# Official Journal C 148/2019

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 148 |
| | |
| English edition | Information and Notices | Volume 6229 April 2019 |

ISSN 1977-091X

Official Journal

of the European Union

C 148

English edition

Information and Notices

Volume 6229 April 2019

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2019/C 148/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2019/C 148/01

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 |
| | CDJ |
| 2019/C 148/02 | Case C-420/16 P: Judgment of the Court (First Chamber) of 7 March 2019 — Balázs-Árpád Izsák, Attila Dabis v European Commission, Hungary, Hellenic Republic, Romania, Slovak Republic (Appeal — Law governing the institutions — Citizens’ initiative — Regulation (EU) No 211/2011 — Registration of the proposed citizens’ initiative — Article 4(2)(b) — Condition that the proposed initiative does not manifestly fall outside the framework of the European Commission’s powers to submit a proposal for a legal act for the purpose of implementing the Treaties — Burden of proof — Economic, social and territorial cohesion — Article 174 TFEU — Citizens’ initiative Cohesion policy for the equality of the regions and sustainability of the regional cultures — Application for registration — Refusal by the Commission) | 2 |
| 2019/C 148/03 | Case C-349/17: Judgment of the Court (Grand Chamber) of 5 March 2019 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium (Reference for a preliminary ruling — State aid — Regulation (EC) No 800/2008 (General block exemption regulation) — Article 8(2) — Aid with an incentive effect — Concept of start of work on the project — Powers of the national authorities — Unlawful aid — No decision of the European Commission or of a national court — Obligation on the national authorities to recover unlawful aid on their own initiative — Legal basis — Article 108(3) TFEU — General principle of EU law of protection of legitimate expectations — Decision of the competent national authority granting aid under Regulation No 800/2008 — Knowledge of circumstances excluding the eligibility of the aid application — Creation of a legitimate expectation — None — Limitation — Aid co-financed from a structural fund — Applicable legislation — Regulation (EC, Euratom) No 2988/95 — National legislation — Interest — Obligation to claim interest — Legal basis — Article 108(3) TFEU — Applicable legislation — National rules — Principle of effectiveness) | 3 |
| 2019/C 148/04 | Case C-643/17: Judgment of the Court (Sixth Chamber) of 7 March 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Suez II Water Technologies & Solutions Portugal, Unipessoal Lda, formerly GE Power Controls Portugal Unipessoal, Lda v Fazenda Pública (Reference for a preliminary ruling — Customs union — Regulation (EEC) No 2913/92 — Article 37 — Community Customs Code — Regulation (EEC) No 2454/93 — Article 313 — Customs status of goods — Presumption of the Community status of goods) | 4 |
| 2019/C 148/05 | Case C-693/17 P: Judgment of the Court (Tenth Chamber) of 6 March 2019 — BMB sp. z o.o. v European Union Intellectual Property Office (EUIPO), Ferrero SpA (Appeal — Community design — Regulation (EC) No 6/2002 — Article 25(1)(e) — Invalidity proceedings — Design representing comfit boxes for sweets — Declaration of invalidity) | 5 |
| 2019/C 148/06 | Case C-728/17 P: Judgment of the Court (First Chamber) of 7 March 2019 — European Commission v Alain Laurent Brouillard (Appeal — Civil service — Recruitment — Competitions — Conditions for admission — Diplomas and level of education required — Open competition EPSO/AD/306/15 — Pre-selection of candidates on the basis of their applications — Level of education corresponding to full legal education completed in a Belgian, French, or Luxembourg higher-education institution — Master 2 diploma (master’s degree) in law, economics and management, private law, lawyer-linguist specialism — Issued following accreditation of skills gained through experience — Rejection of the application) | 6 |
| 2019/C 148/07 | Case C-392/18 P: Appeal brought on 13 June 2018 by Mauro Bettani against the order of the General Court (Sixth Chamber) delivered on 24 April 2018 in Case T-80/18, Bettani v Commission | 6 |
| 2019/C 148/08 | Case C-757/18 P: Appeal brought on 3 December 2018 by M-Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M-Sansz Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-709/17 M-Sansz v Commission | 7 |
| 2019/C 148/09 | Case C-809/18 P: Appeal brought on 20 December 2018 by the European Union Intellectual Property Office against the judgment of the General Court (Second Chamber) delivered on 15 October 2018 in Case T-7/17: John Mills v EUIPO | 8 |
| 2019/C 148/10 | Case C-818/18 P: Appeal brought on 21 December 2018 by The Yokohama Rubber Co. Ltd against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO | 9 |
| 2019/C 148/11 | Case C-825/18 P: Appeal brought on 28 December 2018 by Mamas and Papas Ltd against the judgment of the General Court (Second Chamber) delivered on 23 October 2018 in Case T-672/17: Mamas and Papas v EUIPO | 11 |
| 2019/C 148/12 | Case C-6/19 P: Appeal brought on 04 January 2019 by the European Union Intellectual Property Office against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO | 12 |
| 2019/C 148/13 | Case C-13/19: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 January 2019 — Ibercaja Banco, S.A. v TJ and UK | 13 |
| 2019/C 148/14 | Case C-48/19: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 January 2019 — X-GmbH v Z Tax Office | 14 |
| 2019/C 148/15 | Case C-56/19 P: Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission | 15 |
| 2019/C 148/16 | Case C-57/19 P: Appeal brought on 25 January 2019 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-793/14: Tempus Energy and Tempus Energy Technology v Commission | 16 |
| 2019/C 148/17 | Case C-74/19: Request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18 (Portugal) lodged on 31 January 2019 — LE v Transport Aéreos Portugueses S.A. | 18 |
| 2019/C 148/18 | Case C-80/19: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 4 February 2019 —E. E. | 18 |
| 2019/C 148/19 | Case C-105/19: Request for a preliminary ruling from the Monomeles Protodikeio Serron (Greece) lodged on 8 February 2019 — WP v Trapeza Peiraios AE | 20 |
| 2019/C 148/20 | Case C-113/19: Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 12 February 2019 — Luxaviation SA v Ministre de l’Environnement | 21 |
| 2019/C 148/21 | Case C-117/19: Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 15 February 2019 — AB Linas Agro v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos | 22 |
| 2019/C 148/22 | Case C-130/19: Action brought on 15 February 2019 — European Court of Auditors v Karel Pinxten | 24 |
| 2019/C 148/23 | Case C-144/19 P: Appeal brought on 20 February 2019 by Lupin Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-680/14: Lupin v Commission | 24 |
| 2019/C 148/24 | Case C-145/19 P: Appeal brought on 20 February 2019 by Mohamed Hosni Elsayed Mubarak against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-358/17: Mubarak v Council | 26 |
| 2019/C 148/25 | Case C-146/19: Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 21 February 2019 — SCT, d.d., in bankruptcy v Republic of Slovenia | 27 |
| 2019/C 148/26 | Case C-149/19: Request for a preliminary ruling from the Okresný súd Bratislava V (Slovakia) lodged on 22 February 2019 — Criminal proceedings against R.B. | 28 |
| 2019/C 148/27 | Case C-151/19 P: Appeal brought on 21 February 2019 by the European Commission against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-684/14: Krka v Commission | 29 |
| 2019/C 148/28 | Case C-161/19: Action brought on 22 February 2019 — European Commission v Republic of Austria | 30 |
| 2019/C 148/29 | Case C-164/19 P: Appeal brought on 22 February 2019 by Niche Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-701/14: Niche Generics v Commission | 31 |
| 2019/C 148/30 | Case C-165/19 P: Appeal brought on 22 February 2019 by Slovak Telekom, a.s. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-851/14: Slovak Telekom v Commission | 32 |
| 2019/C 148/31 | Case C-166/19 P: Appeal brought on 22 February 2019 by Unichem Laboratories Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-705/14: Unichem Laboratories v Commission | 33 |
| 2019/C 148/32 | Case C-173/19 P: Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the order of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-890/16: Scandlines Danmark and Scandlines Deutschland v Commission | 34 |
| 2019/C 148/33 | Case C-174/19 P: Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-630/15: Scandlines Danmark and Scandlines Deutschland v Commission | 35 |
| 2019/C 148/34 | Case C-175/19 P: Appeal brought on 25 February 2019 by Stena Line Scandinavia AB against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-631/15: Stena Line Scandinavia v Commission | 37 |
| 2019/C 148/35 | Case C-183/19 P: Appeal brought on 22 February 2019 by Fruits de Ponent, S.C.C.L. against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-290/16, Fruits de Ponent v Commission | 38 |
| | GCEU |
| 2019/C 148/36 | Case T-716/14: Judgment of the General Court of 7 March 2019 — Tweedale v EFSA (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to toxicity studies conducted in connection with the renewal of the approval of the active substance glyphosate — Partial refusal to grant access — Exception relating to the protection of commercial interests — Overriding public interest — Regulation (EC) No 1367/2006 — Concept of information relating to emissions into the environment) | 40 |
| 2019/C 148/37 | Case T-135/15: Judgment of the General Court of 12 March 2019 — Italy v Commission (EAGF — Expenses excluded from financing — Expenditure incurred by Italy — Temporary scheme for the restructuring of the sugar industry — Regulation (EC) No 320/2006 — Regulation(EC) No 968/2006 — Regulation (EC) No 1290/2005 — Time limit of 24 months — Concept of multiannual measure — Conditions for granting restructuring aid — Concept of production facility — Classification of silos — Concept ofcomplete dismantling — Annex 2 to Document VI/5330/97 — Problems in interpreting EU legislation — Cooperation in good faith — Legitimate expectations — Ne bis in idem — Slaughter premiums — Information and promotion campaigns for agricultural products — Late payments — Evidence of the existence of specific management conditions — Equal treatment — Mistranslation in one of the language versions of an EU regulation — Whether the Member State is answerable for the financial correction) | 41 |
| 2019/C 148/38 | Case T-139/15: Judgment of the General Court of 12 March 2019 — Hungary v Commission (EAGGF — Guarantee Section — EAGF — Sugar — Temporary scheme for the restructuring of the sugar industry in the European Community — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Expenditure excluded from financing — Expenditure incurred by Hungary — Conditions for the grant of aid for full dismantling and aid for partial dismantling — Concept of production facilities — Assessment of the use of silos on the date of submission of the application for aid — Concept of full dismantling — Annex 2 to document VI/5330/97 — Difficulties in the interpretation of EU legislation — Cooperation in good faith) | 42 |
| 2019/C 148/39 | Case T-156/15: Judgment of the General Court of 12 March 2019 — France v Commission (EAGF and EAFRD — Expenditure excluded from EU financing — Expenditure incurred by France — Area-related aid scheme — Procedural safeguards — Regulation (EC) No 885/2006 — Concept of permanent pasture — Regulation (EC) No 1120/2009 — National control system based on a definition of forage areas which is not consistent with EU law — Exclusion of all the expenditure — Proportionality — Metropolitan France’s rural development programme — Rural development support measures — Areas with natural handicaps — Regulation (EC) No 1975/2006 — Regulation (EU) No 65/2011 — Flat-rate financial correction — On-the-spot checks — Loading criterion — Counting of animals — Temporary scheme for the restructuring of the sugar industry — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Conditions for the grant of restructuring aid — Concept of production facilities — Assessment of the use of silos on the date of submission of the aid application — Concept offull dismantling — Proportionality — Equal treatment — Annex 2 to document VI/5330/97) | 43 |
| 2019/C 148/40 | Case T-730/16: Judgment of the General Court of 13 March 2019 — Espírito Santo Financial Group v ECB (Access to documents — Decision 2004/258/EC — Documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA — Partial refusal to grant access — Exception relating to the confidentiality of the proceedings of the ECB’s decision-making bodies — Exception relating to the financial, monetary or economic policy of the European Union or of a Member State — Exception relating to the stability of the financial system in the European Union or in a Member State — Exception relating to the protection of commercial interests — Exception relating to documents intended for internal use — Obligation to state reasons) | 44 |
| 2019/C 148/41 | Case T-799/16: Judgment of the General Court of 12 March 2019 — Xiaomi v EUIPO — Dudingen Develops (MI) (EU trade mark — Opposition proceedings — Application for EU figurative mark MI — Earlier EU figurative mark MI — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001)) | 45 |
| 2019/C 148/42 | Case T-837/16: Judgment of the General Court of 7 March 2019 — Sweden v Commission (REACH — Commission decision authorising the use of lead sulfochromate yellow and of lead chromate molybdate sulfate red — Article 60(4) and (5) of Regulation (EC) No 1907/2006 — Consideration of the unavailability of alternatives — Error in law) | 46 |
| 2019/C 148/43 | Case T-59/17: Judgment of the General Court of 7 March 2019 — L v Parliament (Civil service — Accredited parliamentary assistant — Termination of the contract — Breakdown in the relationship of trust — Outside activity — Manifest error of assessment — Claim for damages) | 47 |
| 2019/C 148/44 | Case T-329/17: Judgment of the General Court of 7 March 2019 –Hautala and Others v EFSA (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to carcinogenicity studies conducted in connection with the renewal of the approval of the active substance glyphosate — Partial refusal to grant access — Exception relating to the protection of commercial interests — Overriding public interest — Regulation (EC) No 1367/2006 — Concept of information relating to emissions into the environment) | 47 |
| 2019/C 148/45 | Case T-446/17: Judgment of the General Court of 12 March 2019 — TK v Parliament (Civil service — Temporary agents — Change in the activities assigned — Concept of concern — Invitation to an interview — Concept of proceedings — Allegation of psychological harassment — Request for assistance — Liability — Non-material damage) | 48 |
| 2019/C 148/46 | Case T-798/17: Judgment of the General Court of 12 March 2019 — De Masi and Varoufakis v ECB (Access to documents — Decision 2004/258/EC — Document entitled Responses to questions concerning the interpretation of Article 14.4. of the Statute of the ESCB and the ECB — Denial of access — Exception relating to the protection of legal advice — Exception relating to the protection of documents intended for internal use — Overriding public interest) | 49 |
| 2019/C 148/47 | Case T-26/18: Judgment of the General Court of 12 March 2019 — France v Commission (EAGF and EAFRD — Expenditure excluded from financing — Expenditure incurred by France — One-off and flat-rate financial corrections — Area-related aid scheme — Land Parcel Identification System — Determination of eligible areas — Maintenance of agricultural land in good agricultural and environmental condition — Landscape features — Grazable heathland — National monitoring system based on a non-compliant definition of eligible areas — Proportionality — Obligation to state reasons — Conformity Clearance — Most likely error — Error of law) | 50 |
| 2019/C 148/48 | Case T-106/18: Judgment of the General Court of 7 March 2019 — Laverana v EUIPO — Agroecopark (VERA GREEN) (EU trade mark — Opposition proceedings — Application for EU word mark VERA GREEN — Earlier EU word mark LAVERA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001) | 51 |
| 2019/C 148/49 | Case T-297/18: Judgment of the General Court of 13 March 2019 — Wirecard Technologies v EUIPO — Striatum Ventures (supr) (EU trade mark — Invalidity proceedings — EU word mark supr — Earlier Benelux word mark Zupr — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001) | 51 |
| 2019/C 148/50 | Case T-463/18: Judgment of the General Court of 12 March 2019 — Novartis v EUIPO (SMARTSURFACE) (EU trade mark — Application for EU word mark SMARTSURFACE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EU) 2017/1001 — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001) | 52 |
| 2019/C 148/51 | Case T-326/18: Order of the General Court of 8 March 2019 — Herrero Torres v EUIPO — DZ Licores (CARAJILLO LICOR 43 CUARENTA Y TRES) (EU trade mark — Opposition proceedings — Application for EU figurative mark CARAJILLO LICOR 43 CUARENTA Y TRES — Earlier national figurative mark Carajillo — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation 2017/1001 — Action manifestly lacking any foundation in law) | 53 |
| 2019/C 148/52 | Case T-125/19: Action brought on 20 February 2019 — Clem & Jo Optique v EUIPO — C&A (C&J) | 54 |
| 2019/C 148/53 | Case T-126/19: Action brought on 21 February 2019. — Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission | 54 |
| 2019/C 148/54 | Case T-131/19: Action brought on 25 February 2019 — Oosterbosch v Parliament | 55 |
| 2019/C 148/55 | Case T-132/19: Action brought on 26 February 2019 — Ashworth v Parliament | 56 |
| 2019/C 148/56 | Case T-135/19: Action brought on 1 March 2019 — Corporació Catalana de Mitjans Audiovisuals v EUIPO — Dalmat (LaTV3D) | 58 |
| 2019/C 148/57 | Case T-137/19: Action brought on 28 February 2019 — Souruh v Council | 58 |
| 2019/C 148/58 | Case T-138/19: Action brought on 14 February 2019 — WH v EUIPO | 59 |
| 2019/C 148/59 | Case T-141/19: Action brought on 4 March 2019 — Sabo and Others v Parliament and Council | 60 |
| 2019/C 148/60 | Case T-142/19: Action brought on 1 March 2019 — Nosio v EUIPO — Passi (PASSIATA) | 60 |
| 2019/C 148/61 | Case T-143/19: Action brought on 2 March 2019 — Solar Ileias Bompaina v Commission | 61 |
| 2019/C 148/62 | Case T-147/19: Action brought on 6 March 2019 — Flovax v EUIPO — Dagniaux and Gervais Danone (GLACIER DAGNIAUX DEPUIS 1923) | 62 |
| 2019/C 148/63 | Case T-156/19: Action brought on 12 March 2019 — Koenig & Bauer v EUIPO (we’re on it) | 63 |
| 2019/C 148/64 | Case T-507/16: Order of the General Court of 1 March 2019 — Baradel and Others v EIF | 64 |
| 2019/C 148/65 | Case T-760/18: Order of the General Court of 15 February 2019 — Intercontinental Exchange Holdings v EUIPO — New York Mercantile Exchange (NYMEX BRENT) | 64 |

V   Announcements

COURT PROCEEDINGS

CDJ

2019/C 148/02

Case C-420/16 P: Judgment of the Court (First Chamber) of 7 March 2019 — Balázs-Árpád Izsák, Attila Dabis v European Commission, Hungary, Hellenic Republic, Romania, Slovak Republic (Appeal — Law governing the institutions — Citizens’ initiative — Regulation (EU) No 211/2011 — Registration of the proposed citizens’ initiative — Article 4(2)(b) — Condition that the proposed initiative does not manifestly fall outside the framework of the European Commission’s powers to submit a proposal for a legal act for the purpose of implementing the Treaties — Burden of proof — Economic, social and territorial cohesion — Article 174 TFEU — Citizens’ initiative Cohesion policy for the equality of the regions and sustainability of the regional cultures — Application for registration — Refusal by the Commission)

2

2019/C 148/03

Case C-349/17: Judgment of the Court (Grand Chamber) of 5 March 2019 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium (Reference for a preliminary ruling — State aid — Regulation (EC) No 800/2008 (General block exemption regulation) — Article 8(2) — Aid with an incentive effect — Concept of start of work on the project — Powers of the national authorities — Unlawful aid — No decision of the European Commission or of a national court — Obligation on the national authorities to recover unlawful aid on their own initiative — Legal basis — Article 108(3) TFEU — General principle of EU law of protection of legitimate expectations — Decision of the competent national authority granting aid under Regulation No 800/2008 — Knowledge of circumstances excluding the eligibility of the aid application — Creation of a legitimate expectation — None — Limitation — Aid co-financed from a structural fund — Applicable legislation — Regulation (EC, Euratom) No 2988/95 — National legislation — Interest — Obligation to claim interest — Legal basis — Article 108(3) TFEU — Applicable legislation — National rules — Principle of effectiveness)

3

2019/C 148/04

Case C-643/17: Judgment of the Court (Sixth Chamber) of 7 March 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Suez II Water Technologies & Solutions Portugal, Unipessoal Lda, formerly GE Power Controls Portugal Unipessoal, Lda v Fazenda Pública (Reference for a preliminary ruling — Customs union — Regulation (EEC) No 2913/92 — Article 37 — Community Customs Code — Regulation (EEC) No 2454/93 — Article 313 — Customs status of goods — Presumption of the Community status of goods)

4

2019/C 148/05

Case C-693/17 P: Judgment of the Court (Tenth Chamber) of 6 March 2019 — BMB sp. z o.o. v European Union Intellectual Property Office (EUIPO), Ferrero SpA (Appeal — Community design — Regulation (EC) No 6/2002 — Article 25(1)(e) — Invalidity proceedings — Design representing comfit boxes for sweets — Declaration of invalidity)

5

2019/C 148/06

Case C-728/17 P: Judgment of the Court (First Chamber) of 7 March 2019 — European Commission v Alain Laurent Brouillard (Appeal — Civil service — Recruitment — Competitions — Conditions for admission — Diplomas and level of education required — Open competition EPSO/AD/306/15 — Pre-selection of candidates on the basis of their applications — Level of education corresponding to full legal education completed in a Belgian, French, or Luxembourg higher-education institution — Master 2 diploma (master’s degree) in law, economics and management, private law, lawyer-linguist specialism — Issued following accreditation of skills gained through experience — Rejection of the application)

6

2019/C 148/07

Case C-392/18 P: Appeal brought on 13 June 2018 by Mauro Bettani against the order of the General Court (Sixth Chamber) delivered on 24 April 2018 in Case T-80/18, Bettani v Commission

6

2019/C 148/08

Case C-757/18 P: Appeal brought on 3 December 2018 by M-Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M-Sansz Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-709/17 M-Sansz v Commission

7

2019/C 148/09

Case C-809/18 P: Appeal brought on 20 December 2018 by the European Union Intellectual Property Office against the judgment of the General Court (Second Chamber) delivered on 15 October 2018 in Case T-7/17: John Mills v EUIPO

8

2019/C 148/10

Case C-818/18 P: Appeal brought on 21 December 2018 by The Yokohama Rubber Co. Ltd against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO

9

2019/C 148/11

Case C-825/18 P: Appeal brought on 28 December 2018 by Mamas and Papas Ltd against the judgment of the General Court (Second Chamber) delivered on 23 October 2018 in Case T-672/17: Mamas and Papas v EUIPO

11

2019/C 148/12

Case C-6/19 P: Appeal brought on 04 January 2019 by the European Union Intellectual Property Office against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO

12

2019/C 148/13

Case C-13/19: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 January 2019 — Ibercaja Banco, S.A. v TJ and UK

13

2019/C 148/14

Case C-48/19: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 January 2019 — X-GmbH v Z Tax Office

14

2019/C 148/15

Case C-56/19 P: Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission

15

2019/C 148/16

Case C-57/19 P: Appeal brought on 25 January 2019 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-793/14: Tempus Energy and Tempus Energy Technology v Commission

16

2019/C 148/17

Case C-74/19: Request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18 (Portugal) lodged on 31 January 2019 — LE v Transport Aéreos Portugueses S.A.

18

2019/C 148/18

Case C-80/19: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 4 February 2019 —E. E.

