular, Circular No 1/2011 on additional salary increases (‘ASI’), declared illegal by the CST, has been neither withdrawn or amended. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of the principle of non-discrimination, Articles 12 and 21 of the Charter of Fundamental Rights (‘the Charter’) and Article 51 of the conditions of employment of ECB staff (‘the conditions of employment’), of the right to career and promotion prospects as well as of the principle of legal certainty.

—

The applicant submits that the judgment of the Civil Service Tribunal (‘CST’) of 15 December 2015 in Case F-94/14, Bowles v ECB, has not yet been implemented by the ECB. In particular, Circular No 1/2011 on additional salary increases (‘ASI’), declared illegal by the CST, has been neither withdrawn or amended.

| — | He also submits that, in the absence of legislative change, staff representatives enjoying a full or substantial work dispensation are once more in a position where they are deprived of the possibility of wage growth or career progression, unlike the rest of the ECB staff. |
| --- | --- |

—

He also submits that, in the absence of legislative change, staff representatives enjoying a full or substantial work dispensation are once more in a position where they are deprived of the possibility of wage growth or career progression, unlike the rest of the ECB staff.

| — | Next, the applicant submits that his exclusion from the comparative exercise following which the decision to grant the ASI is taken by the ECB affects the legality of that exercise and that the exclusion, which in practice is final, clearly places him at a disadvantage and discriminates against him because of his role as a full-time staff representative. |
| --- | --- |

—

Next, the applicant submits that his exclusion from the comparative exercise following which the decision to grant the ASI is taken by the ECB affects the legality of that exercise and that the exclusion, which in practice is final, clearly places him at a disadvantage and discriminates against him because of his role as a full-time staff representative.

| 2. | Second plea in law, alleging the inability of the Chief Services Officer (‘CSO’) to decide not to follow the procedure set out in Circular No 1/2011 in respect of the applicant.






  — | The applicant submits that, apart from the power to decide on who will receive the ASI, no other power relating to ASIs was delegated by the management board of the ECB to the CSO, including that to amend Circular No 1/2011 to exclude certain members of staff from its application. |
| --- | --- | --- |

2.

Second plea in law, alleging the inability of the Chief Services Officer (‘CSO’) to decide not to follow the procedure set out in Circular No 1/2011 in respect of the applicant.

—

The applicant submits that, apart from the power to decide on who will receive the ASI, no other power relating to ASIs was delegated by the management board of the ECB to the CSO, including that to amend Circular No 1/2011 to exclude certain members of staff from its application.

| — | Consequently, the CSO did not have the power to decide not to apply Circular No 1/2011 to the applicant, since that circular should have been applied to him if the CSO had acted according to the powers that had been delegated to it by the management board. |
| --- | --- |

—

Consequently, the CSO did not have the power to decide not to apply Circular No 1/2011 to the applicant, since that circular should have been applied to him if the CSO had acted according to the powers that had been delegated to it by the management board.

| 3. | Third plea in law, alleging lack of consultation of the Staff Committee, in breach of Article 27 of the Charter and Articles 48 and 49 of the conditions of employment






  — | The applicant finally submits that, although the decision of the CSO was to be regarded as a decision amending Circular No 1/2011, the staff committee was not consulted beforehand on that decision. Since that consultation was required in particular before any changes to Circular No 1/2011, the ECB should therefore have consulted the Staff Committee in respect of that amendment. |
| --- | --- | --- |

3.