18

2019/C 148/19

Case C-105/19: Request for a preliminary ruling from the Monomeles Protodikeio Serron (Greece) lodged on 8 February 2019 — WP v Trapeza Peiraios AE

20

2019/C 148/20

Case C-113/19: Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 12 February 2019 — Luxaviation SA v Ministre de l’Environnement

21

2019/C 148/21

Case C-117/19: Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 15 February 2019 — AB Linas Agro v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

22

2019/C 148/22

Case C-130/19: Action brought on 15 February 2019 — European Court of Auditors v Karel Pinxten

24

2019/C 148/23

Case C-144/19 P: Appeal brought on 20 February 2019 by Lupin Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-680/14: Lupin v Commission

24

2019/C 148/24

Case C-145/19 P: Appeal brought on 20 February 2019 by Mohamed Hosni Elsayed Mubarak against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-358/17: Mubarak v Council

26

2019/C 148/25

Case C-146/19: Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 21 February 2019 — SCT, d.d., in bankruptcy v Republic of Slovenia

27

2019/C 148/26

Case C-149/19: Request for a preliminary ruling from the Okresný súd Bratislava V (Slovakia) lodged on 22 February 2019 — Criminal proceedings against R.B.

28

2019/C 148/27

Case C-151/19 P: Appeal brought on 21 February 2019 by the European Commission against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-684/14: Krka v Commission

29

2019/C 148/28

Case C-161/19: Action brought on 22 February 2019 — European Commission v Republic of Austria

30

2019/C 148/29

Case C-164/19 P: Appeal brought on 22 February 2019 by Niche Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-701/14: Niche Generics v Commission

31

2019/C 148/30

Case C-165/19 P: Appeal brought on 22 February 2019 by Slovak Telekom, a.s. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-851/14: Slovak Telekom v Commission

32

2019/C 148/31

Case C-166/19 P: Appeal brought on 22 February 2019 by Unichem Laboratories Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-705/14: Unichem Laboratories v Commission

33

2019/C 148/32

Case C-173/19 P: Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the order of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-890/16: Scandlines Danmark and Scandlines Deutschland v Commission

34

2019/C 148/33

Case C-174/19 P: Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-630/15: Scandlines Danmark and Scandlines Deutschland v Commission

35

2019/C 148/34

Case C-175/19 P: Appeal brought on 25 February 2019 by Stena Line Scandinavia AB against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-631/15: Stena Line Scandinavia v Commission

37

2019/C 148/35

Case C-183/19 P: Appeal brought on 22 February 2019 by Fruits de Ponent, S.C.C.L. against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-290/16, Fruits de Ponent v Commission

38

GCEU

2019/C 148/36

Case T-716/14: Judgment of the General Court of 7 March 2019 — Tweedale v EFSA (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to toxicity studies conducted in connection with the renewal of the approval of the active substance glyphosate — Partial refusal to grant access — Exception relating to the protection of commercial interests — Overriding public interest — Regulation (EC) No 1367/2006 — Concept of information relating to emissions into the environment)

40

2019/C 148/37

Case T-135/15: Judgment of the General Court of 12 March 2019 — Italy v Commission (EAGF — Expenses excluded from financing — Expenditure incurred by Italy — Temporary scheme for the restructuring of the sugar industry — Regulation (EC) No 320/2006 — Regulation(EC) No 968/2006 — Regulation (EC) No 1290/2005 — Time limit of 24 months — Concept of multiannual measure — Conditions for granting restructuring aid — Concept of production facility — Classification of silos — Concept ofcomplete dismantling — Annex 2 to Document VI/5330/97 — Problems in interpreting EU legislation — Cooperation in good faith — Legitimate expectations — Ne bis in idem — Slaughter premiums — Information and promotion campaigns for agricultural products — Late payments — Evidence of the existence of specific management conditions — Equal treatment — Mistranslation in one of the language versions of an EU regulation — Whether the Member State is answerable for the financial correction)

41

2019/C 148/38

Case T-139/15: Judgment of the General Court of 12 March 2019 — Hungary v Commission (EAGGF — Guarantee Section — EAGF — Sugar — Temporary scheme for the restructuring of the sugar industry in the European Community — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Expenditure excluded from financing — Expenditure incurred by Hungary — Conditions for the grant of aid for full dismantling and aid for partial dismantling — Concept of production facilities — Assessment of the use of silos on the date of submission of the application for aid — Concept of full dismantling — Annex 2 to document VI/5330/97 — Difficulties in the interpretation of EU legislation — Cooperation in good faith)

42

2019/C 148/39

Case T-156/15: Judgment of the General Court of 12 March 2019 — France v Commission (EAGF and EAFRD — Expenditure excluded from EU financing — Expenditure incurred by France — Area-related aid scheme — Procedural safeguards — Regulation (EC) No 885/2006 — Concept of permanent pasture — Regulation (EC) No 1120/2009 — National control system based on a definition of forage areas which is not consistent with EU law — Exclusion of all the expenditure — Proportionality — Metropolitan France’s rural development programme — Rural development support measures — Areas with natural handicaps — Regulation (EC) No 1975/2006 — Regulation (EU) No 65/2011 — Flat-rate financial correction — On-the-spot checks — Loading criterion — Counting of animals — Temporary scheme for the restructuring of the sugar industry — Regulation (EC) No 320/2006 — Regulation (EC) No 968/2006 — Conditions for the grant of restructuring aid — Concept of production facilities — Assessment of the use of silos on the date of submission of the aid application — Concept offull dismantling — Proportionality — Equal treatment — Annex 2 to document VI/5330/97)

43

2019/C 148/40

Case T-730/16: Judgment of the General Court of 13 March 2019 — Espírito Santo Financial Group v ECB (Access to documents — Decision 2004/258/EC — Documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA — Partial refusal to grant access — Exception relating to the confidentiality of the proceedings of the ECB’s decision-making bodies — Exception relating to the financial, monetary or economic policy of the European Union or of a Member State — Exception relating to the stability of the financial system in the European Union or in a Member State — Exception relating to the protection of commercial interests — Exception relating to documents intended for internal use — Obligation to state reasons)

44

2019/C 148/41

Case T-799/16: Judgment of the General Court of 12 March 2019 — Xiaomi v EUIPO — Dudingen Develops (MI) (EU trade mark — Opposition proceedings — Application for EU figurative mark MI — Earlier EU figurative mark MI — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001))

45

2019/C 148/42

Case T-837/16: Judgment of the General Court of 7 March 2019 — Sweden v Commission (REACH — Commission decision authorising the use of lead sulfochromate yellow and of lead chromate molybdate sulfate red — Article 60(4) and (5) of Regulation (EC) No 1907/2006 — Consideration of the unavailability of alternatives — Error in law)

46

2019/C 148/43

Case T-59/17: Judgment of the General Court of 7 March 2019 — L v Parliament (Civil service — Accredited parliamentary assistant — Termination of the contract — Breakdown in the relationship of trust — Outside activity — Manifest error of assessment — Claim for damages)

47

2019/C 148/44

Case T-329/17: Judgment of the General Court of 7 March 2019 –Hautala and Others v EFSA (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to carcinogenicity studies conducted in connection with the renewal of the approval of the active substance glyphosate — Partial refusal to grant access — Exception relating to the protection of commercial interests — Overriding public interest — Regulation (EC) No 1367/2006 — Concept of information relating to emissions into the environment)

47

2019/C 148/45

Case T-446/17: Judgment of the General Court of 12 March 2019 — TK v Parliament (Civil service — Temporary agents — Change in the activities assigned — Concept of concern — Invitation to an interview — Concept of proceedings — Allegation of psychological harassment — Request for assistance — Liability — Non-material damage)

48

2019/C 148/46

Case T-798/17: Judgment of the General Court of 12 March 2019 — De Masi and Varoufakis v ECB (Access to documents — Decision 2004/258/EC — Document entitled Responses to questions concerning the interpretation of Article 14.4. of the Statute of the ESCB and the ECB — Denial of access — Exception relating to the protection of legal advice — Exception relating to the protection of documents intended for internal use — Overriding public interest)

49

2019/C 148/47

Case T-26/18: Judgment of the General Court of 12 March 2019 — France v Commission (EAGF and EAFRD — Expenditure excluded from financing — Expenditure incurred by France — One-off and flat-rate financial corrections — Area-related aid scheme — Land Parcel Identification System — Determination of eligible areas — Maintenance of agricultural land in good agricultural and environmental condition — Landscape features — Grazable heathland — National monitoring system based on a non-compliant definition of eligible areas — Proportionality — Obligation to state reasons — Conformity Clearance — Most likely error — Error of law)

50

2019/C 148/48

Case T-106/18: Judgment of the General Court of 7 March 2019 — Laverana v EUIPO — Agroecopark (VERA GREEN) (EU trade mark — Opposition proceedings — Application for EU word mark VERA GREEN — Earlier EU word mark LAVERA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)

51

2019/C 148/49

Case T-297/18: Judgment of the General Court of 13 March 2019 — Wirecard Technologies v EUIPO — Striatum Ventures (supr) (EU trade mark — Invalidity proceedings — EU word mark supr — Earlier Benelux word mark Zupr — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001)

51

2019/C 148/50

Case T-463/18: Judgment of the General Court of 12 March 2019 — Novartis v EUIPO (SMARTSURFACE) (EU trade mark — Application for EU word mark SMARTSURFACE — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EU) 2017/1001 — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001)

52

2019/C 148/51

Case T-326/18: Order of the General Court of 8 March 2019 — Herrero Torres v EUIPO — DZ Licores (CARAJILLO LICOR 43 CUARENTA Y TRES) (EU trade mark — Opposition proceedings — Application for EU figurative mark CARAJILLO LICOR 43 CUARENTA Y TRES — Earlier national figurative mark Carajillo — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation 2017/1001 — Action manifestly lacking any foundation in law)

53

2019/C 148/52

Case T-125/19: Action brought on 20 February 2019 — Clem & Jo Optique v EUIPO — C&A (C&J)

54

2019/C 148/53

Case T-126/19: Action brought on 21 February 2019. — Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission

54

2019/C 148/54

Case T-131/19: Action brought on 25 February 2019 — Oosterbosch v Parliament

55

2019/C 148/55

Case T-132/19: Action brought on 26 February 2019 — Ashworth v Parliament

56

2019/C 148/56

Case T-135/19: Action brought on 1 March 2019 — Corporació Catalana de Mitjans Audiovisuals v EUIPO — Dalmat (LaTV3D)

58

2019/C 148/57

Case T-137/19: Action brought on 28 February 2019 — Souruh v Council

58

2019/C 148/58

Case T-138/19: Action brought on 14 February 2019 — WH v EUIPO

59

2019/C 148/59

Case T-141/19: Action brought on 4 March 2019 — Sabo and Others v Parliament and Council

60

2019/C 148/60

Case T-142/19: Action brought on 1 March 2019 — Nosio v EUIPO — Passi (PASSIATA)

60

2019/C 148/61

Case T-143/19: Action brought on 2 March 2019 — Solar Ileias Bompaina v Commission

61

2019/C 148/62

Case T-147/19: Action brought on 6 March 2019 — Flovax v EUIPO — Dagniaux and Gervais Danone (GLACIER DAGNIAUX DEPUIS 1923)

62

2019/C 148/63

Case T-156/19: Action brought on 12 March 2019 — Koenig & Bauer v EUIPO (we’re on it)

63

2019/C 148/64

Case T-507/16: Order of the General Court of 1 March 2019 — Baradel and Others v EIF

64

2019/C 148/65

Case T-760/18: Order of the General Court of 15 February 2019 — Intercontinental Exchange Holdings v EUIPO — New York Mercantile Exchange (NYMEX BRENT)

64

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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

| 29.4.2019 | EN | Official Journal of the European Union | C 148/1 |
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29.4.2019

EN

Official Journal of the European Union

C 148/1

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

(2019/C 148/01)

Last publication

OJ C 139, 15.4.2019

Past publications

OJ C 131, 8.4.2019

OJ C 122, 1.4.2019

OJ C 112, 25.3.2019

OJ C 103, 18.3.2019

OJ C 93, 11.3.2019

OJ C 82, 4.3.2019

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

CDJ

| 29.4.2019 | EN | Official Journal of the European Union | C 148/2 |
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29.4.2019

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Official Journal of the European Union

C 148/2

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Judgment of the Court (First Chamber) of 7 March 2019 — Balázs-Árpád Izsák, Attila Dabis v European Commission, Hungary, Hellenic Republic, Romania, Slovak Republic

(Case C-420/16 P) (1)

(Appeal - Law governing the institutions - Citizens’ initiative - Regulation (EU) No 211/2011 - Registration of the proposed citizens’ initiative - Article 4(2)(b) - Condition that the proposed initiative does not manifestly fall outside the framework of the European Commission’s powers to submit a proposal for a legal act for the purpose of implementing the Treaties - Burden of proof - Economic, social and territorial cohesion - Article 174 TFEU - Citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ - Application for registration - Refusal by the Commission)

(2019/C 148/02)

Language of the case: Hungarian

Parties

Appellants: Balázs-Árpád Izsák, Attila Dabis (represented by: D. Sobor, ügyvéd)

Other parties to the proceedings: European Commission (represented by: K. Banks, K. Talabér-Ritz, H. Krämer and B.-R. Killmann, acting as Agents), Hungary (represented by: M.Z. Fehér, acting as Agent), Hellenic Republic, Romania (represented by: R.H. Radu, C.R. Canțăr, C.-M. Florescu, L. Lițu and E. Gane, acting as Agents), Slovak Republic (represented by: B. Ricziová, acting as Agent)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 10 May 2016, Iszák and Dabis v Commission (T-529/13, EU:T:2016:282); |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 10 May 2016, Iszák and Dabis v Commission (T-529/13, EU:T:2016:282);

| 2. | Annuls Decision C(2013) 4975 final of the Commission of 25 July 2013 concerning the application for registration of the European citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’; |
| --- | --- |

2.

Annuls Decision C(2013) 4975 final of the Commission of 25 July 2013 concerning the application for registration of the European citizens’ initiative ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’;

| 3. | Orders the European Commission to pay the costs relating to the proceedings at first instance and on appeal; |
| --- | --- |

3.

Orders the European Commission to pay the costs relating to the proceedings at first instance and on appeal;

| 4. | Orders Hungary, Romania and the Slovak Republic to bear their own costs. |
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4.

Orders Hungary, Romania and the Slovak Republic to bear their own costs.

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(1)  OJ C 392, 24.10.2016.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/3 |
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29.4.2019

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Official Journal of the European Union

C 148/3

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Judgment of the Court (Grand Chamber) of 5 March 2019 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Eesti Pagar AS v Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium

(Case C-349/17) (1)

(Reference for a preliminary ruling - State aid - Regulation (EC) No 800/2008 (General block exemption regulation) - Article 8(2) - Aid with an incentive effect - Concept of ‘start of work on the project’ - Powers of the national authorities - Unlawful aid - No decision of the European Commission or of a national court - Obligation on the national authorities to recover unlawful aid on their own initiative - Legal basis - Article 108(3) TFEU - General principle of EU law of protection of legitimate expectations - Decision of the competent national authority granting aid under Regulation No 800/2008 - Knowledge of circumstances excluding the eligibility of the aid application - Creation of a legitimate expectation - None - Limitation - Aid co-financed from a structural fund - Applicable legislation - Regulation (EC, Euratom) No 2988/95 - National legislation - Interest - Obligation to claim interest - Legal basis - Article 108(3) TFEU - Applicable legislation - National rules - Principle of effectiveness)

(2019/C 148/03)

Language of the case: Estonian

Referring court

Tallinna Ringkonnakohus

Parties to the main proceedings

Applicant: Eesti Pagar AS

Defendants: Ettevõtluse Arendamise Sihtasutus, Majandus- ja Kommunikatsiooniministeerium

Operative part of the judgment

| 1. | Article 8(2) of Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles [107 and 108 TFEU] (General block exemption regulation), must be interpreted as meaning that ‘work on the project or activity’, within the meaning of that provision, started when a first order of equipment required for that project or that activity was made by means of entering into an unconditional and legally binding commitment before the submission of the aid application, regardless of any costs of resiling from that commitment. |
| --- | --- |

1.

Article 8(2) of Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles [107 and 108 TFEU] (General block exemption regulation), must be interpreted as meaning that ‘work on the project or activity’, within the meaning of that provision, started when a first order of equipment required for that project or that activity was made by means of entering into an unconditional and legally binding commitment before the submission of the aid application, regardless of any costs of resiling from that commitment.

| 2. | Article 108(3) TFEU must be interpreted as meaning that that provision requires the national authority to recover on its own initiative aid that it has granted pursuant to Regulation No 800/2008 when it finds, subsequently, that the conditions laid down by that regulation were not satisfied. |
| --- | --- |

2.

Article 108(3) TFEU must be interpreted as meaning that that provision requires the national authority to recover on its own initiative aid that it has granted pursuant to Regulation No 800/2008 when it finds, subsequently, that the conditions laid down by that regulation were not satisfied.

| 3. | EU law must be interpreted as meaning that a national authority cannot, where it grants aid while misapplying Regulation No 800/2008, cause the beneficiary of that aid to hold a legitimate expectation that that aid is lawful. |
| --- | --- |

3.

EU law must be interpreted as meaning that a national authority cannot, where it grants aid while misapplying Regulation No 800/2008, cause the beneficiary of that aid to hold a legitimate expectation that that aid is lawful.

| 4. | EU law must be interpreted as meaning that, where a national authority has granted aid from a structural fund while misapplying Regulation No 800/2008, the limitation period applicable to the recovery of the unlawful aid is, if the conditions for the application of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests are satisfied, four years, in accordance with Article 3(1) of the latter regulation or, if not, the period laid down by the applicable national law. |
| --- | --- |

4.

EU law must be interpreted as meaning that, where a national authority has granted aid from a structural fund while misapplying Regulation No 800/2008, the limitation period applicable to the recovery of the unlawful aid is, if the conditions for the application of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests are satisfied, four years, in accordance with Article 3(1) of the latter regulation or, if not, the period laid down by the applicable national law.

| 5. | EU law must be interpreted as meaning that, where a national authority undertakes on its own initiative to recover aid which it has wrongly granted under Regulation No 800/2008, it is the duty of that authority to claim interest from the beneficiary of that aid in accordance with the rules of the applicable national law. In that regard, Article 108(3) TFEU requires that those rules should be such as to ensure full recovery of the unlawful aid and that, therefore, the beneficiary of that aid must be ordered to pay, inter alia, interest for the whole of the period over which it benefited from that aid and at a rate equivalent to that which would have been applied if the beneficiary had had to borrow the amount of the aid at issue on the market within that period. |
| --- | --- |

5.

EU law must be interpreted as meaning that, where a national authority undertakes on its own initiative to recover aid which it has wrongly granted under Regulation No 800/2008, it is the duty of that authority to claim interest from the beneficiary of that aid in accordance with the rules of the applicable national law. In that regard, Article 108(3) TFEU requires that those rules should be such as to ensure full recovery of the unlawful aid and that, therefore, the beneficiary of that aid must be ordered to pay, inter alia, interest for the whole of the period over which it benefited from that aid and at a rate equivalent to that which would have been applied if the beneficiary had had to borrow the amount of the aid at issue on the market within that period.

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(1)  OJ C 269, 14.8.2017.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/4 |
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29.4.2019

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Official Journal of the European Union

C 148/4

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Judgment of the Court (Sixth Chamber) of 7 March 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Suez II Water Technologies & Solutions Portugal, Unipessoal Lda, formerly GE Power Controls Portugal Unipessoal, Lda v Fazenda Pública

(Case C-643/17) (1)

(Reference for a preliminary ruling - Customs union - Regulation (EEC) No 2913/92 - Article 37 - Community Customs Code - Regulation (EEC) No 2454/93 - Article 313 - Customs status of goods - Presumption of the Community status of goods)

(2019/C 148/04)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Appellant: Suez II Water Technologies & Solutions Portugal, Unipessoal Lda, formerly GE Power Controls Portugal Unipessoal, Lda

Respondent: Fazenda Pública

Operative part of the judgment

Article 313 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 75/98 of 12 January 1998, must be interpreted as meaning that goods, such as those at issue in the main proceedings, supplied and invoiced by companies established in third countries to a company established in the customs territory of the European Union in order to be used there, must be regarded as having been brought into that territory within the meaning of Article 37 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, and to be covered, in that regard, by the exception provided for in Article 313(2)(a) of Regulation No 2454/93, as amended by Regulation No 75/98, as only goods in respect of which it has been proven that a procedure for releasing them for free circulation in the customs territory of the European Union has been carried out are to be recognised as having Community status.

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(1)  OJ C 52, 12.2.2018.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/5 |
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29.4.2019

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Official Journal of the European Union

C 148/5

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Judgment of the Court (Tenth Chamber) of 6 March 2019 — BMB sp. z o.o. v European Union Intellectual Property Office (EUIPO), Ferrero SpA

(Case C-693/17 P) (1)

(Appeal - Community design - Regulation (EC) No 6/2002 - Article 25(1)(e) - Invalidity proceedings - Design representing comfit boxes for sweets - Declaration of invalidity)

(2019/C 148/05)

Language of the case: English

Parties

Appellant: BMB sp. z o.o. (represented by: K. Czubkowski, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: S. Hanne and D. Walicka, acting as Agents), Ferrero SpA (represented by: M. Kefferpütz, Rechtsanwalt)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders BMB sp. z o.o. to pay the costs. |
| --- | --- |

2.

Orders BMB sp. z o.o. to pay the costs.

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(1)  OJ C 142, 23.4.2018.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/6 |
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29.4.2019

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Official Journal of the European Union

C 148/6

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Judgment of the Court (First Chamber) of 7 March 2019 — European Commission v Alain Laurent Brouillard

(Case C-728/17 P) (1)

(Appeal - Civil service - Recruitment - Competitions - Conditions for admission - Diplomas and level of education required - Open competition EPSO/AD/306/15 - Pre-selection of candidates on the basis of their applications - Level of education corresponding to full legal education completed in a Belgian, French, or Luxembourg higher-education institution - ‘Master 2’ diploma (master’s degree) in law, economics and management, private law, lawyer-linguist specialism - Issued following ‘accreditation of skills gained through experience’ - Rejection of the application)

(2019/C 148/06)

Language of the case: French

Parties

Appellant: European Commission (represented by: P. Mihaylova and G. Gattinara, acting as Agents)

Other party to the proceedings: Alain Laurent Brouillard (represented by: H. Brouillard, lawyer)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the European Commission to pay the costs.