Third plea in law, alleging lack of consultation of the Staff Committee, in breach of Article 27 of the Charter and Articles 48 and 49 of the conditions of employment

—

The applicant finally submits that, although the decision of the CSO was to be regarded as a decision amending Circular No 1/2011, the staff committee was not consulted beforehand on that decision. Since that consultation was required in particular before any changes to Circular No 1/2011, the ECB should therefore have consulted the Staff Committee in respect of that amendment.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/55 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/55

---

Appeal brought on 23 September 2016 by Sergio Siragusa against the order of the Civil Service Tribunal of 13 July 2016 in Case F-124/15, Siragusa v Council

(Case T-678/16 P)

(2016/C 419/72)

Language of the case: French

Parties

Appellant: Sergio Siragusa (Brussels, Belgium) (represented by T. Bontinck and A. Guillerme, lawyers)

Other party to the proceedings: Council of the European Union

Form of order sought by the appellant

| — | Set aside the order of the Civil Service Tribunal of 13 July 2016, served on 14 July 2016, Siragusa v Council of the European Union (F-124/15); |
| --- | --- |

—

Set aside the order of the Civil Service Tribunal of 13 July 2016, served on 14 July 2016, Siragusa v Council of the European Union (F-124/15);

| — | Refer to the substance of the action and set aside the order under appeal; |
| --- | --- |

—

Refer to the substance of the action and set aside the order under appeal;

| — | Order the Council of the European Union to pay the costs of both instances. |
| --- | --- |

—

Order the Council of the European Union to pay the costs of both instances.

Pleas in law and main arguments

In support of the appeal, the appellant relies on a single ground of appeal, alleging an error of law.

He is of the opinion that the Civil Service Tribunal erred in law in the classification in law of the Council’s decision validating his early retirement of 11 July 2013. In consequence, he submits that the decision of the Appointing Authority of 12 November 2014 refusing his early retirement must be regarded as an adverse measure withdrawing the earlier decision accepting his early retirement and not as a mere decision confirming an implied rejection decision.

The appellant submits, finally, that since the decision of 12 November 2014 was contested within the period prescribed for that purpose, the action brought at first instance is admissible and its merits must be examined.

---

| 14.11.2016 | EN | Official Journal of the European Union | C 419/56 |
| --- | --- | --- | --- |

14.11.2016

EN

Official Journal of the European Union

C 419/56

---

Action brought on 26 September 2016 — Athletic Club v Commission

(Case T-679/16)

(2016/C 419/73)

Language of the case: Spanish

Parties

Applicant: Athletic Club (Bilbao, Spain) (represented by: E. Lucas Murillo de la Cueva and J. Luís Carrasco, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1 of Commission Decision C(2016) 4046 final of 4 July 2016 on State aid SA.29769 (2013/C) (ex 2013/NN) granted by Spain to certain football clubs, in so far as it affects Athletic Club; |
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annul Article 1 of Commission Decision C(2016) 4046 final of 4 July 2016 on State aid SA.29769 (2013/C) (ex 2013/NN) granted by Spain to certain football clubs, in so far as it affects Athletic Club;

| — | annul Articles 4 and 5 of Commission Decision C(2016) 4046 final of 4 July 2016 on State aid SA.29769 (2013/C) (ex 2013/NN) granted by Spain to certain football clubs, in so far as they order the recovery of the aid allegedly granted to Athletic Club and the elimination of the corporate tax regime for non-profit entities under which Athletic Club has been taxed; |
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annul Articles 4 and 5 of Commission Decision C(2016) 4046 final of 4 July 2016 on State aid SA.29769 (2013/C) (ex 2013/NN) granted by Spain to certain football clubs, in so far as they order the recovery of the aid allegedly granted to Athletic Club and the elimination of the corporate tax regime for non-profit entities under which Athletic Club has been taxed;

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

Pleas in law and main arguments

The present action is brought against Commission Decision C(2016) 4046 final of 4 July 2016 on State aid SA.29769 (2013/C) (ex 2013/NN) granted by Spain to certain football clubs. As regards the applicant, that aid consists in the tax advantage which it had allegedly obtained during the relevant period, because it was taxed as a non-profit association and therefore did not pay the standard corporate tax rate.

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

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






  — | By this plea in law, the applicant submits that in the geographic frame of reference (Vizcaya), the measure examined in the decision cannot be considered to be selective, since all the football clubs are non-profit entities subject to the same corporate tax regime and rate. |
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1.