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(1)  OJ C 112, 26.3.2018.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/6 |
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29.4.2019

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Official Journal of the European Union

C 148/6

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Appeal brought on 13 June 2018 by Mauro Bettani against the order of the General Court (Sixth Chamber) delivered on 24 April 2018 in Case T-80/18, Bettani v Commission

(Case C-392/18 P)

(2019/C 148/07)

Language of the case: Italian

Parties

Appellant: Mauro Bettani (represented by: Mauro Bettani, avvocato)

Other party to the proceedings: European Commission

By order of 7 March 2019, the Court of Justice (Sixth Chamber) dismissed the appeal and ordered Mr Mauro Bettani to bear his own costs.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/7 |
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29.4.2019

EN

Official Journal of the European Union

C 148/7

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Appeal brought on 3 December 2018 by M-Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M-Sansz Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-709/17 M-Sansz v Commission

(Case C-757/18 P)

(2019/C 148/08)

Language of the case: Hungarian

Parties

Appellant: M Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M Sansz Kft.) (represented by: L. Ravasz, ügyvéd)

Other party to the proceedings: European Commission

Form of order sought

In its appeal, M-Sansz Kft. submits that the Court of Justice should:

| — | Set aside the order of the General Court (Seventh Chamber) of 28 September 2018, M-Sansz v Commission, T-709/17, and in its judgment, reject the plea of inadmissibility raised by the defendant at first instance, and uphold the action brought by the applicant in the proceedings at first instance; find, in relation to Commission Decisions SA.29432 [CP 290/2009] and SA.45498 [FC/2016], principally, that those decisions declaring the compatibility of State aid failed to rely on Article 107(1) TFEU; and, in the alternative, that the contested decisions do not constitute acts which are legally binding on the appellant in the context of Case No 23.P.25.843/2016 pending before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that the appellant is therefore not directly and individually concerned, since it has brought its action for compensation on the basis of the fact that the State aid in question infringes Article 107(1) TFEU, not Article 107(3) TFEU. In the event that, on the contrary, the contested decisions are found to constitute acts which are legally binding on the appellant in relation to a procedure under Article 107(1) TFEU, the appellant also requests that the Court of Justice uphold the appeal brought by the applicant at first instance, and declare that the contested decisions are invalid owing to the fact that the aid granted by the Hungarian authorities infringes Article 107(1) TFEU (annulment). |
| --- | --- |

—

Set aside the order of the General Court (Seventh Chamber) of 28 September 2018, M-Sansz v Commission, T-709/17, and in its judgment, reject the plea of inadmissibility raised by the defendant at first instance, and uphold the action brought by the applicant in the proceedings at first instance; find, in relation to Commission Decisions SA.29432 [CP 290/2009] and SA.45498 [FC/2016], principally, that those decisions declaring the compatibility of State aid failed to rely on Article 107(1) TFEU; and, in the alternative, that the contested decisions do not constitute acts which are legally binding on the appellant in the context of Case No 23.P.25.843/2016 pending before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that the appellant is therefore not directly and individually concerned, since it has brought its action for compensation on the basis of the fact that the State aid in question infringes Article 107(1) TFEU, not Article 107(3) TFEU. In the event that, on the contrary, the contested decisions are found to constitute acts which are legally binding on the appellant in relation to a procedure under Article 107(1) TFEU, the appellant also requests that the Court of Justice uphold the appeal brought by the applicant at first instance, and declare that the contested decisions are invalid owing to the fact that the aid granted by the Hungarian authorities infringes Article 107(1) TFEU (annulment).

| — | In the event that the Court of Justice does not consider it possible to rule on the substance of the case, set aside the abovementioned order of the General Court and refer the case back to the General Court as court of first instance. |
| --- | --- |

—

In the event that the Court of Justice does not consider it possible to rule on the substance of the case, set aside the abovementioned order of the General Court and refer the case back to the General Court as court of first instance.

| — | In the event that the Court of Justice gives judgment in accordance with the first paragraph of the form of order sought above, order the defendant to bear its own costs at first instance and on appeal. |
| --- | --- |

—

In the event that the Court of Justice gives judgment in accordance with the first paragraph of the form of order sought above, order the defendant to bear its own costs at first instance and on appeal.

Grounds of appeal and main arguments

Infringement of Article 263 TFEU and the provisions and case-law in bold, as follows:

The complaints lodged by the Hungarian applicant company gave rise to the procedures relating to Decisions SA.29432 and SA.45498. Those complaints concerned unlawful State aid and discriminatory treatment of a category of entities — which includes the applicant at first instance — since the recipient companies and those discriminated against are engaged in the same activity in Hungary, are situated in the same county in Hungary and employ disabled workers. The appellant also claims that the amount of the unlawful State aid is manifestly and unlawfully high. The appellant maintains that, in those procedures, the Commission failed to give decisions and certainly did not give decisions producing any legal effect in its regard. In the Hungarian proceedings mentioned in the appeal [Case No 23.P.25.843/2016, pending before the Fővárosi Törvényszék (Budapest High Court, Hungary)], the appellant seeks compensation in respect of the harm suffered as a consequence of the unlawful State aid; as a result, the outcome of the present case will have an undeniable effect on the judgment to be given in the context of the national proceedings. It is important that acts which legally do not constitute Commission decisions do not determine the outcome of the national proceedings. Those decisions failed to find the State aid in question to be compatible, within the meaning of Article 107(1) TFEU, and do not constitute legal acts intended to produce legal effects with regard to the appellant, since the wording of the latter’s application for compensation relies on the claim that the State aid at issue infringes Article 107(1) TFEU, and not on the allegation that it infringes Article 107(3) TFEU.

The appellant maintains that, in this case, it satisfies the requirement established in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17). The appellant claims that it has demonstrated that it is a ‘party concerned’ for the purposes of the fourth paragraph of Article 263 TFEU, Article 108(2) TFEU, and Article 1(h) of Council Regulation (EU) 2015/1589, (1) and that the Court of Justice declared in its judgment of 24 May 2011, Commission v Kronoplu and Kronotex (C-83/09P, EU:C:2011:341), that, in order for undertakings to regarded as competitors, their spheres of activity were not required to be identical.

Infringement of procedural rights (breach of the provisions in bold), as follows:

Thus, whilst the table submitted as evidence of standing as a party concerned and the additional explanations failed to satisfy the General Court, the latter ought to have applied Article 83(1) to (3), Article 88(1), Article 89(1), (2)(a) to (c), (3)(a) and (d) and (4), together with Article 92(1) of its own Rules of Procedure, and made use, vis-à-vis the appellant, of a request for information or an invitation to make submissions with regard to that question. The breach occurred when the General Court failed to act of its own motion. Moreover, the Sargentini Report — which also examines the time period in question — criticises Hungary in connection with the principle of the rule of law, including the rule of law in economic matters (see paragraphs 12, 13, 22 and 23).

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(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/8 |
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29.4.2019

EN

Official Journal of the European Union

C 148/8

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Appeal brought on 20 December 2018 by the European Union Intellectual Property Office against the judgment of the General Court (Second Chamber) delivered on 15 October 2018 in Case T-7/17: John Mills v EUIPO

(Case C-809/18 P)

(2019/C 148/09)

Language of the case: English

Parties

Appellant: European Union Intellectual Property Office (represented by: A. Lukošiūtė, Agent)

Other parties to the proceedings: John Mills Ltd, Jerome Alexander Consulting Corp.

Form of order sought

The appellant claims that the Court should:

| — | annul the contested judgment; |
| --- | --- |

—

annul the contested judgment;

| — | order John Mills Ltd to pay the costs incurred by the Office. |
| --- | --- |

—

order John Mills Ltd to pay the costs incurred by the Office.

Pleas in law and main arguments

Violation of Articles 8(3) of Regulation 207/2009 (1)

| — | The General Court misinterpreted the provisions of Article 8(3) of Regulation 207/2009 by limiting its scope to the notion of ‘identity’ of the signs and attributing it the meaning proper to Article 8(1)(a) of Regulation 207/2009. |
| --- | --- |

—

The General Court misinterpreted the provisions of Article 8(3) of Regulation 207/2009 by limiting its scope to the notion of ‘identity’ of the signs and attributing it the meaning proper to Article 8(1)(a) of Regulation 207/2009.

| — | The General Court did not take sufficient account of the purpose of Article 8(3) of Regulation 207/2009, i.e. to prevent the misuse of a mark by the trade mark proprietor’s agent as the agent may exploit the knowledge and experience acquired during its business relationship with the proprietor and therefore improperly benefit from the effort and investment which the trade mark proprietor himself made, giving preference to an arguable literal interpretation. While it is a teleological approach to the interpretation of the EU trade mark law that is consistently applied by the EU judicature. |
| --- | --- |

—

The General Court did not take sufficient account of the purpose of Article 8(3) of Regulation 207/2009, i.e. to prevent the misuse of a mark by the trade mark proprietor’s agent as the agent may exploit the knowledge and experience acquired during its business relationship with the proprietor and therefore improperly benefit from the effort and investment which the trade mark proprietor himself made, giving preference to an arguable literal interpretation. While it is a teleological approach to the interpretation of the EU trade mark law that is consistently applied by the EU judicature.

| — | A literal interpretation does not lead either to the conclusion that Article 8(3) of Regulation 207/2009 applies only to identical marks. It is therefore enough if the signs at issue coincide in elements in which the earlier mark’s distinctive character essentially consists. On this basis the proper test for examining the conflicting marks under the Article 8(3) of Regulation 207/2009 is whether the EUTM application reproduces the essential elements of the earlier mark in such a way as to make it evident that the applicant is misappropriating the legitimate proprietor’s rights on its mark. In fact, the disloyal agent would be in a position to prevent not only any subsequent registration of the earlier mark by the original proprietor within the EU — but indeed any use thereof by the principal within the EU. |
| --- | --- |

—

A literal interpretation does not lead either to the conclusion that Article 8(3) of Regulation 207/2009 applies only to identical marks. It is therefore enough if the signs at issue coincide in elements in which the earlier mark’s distinctive character essentially consists. On this basis the proper test for examining the conflicting marks under the Article 8(3) of Regulation 207/2009 is whether the EUTM application reproduces the essential elements of the earlier mark in such a way as to make it evident that the applicant is misappropriating the legitimate proprietor’s rights on its mark. In fact, the disloyal agent would be in a position to prevent not only any subsequent registration of the earlier mark by the original proprietor within the EU — but indeed any use thereof by the principal within the EU.

Violation of Article 36 of the Statute of the Court of Justice

| — | The judgment under appeal is tainted by contradictory reasoning to the extent that it accepts, on the one hand, that signs are identical where one reproduces the other without any modification or addition and, on the other hand, that they are also identical where variations are made without altering the distinctive character (see paragraphs 38-40 of the Contested Judgment). Such reasoning is contradictory since the same notion of ‘identity’ is applied to distinct legal and factual situations and is erroneously given two different contents. |
| --- | --- |

—

The judgment under appeal is tainted by contradictory reasoning to the extent that it accepts, on the one hand, that signs are identical where one reproduces the other without any modification or addition and, on the other hand, that they are also identical where variations are made without altering the distinctive character (see paragraphs 38-40 of the Contested Judgment). Such reasoning is contradictory since the same notion of ‘identity’ is applied to distinct legal and factual situations and is erroneously given two different contents.

| — | The General Court did not provide any reasons as to why the conflicting trade marks do not fall under the scope of Article 8(3) of Regulation 207/2009 following the test it introduced in paragraph 39 of the contested judgment. |
| --- | --- |

—

The General Court did not provide any reasons as to why the conflicting trade marks do not fall under the scope of Article 8(3) of Regulation 207/2009 following the test it introduced in paragraph 39 of the contested judgment.

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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).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/9 |
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29.4.2019

EN

Official Journal of the European Union

C 148/9

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Appeal brought on 21 December 2018 by The Yokohama Rubber Co. Ltd against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO

(Case C-818/18 P)

(2019/C 148/10)

Language of the case: English

Parties

Appellant: The Yokohama Rubber Co. Ltd (represented by: D. Martucci, F. Boscariol de Roberto, avvocati)

Other parties to the proceedings: European Union Intellectual Property Office, Pirelli Tyre SpA

Form of order sought

The appellant claims that the Court should:

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

—

set aside the judgment under appeal;

| — | if necessary, refer the case back to the General Court; |
| --- | --- |

—

if necessary, refer the case back to the General Court;

| — | order Pirelli Tyre S.p.A. to pay the costs including the costs incurred in the course of the proceedings of General Court and the Board of Appeal. |
| --- | --- |

—

order Pirelli Tyre S.p.A. to pay the costs including the costs incurred in the course of the proceedings of General Court and the Board of Appeal.

Pleas in law and main arguments

First part of the first plea in law: does the mark constitute the shape of the goods within the meaning of Article 7(1)(e)(ii) of Regulation No 40/94 (1)
  ?

The General Court affirmed that, even though the graphic representation constituting the contested sign shows no contours and is not accompanied by any additional description, Pirelli did not contest that some of its tyre models contain, on the surface of the tyre, a groove in the shape represented by the contested sign. Also the possibility afforded to the competent authority to take into account material relevant to identifying the essential characteristics of a contested three-dimensional sign has been extended to the examination of two-dimensional signs. The General Court concluded its reasoning affirming that: ‘It must be stated that, when analysed objectively and specifically, the contested mark does not represent a tread pattern design. It represents, at most, an individual groove of a tyre tread’. The Court of Justice has reiterated that the case law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product or part of the product itself, also applies where, as in the present case, the trade mark applied for is a figurative mark consisting of the two-dimensional representation of that product or part of the product. In such a case, the trade mark likewise does not consist of a sign unrelated to the appearance of the products it covers. The graphic representation of the challenged trade mark exactly reproduces the shape of the product (i.e. pattern) which it is to designate or of the product to which relate for technical reasons. The explanation provided by the General Court, according to which the sign is not a significant part of the product, is arbitrary and contrary to the case law decided by the Court of Justice and by the same General Court. The question is not if the sign constitutes a significant part of the product but if the sign is a part of the product.

Second part of the first plea in law: did the Board of Appeal add to the shape elements which did not form part of the sign and which were therefore external and foreign?

The General Court affirms that the Board of Appeal departed from the shape represented by the contested sign and modified it. In other words, the Board of Appeal have modified the nature of the sign, alleging or supposing external and foreign features or characteristics. In truth, the Board of Appeal did not add elements to the sign but evaluated the shape of the actual goods and not an abstract shape. If the sign, as affirmed by the General Court, is a true to life representation of a part of the goods covered by the sign, it is necessary to analyze the characteristics of the shape arising from the graphic representation from the point of view of the function of the goods concerned. In our opinion, the General Court seems to affirm that the EUIPO tried to find hidden characteristics which are not visible in the shape represented. Although that assessment should undoubtedly be confined prima facie to an analysis of the shape as applied for, the relationship between that shape (groove) and the function of the goods (tyre) necessitates the consideration of additional information. In our view, the analysis of the sign as applied for is quite simple due to the fact that on the products the trade mark appears as a serial reproduction of the sign. Therefore the question is: ‘does the depiction amount unquestionably to a representation of a functional element of a part of the product?’ and not, contrary to the statement of the General Court, ‘does the depiction amount unquestionably to a representation of a significant part or a small portion of the product?’.

Second plea in law: on distortion of the facts

The General Court erred in evaluating all the facts and all the documents filed by Yokohama. In our case we have indicated precisely the evidence alleged to have been distorted by the General Court and showed the errors of appraisal which, in our view, led to that distortion. Such distortion is obvious from the documents on the Court's file, without there being any need to carry out a new assessment of the facts and evidence.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994, L 11, p. 1).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/11 |
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29.4.2019

EN

Official Journal of the European Union

C 148/11

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Appeal brought on 28 December 2018 by Mamas and Papas Ltd against the judgment of the General Court (Second Chamber) delivered on 23 October 2018 in Case T-672/17: Mamas and Papas v EUIPO

(Case C-825/18 P)

(2019/C 148/11)

Language of the case: English

Parties

Appellant: Mamas and Papas Ltd (represented by: S. Malynicz QC, B. Whitehead, J. Dainty, Solicitors)

Other party to the proceedings: European Union Intellectual Property Office

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court in Case T-672/17, Mamas and Papas Ltd v EUIPO; |
| --- | --- |

—

set aside the judgment of the General Court in Case T-672/17, Mamas and Papas Ltd v EUIPO;

| — | give judgment on the issue of prior disclosure; |
| --- | --- |

—

give judgment on the issue of prior disclosure;

| — | refer the case back to the General Court of the European Union on the remaining pleas in law that were brought before the General Court but not resolved by that Court; |
| --- | --- |

—

refer the case back to the General Court of the European Union on the remaining pleas in law that were brought before the General Court but not resolved by that Court;

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

—

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

Pleas in law and main arguments

First the General Court erred in law regarding the powers of the EUIPO to examine the facts under Article 63(1) CDR (1) in relation to disclosure of the prior design. Where prior disclosure is positively averred by the design holder, it is not open to the EUIPO to come to a different conclusion on that issue.

Secondly, in any event, as regards its assessment of the evidence of prior disclosure the General Court distorted the evidence and incorrectly assessed the facts, and its decision contains a substantive inaccuracy in the findings attributable to the documents submitted to it which is clear from the case file.

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(1)  11 Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community Designs (OJ 2002, L 3, p. 1).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/12 |
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29.4.2019

EN

Official Journal of the European Union

C 148/12

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Appeal brought on 04 January 2019 by the European Union Intellectual Property Office against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO

(Case C-6/19 P)

(2019/C 148/12)

Language of the case: English

Parties

Appellant: European Union Intellectual Property Office (represented by: J. Ivanauskas, Agent)

Other parties to the proceedings: Pirelli Tyre SpA, The Yokohama Rubber Co. Ltd

Form of order sought

The appellant claims that the Court should:

| — | annul the contested judgment; |
| --- | --- |

—

annul the contested judgment;

| — | order Pirelli Tyre SpA to pay the costs incurred by the Office. |
| --- | --- |

—

order Pirelli Tyre SpA to pay the costs incurred by the Office.

Pleas in law and main arguments

The Office raises a single plea in law that is the infringement of Article 7(1)(e)(ii) of Regulation No 40/94 (1).

| — | By requiring that in order to be caught by Article 7(1)(e)(ii) of Regulation No 40/94 a sign depicting part of a product must represent, quantitatively and qualitatively, a significant part of that product, the General Court misinterpreted the conditions of this ground for refusal; |
| --- | --- |

—

By requiring that in order to be caught by Article 7(1)(e)(ii) of Regulation No 40/94 a sign depicting part of a product must represent, quantitatively and qualitatively, a significant part of that product, the General Court misinterpreted the conditions of this ground for refusal;

| — | The General Court incorrectly considered that a single groove represented in the contested sign is not capable of performing a technical function for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 because in a tyre tread it appears in combination with other elements. First, Article 7(1)(e)(ii) of Regulation No 40/94 requires to examine the technical result achieved by the feature of a product represented in the sign at issue, rather than the technical result achieved by the entire product. Secondly, for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 it is irrelevant if a single groove represented in the contested sign is combined with other elements of a tyre tread since it produces a technical result itself and contributes to the functioning of that tyre tread; |
| --- | --- |

—

The General Court incorrectly considered that a single groove represented in the contested sign is not capable of performing a technical function for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 because in a tyre tread it appears in combination with other elements. First, Article 7(1)(e)(ii) of Regulation No 40/94 requires to examine the technical result achieved by the feature of a product represented in the sign at issue, rather than the technical result achieved by the entire product. Secondly, for the purposes of Article 7(1)(e)(ii) of Regulation No 40/94 it is irrelevant if a single groove represented in the contested sign is combined with other elements of a tyre tread since it produces a technical result itself and contributes to the functioning of that tyre tread;

| — | The General Court wrongly presumed that the registration of a single groove represented in the contested sign could not prevent Pirelli’s competitors from making and marketing tyres which incorporate identical or similar grooves. Although a tyre tread consists of the combination and the interaction of various elements, at least part of the public would be able to identify different types of grooves present on a tyre tread. |
| --- | --- |

—

The General Court wrongly presumed that the registration of a single groove represented in the contested sign could not prevent Pirelli’s competitors from making and marketing tyres which incorporate identical or similar grooves. Although a tyre tread consists of the combination and the interaction of various elements, at least part of the public would be able to identify different types of grooves present on a tyre tread.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/13 |
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29.4.2019

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Official Journal of the European Union

C 148/13

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Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 9 January 2019 — Ibercaja Banco, S.A. v TJ and UK

(Case C-13/19)

(2019/C 148/13)

Language of the case: Spanish

Referring court

Audiencia Provincial de Zaragoza

Parties to the main proceedings

Appellant: Ibercaja Banco, S.A.

Respondents: TJ and UK

Questions referred

| 1. | In the light of Article 3 of Directive 93/13, (1) can the ‘floor clause’ amendment in the form established under the agreement, as described in the statement of facts, be classified as a standard condition of contract? |
| --- | --- |

1.

In the light of Article 3 of Directive 93/13, (1) can the ‘floor clause’ amendment in the form established under the agreement, as described in the statement of facts, be classified as a standard condition of contract?

| 2. | In the same circumstances, can the waiver of the right to take legal action against the bank be classified as a standard condition of contract, that is to say, can a contractual condition which the seller or supplier draws up for general purposes and the content of which is not demonstrably explained to the consumer signing up to the contract be classified as a standard condition of contract? |
| --- | --- |

2.

In the same circumstances, can the waiver of the right to take legal action against the bank be classified as a standard condition of contract, that is to say, can a contractual condition which the seller or supplier draws up for general purposes and the content of which is not demonstrably explained to the consumer signing up to the contract be classified as a standard condition of contract?

| 3. | In such circumstances, are the requirements for clarity, transparency, true comprehensibility of the financial burden, pre-contractual information and individual negotiation laid down in Articles 3 and 4 of Directive 93/13 satisfied in the case where the consequences of that condition have a significant bearing on the consumer? |
| --- | --- |

3.

In such circumstances, are the requirements for clarity, transparency, true comprehensibility of the financial burden, pre-contractual information and individual negotiation laid down in Articles 3 and 4 of Directive 93/13 satisfied in the case where the consequences of that condition have a significant bearing on the consumer?

| 4. | Must the requirement for pre-contractual information as a criterion for determining whether a contractual term is unfair (Articles 4 and 5 of Directive [93/13]) apply to an equal or even greater extent in the case of an agreement for the relaxation of a term that is likely to be void (specific financial consequences of relaxation; reference to the relevant case-law and its specific effects, etc.)? |
| --- | --- |

4.

Must the requirement for pre-contractual information as a criterion for determining whether a contractual term is unfair (Articles 4 and 5 of Directive [93/13]) apply to an equal or even greater extent in the case of an agreement for the relaxation of a term that is likely to be void (specific financial consequences of relaxation; reference to the relevant case-law and its specific effects, etc.)?

| 5. | For the purposes of relaxing a term that is likely to be void, is the consumer’s manuscript copy of the relaxation of the potentially void term sufficient to comply with the requirements for pre-contractual information and clarity laid down in Articles 4 and 5 of Directive [93/13]? |
| --- | --- |

5.

For the purposes of relaxing a term that is likely to be void, is the consumer’s manuscript copy of the relaxation of the potentially void term sufficient to comply with the requirements for pre-contractual information and clarity laid down in Articles 4 and 5 of Directive [93/13]?

| 6. | Are (i) the fact that the initiative to effect a relaxation or settlement comes from the banking institution and (ii) the prohibition against removing the document from the branch unless it has been signed by the consumer particularly relevant when it comes to assessing whether the relaxation clause is unfair (Articles 4 and 5 of Directive [93/13])? |
| --- | --- |

6.

Are (i) the fact that the initiative to effect a relaxation or settlement comes from the banking institution and (ii) the prohibition against removing the document from the branch unless it has been signed by the consumer particularly relevant when it comes to assessing whether the relaxation clause is unfair (Articles 4 and 5 of Directive [93/13])?

| 7. | Can a term that is likely to be void because it is unfair be relaxed (principle that unfair terms are non-binding)? |
| --- | --- |

7.

Can a term that is likely to be void because it is unfair be relaxed (principle that unfair terms are non-binding)?

| 8. | Can a term that is likely to be void because it is unfair to the consumer be the subject of a waiver of the right to take legal action by the consumer (Article 3 of Directive [93/13] in conjunction with point 1(q) of the Annex to Directive 93/13 and the principle that unfair terms are not to be binding, laid down in Article 6 of the Directive)? |
| --- | --- |

8.

Can a term that is likely to be void because it is unfair to the consumer be the subject of a waiver of the right to take legal action by the consumer (Article 3 of Directive [93/13] in conjunction with point 1(q) of the Annex to Directive 93/13 and the principle that unfair terms are not to be binding, laid down in Article 6 of the Directive)?

| 9. | In the event of a reply in the affirmative, must the requirement for pre-contractual information be equal to or greater than that applicable at the time of the original agreement? |
| --- | --- |

9.

In the event of a reply in the affirmative, must the requirement for pre-contractual information be equal to or greater than that applicable at the time of the original agreement?

| 10. | In the light of the requirement for pre-contractual information (Articles 4 and 5 of Directive [93/13]), is the term providing for a waiver of the right to take legal action not to be treated as a secondary and ancillary matter from the point of view of its documentation (Articles 3, 4 and 5 of Directive [93/13])? |
| --- | --- |

10.

In the light of the requirement for pre-contractual information (Articles 4 and 5 of Directive [93/13]), is the term providing for a waiver of the right to take legal action not to be treated as a secondary and ancillary matter from the point of view of its documentation (Articles 3, 4 and 5 of Directive [93/13])?

| 11. | Do the validity of the relaxation of terms that are likely to be void and the waiver of the right to take legal action to obtain a declaration that those terms are void and ineffective run counter to the deterrent effect vis-à-vis the seller or supplier making the offer (Article 7 of Directive [93/13] and judgment of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15 (2))? |
| --- | --- |

11.

Do the validity of the relaxation of terms that are likely to be void and the waiver of the right to take legal action to obtain a declaration that those terms are void and ineffective run counter to the deterrent effect vis-à-vis the seller or supplier making the offer (Article 7 of Directive [93/13] and judgment of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15 (2))?

| 12. | Can a contractual term that is likely to be void because it is unfair under Articles 3 and 4 of Directive 93/13 bind the consumer to whom it applies when the banking institution uses a procedure whereby it agrees with the customer, after the contract containing the term in question has been concluded, that the seller or supplier will refrain from applying the unfair term in return for some other consideration from the consumer? In other words, is the void term rendered effective by the agreement with the consumer to replace it with another term which is more favourable to him? Could an agreement of this kind be contrary to Article 6(1) of Directive [93/13]? |
| --- | --- |

12.

Can a contractual term that is likely to be void because it is unfair under Articles 3 and 4 of Directive 93/13 bind the consumer to whom it applies when the banking institution uses a procedure whereby it agrees with the customer, after the contract containing the term in question has been concluded, that the seller or supplier will refrain from applying the unfair term in return for some other consideration from the consumer? In other words, is the void term rendered effective by the agreement with the consumer to replace it with another term which is more favourable to him? Could an agreement of this kind be contrary to Article 6(1) of Directive [93/13]?

| 13. | Is conduct on the part of a banking institution such as that described in the statement of facts caught by the prohibition of unfair behaviour and unfair commercial practices in dealings with consumers which is contained in recital 14 and Articles 6 and 7 of Directive 2005/29? (3) |
| --- | --- |

13.

Is conduct on the part of a banking institution such as that described in the statement of facts caught by the prohibition of unfair behaviour and unfair commercial practices in dealings with consumers which is contained in recital 14 and Articles 6 and 7 of Directive 2005/29? (3)

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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)  Judgment of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and C-308/15, EU:C:2016:980.

(3)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/14 |
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29.4.2019

EN

Official Journal of the European Union

C 148/14

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 January 2019 — X-GmbH v Z Tax Office

(Case C-48/19)

(2019/C 148/14)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: X-GmbH

Defendant: Z Tax Office

Questions referred

| 1. | In circumstances such as those in the main proceedings, in which a taxable person advises insured persons on various topics relating to healthcare and medical conditions by telephone on behalf of health insurance funds, does this constitute an activity that falls within the scope of Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1) |
| --- | --- |

1.

In circumstances such as those in the main proceedings, in which a taxable person advises insured persons on various topics relating to healthcare and medical conditions by telephone on behalf of health insurance funds, does this constitute an activity that falls within the scope of Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

| 2. | In circumstances such as those in the main proceedings, is it sufficient, in relation to the services referred to in question 1 and in respect of turnover in the context of ‘patient support programmes’, for the required evidence of professional qualifications if the consultations over the telephone are conducted by ‘health coaches’ (medical assistants, nurses) and a doctor is consulted in approximately one third of the cases? |
| --- | --- |

2.

In circumstances such as those in the main proceedings, is it sufficient, in relation to the services referred to in question 1 and in respect of turnover in the context of ‘patient support programmes’, for the required evidence of professional qualifications if the consultations over the telephone are conducted by ‘health coaches’ (medical assistants, nurses) and a doctor is consulted in approximately one third of the cases?

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

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/15 |
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29.4.2019

EN

Official Journal of the European Union

C 148/15

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Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission

(Case C-56/19 P)

(2019/C 148/15)

Language of the case: English

Parties

Appellant: RFA International, LP (represented by: B. Evtimov, адвокат, M. Krestiyanova, avocate, D. O'Keeffe, Solicitor, N. Tuominen, E. Borovikov, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the contested judgment; |
| --- | --- |

—

set aside the contested judgment;

| — | give final judgment in the matter, where the state of the proceedings so permits; |
| --- | --- |

—

give final judgment in the matter, where the state of the proceedings so permits;

| — | in the alternative refer the case for reconsideration to the General Court; |
| --- | --- |

—

in the alternative refer the case for reconsideration to the General Court;

| — | order the Commission to pay the costs of the proceedings before the Court of Justice, as well as the costs of the proceedings before the General Court. |
| --- | --- |

—

order the Commission to pay the costs of the proceedings before the Court of Justice, as well as the costs of the proceedings before the General Court.

Pleas in law and main arguments

The present appeal is limited to challenging the General Court’s findings on the appellant’s second plea at first instance.

In its findings, the General Court erred in the legal interpretation of Article 11(9) and (10) of the Basic Regulation (1) and in defining overly broadly the permissible scope for the Commission’s discretionary choices in the assessment of complex situations under those provisions. The appellant respectfully requests that the Court of Justice should set aside the contested judgment on the following grounds.

The General Court committed two errors in law as far as the interpretation of the Basic Regulation is concerned.

| a) | First, the General Court wrongly interpreted Article 11(9) of the Basic Regulation. Under Article 11(9) of the Basic Regulation, in all review investigations, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty being imposed, with due account being taken of Article 2 of that regulation. However, when assessing whether the anti-dumping duties had been reflected in the resale prices, the Commission did not do so on the basis of the resale prices identified in the investigation leading to the initial regulation, but on the basis of current production costs in Russia. This constitutes a change in methodology within the meaning of Article 11(9) of the Basic Regulation. The Commission observed that the circumstances had significantly changed since the initial investigation and in particular, the Russian exporters’ production costs had increased by around 100 %. However, costs increases existed and were already known during the 2008-2010 refund investigation periods. |
| --- | --- |

a)

First, the General Court wrongly interpreted Article 11(9) of the Basic Regulation. Under Article 11(9) of the Basic Regulation, in all review investigations, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty being imposed, with due account being taken of Article 2 of that regulation. However, when assessing whether the anti-dumping duties had been reflected in the resale prices, the Commission did not do so on the basis of the resale prices identified in the investigation leading to the initial regulation, but on the basis of current production costs in Russia. This constitutes a change in methodology within the meaning of Article 11(9) of the Basic Regulation. The Commission observed that the circumstances had significantly changed since the initial investigation and in particular, the Russian exporters’ production costs had increased by around 100 %. However, costs increases existed and were already known during the 2008-2010 refund investigation periods.

| b) | Second, the General Court wrongly interpreted Article 11(10) of the Basic Regulation by applying an erroneous legal test. The legal test designed by the General Court requires that evidence of incorporation of the anti-dumping duties in the export prices could only be made through DDP (2) pricing data and by showing that not only the anti-dumping duties were captured in the new prices but also the entirety of any production costs incurred. Neither Article 11(10) of the Basic Regulation, nor the Commission Notice concerning the reimbursement of antidumping duties (3) contain such a requirement. |
| --- | --- |

b)

Second, the General Court wrongly interpreted Article 11(10) of the Basic Regulation by applying an erroneous legal test. The legal test designed by the General Court requires that evidence of incorporation of the anti-dumping duties in the export prices could only be made through DDP (2) pricing data and by showing that not only the anti-dumping duties were captured in the new prices but also the entirety of any production costs incurred. Neither Article 11(10) of the Basic Regulation, nor the Commission Notice concerning the reimbursement of antidumping duties (3) contain such a requirement.

Finally, the General Court made substantially incorrect findings of fact when it concluded that:

| a) | The production cost increases only surfaced during the first and second refund investigation periods and thus constituted a change of circumstances justifying a change in methodology. In fact, the Commission had known about the cost increases already during the original investigation period and the 2008-2010 refunds investigations. |
| --- | --- |

a)

The production cost increases only surfaced during the first and second refund investigation periods and thus constituted a change of circumstances justifying a change in methodology. In fact, the Commission had known about the cost increases already during the original investigation period and the 2008-2010 refunds investigations.

| b) | The change in methodology was justified to create a level playing field and avoid discriminatory treatment between operators that would be subject to the same measures. In fact, all Russian producers would have been subject to the same cost increases. |
| --- | --- |

b)

The change in methodology was justified to create a level playing field and avoid discriminatory treatment between operators that would be subject to the same measures. In fact, all Russian producers would have been subject to the same cost increases.

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

(2)  ‘Delivery duty paid’.

(3)  OJ 2014, C 164, p. 9.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/16 |
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29.4.2019

EN

Official Journal of the European Union

C 148/16

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Appeal brought on 25 January 2019 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-793/14: Tempus Energy and Tempus Energy Technology v Commission

(Case C-57/19 P)

(2019/C 148/16)

Language of the case: English

Parties

Appellant: European Commission (represented by: É. Gippini Fournier, P. Němečková, Agents)

Other parties to the proceedings: Tempus Energy Ltd, Tempus Energy Technology Ltd, United Kingdom of Great Britain and Northern Ireland

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission;
  and |
| --- | --- |

—

set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission;

and

| — | dismiss the application to annul Commission Decision C(2014)5083 final (1) of 23 July 2014 not to raise objections to the aid scheme for the capacity market in the United Kingdom; |
| --- | --- |

—

dismiss the application to annul Commission Decision C(2014)5083 final (1) of 23 July 2014 not to raise objections to the aid scheme for the capacity market in the United Kingdom;

alternatively,

| — | set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission; |
| --- | --- |

—

set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission;

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

—

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

and in any event, order the applicants at first instance to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The appeal is based on a single ground: the General Court misinterpreted Article 108, paragraph 3 of the Treaty on the Functioning of the European Union and Article 4, paragraphs 2 and 3 of Council Regulation (EU) 2015/1589 (2) of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, by finding that the notified aid measure gave rise to serious doubts as regards its compatibility with the internal market.

Given that the General Court based itself on a series of indicia on serious difficulties, the single ground is divided in the following two prongs on the two series of indicia examined in the contested judgment:

| — | First prong: The General Court erred in taking into account, as a main indicator of doubts, the length and circumstances of the pre-notification contacts and the complexity and novelty of the measure. |
| --- | --- |

—

First prong: The General Court erred in taking into account, as a main indicator of doubts, the length and circumstances of the pre-notification contacts and the complexity and novelty of the measure.

| — | Second prong: The General Court erred in faulting the Commission for lack of appropriate investigation on certain aspects of the UK capacity market. |
| --- | --- |

—

Second prong: The General Court erred in faulting the Commission for lack of appropriate investigation on certain aspects of the UK capacity market.

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(1)  Authorisation for State aid pursuant to Articles 107 and 108 of the Treaty on the Functioning of the European Union — Cases where the Commission raises no objections (OJ 2014, C 348, p. 5).

(2)  OJ 2015, L 248, p. 9

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/18 |
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29.4.2019

EN

Official Journal of the European Union

C 148/18

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Request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18 (Portugal) lodged on 31 January 2019 — LE v Transport Aéreos Portugueses S.A.

(Case C-74/19)

(2019/C 148/17)

Language of the case: Portuguese

Referring court

Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18

Parties to the main proceedings

Applicant: LE

Defendant: Transport Aéreos Portugueses S.A.

Questions referred

| 1. | Does the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, fall within the concept of ‘extraordinary circumstances’, referred to in recital 14 of Regulation (EC) No 261/2004? (1) |
| --- | --- |

1.

Does the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, fall within the concept of ‘extraordinary circumstances’, referred to in recital 14 of Regulation (EC) No 261/2004? (1)

| 2. | Is an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger (the applicant in this case) has boarded? |
| --- | --- |

2.

Is an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger (the applicant in this case) has boarded?

| 3. | For the purposes of Article 5(3) of Regulation No 261/2004, does the analysis carried out by the airline (the defendant in this case), which concluded that sending another aircraft would not avoid the situation of delay and therefore the transfer of the transit passenger (the applicant in this case) to a flight scheduled for the following day, since the airline operates only one daily flight to the passenger’s final destination, correspond to conduct by the airline in which it took all reasonable measures, even if it was not possible to remedy the delay? |
| --- | --- |

3.

For the purposes of Article 5(3) of Regulation No 261/2004, does the analysis carried out by the airline (the defendant in this case), which concluded that sending another aircraft would not avoid the situation of delay and therefore the transfer of the transit passenger (the applicant in this case) to a flight scheduled for the following day, since the airline operates only one daily flight to the passenger’s final destination, correspond to conduct by the airline in which it took all reasonable measures, even if it was not possible to remedy the delay?

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

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/18 |
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29.4.2019

EN

Official Journal of the European Union

C 148/18

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 4 February 2019 —E. E.

(Case C-80/19)

(2019/C 148/18)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellant: E. E.

Other parties: A notary of the fourth notary office of the city of Kaunas, K.-D. E.

Questions referred

| 1. | Is a situation such as that in the case under examination — in which a Lithuanian national whose habitual place of residence on the day of her death was possibly in another Member State, but who in any event had never severed her links with her homeland, and who, inter alia, had drawn up, prior to her death, a will in Lithuania and left all of her assets to her heir, a Lithuanian national, and at the time of the opening of the succession it was established that the entire estate comprised immovable property located solely in Lithuania, and a national of that other Member State surviving his spouse expressed in clear terms his intention to waive all claims to the estate of the deceased, did not take part in the court proceedings brought in Lithuania, and consented to the jurisdiction of the Lithuanian courts and the application of Lithuanian law — to be regarded as a succession with cross-border implications within the meaning of Regulation No 650/2012 and to which that regulation must be applied? |
| --- | --- |

1.

Is a situation such as that in the case under examination — in which a Lithuanian national whose habitual place of residence on the day of her death was possibly in another Member State, but who in any event had never severed her links with her homeland, and who, inter alia, had drawn up, prior to her death, a will in Lithuania and left all of her assets to her heir, a Lithuanian national, and at the time of the opening of the succession it was established that the entire estate comprised immovable property located solely in Lithuania, and a national of that other Member State surviving his spouse expressed in clear terms his intention to waive all claims to the estate of the deceased, did not take part in the court proceedings brought in Lithuania, and consented to the jurisdiction of the Lithuanian courts and the application of Lithuanian law — to be regarded as a succession with cross-border implications within the meaning of Regulation No 650/2012 and to which that regulation must be applied?

| 2. | Is a Lithuanian notary who opens a succession case, issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights to be regarded as a ‘court’ within the meaning of Article 3(2) of Regulation No 650/2012, (1) regard being had to the fact that, in their activities, notaries respect the principles of impartiality and independence, their decisions are binding upon themselves or judicial authorities and their actions may be the subject of judicial proceedings? |
| --- | --- |

2.

Is a Lithuanian notary who opens a succession case, issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights to be regarded as a ‘court’ within the meaning of Article 3(2) of Regulation No 650/2012, (1) regard being had to the fact that, in their activities, notaries respect the principles of impartiality and independence, their decisions are binding upon themselves or judicial authorities and their actions may be the subject of judicial proceedings?

| 3. | If the second question is answered in the affirmative, are certificates of succession rights issued by Lithuanian notaries to be regarded as being decisions within the meaning of Article 3(1)(g) of Regulation No 650/2012 and must jurisdiction for that reason be established for the purpose of issuing them? |
| --- | --- |

3.

If the second question is answered in the affirmative, are certificates of succession rights issued by Lithuanian notaries to be regarded as being decisions within the meaning of Article 3(1)(g) of Regulation No 650/2012 and must jurisdiction for that reason be established for the purpose of issuing them?

| 4. | If the second question is answered in the negative, should the provisions of Articles 4 and 59 of Regulation No 650/2012 (together or separately, but without limitation to those articles) be construed as meaning that Lithuanian notaries are entitled to issue certificates of succession rights without following general rules on jurisdiction and that such certificates will be held to be authentic instruments which also give rise to legal consequences in other Member States? |
| --- | --- |

4.

If the second question is answered in the negative, should the provisions of Articles 4 and 59 of Regulation No 650/2012 (together or separately, but without limitation to those articles) be construed as meaning that Lithuanian notaries are entitled to issue certificates of succession rights without following general rules on jurisdiction and that such certificates will be held to be authentic instruments which also give rise to legal consequences in other Member States?

| 5. | Must Article 4 of Regulation No 650/2012 (or other provisions thereof) be construed as meaning that the habitual place of residence of the deceased can be established in only one specific Member State? |
| --- | --- |

5.

Must Article 4 of Regulation No 650/2012 (or other provisions thereof) be construed as meaning that the habitual place of residence of the deceased can be established in only one specific Member State?

| 6. | Should the provisions of Articles 4, 5, 7 and 22 of Regulation No 650/2012 (together or separately, but without limitation to those articles) be construed and applied in such a way that, in the present case, in accordance with the facts as set out in the first question, it must be concluded that the parties concerned agreed that the courts in Lithuania should have jurisdiction and that Lithuanian law should be applied? |
| --- | --- |

6.

Should the provisions of Articles 4, 5, 7 and 22 of Regulation No 650/2012 (together or separately, but without limitation to those articles) be construed and applied in such a way that, in the present case, in accordance with the facts as set out in the first question, it must be concluded that the parties concerned agreed that the courts in Lithuania should have jurisdiction and that Lithuanian law should be applied?

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(1)  Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ 2012 L 201, p. 107).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/20 |
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29.4.2019

EN

Official Journal of the European Union

C 148/20

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Request for a preliminary ruling from the Monomeles Protodikeio Serron (Greece) lodged on 8 February 2019 — WP v Trapeza Peiraios AE

(Case C-105/19)

(2019/C 148/19)

Language of the case: Greek

Referring court

Monomeles Protodikeio Serron (Greece)

Parties to the main proceedings

Applicant: WP

Defendant: Trapeza Peiraios AE

Questions referred

| 1. | Is Article 6(1) of Directive 93/13 (1) to be interpreted as establishing a procedural rule of public policy requiring national courts to take into account, of their own motion, including at the stage of the application for the issue of an order for payment, the unfairness of a term stipulated between a supplier and a consumer, taking into account in particular (i) that in the Greek legal system, in accordance with Articles 623, 624, 628 and 629 of the Code of Civil Procedure (kodikas politikis dikonomias), not only does such a requirement not exist but, in addition, the order for payment is issued in ex parte proceedings, after a formal check of documents including the credit agreement, (ii) that the competence to issue an order for payment lies with a court of the Greek State and (iii) that the order for payment constitutes an immediately enforceable order, under which the supplier may, after three (3) days, initiate enforcement proceedings which are not subject to any suspension? |
| --- | --- |

1.

Is Article 6(1) of Directive 93/13 (1) to be interpreted as establishing a procedural rule of public policy requiring national courts to take into account, of their own motion, including at the stage of the application for the issue of an order for payment, the unfairness of a term stipulated between a supplier and a consumer, taking into account in particular (i) that in the Greek legal system, in accordance with Articles 623, 624, 628 and 629 of the Code of Civil Procedure (kodikas politikis dikonomias), not only does such a requirement not exist but, in addition, the order for payment is issued in ex parte proceedings, after a formal check of documents including the credit agreement, (ii) that the competence to issue an order for payment lies with a court of the Greek State and (iii) that the order for payment constitutes an immediately enforceable order, under which the supplier may, after three (3) days, initiate enforcement proceedings which are not subject to any suspension?

| 2. | Is Article 6(1) of Directive 93/13 to be interpreted as establishing a procedural rule of public policy requiring national courts to refrain from issuing an order for payment where it is demonstrated by documentary evidence, before the court issuing the order for payment, that the claim arises from general contractual terms and conditions (GTC) which have already been held to be void, because they are unfair, by final judgments in injunction proceedings brought by consumer organisations against suppliers and which are listed in the ministerial decision Z1-798/25-06-2008 (FEK B 1353/11-07-2008), which contains a national register of unfair terms [as amended and supplemented by Ministerial Decision Z1-21/17-01-2011, which was deemed lawful by Decision No 1210/2010 of the Greek Council of State (Simvoulio tis Epikratias), after taking into account, first, Decisions No 1219/2001 and No 430/2005 of the Greek Court of Cassation (Areios Pagos), judgments No 5253/2003 and No 6291/2000 of the Athens Court of Appeal (Efeteio Athinon), judgments No 1119/2002 and No 1208/1998 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which has the force of res judicata and judgment No 961/2007 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which, in turn, has the force of res judicata and, secondly, the fact that the res judicata effects of those court decisions are of major public interest for the proper functioning of the market and for the protection of consumers (Article 10(2) of Law 2251/1994); it is by that ministerial decision that ‘the prohibition on the inclusion, in contracts concluded between credit institutions and consumers, of general contractual conditions which have been held to be unfair by judicial decisions rendered in legal proceedings brought by consumer organisations’ was decreed and that decision lists the GTCs that have been held to be void, because they are unfair, following collective legal proceedings brought by consumer organisations against banks considered as suppliers], taking into account in particular the fact that in Greece, the competence to issue an order for payment lies with courts — more precisely with the Eirinodikeia (justices of the peace) and Protodikeia (courts of first instance) — and the fact that the order for payment constitutes an immediately enforceable order, according to which the supplier may, after three days, initiate a enforcement proceedings which are not subject to any suspension? |
| --- | --- |

2.