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

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By this plea in law, the applicant submits that in the geographic frame of reference (Vizcaya), the measure examined in the decision cannot be considered to be selective, since all the football clubs are non-profit entities subject to the same corporate tax regime and rate.

| 2. | Second plea in law, alleging infringement of Article 107(1) TFEU






  — | By this plea in law, the applicant submits that the difference in tax treatment between non-profit entities and limited liability companies is justified by the fundamental differences between those two types of entity. |
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2.

Second plea in law, alleging infringement of Article 107(1) TFEU

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By this plea in law, the applicant submits that the difference in tax treatment between non-profit entities and limited liability companies is justified by the fundamental differences between those two types of entity.

| 3. | Third plea in law, alleging infringement of Article 107(1) TFEU






  — | By this plea in law, the applicant submits that the measure examined in the decision neither distorts competition nor affects trade between Member States. |
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3.

Third plea in law, alleging infringement of Article 107(1) TFEU

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By this plea in law, the applicant submits that the measure examined in the decision neither distorts competition nor affects trade between Member States.

| 4. | Fourth plea in law, alleging infringement of Article 108 TFEU and Articles 1(b)(i), 17, 18 and 19 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).






  — | By this plea in law, the applicant submits that if the measure examined in the decision is held to constitute state aid, it should, in any event, be given the treatment provided for existing aid. |
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4.

Fourth plea in law, alleging infringement of Article 108 TFEU and Articles 1(b)(i), 17, 18 and 19 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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By this plea in law, the applicant submits that if the measure examined in the decision is held to constitute state aid, it should, in any event, be given the treatment provided for existing aid.

| 5. | Fifth plea in law, alleging infringement of Article 296 TFEU and Article 41(1)(c) of the Charter of Fundamental Rights of the European Union.






  — | By this plea in law, the applicant submits that the Commission failed to state sufficient reasons in the contested decision, since it did not assess essential elements of the definition of state aid, did not respond to reasoned arguments made by the parties and disregarded essential elements of the burden of proof. |
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5.

Fifth plea in law, alleging infringement of Article 296 TFEU and Article 41(1)(c) of the Charter of Fundamental Rights of the European Union.

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By this plea in law, the applicant submits that the Commission failed to state sufficient reasons in the contested decision, since it did not assess essential elements of the definition of state aid, did not respond to reasoned arguments made by the parties and disregarded essential elements of the burden of proof.

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| 14.11.2016 | EN | Official Journal of the European Union | C 419/57 |
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14.11.2016

EN

Official Journal of the European Union

C 419/57

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Action brought on 3 October 2016 — Enoitalia v EUIPO — La Rural Viñedos y Bodegas (ANTONIO RUBINI)

(Case T-707/16)

(2016/C 419/74)

Language in which the application was lodged: English

Parties

Applicant: Enoitalia, Corte Vigna, Baldo, Belvino, Ca' del Lago, Invino, Vinuva, Cantine Borsari, Ca' Montini, E.I., Enoi, V.E.B., Cbe, Ca.Pi SpA (Enoitalia SpA) (Calmasino di Bardolino, Italy) (represented by: S. Rizzo, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: La Rural Viñedos y Bodegas SA Ltda (Capital Federal, Argentina)

Details of the proceedings before EUIPO

Proprietor: Applicant

Trade mark at issue: EU word mark ‘ANTONIO RUBINI’ — EU trade mark No 9 526 955

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 June 2016 in Case R 1085/2015-5

Form of order sought

The applicant claims that the Court should:

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

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

Plea in law

| — | Infringement of Article 53(1)(a) read in conjunction with Article 8(1)(b) of Regulation No 207/2009. |
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Infringement of Article 53(1)(a) read in conjunction with Article 8(1)(b) of Regulation No 207/2009.

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