Is Article 6(1) of Directive 93/13 to be interpreted as establishing a procedural rule of public policy requiring national courts to refrain from issuing an order for payment where it is demonstrated by documentary evidence, before the court issuing the order for payment, that the claim arises from general contractual terms and conditions (GTC) which have already been held to be void, because they are unfair, by final judgments in injunction proceedings brought by consumer organisations against suppliers and which are listed in the ministerial decision Z1-798/25-06-2008 (FEK B 1353/11-07-2008), which contains a national register of unfair terms [as amended and supplemented by Ministerial Decision Z1-21/17-01-2011, which was deemed lawful by Decision No 1210/2010 of the Greek Council of State (Simvoulio tis Epikratias), after taking into account, first, Decisions No 1219/2001 and No 430/2005 of the Greek Court of Cassation (Areios Pagos), judgments No 5253/2003 and No 6291/2000 of the Athens Court of Appeal (Efeteio Athinon), judgments No 1119/2002 and No 1208/1998 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which has the force of res judicata and judgment No 961/2007 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which, in turn, has the force of res judicata and, secondly, the fact that the res judicata effects of those court decisions are of major public interest for the proper functioning of the market and for the protection of consumers (Article 10(2) of Law 2251/1994); it is by that ministerial decision that ‘the prohibition on the inclusion, in contracts concluded between credit institutions and consumers, of general contractual conditions which have been held to be unfair by judicial decisions rendered in legal proceedings brought by consumer organisations’ was decreed and that decision lists the GTCs that have been held to be void, because they are unfair, following collective legal proceedings brought by consumer organisations against banks considered as suppliers], taking into account in particular the fact that in Greece, the competence to issue an order for payment lies with courts — more precisely with the Eirinodikeia (justices of the peace) and Protodikeia (courts of first instance) — and the fact that the order for payment constitutes an immediately enforceable order, according to which the supplier may, after three days, initiate a enforcement proceedings which are not subject to any suspension?

| 3. | Are Articles 6(1), 7(1) and 8 of Directive 93/13 to be interpreted as meaning that the res judicata resulting from the success of injunction proceedings brought by consumer organisations against suppliers requires, as an additional condition for its effects to be extended erga omnes (pursuant to Article 10(20) of Law 2251/1994), the same parties and the same facts and law — as required by Article 324 of the Code of Civil Procedure (kodikas politikis dikonomias) — so that the res judicata resulting from the success of injunction proceedings may not be extended or applied to any case in which a national court is seised of an action brought by a consumer against a supplier ? |
| --- | --- |

3.

Are Articles 6(1), 7(1) and 8 of Directive 93/13 to be interpreted as meaning that the res judicata resulting from the success of injunction proceedings brought by consumer organisations against suppliers requires, as an additional condition for its effects to be extended erga omnes (pursuant to Article 10(20) of Law 2251/1994), the same parties and the same facts and law — as required by Article 324 of the Code of Civil Procedure (kodikas politikis dikonomias) — so that the res judicata resulting from the success of injunction proceedings may not be extended or applied to any case in which a national court is seised of an action brought by a consumer against a supplier ?

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

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/21 |
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29.4.2019

EN

Official Journal of the European Union

C 148/21

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Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 12 February 2019 — Luxaviation SA v Ministre de l’Environnement

(Case C-113/19)

(2019/C 148/20)

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicant: Luxaviation SA

Defendant: Ministre de l’Environnement

Questions referred

| 1. | Is Article 12(3) of Directive 2003/87/EC, (1) which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the Charter, which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level? |
| --- | --- |

1.

Is Article 12(3) of Directive 2003/87/EC, (1) which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the Charter, which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level?

| 2. | a. | Should it be considered that an incomplete allowance surrender operation, like the one in the present case in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87/EEC? |
| --- | --- | --- |

2.

a.

Should it be considered that an incomplete allowance surrender operation, like the one in the present case in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87/EEC?

| b. | Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87/EC, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year? |
| --- | --- |

b.

Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87/EC, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year?

| c. | In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87/EEC? |
| --- | --- |

c.

In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87/EEC?

| 3. | a. | Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87/EEC, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator? |
| --- | --- | --- |

3.

a.

Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87/EEC, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator?

| b. | If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle ‘fraus omnia corrumpit’ be interpreted as precluding — as regards the penalty to be imposed pursuant to Article 16(3) of Directive 2003/87/EC, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added — an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently? |
| --- | --- |

b.

If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle ‘fraus omnia corrumpit’ be interpreted as precluding — as regards the penalty to be imposed pursuant to Article 16(3) of Directive 2003/87/EC, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added — an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently?

| c. | If the answer to the previous question is in the negative, is the application of the flat rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter which guarantees the existence of an effective remedy? |
| --- | --- |

c.

If the answer to the previous question is in the negative, is the application of the flat rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter which guarantees the existence of an effective remedy?

| d. | If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Articles 47 and 49(3) of the Charter? |
| --- | --- |

d.

If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Articles 47 and 49(3) of the Charter?

| e. | Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court in the context of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the CJEU and the national Supreme Courts under the influence of a pre-determined solution endorsed by the CJEU, except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue? |
| --- | --- |

e.

Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court in the context of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the CJEU and the national Supreme Courts under the influence of a pre-determined solution endorsed by the CJEU, except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue?

| 4. | Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitutes a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy? |
| --- | --- |

4.

Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitutes a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy?

---

(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/22 |
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29.4.2019

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Official Journal of the European Union

C 148/22

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Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 15 February 2019 — AB ‘Linas Agro’ v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

(Case C-117/19)

(2019/C 148/21)

Language of the case: Lithuanian

Referring court

Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės

Parties to the main proceedings

Applicant: AB ‘Linas Agro’

Defendant: Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

Questions referred

| 1. | Are the statements set out in the preamble to Regulation No 945/2005, (1) in particular in recitals 20 to 23, that, ‘if the nitrogen content of the product concerned exceeds 28 % by weight, it consequently always contains more than 80 % by weight of ammonium nitrate’ to be regarded as a settled presumption enabling it to be concluded that, if the product concerned (ammonium nitrate fertiliser) contains 28 % or more of nitrogen (N), its ammonium nitrate (AN) content is always more than 80 %? |
| --- | --- |

1.

Are the statements set out in the preamble to Regulation No 945/2005, (1) in particular in recitals 20 to 23, that, ‘if the nitrogen content of the product concerned exceeds 28 % by weight, it consequently always contains more than 80 % by weight of ammonium nitrate’ to be regarded as a settled presumption enabling it to be concluded that, if the product concerned (ammonium nitrate fertiliser) contains 28 % or more of nitrogen (N), its ammonium nitrate (AN) content is always more than 80 %?

| 2. | Is that presumption applicable to the new types of product concerned that are specified in Regulation No 945/2005, that is to say, to NPK fertilisers with a nitrogen (N) content equal to or exceeding 28 % by weight, a ratio between ammoniacal and nitric nitrogen of approximately 1:1, and a phosphorus (P) and/or potassium (K) content not exceeding 12 % by weight, for example, the NPK 30-4-4 fertiliser discussed in the present dispute? |
| --- | --- |

2.

Is that presumption applicable to the new types of product concerned that are specified in Regulation No 945/2005, that is to say, to NPK fertilisers with a nitrogen (N) content equal to or exceeding 28 % by weight, a ratio between ammoniacal and nitric nitrogen of approximately 1:1, and a phosphorus (P) and/or potassium (K) content not exceeding 12 % by weight, for example, the NPK 30-4-4 fertiliser discussed in the present dispute?

| 3. | If the answer to the above questions is in the affirmative, does the aforementioned presumption in Regulation No 945/2005 have binding legal force, that is to say, can it be relied on in classifying the NPK fertilisers specified in paragraph 17 of the decision of the Tax Disputes Commission under the TARIC codes, and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force, although Article 1(1) and Article 1(3) of Regulation No 945/2005 (and, correspondingly, Article 1(1) and Article 1(2)(c) of Regulation No 999/2014 (2) which was in force at the time of completion of the import procedures at issue) relate the imposition of definitive anti-dumping duty not to the content of the chemical element nitrogen (N) in a product but to the content of the chemical compound ammonium nitrate (AN) and the content of phosphorus and potassium in a product? |
| --- | --- |

3.

If the answer to the above questions is in the affirmative, does the aforementioned presumption in Regulation No 945/2005 have binding legal force, that is to say, can it be relied on in classifying the NPK fertilisers specified in paragraph 17 of the decision of the Tax Disputes Commission under the TARIC codes, and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force, although Article 1(1) and Article 1(3) of Regulation No 945/2005 (and, correspondingly, Article 1(1) and Article 1(2)(c) of Regulation No 999/2014 (2) which was in force at the time of completion of the import procedures at issue) relate the imposition of definitive anti-dumping duty not to the content of the chemical element nitrogen (N) in a product but to the content of the chemical compound ammonium nitrate (AN) and the content of phosphorus and potassium in a product?

| 4. | For the purposes of the classification under TARIC codes of the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force — having regard to the objectives set out in recitals 35 and 36 of Regulation No 945/2005 of applying the measures in force to the new product types on the basis of the principle of proportionality, and of simplifying the customs procedure and the application of the appropriate duty rates corresponding to the amount of product concerned incorporated in the compound — can the presumption specified in paragraph 16 of the decision of the Tax Disputes Commission be relied upon when calculating (determining) the ammonium nitrate content of such fertilisers? In other words, after the content of nitrogen (N) in the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission has been determined (on the basis of the documents provided by the importer at the time of customs clearance, or during laboratory tests), is the ammonium nitrate content calculated (determined) having regard to the ratio between the ammonium nitrate (AN) content and nitrogen (N) content defined in recital 20 of Regulation No 945/2005, which depends on the atomic weight of the elements and is 2.86, without any additional laboratory tests being conducted to determine the exact ammonium nitrate content? |
| --- | --- |

4.

For the purposes of the classification under TARIC codes of the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force — having regard to the objectives set out in recitals 35 and 36 of Regulation No 945/2005 of applying the measures in force to the new product types on the basis of the principle of proportionality, and of simplifying the customs procedure and the application of the appropriate duty rates corresponding to the amount of product concerned incorporated in the compound — can the presumption specified in paragraph 16 of the decision of the Tax Disputes Commission be relied upon when calculating (determining) the ammonium nitrate content of such fertilisers? In other words, after the content of nitrogen (N) in the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission has been determined (on the basis of the documents provided by the importer at the time of customs clearance, or during laboratory tests), is the ammonium nitrate content calculated (determined) having regard to the ratio between the ammonium nitrate (AN) content and nitrogen (N) content defined in recital 20 of Regulation No 945/2005, which depends on the atomic weight of the elements and is 2.86, without any additional laboratory tests being conducted to determine the exact ammonium nitrate content?

---

(1)  Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2005 L 160, p. 1).

(2)  Commission Implementing Regulation (EU) No 999/2014 of 23 September 2014 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2014 L 280, p. 19).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/24 |
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Official Journal of the European Union

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Action brought on 15 February 2019 — European Court of Auditors v Karel Pinxten

(Case C-130/19)

(2019/C 148/22)

Language of the case: French

Parties

Applicant: European Court of Auditors (represented by: C. Lesauvage, E. von Bardeleben, J. Vermer, acting as Agents)

Defendant: Karel Pinxten

Form of order sought

| — | Declare that Mr Pinxten no longer meets the obligations arising from his office under Articles 285 and 286 TFEU and the rules adopted in application thereof; |
| --- | --- |

—

Declare that Mr Pinxten no longer meets the obligations arising from his office under Articles 285 and 286 TFEU and the rules adopted in application thereof;

| — | Impose, consequently, the penalty laid down in Article 286(6) TFEU, the Court of Auditors leaving it to the discretion of the Court to determine the scope; |
| --- | --- |

—

Impose, consequently, the penalty laid down in Article 286(6) TFEU, the Court of Auditors leaving it to the discretion of the Court to determine the scope;

| — | Order Mr Pinxten to pay the costs. |
| --- | --- |

—

Order Mr Pinxten to pay the costs.

Pleas in law and main arguments

The Court of Auditors complains that Mr Pinxten:

| — | firstly, made improper use of the resources of the Court of Auditors in order to finance activities with no connection or incompatible with his duties as a Member; |
| --- | --- |

—

firstly, made improper use of the resources of the Court of Auditors in order to finance activities with no connection or incompatible with his duties as a Member;

| — | secondly, made improper and unlawful use of tax privileges; |
| --- | --- |

—

secondly, made improper and unlawful use of tax privileges;

| — | thirdly, made false insurance claims in the context of alleged accidents involving the service vehicle made available to him; |
| --- | --- |

—

thirdly, made false insurance claims in the context of alleged accidents involving the service vehicle made available to him;

| — | fourthly, exercised managed activities for a commercial company and intense political activity within a political party although he was in the service of the Court of Auditors; |
| --- | --- |

—

fourthly, exercised managed activities for a commercial company and intense political activity within a political party although he was in the service of the Court of Auditors;

| — | fifthly, created a situation of conflict of interests by making a service offer to an official of an audited entity. |
| --- | --- |

—

fifthly, created a situation of conflict of interests by making a service offer to an official of an audited entity.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/24 |
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Appeal brought on 20 February 2019 by Lupin Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-680/14: Lupin v Commission

(Case C-144/19 P)

(2019/C 148/23)

Language of the case: English

Parties

Appellant: Lupin Ltd (represented by: S. Smith, A. White, Solicitors, M. Hoskins QC, V. Wakefield, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | quash the General Court finding in relation to the difference in treatment between Lupin and Krka and, |
| --- | --- |

—

quash the General Court finding in relation to the difference in treatment between Lupin and Krka and,

| — | pursuant to Article 61 of the Statute, give final judgment in the matter quashing or reducing the fine imposed by the Commission. |
| --- | --- |

—

pursuant to Article 61 of the Statute, give final judgment in the matter quashing or reducing the fine imposed by the Commission.

Pleas in law and main arguments

| 1. | The first plea in law is that the General Court erred in law by holding that the patent settlement agreement concluded by Lupin and Servier on 30 January 2007 was a restriction by object under Article 101(1) TFEU. In particular:






  a. | The General Court misdirected itself as to the applicable legal test for a finding of infringement by object, particularly in light of the legal principles upheld in Case C-67/13 P, Cartes Bancaire. |
| --- | --- | --- |

1.

The first plea in law is that the General Court erred in law by holding that the patent settlement agreement concluded by Lupin and Servier on 30 January 2007 was a restriction by object under Article 101(1) TFEU. In particular:

a.

The General Court misdirected itself as to the applicable legal test for a finding of infringement by object, particularly in light of the legal principles upheld in Case C-67/13 P, Cartes Bancaire.

| b. | The General Court failed to recognise that the effect on competition of non-compete and non-challenge clauses in settlement agreements is the same regardless of the existence of any inducement. |
| --- | --- |

b.

The General Court failed to recognise that the effect on competition of non-compete and non-challenge clauses in settlement agreements is the same regardless of the existence of any inducement.

| c. | The General Court failed to analyse or explain the distinction between justified and unjustified reverse payments, contrary to the principle of legal certainty. |
| --- | --- |

c.

The General Court failed to analyse or explain the distinction between justified and unjustified reverse payments, contrary to the principle of legal certainty.

| d. | The General Court erred in finding that the existence of an ‘inducement’ to a generic company justifies a finding of a restriction by object. Nor can the receipt of a ‘benefit’ by the generic company justify such a finding. |
| --- | --- |

d.

The General Court erred in finding that the existence of an ‘inducement’ to a generic company justifies a finding of a restriction by object. Nor can the receipt of a ‘benefit’ by the generic company justify such a finding.

| e. | The General Court erred in law by holding that the ambiguous drafting of the restrictions under the agreement should be construed as extending to products beyond the scope of the patent being litigated by the parties.
  No restriction by effect |
| --- | --- |

e.

The General Court erred in law by holding that the ambiguous drafting of the restrictions under the agreement should be construed as extending to products beyond the scope of the patent being litigated by the parties.

No restriction by effect

| 2. | The General Court held that Lupin’s challenge to the Commission’s finding of a restriction by effect was ineffective, since it had upheld the Commission’s finding of restriction by object. Lupin’s second plea in law is that, if the Court overturns that finding on object, the Court should give final judgment on Lupin’s appeal by quashing the Commission’s finding on restriction by effect. In particular:






  a. | The Commission erred in law in its reliance on reverse payment and/or significant inducement. |
| --- | --- | --- |

2.

The General Court held that Lupin’s challenge to the Commission’s finding of a restriction by effect was ineffective, since it had upheld the Commission’s finding of restriction by object. Lupin’s second plea in law is that, if the Court overturns that finding on object, the Court should give final judgment on Lupin’s appeal by quashing the Commission’s finding on restriction by effect. In particular:

a.

The Commission erred in law in its reliance on reverse payment and/or significant inducement.

| b. | The Commission should have analysed the question of restriction by effect by reference to the ancillary restraints doctrine and/or by reference to the principles recognised in Case C-309/99, Wouters, and/or Article 102 TFEU. |
| --- | --- |

b.

The Commission should have analysed the question of restriction by effect by reference to the ancillary restraints doctrine and/or by reference to the principles recognised in Case C-309/99, Wouters, and/or Article 102 TFEU.

| c. | The Commission’s assessment of Servier's market position for the purposes of Article 101(1) TFEU directly transposed its findings in respect of dominance under Article 102 TFEU, which have been annulled (Case T-691/14, Servier v Commission).
  Penalty |
| --- | --- |

c.

The Commission’s assessment of Servier's market position for the purposes of Article 101(1) TFEU directly transposed its findings in respect of dominance under Article 102 TFEU, which have been annulled (Case T-691/14, Servier v Commission).

Penalty

| 3. | The third plea in law is that the General Court erred, in respect of the fine, in its assessment of the novel nature of the alleged infringement. |
| --- | --- |

3.

The third plea in law is that the General Court erred, in respect of the fine, in its assessment of the novel nature of the alleged infringement.

| 4. | The fourth plea in law is that the General Court erred in respect of the obligation to have regard to both the gravity and duration of the alleged infringement when setting a fine. |
| --- | --- |

4.

The fourth plea in law is that the General Court erred in respect of the obligation to have regard to both the gravity and duration of the alleged infringement when setting a fine.

| 5. | The fifth plea in law is that the General Court erred in failing to take into account the value of the patent applications transferred from Servier to Lupin when setting the fine. |
| --- | --- |

5.

The fifth plea in law is that the General Court erred in failing to take into account the value of the patent applications transferred from Servier to Lupin when setting the fine.

| 6. | The sixth plea in law, which is contingent upon the Commission's successful appeal of the General Court's judgment in Case T-684/14, Krka, is that the General Court erred by holding that the Commission's treatment of Lupin compared to Krka did not breach the principle of equal treatment. |
| --- | --- |

6.

The sixth plea in law, which is contingent upon the Commission's successful appeal of the General Court's judgment in Case T-684/14, Krka, is that the General Court erred by holding that the Commission's treatment of Lupin compared to Krka did not breach the principle of equal treatment.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/26 |
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Appeal brought on 20 February 2019 by Mohamed Hosni Elsayed Mubarak against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-358/17: Mubarak v Council

(Case C-145/19 P)

(2019/C 148/24)

Language of the case: English

Parties

Appellant: Mohamed Hosni Elsayed Mubarak (represented by: D. Anderson QC, B. Kennelly QC, J. Pobjoy, Barrister, G. Martin, C. Enderby Smith, F. Holmey, Solicitors)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant claims that the Court should:

| 1. | set aside the decision under appeal; |
| --- | --- |

1.

set aside the decision under appeal;

| 2. | itself give final judgment in this case, annulling the contested acts in so far as they concern the appellant; |
| --- | --- |

2.

itself give final judgment in this case, annulling the contested acts in so far as they concern the appellant;

| 3. | in the alternative, refer the case back to the General Court for judgment, in line with the legal assessment of the Court of Justice; and |
| --- | --- |

3.

in the alternative, refer the case back to the General Court for judgment, in line with the legal assessment of the Court of Justice; and

| 4. | order the Council to pay the appellant’s costs of the proceedings before the Court of Justice and the General Court. |
| --- | --- |

4.

order the Council to pay the appellant’s costs of the proceedings before the Court of Justice and the General Court.

Pleas in law and main arguments

First plea in law, alleging that the General Court erred in finding that the Council was not required to verify that the Egyptian authorities had respected the appellant’s fundamental EU rights.

Second plea in law, alleging that the General Court erred in finding that the Council was not required to verify that the judicial proceedings and investigations involving the appellant concern acts that are such as to undermine the rule of law in Egypt.

Third plea of law, alleging that the General Court erred in finding that the Council had not made a manifest error of assessment in relying on Case No. 8897 (Private Villa Refurbishment Case).

Fourth plea of law, alleging that the General Court erred in finding that the Council had not made a manifest error of assessment in relying on Case No. 756 (Al-Ahram Establishment Gifts Allegation) and Case No. 53 (Dar El Tahrir Gifts Allegation).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/27 |
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Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia) lodged on 21 February 2019 — SCT, d.d., in bankruptcy v Republic of Slovenia

(Case C-146/19)

(2019/C 148/25)

Language of the case: Slovenian

Referring court

Vrhovno sodišče Republike Slovenije

Parties to the main proceedings

Appellant: SCT, d.d., in bankruptcy

Respondent: Republic of Slovenia

Questions referred

| 1. | Is Article 90(2) of the VAT Directive to be interpreted as permitting derogation from the right to reduce the taxable amount for VAT purposes even with respect to cases of definitive non-payment, where such definitive non-payment is a consequence of a failure on the part of the taxable person liable for the VAT to take proper steps, such as lodging a claim in bankruptcy proceedings commenced against his debtor, as in the present case? |
| --- | --- |

1.

Is Article 90(2) of the VAT Directive to be interpreted as permitting derogation from the right to reduce the taxable amount for VAT purposes even with respect to cases of definitive non-payment, where such definitive non-payment is a consequence of a failure on the part of the taxable person liable for the VAT to take proper steps, such as lodging a claim in bankruptcy proceedings commenced against his debtor, as in the present case?

| 2. | If such derogation from the right to reduce the taxable amount for VAT purposes is permissible, must there nevertheless be a right to reduce the taxable amount for VAT purposes on the ground of non-payment where the taxable person is able to demonstrate that, even if he had lodged a claim in the bankruptcy proceedings, it would not have been satisfied, or is able to demonstrate that there were reasonable grounds for not lodging a claim? |
| --- | --- |

2.

If such derogation from the right to reduce the taxable amount for VAT purposes is permissible, must there nevertheless be a right to reduce the taxable amount for VAT purposes on the ground of non-payment where the taxable person is able to demonstrate that, even if he had lodged a claim in the bankruptcy proceedings, it would not have been satisfied, or is able to demonstrate that there were reasonable grounds for not lodging a claim?

| 3. | Does Article 90(1) of the VAT Directive have direct effect even if the legislature of a Member State has exceeded the scope of the possibilities for derogation established by Article 90(2)? |
| --- | --- |

3.

Does Article 90(1) of the VAT Directive have direct effect even if the legislature of a Member State has exceeded the scope of the possibilities for derogation established by Article 90(2)?

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/28 |
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Request for a preliminary ruling from the Okresný súd Bratislava V (Slovakia) lodged on 22 February 2019 — Criminal proceedings against R.B.

(Case C-149/19)

(2019/C 148/26)

Language of the case: Slovak

Referring court

Okresný súd Bratislava V

Party to the main proceedings

R.B.

Questions referred

| 1. | Is it compatible with Article 4 of Directive 2012/13/EU (1) of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (‘Directive 2012/13/EU’), Article 8(2) of Directive 2012/13/EU, the right to liberty and security under Article 6 of the Charter of Fundamental Rights of the European Union, the right of defence under Article 48(2) of the Charter of Fundamental Rights of the European Union and the right to a fair trial under Article 47 of the Charter of Fundamental Rights of the European Union for the national authorities not to provide the detainee, throughout the period of detention, with the information referred to in Article 4(2) of Directive 2012/13/EU (in particular the right to access to the materials of the case), fully or completely, and not to permit the detainee to challenge that failure to provide information in accordance with Article 8(2) of Directive 2012/13/EU? If the reply to that question should be in the negative, does that infringement of the law of the European Union affect, at any stage in the criminal proceedings, the legality of the deprivation of personal liberty when the detainee has been placed in pre-trial detention, in addition to the continuation of such pre-trial detention? |
| --- | --- |

1.

Is it compatible with Article 4 of Directive 2012/13/EU (1) of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (‘Directive 2012/13/EU’), Article 8(2) of Directive 2012/13/EU, the right to liberty and security under Article 6 of the Charter of Fundamental Rights of the European Union, the right of defence under Article 48(2) of the Charter of Fundamental Rights of the European Union and the right to a fair trial under Article 47 of the Charter of Fundamental Rights of the European Union for the national authorities not to provide the detainee, throughout the period of detention, with the information referred to in Article 4(2) of Directive 2012/13/EU (in particular the right to access to the materials of the case), fully or completely, and not to permit the detainee to challenge that failure to provide information in accordance with Article 8(2) of Directive 2012/13/EU? If the reply to that question should be in the negative, does that infringement of the law of the European Union affect, at any stage in the criminal proceedings, the legality of the deprivation of personal liberty when the detainee has been placed in pre-trial detention, in addition to the continuation of such pre-trial detention?

| 2. | Is a provision of national law that does not permit the court to impose a term of imprisonment of less than 20 years, without any possibility of account being taken of the principle that the penalty should be specific to the offender and to the offence — such as Paragraph 172(4) of the Slovak Criminal Code, which punishes illicit drug trafficking — compatible with Article 4 of Council Framework Decision 2004/757/JHA (2) of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, with the principle of sincere cooperation under Article 4(3) of the Treaty on European Union, with Article 267 of the Treaty on the Functioning of the European Union, with Articles 82 and 83 of the Treaty on the Functioning of the European Union, with the right to a fair trial laid down in Article 47 of the Charter of Fundamental Rights of the European Union, with the principle of the proportionality of penalties under Article 49(3) of the Charter of Fundamental Rights of the European Union and with the principles of proportionality, unity, effectiveness and the primacy of EU law? For the purposes of answering that question, is it relevant that the illicit drug trafficking was not committed by a criminal organisation within the meaning of EU law? |
| --- | --- |

2.

Is a provision of national law that does not permit the court to impose a term of imprisonment of less than 20 years, without any possibility of account being taken of the principle that the penalty should be specific to the offender and to the offence — such as Paragraph 172(4) of the Slovak Criminal Code, which punishes illicit drug trafficking — compatible with Article 4 of Council Framework Decision 2004/757/JHA (2) of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, with the principle of sincere cooperation under Article 4(3) of the Treaty on European Union, with Article 267 of the Treaty on the Functioning of the European Union, with Articles 82 and 83 of the Treaty on the Functioning of the European Union, with the right to a fair trial laid down in Article 47 of the Charter of Fundamental Rights of the European Union, with the principle of the proportionality of penalties under Article 49(3) of the Charter of Fundamental Rights of the European Union and with the principles of proportionality, unity, effectiveness and the primacy of EU law? For the purposes of answering that question, is it relevant that the illicit drug trafficking was not committed by a criminal organisation within the meaning of EU law?

---

(1)  OJ 2012 L 142, p. 1.

(2)  OJ 2004 L 335, p. 8.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/29 |
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29.4.2019

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Official Journal of the European Union

C 148/29

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Appeal brought on 21 February 2019 by the European Commission against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-684/14: Krka v Commission

(Case C-151/19 P)

(2019/C 148/27)

Language of the case: English

Parties

Appellant: European Commission (represented by: B. Mongin, F. Castilla Contreras, C. Vollrath, Agents, D. Bailey, Barrister)

Other party to the proceedings: Krka Tovarna Zdravil d.d.

Form of order sought

The appellant claims that the Court should:

| — | set aside points 1 to 4 of the operative part of the judgment of the General Court of the European Union in Case T-684/14; |
| --- | --- |

—

set aside points 1 to 4 of the operative part of the judgment of the General Court of the European Union in Case T-684/14;

| — | refer the case back to the General Court of the European Union pursuant to Article 61 of the Statute; |
| --- | --- |

—

refer the case back to the General Court of the European Union pursuant to Article 61 of the Statute;

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

—

order Krka to pay the Commission’s costs.

Pleas in law and main arguments

The first plea alleges that the General Court erred in law in holding that Krka was not a source of competitive pressure on Servier at the time of the agreements in question.

The second plea alleges errors of law by the General Court in assessing the content and objectives of the licence agreement as an incentive for Krka to accept the restrictions of the settlement agreement.

The third plea alleges errors of law in the application of the concept of restriction of competition by object within the meaning of Article 101(1) TFEU.

The fourth plea alleges errors of law in the General Court’s analysis of the parties' intentions for the purposes of applying Article 101 TFEU.

The fifth plea alleges that the General Court erred in law by taking into account the pro-competitive effects of the licence in markets that are not within the scope of the infringement of Article 101(1) TFEU found by the Decision.

The sixth plea alleges that the General Court erred in law in assessing the object of the assignment agreement.

The seventh plea alleges General Court erred in law in the application of the concept of the restriction of competition by effect within the meaning of Article 101(1) TFEU.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/30 |
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29.4.2019

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Official Journal of the European Union

C 148/30

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Action brought on 22 February 2019 — European Commission v Republic of Austria

(Case C-161/19)

(2019/C 148/28)

Language of the case: German

Parties

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

Defendant: Republic of Austria

Form of order sought

The applicant claims that the Court should:

| — | declare that, by authorising the springtime hunting of woodcocks in the Land of Lower Austria, the Republic of Austria has failed to fulfil its obligations under Article 7(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds; (1) |
| --- | --- |

—

declare that, by authorising the springtime hunting of woodcocks in the Land of Lower Austria, the Republic of Austria has failed to fulfil its obligations under Article 7(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds; (1)

| — | order the Republic of Austria to pay the costs of the proceedings. |
| --- | --- |

—

order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

The present action is brought against the authorisation of springtime hunting of woodcocks (Scolopax rusticola) in Lower Austria. Male woodcocks may be hunted during courtship in that Land between 1 March and 15 April, and a maximum number of 1410 (since February 2017: 759) woodcocks may be killed.

The Commission claims that the legislation in question infringes the prohibition of springtime hunting in Article 7(4) of Directive 2009/147.

The Republic of Austria contends that the legislation is covered by the derogation in Article 9(1)(c) of Directive 2009/147. Under that provision, Member States may derogate inter alia from Article 7(4) of the directive, where there is no other satisfactory solution, in order to permit, under strictly supervised conditions and on a selective basis, the capture, keeping or other judicious use of certain birds in small numbers. In accordance with the settled case-law of the Court of Justice, it is for the Member States to establish that the conditions for its application are met.

The Commission claims that the Republic of Austria has neither shown that there is no other satisfactory solution within the meaning of the introductory sentence of Article 9(1) nor established that the authorised maximum number of specimens that may be killed meets the requirement of ‘small numbers’ in Article 9(1)(c) of the directive. Autumn hunting appears to be a satisfactory alternative, as non-negligible numbers of woodcocks are also present in the Lower Austrian hunting areas in autumn. The Republic of Austria has not provided any convincing evidence for its assertion that springtime hunting is more considerate towards the population of woodcocks than autumn hunting. In addition, the calculation of the ‘small numbers’ is incorrect, since the Austrian figures are based on the wrong reference population.

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(1)  OJ 2010 L 20, p. 7.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/31 |
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29.4.2019

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Official Journal of the European Union

C 148/31

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Appeal brought on 22 February 2019 by Niche Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-701/14: Niche Generics v Commission

(Case C-164/19 P)

(2019/C 148/29)

Language of the case: English

Parties

Appellant: Niche Generics Ltd (represented by: F. Carlin, Barrister, M. Healy, Solicitor, B. Hoorelbeke, advocaat, S. Mobley, Solicitor, H. Sheraton, Solicitor, A. Robertson QC)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Annul the Contested Judgment in its entirety; |
| --- | --- |

—

Annul the Contested Judgment in its entirety;

| — | Annul the Contested Decision in its entirety in so far its relates to Niche; and |
| --- | --- |

—

Annul the Contested Decision in its entirety in so far its relates to Niche; and

| — | Order the Commission to pay its own costs and Niche's costs in connection with these proceedings and the proceedings before the General Court. |
| --- | --- |

—

Order the Commission to pay its own costs and Niche's costs in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

Niche submits the General Court erred in law:

| — | First, the General Court erred in law by not applying the objective necessity test in BAT. |
| --- | --- |

—

First, the General Court erred in law by not applying the objective necessity test in BAT.

| — | Second, in the event that settlement agreements fall within Art. 101 TFEU, the General Court erred in law by mischaracterising Niche's settlement agreement as a ‘by object’ violation. |
| --- | --- |

—

Second, in the event that settlement agreements fall within Art. 101 TFEU, the General Court erred in law by mischaracterising Niche's settlement agreement as a ‘by object’ violation.

| — | Third, the General Court infringed Art. 36 of the Statute of the Court of Justice duty to state reasons when it rejected Niche's interpretation of the settlement agreement without addressing its legal arguments. |
| --- | --- |

—

Third, the General Court infringed Art. 36 of the Statute of the Court of Justice duty to state reasons when it rejected Niche's interpretation of the settlement agreement without addressing its legal arguments.

| — | Fourth, the General Court erred in law by concluding Niche was a potential competitor to Servier. |
| --- | --- |

—

Fourth, the General Court erred in law by concluding Niche was a potential competitor to Servier.

| — | Fifth, the General Court infringed the fundamental principle of equal treatment by treating Niche differently to similarly situated generics and erroneously characterising Niche's settlement agreement as an Art. 101(1) TFEU ‘by object’ violation. |
| --- | --- |

—

Fifth, the General Court infringed the fundamental principle of equal treatment by treating Niche differently to similarly situated generics and erroneously characterising Niche's settlement agreement as an Art. 101(1) TFEU ‘by object’ violation.

| — | Sixth, the General Court erred in law by not recognising that the settlement agreement satisfies the exemption criteria under Art.101(3) TFEU. |
| --- | --- |

—

Sixth, the General Court erred in law by not recognising that the settlement agreement satisfies the exemption criteria under Art.101(3) TFEU.

| — | Seventh, the General Court erred in law by misapplying the legal test for determining a breach of Niche's rights of defence and/or the principle of sound administration. |
| --- | --- |

—

Seventh, the General Court erred in law by misapplying the legal test for determining a breach of Niche's rights of defence and/or the principle of sound administration.

| — | Eighth, the General Court infringed the general EU law principle of proportionality by confirming a level of fine that was disproportionate to Niche's financial means. |
| --- | --- |

—

Eighth, the General Court infringed the general EU law principle of proportionality by confirming a level of fine that was disproportionate to Niche's financial means.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/32 |
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Official Journal of the European Union

C 148/32

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Appeal brought on 22 February 2019 by Slovak Telekom, a.s. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-851/14: Slovak Telekom v Commission

(Case C-165/19 P)

(2019/C 148/30)

Language of the case: English

Parties

Appellant: Slovak Telekom, a.s. (represented by: D. Geradin, Rechtsanwalt, R. O'Donoghue QC)

Other parties to the proceedings: European Commission, Slovanet, a.s.

Form of order sought

The appellant claims that the Court should:

| — | set aside of the judgment of the General Court, in whole or in part; |
| --- | --- |

—

set aside of the judgment of the General Court, in whole or in part;

| — | annul the Decision, in whole or in part; |
| --- | --- |

—

annul the Decision, in whole or in part;

| — | in the alternative, annul or further reduce the fines imposed on ST; and |
| --- | --- |

—

in the alternative, annul or further reduce the fines imposed on ST; and

| — | order the Commission to pay all costs related to the present proceedings and the proceedings before the General Court. |
| --- | --- |

—

order the Commission to pay all costs related to the present proceedings and the proceedings before the General Court.

Pleas in law and main arguments

| — | First Plea — Errors of law and/or a manifest error or lack of reasoning on refusal to deal:






  — | First Sub-Plea: ST submits that the General Court's finding that the Bronner conditions for refusal to supply under Article 102 TFEU do not apply where there is an ex ante regulatory access obligation is incorrect. Moreover, the argument of the General Court that the Bronner condition of ‘indispensability’ did not need to be satisfied since an ex ante regulation had already acknowledged ‘the need for access to the applicant's local loop’ and that, accordingly, the Commission did not need to (re)examine ‘indispensability’ under Article 102 is an error of law. |
| --- | --- | --- |

—

First Plea — Errors of law and/or a manifest error or lack of reasoning on refusal to deal:

—

First Sub-Plea: ST submits that the General Court's finding that the Bronner conditions for refusal to supply under Article 102 TFEU do not apply where there is an ex ante regulatory access obligation is incorrect. Moreover, the argument of the General Court that the Bronner condition of ‘indispensability’ did not need to be satisfied since an ex ante regulation had already acknowledged ‘the need for access to the applicant's local loop’ and that, accordingly, the Commission did not need to (re)examine ‘indispensability’ under Article 102 is an error of law.

| — | Second Sub-Plea: ST submits that the General Court's finding that the CJEU judgment in TeliaSonera supports the proposition that the refusals to deal engaged in by ST do not require a demonstration that the Bronner conditions are satisfied is an error of law. |
| --- | --- |

—

Second Sub-Plea: ST submits that the General Court's finding that the CJEU judgment in TeliaSonera supports the proposition that the refusals to deal engaged in by ST do not require a demonstration that the Bronner conditions are satisfied is an error of law.

| — | Third Sub-Plea: ST submits that General Court's finding that the General Court's Clearstream judgement should be distinguished from ST case because, unlike ST, it did not involve a former State monopoly or an ex ante regulatory access obligation is an error of law. |
| --- | --- |

—

Third Sub-Plea: ST submits that General Court's finding that the General Court's Clearstream judgement should be distinguished from ST case because, unlike ST, it did not involve a former State monopoly or an ex ante regulatory access obligation is an error of law.

| — | Fourth Sub-Plea: ST submits the General Court committed an error of law and/or a manifest error or lack of reasoning in its finding that a constructive refusal is
  not necessarily less serious than an actual refusal, and that a case-by-case assessment is required. |
| --- | --- |

—

Fourth Sub-Plea: ST submits the General Court committed an error of law and/or a manifest error or lack of reasoning in its finding that a constructive refusal is

not necessarily less serious than an actual refusal, and that a case-by-case assessment is required.

| — | Fifth Sub Plea: ST submits the General Court erred in law and/or made a manifest error of appreciation in concluding that ST being a former State monopoly provided a legal basis for ignoring the application of the Bronner conditions in the case at hand. |
| --- | --- |

—

Fifth Sub Plea: ST submits the General Court erred in law and/or made a manifest error of appreciation in concluding that ST being a former State monopoly provided a legal basis for ignoring the application of the Bronner conditions in the case at hand.

| — | Second Plea — ST submits that the General Court's finding, whereby the Commission did not breach its rights of defence by failing to disclose its long-run average incremental costs (‘LRAIC’) methodology, principles, and data to ST, and allowing ST to comment, prior to the Decision, and in a time frame that allowed ST a meaningful opportunity to exercise its rights of defence, is an error of law. |
| --- | --- |

—

Second Plea — ST submits that the General Court's finding, whereby the Commission did not breach its rights of defence by failing to disclose its long-run average incremental costs (‘LRAIC’) methodology, principles, and data to ST, and allowing ST to comment, prior to the Decision, and in a time frame that allowed ST a meaningful opportunity to exercise its rights of defence, is an error of law.

| — | Third Plea — ST submits that the General Court's reasons for rejecting its ‘optimisation’ adjustments involved errors of law in that they misapply the legal concept of an equally efficient operator (‘EEO’) in the particular context of the present case. |
| --- | --- |

—

Third Plea — ST submits that the General Court's reasons for rejecting its ‘optimisation’ adjustments involved errors of law in that they misapply the legal concept of an equally efficient operator (‘EEO’) in the particular context of the present case.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/33 |
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Official Journal of the European Union

C 148/33

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Appeal brought on 22 February 2019 by Unichem Laboratories Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-705/14: Unichem Laboratories v Commission

(Case C-166/19 P)

(2019/C 148/31)

Language of the case: English

Parties

Appellant: Unichem Laboratories Ltd (represented by: F. Carlin, Barrister, M. Healy, Solicitor, B. Hoorelbeke, advocaat, S. Mobley, Solicitor, H. Sheraton, Solicitor, A. Robertson QC)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | Annul the Contested Judgment in its entirety; |
| --- | --- |

—

Annul the Contested Judgment in its entirety;

| — | Annul the Contested Decision in its entirety in so far its relates to Unichem; and |
| --- | --- |

—

Annul the Contested Decision in its entirety in so far its relates to Unichem; and

| — | Order the Commission to pay its own costs and Unichem's costs in connection with these proceedings and the proceedings before the General Court. |
| --- | --- |

—

Order the Commission to pay its own costs and Unichem's costs in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

Unichem submits the General Court erred in law:

| — | First, the General Court erred in law by concluding the Commission has jurisdiction to address a decision under Art. 101(1) TFEU to Unichem since:
  The General Court misapplied the legal test for determining a single economic entity; and
  The General Court wrongly held that Unichem was directly liable as co-signatory of the settlement agreement. |
| --- | --- |

—

First, the General Court erred in law by concluding the Commission has jurisdiction to address a decision under Art. 101(1) TFEU to Unichem since:

The General Court misapplied the legal test for determining a single economic entity; and

The General Court wrongly held that Unichem was directly liable as co-signatory of the settlement agreement.

| — | Second, the General Court erred in law by not applying the objective necessity test in BAT. |
| --- | --- |

—

Second, the General Court erred in law by not applying the objective necessity test in BAT.

| — | Third, in the event that settlement agreements fall within Art. 101 TFEU, the General Court erred in law by mischaracterising Niche's settlement agreement as a ‘by object’ violation. |
| --- | --- |

—

Third, in the event that settlement agreements fall within Art. 101 TFEU, the General Court erred in law by mischaracterising Niche's settlement agreement as a ‘by object’ violation.

| — | Fourth, the General Court infringed Art. 36 of the Statute of the Court of Justice duty to state reasons when it rejected Unichem's interpretation of the settlement agreement without addressing its legal arguments. |
| --- | --- |

—

Fourth, the General Court infringed Art. 36 of the Statute of the Court of Justice duty to state reasons when it rejected Unichem's interpretation of the settlement agreement without addressing its legal arguments.

| — | Fifth, the General Court erred in law by concluding Niche and Unichem were a potential competitor to Servier. |
| --- | --- |

—

Fifth, the General Court erred in law by concluding Niche and Unichem were a potential competitor to Servier.

| — | Sixth, the General Court infringed the fundamental principle of equal treatment by treating Unichem and Niche differently to similarly situated generics and erroneously characterising Niche's settlement agreement as an Art. 101(1) TFEU by object violation. |
| --- | --- |

—

Sixth, the General Court infringed the fundamental principle of equal treatment by treating Unichem and Niche differently to similarly situated generics and erroneously characterising Niche's settlement agreement as an Art. 101(1) TFEU by object violation.

| — | Seventh, the General Court erred in law by not recognising that the settlement agreement satisfied the exemption criteria under Art.101(3) TFEU. |
| --- | --- |

—

Seventh, the General Court erred in law by not recognising that the settlement agreement satisfied the exemption criteria under Art.101(3) TFEU.

| — | Eighth, the General Court erred in law by misapplying the legal test for determining a breach of Unichem and Niche's rights of defence and/or the principle of sound administration. |
| --- | --- |

—

Eighth, the General Court erred in law by misapplying the legal test for determining a breach of Unichem and Niche's rights of defence and/or the principle of sound administration.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/34 |
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Official Journal of the European Union

C 148/34

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Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the order of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-890/16: Scandlines Danmark and Scandlines Deutschland v Commission

(Case C-173/19 P)

(2019/C 148/32)

Language of the case: English

Parties

Appellants: Scandlines Danmark ApS and Scandlines Deutschland GmbH (represented by: L. Sandberg-Mørch, advokat)

Other parties to the proceedings: European Commission, Kingdom of Denmark

Form of order sought

The appellants claim that the Court should:

| — | Set aside the Order of 13 December 2018 of the General Court in Case T-890/16 to the extent that it contradicts the General Court’s judgment in Case T-630/15 as to the nature of the Commission Decision as a confirmatory measure regarding the additional construction measures. |
| --- | --- |

—

Set aside the Order of 13 December 2018 of the General Court in Case T-890/16 to the extent that it contradicts the General Court’s judgment in Case T-630/15 as to the nature of the Commission Decision as a confirmatory measure regarding the additional construction measures.

| — | Order the respondent to pay its own costs and the costs of the appellants. |
| --- | --- |

—

Order the respondent to pay its own costs and the costs of the appellants.

Pleas in law and main arguments

In support of the application, the applicants relie on two pleas in law:

| — | First Plea: the General Court erred in law by adopting the contested order on the basis of a position which is entirely the opposite of that adopted in its judgment in Case T-630/15. |
| --- | --- |

—

First Plea: the General Court erred in law by adopting the contested order on the basis of a position which is entirely the opposite of that adopted in its judgment in Case T-630/15.

| — | Second Plea: the General Court erred in law by adopting the contested order with a statement of reasons that suffers from internal contradictions. |
| --- | --- |

—

Second Plea: the General Court erred in law by adopting the contested order with a statement of reasons that suffers from internal contradictions.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/35 |
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29.4.2019

EN

Official Journal of the European Union

C 148/35

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Appeal brought on 25 February 2019 by Scandlines Danmark ApS and Scandlines Deutschland GmbH against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-630/15: Scandlines Danmark and Scandlines Deutschland v Commission

(Case C-174/19 P)

(2019/C 148/33)

Language of the case: English

Parties

Appellants: Scandlines Danmark ApS, Scandlines Deutschland GmbH (represented by: L. Sandberg-Mørch, advokat)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Föreningen Svensk Sjöfart, Naturschutzbund Deutschland (NABU) eV

Form of order sought

The appellants claim that the Court should:

| — | Set aside the judgment of 13 December 2018 of the General Court in Case T-630/15 to the extent that it dismissed the appellant’s pleas that the measures granted to A/S Femern Landanlæg constitute aid; that the Hinterland Connections costs do not constitute eligible costs for the compatibility of the aid granted to Femern A/S; that the measures granted to Femern A/S do not have an incentive effect; that the counterfactual analysis is unlawful; that the measures granted to Femern A/S do not cause undue distortion of competition; and that the new pleas submitted by the appellant were inadmissible. |
| --- | --- |

—

Set aside the judgment of 13 December 2018 of the General Court in Case T-630/15 to the extent that it dismissed the appellant’s pleas that the measures granted to A/S Femern Landanlæg constitute aid; that the Hinterland Connections costs do not constitute eligible costs for the compatibility of the aid granted to Femern A/S; that the measures granted to Femern A/S do not have an incentive effect; that the counterfactual analysis is unlawful; that the measures granted to Femern A/S do not cause undue distortion of competition; and that the new pleas submitted by the appellant were inadmissible.

| — | Order the respondent to pay its own costs and the costs of the appellant. |
| --- | --- |

—

Order the respondent to pay its own costs and the costs of the appellant.

Pleas in law and main arguments

The appellants bring seven pleas in law against the contested judgment:

| — | First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections were not liable to distort competition as the relevant market is not open to competition.
  The appellants argue that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub-pleas:






  a) | The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition. |
| --- | --- | --- |

—

First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections were not liable to distort competition as the relevant market is not open to competition.

The appellants argue that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub-pleas:

a)

The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition.

| b) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open to competition. |
| --- | --- |

b)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open to competition.

| c) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open to competition. |
| --- | --- |

c)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open to competition.

| d) | The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure |
| --- | --- |

d)

The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure

| — | Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States. |
| --- | --- |

—

Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States.

| — | Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid. |
| --- | --- |

—

Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid.

| — | Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect; |
| --- | --- |

—

Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect;

| — | Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid. |
| --- | --- |

—

Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid.

| — | Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition. |
| --- | --- |

—

Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition.

| — | Seventh, the General Court erred in law by rejecting the appellant’s introduction of new pleas regarding the Additional Construction Measures on the grounds that they had not been authorized by the Commission Decision of 23 July 2015. |
| --- | --- |

—

Seventh, the General Court erred in law by rejecting the appellant’s introduction of new pleas regarding the Additional Construction Measures on the grounds that they had not been authorized by the Commission Decision of 23 July 2015.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/37 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/37

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Appeal brought on 25 February 2019 by Stena Line Scandinavia AB against the judgment of the General Court (Sixth Chamber) delivered on 13 December 2018 in Case T-631/15: Stena Line Scandinavia v Commission

(Case C-175/19 P)

(2019/C 148/34)

Language of the case: English

Parties

Appellant: Stena Line Scandinavia AB (represented by: L. Sandberg-Mørch, advokat, P. Alexiadis, Solicitor)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Föreningen Svensk Sjöfart

Form of order sought

The appellant claims that the Court should:

| — | Set aside the Judgment of 13 December 2018 of the General Court in Case T-631/15 to the extent that it dismissed the appellant’s first and third pleas with regard to the measures granted to Femern Landanlæg; their second and third pleas as regards the claims that the Commission had erred in law or faced serious difficulties concerning the incentive effect of the aid, the counterfactual scenario that the Commission had relied upon for its assessment of the necessity of the aid and the conclusion that the aid granted to Femern A/S does not cause undue distortions of competition; |
| --- | --- |

—

Set aside the Judgment of 13 December 2018 of the General Court in Case T-631/15 to the extent that it dismissed the appellant’s first and third pleas with regard to the measures granted to Femern Landanlæg; their second and third pleas as regards the claims that the Commission had erred in law or faced serious difficulties concerning the incentive effect of the aid, the counterfactual scenario that the Commission had relied upon for its assessment of the necessity of the aid and the conclusion that the aid granted to Femern A/S does not cause undue distortions of competition;

| — | Order the respondent to pay its own costs and the costs of the appellant. |
| --- | --- |

—

Order the respondent to pay its own costs and the costs of the appellant.

Pleas in law and main arguments

The appellant raises six pleas in law against the contested judgment:

| — | First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections was not liable to distort competition as the relevant market is not open to competition.
  The appellant argued that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub pleas:






  a) | The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition. |
| --- | --- | --- |

—

First, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not experience serious difficulties in holding that the State guarantees and State loans granted to A/S Femern Landanlæg for the Danish rail Hinterland Connections was not liable to distort competition as the relevant market is not open to competition.

The appellant argued that this erroneous conclusion of the General Court is based on four errors in law, corresponding to four sub pleas:

a)

The General Court erred in law by holding that the State guarantees and State loans granted to A/S Femern Landanlæg are not liable to affect competition although the Fixed Link (operated by Femern A/S) and the Danish rail Hinterland Connections (operated by Femern Landanlæg) together constitute one integrated project and the State guarantees and State loans granted to Femern A/S have already been found to be liable to distort competition.

| b) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open for competition. |
| --- | --- |

b)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de lege’ open for competition.

| c) | The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open for competition. |
| --- | --- |

c)

The General Court erred in law by holding that the market for the management of railway infrastructure in Denmark is not ‘de facto’ open for competition.

| d) | The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure; |
| --- | --- |

d)

The markets for the construction and maintenance of the railway infrastructure, which are open to competition, are separate from the market for the management and operation, in the strict sense, of the railway infrastructure;

| — | Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States. |
| --- | --- |

—

Second, in violation of Articles 107(1) and 108(2) TFEU, the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties in determining that the State guarantees and State loans granted to A/S Femern Landanlæg for financing the Danish rail Hinterland Connections was not liable to affect trade between Member States.

| — | Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid. |
| --- | --- |

—

Third, in violation of Article 107(3)(b) and 108(2) TFEU, the General Court erred by concluding that the costs of the Hinterland Connections may be included in the calculation of the maximum permissible aid intensity for the Fixed Link (in the context of the compatibility analysis) although, according to the General Court, the funding granted to the Hinterland Connections does not constitute State aid.

| — | Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect; |
| --- | --- |

—

Fourth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when deciding that the aid to Femern A/S had an incentive effect;

| — | Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid. |
| --- | --- |

—

Fifth, in violation of Article 107(3)(b) TFEU and Article 108(2) TFEU the General Court erred by concluding that the Commission did not err in law and did not face serious difficulties when it decided that the Danish authorities had submitted an appropriate counterfactual scenario for its assessment concerning the necessity of the aid.

| — | Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition |
| --- | --- |

—

Sixth, the General Court erred in law by holding that the aid granted to Femern A/S does not cause undue distortions of competition

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/38 |
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29.4.2019

EN

Official Journal of the European Union

C 148/38

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Appeal brought on 22 February 2019 by Fruits de Ponent, S.C.C.L. against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-290/16, Fruits de Ponent v Commission

(Case C-183/19 P)

(2019/C 148/35)

Language of the case: Spanish

Parties

Appellant: Fruits de Ponent, S.C.C.L. (represented by: M. Roca Junyent, R. Vallina Hoset and A. Sellés Marco, abogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the Third Chamber of the General Court of 13 December 2018 in Case T-290/16, Fruits de Ponent v Commission; (1) |
| --- | --- |

—

set aside the judgment of the Third Chamber of the General Court of 13 December 2018 in Case T-290/16, Fruits de Ponent v Commission; (1)

| — | primarily, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union and if the Court considers that the state of the proceedings so permits: (i) give judgment on the action brought at first instance and grant the form of order sought by the appellant; and (ii) order the Commission to pay the costs incurred in both proceedings; or |
| --- | --- |

—

primarily, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union and if the Court considers that the state of the proceedings so permits: (i) give judgment on the action brought at first instance and grant the form of order sought by the appellant; and (ii) order the Commission to pay the costs incurred in both proceedings; or

| — | in the alternative, if the Court considers that the state of the proceedings does not permit it to give judgment (i) refer the case back to the General Court for reconsideration; and (ii) order that costs be reserved. |
| --- | --- |

—

in the alternative, if the Court considers that the state of the proceedings does not permit it to give judgment (i) refer the case back to the General Court for reconsideration; and (ii) order that costs be reserved.

Grounds of appeal and main arguments

| 1. | First, the appellant submits that the judgment under appeal infringes Article 39 of the Treaty on the Functioning of the European Union (TFEU), (2) insofar as: (i) when assessing whether there was a sufficiently serious breach, it applies criteria which are irrelevant; (ii) it rules out that, when the Commission intervenes in the event of serious market disturbances in the CAP, one of its objectives must be maintaining farmers’ standard of living (Article 39(1)(b) TFEU); (iii) it rules out that the Commission must collect data distinct from that prescribed by law; and (iv) it states that the Commission does not have to collect information on the prices received by farmers. |
| --- | --- |

1.

First, the appellant submits that the judgment under appeal infringes Article 39 of the Treaty on the Functioning of the European Union (TFEU), (2) insofar as: (i) when assessing whether there was a sufficiently serious breach, it applies criteria which are irrelevant; (ii) it rules out that, when the Commission intervenes in the event of serious market disturbances in the CAP, one of its objectives must be maintaining farmers’ standard of living (Article 39(1)(b) TFEU); (iii) it rules out that the Commission must collect data distinct from that prescribed by law; and (iv) it states that the Commission does not have to collect information on the prices received by farmers.

| 2. | Second, the appellant submits that the judgment under appeal: (i) distorts the facts by assessing the evidence in a manifestly incorrect manner; (ii) infringes the principles which govern the burden of proof by finding that certain facts are established in spite of evidence to the contrary; and (iii) infringes the principle venire contra factum propium non valet by accepting the Commission’s arguments which are contrary to the responses provided by that institution to citizens under the principle of transparency. |
| --- | --- |

2.

Second, the appellant submits that the judgment under appeal: (i) distorts the facts by assessing the evidence in a manifestly incorrect manner; (ii) infringes the principles which govern the burden of proof by finding that certain facts are established in spite of evidence to the contrary; and (iii) infringes the principle venire contra factum propium non valet by accepting the Commission’s arguments which are contrary to the responses provided by that institution to citizens under the principle of transparency.

| 3. | Third, the appellant submits that the judgment under appeal infringes Article 296 TFEU and Article 47 of the Charter insofar as: (i) the appellant’s arguments are ignored relating to the fact that the Commission should have collected information on achieving the maintenance of producers’ standard of living; and (ii) the appellant’s arguments relating to the fact that the Commission should have the objective of guaranteeing farmers’ standard of living are ignored and distorted, thus preventing the appellant from obtaining a judicial response to its arguments. |
| --- | --- |

3.

Third, the appellant submits that the judgment under appeal infringes Article 296 TFEU and Article 47 of the Charter insofar as: (i) the appellant’s arguments are ignored relating to the fact that the Commission should have collected information on achieving the maintenance of producers’ standard of living; and (ii) the appellant’s arguments relating to the fact that the Commission should have the objective of guaranteeing farmers’ standard of living are ignored and distorted, thus preventing the appellant from obtaining a judicial response to its arguments.

| 4. | Fourth, the appellant submits that, in the present case, Article 39 TFEU and Article 219 of Regulation 1308/2013 (3) have been infringed, insofar as, in the event of a crisis, it is exclusively the Commission, not applicants or producer associations, which has responsibility for activating the extraordinary crisis mechanism. |
| --- | --- |

4.

Fourth, the appellant submits that, in the present case, Article 39 TFEU and Article 219 of Regulation 1308/2013 (3) have been infringed, insofar as, in the event of a crisis, it is exclusively the Commission, not applicants or producer associations, which has responsibility for activating the extraordinary crisis mechanism.

---

(1)  ECLI:EU:T:2018:934.

(2)  OJ 2012 C 326, p. 1.

(3)  Regulation (EU) No 1308/2013 of the European Parliament and the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

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GCEU

| 29.4.2019 | EN | Official Journal of the European Union | C 148/40 |
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29.4.2019

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Official Journal of the European Union

C 148/40

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Judgment of the General Court of 7 March 2019 — Tweedale v EFSA

(Case T-716/14) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to toxicity studies conducted in connection with the renewal of the approval of the active substance glyphosate - Partial refusal to grant access - Exception relating to the protection of commercial interests - Overriding public interest - Regulation (EC) No 1367/2006 - Concept of information relating to emissions into the environment)

(2019/C 148/36)

Language of the case: English

Parties

Applicant: Anthony C. Tweedale (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Food Safety Authority (EFSA) (represented by: by D. Detken, J. Tarazona, C. Pintado and B. Vagenende, acting as Agents, assisted initially by R. Van der Hout and A. Köhler, and subsequently by R. Van der Hout and C. Wagner, lawyers)

Intervener in support of the applicant: Kingdom of Sweden (represented initially by A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, E. Karlsson and L. Swedenborg, and subsequently by A. Falk, C. Meyer-Seitz, H. Shev, L. Swedenborg and F. Bergius, acting as Agents)

Re:

Application pursuant to Article 263 TFEU for the partial annulment of the EFSA decision of 16 October 2017 annulling and replacing the decision of 30 July 2014 and granting partial access to two toxicity studies on the active substance glyphosate, conducted in connection with the procedure to renew approval of that active substance in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Food Safety Authority (EFSA) of 16 October 2017, annulling and replacing the decision of 30 July 2014 and granting partial access to two toxicity studies on the active substance glyphosate, conducted in connection with the procedure to renew approval of that active substance, in so far as EFSA refuses to disclose the whole of those studies, with the exception of the names and signatures of the persons mentioned therein; |
| --- | --- |

1.

Annuls the decision of the European Food Safety Authority (EFSA) of 16 October 2017, annulling and replacing the decision of 30 July 2014 and granting partial access to two toxicity studies on the active substance glyphosate, conducted in connection with the procedure to renew approval of that active substance, in so far as EFSA refuses to disclose the whole of those studies, with the exception of the names and signatures of the persons mentioned therein;

| 2. | Orders EFSA to bear its own costs and to pay the costs incurred by Mr Anthony Tweedale; |
| --- | --- |

2.

Orders EFSA to bear its own costs and to pay the costs incurred by Mr Anthony Tweedale;

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

3.

Orders the Kingdom of Sweden to bear its own costs.

---

(1)  OJ C 448, 15.12.2014.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/41 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/41

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Judgment of the General Court of 12 March 2019 — Italy v Commission

(Case T-135/15) (1)

(EAGF - Expenses excluded from financing - Expenditure incurred by Italy - Temporary scheme for the restructuring of the sugar industry - Regulation (EC) No 320/2006 - Regulation(EC) No 968/2006 - Regulation (EC) No 1290/2005 - Time limit of 24 months - Concept of ‘multiannual measure’ - Conditions for granting restructuring aid - Concept of ‘production facility’ - Classification of silos - Concept of‘complete dismantling’ - Annex 2 to Document VI/5330/97 - Problems in interpreting EU legislation - Cooperation in good faith - Legitimate expectations - Ne bis in idem - Slaughter premiums - Information and promotion campaigns for agricultural products - Late payments - Evidence of the existence of specific management conditions - Equal treatment - Mistranslation in one of the language versions of an EU regulation - Whether the Member State is answerable for the financial correction)

(2019/C 148/37)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and C. Colelli, avvocato dello Stato)

Defendant: European Commission (represented by: initially, D. Bianchi, P Ondrůšek and I. Galindo Martín, acting as Agents, and subsequently, D. Bianchi and P Ondrůšek, acting as Agents)

Interveners in support of the applicant: French Republic (represented by: D. Colas and S Horrenberger, acting as Agents) and Hungary (represented by: M.Z. Fehér and G. Koós, acting as Agents)

Re:

Application under Article 263 TFEU for the partial annulment of Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 16, p.33), in so far as it relates to certain expenditure incurred by the Italian Republic.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the French Republic and Hungary to bear their own costs. |
| --- | --- |

3.

Orders the French Republic and Hungary to bear their own costs.

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(1)  OJ C 155, 11.5.2015.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/42 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/42

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Judgment of the General Court of 12 March 2019 — Hungary v Commission

(Case T-139/15) (1)

(EAGGF - Guarantee Section - EAGF - Sugar - Temporary scheme for the restructuring of the sugar industry in the European Community - Regulation (EC) No 320/2006 - Regulation (EC) No 968/2006 - Expenditure excluded from financing - Expenditure incurred by Hungary - Conditions for the grant of aid for full dismantling and aid for partial dismantling - Concept of ‘production facilities’ - Assessment of the use of silos on the date of submission of the application for aid - Concept of ‘full dismantling’ - Annex 2 to document VI/5330/97 - Difficulties in the interpretation of EU legislation - Cooperation in good faith)

(2019/C 148/38)

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: initially M. Fehér, G. Koós and A. Pálfy, and subsequently M. Fehér, G. Koós, Zs. Biró-Tóth and E. Tóth, acting as Agents)

Defendant: European Commission (represented by: P. Ondrůšek and B. Béres, acting as Agents)

Interveners in support of the applicant: French Republic (represented by: D. Colas, acting as Agent), Italian Republic (represented by: G. Palmieri, acting as Agent and C. Colelli, avvocato dello Stato)

Re:

Application under Article 263 TFEU seeking partial annulment of Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 16, p. 33) in so far as it excluded an amount of EUR 11 709 400 from financing, by EAGF, in restructuring aid in the sugar sector granted by Hungary.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Hungary to bear its own costs and to pay half of the costs incurred by the European Commission; |
| --- | --- |

2.

Orders Hungary to bear its own costs and to pay half of the costs incurred by the European Commission;

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

3.

Orders the Commission to bear half of its own costs;

| 4. | Orders the French Republic and the Italian Republic to bear their own costs. |
| --- | --- |

4.

Orders the French Republic and the Italian Republic to bear their own costs.

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(1)  OJ C 190, 8.6.2015.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/43 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/43

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Judgment of the General Court of 12 March 2019 — France v Commission

(Case T-156/15) (1)

(EAGF and EAFRD - Expenditure excluded from EU financing - Expenditure incurred by France - Area-related aid scheme - Procedural safeguards - Regulation (EC) No 885/2006 - Concept of ‘permanent pasture’ - Regulation (EC) No 1120/2009 - National control system based on a definition of forage areas which is not consistent with EU law - Exclusion of all the expenditure - Proportionality - Metropolitan France’s rural development programme - Rural development support measures - Areas with natural handicaps - Regulation (EC) No 1975/2006 - Regulation (EU) No 65/2011 - Flat-rate financial correction - On-the-spot checks - Loading criterion - Counting of animals - Temporary scheme for the restructuring of the sugar industry - Regulation (EC) No 320/2006 - Regulation (EC) No 968/2006 - Conditions for the grant of restructuring aid - Concept of ‘production facilities’ - Assessment of the use of silos on the date of submission of the aid application - Concept of‘full dismantling’ - Proportionality - Equal treatment - Annex 2 to document VI/5330/97)

(2019/C 148/39)

Language of the case: French

Parties

Applicant: French Republic (represented by: initially, F. Alabrune, G. de Bergues, D. Colas and C. Candat, subsequently, G. de Bergues, D. Colas, F. Fize and A. Daly and, finally, D. Colas, S. Horrenberger, R. Coesme, E. de Moustier and A.-L. Desjonquères, acting as agents)

Defendant: European Commission (represented by: A. Bouquet and D. Triantafyllou, acting as agents)

Interveners in support of the applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and by C. Colelli, avvocato dello Stato) and Hungary (represented by: M. Fehér and G. Koós, acting as agents)

Re:

Application pursuant to Article 263 TFEU seeking the partial annulment of Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 16, p. 33).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as it excludes from European Union financing all the expenditure incurred by the French Republic in Upper Corsica in respect of first pillar area-related direct aid relating to the 2010 and 2011 claim years; |
| --- | --- |

1.

Annuls Commission Implementing Decision (EU) 2015/103 of 16 January 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as it excludes from European Union financing all the expenditure incurred by the French Republic in Upper Corsica in respect of first pillar area-related direct aid relating to the 2010 and 2011 claim years;

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

2.

Dismisses the action as to the remainder;

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

3.

Orders the European Commission and the French Republic to bear their own costs;

| 4. | Orders the Italian Republic and Hungary to bear their own costs. |
| --- | --- |

4.

Orders the Italian Republic and Hungary to bear their own costs.

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(1)  OJ C 190, 8.6.2015.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/44 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/44

---

Judgment of the General Court of 13 March 2019 — Espírito Santo Financial Group v ECB

(Case T-730/16) (1)

(Access to documents - Decision 2004/258/EC - Documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA - Partial refusal to grant access - Exception relating to the confidentiality of the proceedings of the ECB’s decision-making bodies - Exception relating to the financial, monetary or economic policy of the European Union or of a Member State - Exception relating to the stability of the financial system in the European Union or in a Member State - Exception relating to the protection of commercial interests - Exception relating to documents intended for internal use - Obligation to state reasons)

(2019/C 148/40)

Language of the case: English

Parties

Applicant: Espírito Santo Financial Group SA (Luxembourg, Luxembourg) (represented by: R. Oliveira, S. Estima Martins and D. Duarte de Campos, lawyers)

Defendant: European Central Bank (represented by: F. von Lindeiner and S. Lambrinoc, acting as Agents, and by H.-G. Kamann, lawyer)

Re:

Application pursuant to Article 263 TFEU for annulment of the ECB’s decision of 31 August 2016 refusing in part to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Central Bank (ECB) of 31 August 2016 partially refusing to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA, in so far as it refused to disclose the amount of credit indicated in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014 and the information redacted from the proposals of the Executive Board of the ECB of 28 July and 1 August 2014; |
| --- | --- |

1.

Annuls the decision of the European Central Bank (ECB) of 31 August 2016 partially refusing to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA, in so far as it refused to disclose the amount of credit indicated in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014 and the information redacted from the proposals of the Executive Board of the ECB of 28 July and 1 August 2014;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Espírito Santo Financial Group SA and the ECB to bear their own costs. |
| --- | --- |

3.

Orders Espírito Santo Financial Group SA and the ECB to bear their own costs.

---

(1)  OJ C 462, 12.12.2016.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/45 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/45

---

Judgment of the General Court of 12 March 2019 — Xiaomi v EUIPO — Dudingen Develops (MI)

(Case T-799/16) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark MI - Earlier EU figurative mark MI - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Obligation to state reasons - Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001))

(2019/C 148/41)

Language of the case: English

Parties

Applicant: Xiaomi Inc. (Beijing, China) (represented by: T. Raab and C. Tenkhoff, 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: Dudingen Develops, SL (Leganés, Spain)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 5 September 2016 (Case R 337/2016-4), relating to opposition proceedings between Xiaomi and Dudingen Develops.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 September 2016 (Case R 337/2016-4) in so far as it dismissed the appeal against the decision of the Opposition Division to reject the opposition to registration of the figurative sign MI as a European Union trade mark for ‘electricity mains (materials for -) [cables]’, ‘electric cables’, ‘insulated electrical cables’, ‘connection cables’, ‘cable connectors’, ‘plug adaptors’, ‘electrical power adaptors’, ‘travel adaptors for electric plugs’, ‘adapters for connecting telephones to hearing aids’ and ‘electrical power extension cords’, in Class 9, and ‘rucksacks’, ‘small rucksacks’ and ‘bags for climbers’, in Class 18; |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 September 2016 (Case R 337/2016-4) in so far as it dismissed the appeal against the decision of the Opposition Division to reject the opposition to registration of the figurative sign MI as a European Union trade mark for ‘electricity mains (materials for -) [cables]’, ‘electric cables’, ‘insulated electrical cables’, ‘connection cables’, ‘cable connectors’, ‘plug adaptors’, ‘electrical power adaptors’, ‘travel adaptors for electric plugs’, ‘adapters for connecting telephones to hearing aids’ and ‘electrical power extension cords’, in Class 9, and ‘rucksacks’, ‘small rucksacks’ and ‘bags for climbers’, in Class 18;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Xiaomi Inc. to bear two thirds of its costs and to pay two thirds of the costs incurred by EUIPO; |
| --- | --- |

3.

Orders Xiaomi Inc. to bear two thirds of its costs and to pay two thirds of the costs incurred by EUIPO;

| 4. | Orders EUIPO to bear one third of its costs and to pay one third of the costs incurred by Xiaomi. |
| --- | --- |

4.

Orders EUIPO to bear one third of its costs and to pay one third of the costs incurred by Xiaomi.

---

(1)  OJ C 22, 23.1.2017.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/46 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/46

---

Judgment of the General Court of 7 March 2019 — Sweden v Commission

(Case T-837/16) (1)

(REACH - Commission decision authorising the use of lead sulfochromate yellow and of lead chromate molybdate sulfate red - Article 60(4) and (5) of Regulation (EC) No 1907/2006 - Consideration of the unavailability of alternatives - Error in law)

(2019/C 148/42)

Language of the case: Swedish

Parties

Applicant: Kingdom of Sweden (represented by: initially, A. Falk and F. Bergius, and subsequently, A. Falk, C. Meyer-Seitz, H. Shev and J. Lundberg, acting as Agents)

Defendant: European Commission (represented by: R. Lindenthal, K. Mifsud-Bonnici, K. Simonsson and G. Tolstoy, acting as Agents)

Interveners in support of the applicant: Kingdom of Denmark (represented by: initially, C. Thorning and M. Wolff, and subsequently, M. Wolff and J. Nymann-Lindegren, acting as Agents); Republic of Finland (represented by: S. Hartikainen, acting as Agent); and the European Parliament (represented by: A. Neergaard and A. Tamás, acting as Agents)

Intervener in support of the defendant: European Chemicals Agency (represented by: M. Heikkilä, W. Broere and C. Schultheiss, acting as Agents)

Re:

Application under Article 263 TFEU for annulment of Commission Implementing Decision C(2016) 5644 final of 7 September 2016 granting an authorisation for some uses of lead sulfochromate yellow and of lead chromate molybdate sulfate red under Regulation (EC) No 1907/2006.

Operative part of the judgment

The Court:

| 1. | Annuls Commission Implementing Decision C(2016) 5644 final of 7 September 2016 granting an authorisation for some uses of lead sulfochromate yellow and of lead chromate molybdate sulfate red under Regulation (EC) No 1907/2006; |
| --- | --- |

1.

Annuls Commission Implementing Decision C(2016) 5644 final of 7 September 2016 granting an authorisation for some uses of lead sulfochromate yellow and of lead chromate molybdate sulfate red under Regulation (EC) No 1907/2006;

| 2. | Dismisses the Commission’s application seeking, in the event of the annulment of Commission Implementing Decision C(2016) 5644 final of 7 September 2016, that the effects of that decision be maintained until the Commission is able to review the application for authorisation; |
| --- | --- |

2.

Dismisses the Commission’s application seeking, in the event of the annulment of Commission Implementing Decision C(2016) 5644 final of 7 September 2016, that the effects of that decision be maintained until the Commission is able to review the application for authorisation;

| 3. | Orders the Commission to bear its own costs and to pay those incurred by the Kingdom of Sweden; |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay those incurred by the Kingdom of Sweden;

| 4. | Orders the Kingdom of Denmark, the Republic of Finland and the European Parliament to bear their own costs. |
| --- | --- |

4.

Orders the Kingdom of Denmark, the Republic of Finland and the European Parliament to bear their own costs.

---

(1)  OJ C 38, 6.2.2017.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/47 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/47

---

Judgment of the General Court of 7 March 2019 — L v Parliament

(Case T-59/17) (1)

(Civil service - Accredited parliamentary assistant - Termination of the contract - Breakdown in the relationship of trust - Outside activity - Manifest error of assessment - Claim for damages)

(2019/C 148/43)

Language of the case: English

Parties

Applicant: L (represented by: I. Coutant Peyre, lawyer)

Defendant: European Parliament (represented by: Í. Ní Riagáin Düro and M. Windisch, Agents)

Re:

Concerning, first, an application on the basis of Article 270 TFEU seeking annulment of the Parliament’s decision of 24 June 2016 terminating the applicant’s contract of employment as an accredited parliamentary assistant and, secondly, an application for damages for the non-material damage allegedly suffered by the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls the Parliament’s decision of 24 June 2016 to terminate L’s contract as an accredited parliamentary assistant; |
| --- | --- |

1.

Annuls the Parliament’s decision of 24 June 2016 to terminate L’s contract as an accredited parliamentary assistant;

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

2.

Dismisses the action as to the remainder;

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

3.

Orders the European Parliament to pay the costs.

---

(1)  OJ C 221, 10.7.2017.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/47 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/47

---

Judgment of the General Court of 7 March 2019 –Hautala and Others v EFSA

(Case T-329/17) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to carcinogenicity studies conducted in connection with the renewal of the approval of the active substance glyphosate - Partial refusal to grant access - Exception relating to the protection of commercial interests - Overriding public interest - Regulation (EC) No 1367/2006 - Concept of information relating to emissions into the environment)

(2019/C 148/44)

Language of the case: English

Parties

Applicants: Heidi Hautala (Finland), Benedek Jávor (Hungary), Michèle Rivasi (France), Bart Staes (Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Food Safety Authority (EFSA) (represented by: D. Detken, J. Tarazona, F. Volpi and B. Vagenende, acting as Agents, assisted by R. van der Hout and C. Wagner, lawyers)

Interveners in support of the defendant: Cheminova A/S (Harboøre (Denmark), (represented by: C. Mereu, lawyer); and Monsanto Europe (Antwerp, Belgium); Monsanto Company (Wilmington, Delaware, United States) (represented initially by M. Pittie, P. Honoré and N. Callens, and subsequently by P. Honoré, N. Callens and A. Helfer, lawyers)

Re:

Application pursuant to Article 263 TFEU for the partial annulment of the EFSA decision of 14 March 2017 partially refusing access to twelve carcinogenicity studies on the active substance glyphosate, conducted in connection with the procedure for renewing the approval of that active substance in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the European Food Safety Authority (EFSA) of 14 March 2017, in so far as EFSA refused access to the parts ‘material, experimental conditions and methods’ and ‘results and discussion’ of 12 carcinogenicity studies on the active substance glyphosate; |
| --- | --- |

1.

Annuls the decision of the European Food Safety Authority (EFSA) of 14 March 2017, in so far as EFSA refused access to the parts ‘material, experimental conditions and methods’ and ‘results and discussion’ of 12 carcinogenicity studies on the active substance glyphosate;

| 2. | Orders EFSA to bear its own costs and pay the costs incurred by Ms Heidi Hautala, Ms Michèle Rivasi, Mr Benedek Jávor and Mr Bart Staes; |
| --- | --- |

2.

Orders EFSA to bear its own costs and pay the costs incurred by Ms Heidi Hautala, Ms Michèle Rivasi, Mr Benedek Jávor and Mr Bart Staes;

| 3. | Orders Cheminova A/S, Monsanto Europe and Monsanto Company to bear their own costs. |
| --- | --- |

3.

Orders Cheminova A/S, Monsanto Europe and Monsanto Company to bear their own costs.

---

(1)  OJ C 249, 31.7.2017.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/48 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/48

---

Judgment of the General Court of 12 March 2019 — TK v Parliament

(Case T-446/17) (1)

(Civil service - Temporary agents - Change in the activities assigned - Concept of concern - Invitation to an interview - Concept of proceedings - Allegation of psychological harassment - Request for assistance - Liability - Non-material damage)

(2019/C 148/45)

Language of the case: French

Parties

Applicant: TK (represented by: L. Levi, lawyer)

Defendant: European Parliament (represented by: initially E. Taneva and M. Rantala, acting as Agents, then E. Taneva, C. González Argüelles and D. Boytha, acting as Agents)

Re:

Action based on Article 270 TFEU and seeking annulment of the decision of the President of the Parliament of 26 August 2016 rejecting the applicant’s requests of 28 April 2016 and compensation for non-material damage allegedly suffered by the applicant as well as annulment of the decision of the General Secretary of the Parliament of 26 April 2017, in so far as it rejects the application for compensation of non-material damage allegedly suffered by the applicant, and compensation for that damage.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders TK to bear, in addition to his own costs, those incurred by the European Parliament. |
| --- | --- |

2.

orders TK to bear, in addition to his own costs, those incurred by the European Parliament.

---

(1)  OJ C 357, 23.10.2017.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/49 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/49

---

Judgment of the General Court of 12 March 2019 — De Masi and Varoufakis v ECB

(Case T-798/17) (1)

(Access to documents - Decision 2004/258/EC - Document entitled ‘Responses to questions concerning the interpretation of Article 14.4. of the Statute of the ESCB and the ECB’ - Denial of access - Exception relating to the protection of legal advice - Exception relating to the protection of documents intended for internal use - Overriding public interest)

(2019/C 148/46)

Language of the case: German

Parties

Applicants: Fabio De Masi (Hamburg, Germany) and Yanis Varoufakis (Athens, Greece) (represented by: A. Fischer-Lescano, professor)

Defendant: European Central Bank (represented by: T. Filipova and F. von Lindeiner, acting as Agents, and by de H.-G. Kamann, lawyer)

Re:

Action under Article 263 TFEU for annulment of the decision of the ECB of 16 October 2017 refusing to grant the applicants access to the document of 23 April 2015 entitled ‘Responses to questions concerning the interpretation of Article 14.4. of the Statute of the ESCB and the ECB’.

Operative part of the judgment

The Court:

| 1. | dismisses the action; |
| --- | --- |

1.

dismisses the action;

| 2. | orders Mr Fabio De Masi and Mr Yanis Varoufakis to bear, in addition to their own costs, those incurred by the European Central Bank (ECB). |
| --- | --- |

2.

orders Mr Fabio De Masi and Mr Yanis Varoufakis to bear, in addition to their own costs, those incurred by the European Central Bank (ECB).

---

(1)  OJ C 42, 5.2.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/50 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/50

---

Judgment of the General Court of 12 March 2019 — France v Commission

(Case T-26/18) (1)

(EAGF and EAFRD - Expenditure excluded from financing - Expenditure incurred by France - One-off and flat-rate financial corrections - Area-related aid scheme - Land Parcel Identification System - Determination of eligible areas - Maintenance of agricultural land in good agricultural and environmental condition - Landscape features - Grazable heathland - National monitoring system based on a non-compliant definition of eligible areas - Proportionality - Obligation to state reasons - Conformity Clearance - Most likely error - Error of law)

(2019/C 148/47)

Language of the case: French

Parties

Applicant: French Republic (represented by: F. Alabrune, D. Colas, A.-L. Desjonquères and S. Horrenberger, acting as Agents)

Defendant: European Commission (represented by: A. Lewis and D. Triantafyllou, acting as Agents)

Re:

Application pursuant to Article 263 TFEU seeking the partial annulment of Commission Implementing Decision (EU) 2017/2014 of 8 November 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 292, p. 61).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the French Republic to pay the costs. |
| --- | --- |

2.

Orders the French Republic to pay the costs.

---

(1)  OJ C 112, 26.3.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/51 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/51

---

Judgment of the General Court of 7 March 2019 — Laverana v EUIPO — Agroecopark (VERA GREEN)

(Case T-106/18) (1)

(EU trade mark - Opposition proceedings - Application for EU word mark VERA GREEN - Earlier EU word mark LAVERA - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 148/48)

Language of the case: English

Parties

Applicant: Laverana GmbH & Co. KG (Wennigsen, Germany) (represented initially by J. Wachinger, M. Zöbisch and R. Drozdz, then by N. Schmitz and J. Bittner, lawyers)

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, intervener before the General Court: Agroecopark, SL (Majadahonda, Spain) (represented by: E. Seijo Veiguela and C. Serrano Rodríguez, lawyers)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 18 December 2017 (Case R 982/2017-5) relating to opposition proceedings between Laverana and Agroecopark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Laverana GmbH & Co. KG to pay the costs. |
| --- | --- |

2.

Orders Laverana GmbH & Co. KG to pay the costs.

---

(1)  OJ C 142, 23.4.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/51 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/51

---

Judgment of the General Court of 13 March 2019 — Wirecard Technologies v EUIPO — Striatum Ventures (supr)

(Case T-297/18) (1)

(EU trade mark - Invalidity proceedings - EU word mark supr - Earlier Benelux word mark Zupr - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 148/49)

Language of the case: English

Parties

Applicant: Wirecard Technologies GmbH (Aschheim, Germany) (represented by: A. Bayer, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Bonne and H. O’Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Striatum Ventures BV (’s-Hertogenbosch, Netherlands) (represented by: G. Van den Hout, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 20 February 2018 (Case R 2028/2017-5), relating to invalidity proceedings between Striatum Ventures and Wirecard Technologies.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Wirecard Technologies GmbH to pay the costs. |
| --- | --- |

2.

Orders Wirecard Technologies GmbH to pay the costs.

---

(1)  OJ C 240,9.7.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/52 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/52

---

Judgment of the General Court of 12 March 2019 — Novartis v EUIPO (SMARTSURFACE)

(Case T-463/18) (1)

(EU trade mark - Application for EU word mark SMARTSURFACE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EU) 2017/1001 - No distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001)

(2019/C 148/50)

Language of the case: English

Parties

Applicant: Novartis AG (Basle, Switzerland) (represented by: L. Junquera Lara, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Bonne and H. O’Neill, acting as Agents)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 25 May 2018 (Case R 1765/2017-2), relating to an application for registration of the word sign SMARTSURFACE as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Novartis AG to pay the costs. |
| --- | --- |

2.

Orders Novartis AG to pay the costs.

---

(1)  OJ C 352, 1.10.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/53 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/53

---

Order of the General Court of 8 March 2019 — Herrero Torres v EUIPO — DZ Licores (CARAJILLO LICOR 43 CUARENTA Y TRES)

(Case T-326/18) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark CARAJILLO LICOR 43 CUARENTA Y TRES - Earlier national figurative mark Carajillo - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation 2017/1001 - Action manifestly lacking any foundation in law)

(2019/C 148/51)

Language of the case: Spanish

Parties

Applicant: José-Ramón Herrero Torres (Castellón de la Plana, Spain) (represented by: J. Gil Martí, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas and H. O'Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO intervening before the General Court: DZ Licores, SLU (Cartagena, Spain) (represented by: A. Vela Ballesteros and B. Lamas Begué, lawyers)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 March 2018 (Case R 2104/2017-5) relating to opposition proceedings between Mr Herrero Torres and DZ Licores.

Operative part of the order

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

1.

The action is dismissed.

| 2. | Mr José-Ramón Herrero Torres shall pay the costs. |
| --- | --- |

2.

Mr José-Ramón Herrero Torres shall pay the costs.

---

(1)  OJ C 249, 16.7.2018.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/54 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/54

---

Action brought on 20 February 2019 — Clem & Jo Optique v EUIPO — C&A (C&J)

(Case T-125/19)

(2019/C 148/52)

Language in which the application was lodged: French

Parties

Applicant: Clem & Jo Optique SARL (Cormicy, France) (represented by: N. Hausmann, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: C&A AG (Zug, Switzerland)

Details of the proceedings before EUIPO

Applicant: Applicant before the General Court

Trade mark at issue: Application for EU word mark C&J — Application for registration No 15 912 041

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 19 December 2018 in Case R 1252/2018-4

Form of order sought

The applicant claims that the Court should annul the contested decision.

Plea in law

| — | The applicant company argues that there is no likelihood of confusion between the marks C&A and C&J. |
| --- | --- |

—

The applicant company argues that there is no likelihood of confusion between the marks C&A and C&J.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/54 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/54

---

Action brought on 21 February 2019. — Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji v Commission

(Case T-126/19)

(2019/C 148/53)

Language of the case: Polish

Parties

Applicant: Krajowa Izba Gospodarcza Chłodnictwa i Klimatyzacji (Warsaw, Poland) (represented by: A. Galos, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Article 16 of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases, on which the contested decision is founded, and as a result find that the contested decision is flawed in that regard; |
| --- | --- |

—

annul Article 16 of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases, on which the contested decision is founded, and as a result find that the contested decision is flawed in that regard;

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on 2 pleas in law.

| 1. | First plea in law: the applicant raises a plea under Article 277 TFEU concerning the invalidity of Article 16 of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006, the contested decision being founded on that article, to the extent to which it bases the system of apportionment of quotas on reference values resulting from the historically-declared data in relation to F-gases placed on the market from 2009 to 2012, since that constitutes a discriminatory and arbitrary division of undertakings according to their historical activity on the market for gases, and it submits that the contested decision is therefore flawed in that regard. |
| --- | --- |

1.

First plea in law: the applicant raises a plea under Article 277 TFEU concerning the invalidity of Article 16 of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006, the contested decision being founded on that article, to the extent to which it bases the system of apportionment of quotas on reference values resulting from the historically-declared data in relation to F-gases placed on the market from 2009 to 2012, since that constitutes a discriminatory and arbitrary division of undertakings according to their historical activity on the market for gases, and it submits that the contested decision is therefore flawed in that regard.

| 2. | Second plea in law: the applicant alleges a breach of essential procedural requirements and the infringement of the Treaty inasmuch as inadequate reasons were given for the introduction of the mechanism for dividing undertakings active on the F-gases market on the basis of the value of the F-gases historically placed on the market from 2009 to 2012, in accordance with Article 16(1) of Regulation (EU) No 517/2014. |
| --- | --- |

2.

Second plea in law: the applicant alleges a breach of essential procedural requirements and the infringement of the Treaty inasmuch as inadequate reasons were given for the introduction of the mechanism for dividing undertakings active on the F-gases market on the basis of the value of the F-gases historically placed on the market from 2009 to 2012, in accordance with Article 16(1) of Regulation (EU) No 517/2014.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/55 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/55

---

Action brought on 25 February 2019 — Oosterbosch v Parliament

(Case T-131/19)

(2019/C 148/54)

Language of the case: French

Parties

Applicant: Marc Oosterbosch (Brussels, Belgium) (represented by: M. Casado García-Hirschfeld, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | declare that the present application is admissible and well founded; |
| --- | --- |

—

declare that the present application is admissible and well founded;

consequently:

| — | annul the ‘contested decision’ comprising the payslips for the months of March, April and June 2018; |
| --- | --- |

—

annul the ‘contested decision’ comprising the payslips for the months of March, April and June 2018;

| — | declare, if necessary, that the decision of 6 November 2018 rejecting the complaint is annulled; |
| --- | --- |

—

declare, if necessary, that the decision of 6 November 2018 rejecting the complaint is annulled;

| — | 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 a single plea in law, based on infringement of the principles of legality and legal certainty and a plea of illegality: the contested decision was taken on the basis of unlawful internal rules and implementing provisions.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/56 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/56

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Action brought on 26 February 2019 — Ashworth v Parliament

(Case T-132/19)

(2019/C 148/55)

Language of the case: French

Parties

Applicant: Richard Ashworth (Lingfield, United Kingdom) (represented by: A. Schmitt and A. Waisse, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

| — | join the present case with the case brought by Mr Salvador Garriga Polledo and 45 others against the European Parliament on 19 February 2019 (Case T-102/19) on the basis of Article 68 of the Rules of Procedure of the General Court owing to the connection between those two cases; |
| --- | --- |

—

join the present case with the case brought by Mr Salvador Garriga Polledo and 45 others against the European Parliament on 19 February 2019 (Case T-102/19) on the basis of Article 68 of the Rules of Procedure of the General Court owing to the connection between those two cases;

| — | where necessary, by way of the measures of organisation of procedure or measures of inquiry of the case, order the European Parliament to disclose the opinions issued by the legal service of the European Parliament, which were allegedly delivered on 16 July 2018 and 3 December 2018, without prejudice to the precise date, and in any event before the adoption of the decision of the European Parliament Bureau of 10 December 2018 amending the Implementing Measures for the Statute for Members of the European Parliament (OJ 2018 C 466, p. 8, ‘the Implementing Measures’); |
| --- | --- |

—

where necessary, by way of the measures of organisation of procedure or measures of inquiry of the case, order the European Parliament to disclose the opinions issued by the legal service of the European Parliament, which were allegedly delivered on 16 July 2018 and 3 December 2018, without prejudice to the precise date, and in any event before the adoption of the decision of the European Parliament Bureau of 10 December 2018 amending the Implementing Measures for the Statute for Members of the European Parliament (OJ 2018 C 466, p. 8, ‘the Implementing Measures’);

| — | annul the aforementioned decision of the Parliament Bureau of 10 December 2018 amending the Implementing Measures, in so far as it amends Article 76 of the Implementing Measures (recitals 5 and 6, Article 1(7) and Article 2 in so far as it concerns Article 76 of the Implementing Measures of the aforementioned decision), or in so far as it introduces a levy of 5 % on pensions payable after 1 January 2019, or, should it be deemed that all the aforementioned elements cannot be considered separately from the rest of the contested act, annul the aforementioned decision in its entirety; |
| --- | --- |

—

annul the aforementioned decision of the Parliament Bureau of 10 December 2018 amending the Implementing Measures, in so far as it amends Article 76 of the Implementing Measures (recitals 5 and 6, Article 1(7) and Article 2 in so far as it concerns Article 76 of the Implementing Measures of the aforementioned decision), or in so far as it introduces a levy of 5 % on pensions payable after 1 January 2019, or, should it be deemed that all the aforementioned elements cannot be considered separately from the rest of the contested act, annul the aforementioned decision in its entirety;

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

—

order the Parliament to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging lack of competence ratione materiae of the Bureau.






  — | First, the contested act was adopted in infringement of the Statute for Members of the European Parliament adopted by decision of the European Parliament of 28 September 2005, 2005/684/EC, Euratom (OJ 2005 L 262, p.1) (‘the Statute’). The contested act infringes, inter alia, Article 27 of the Statute which requires that ‘acquired rights’ and ‘future entitlements’ be maintained. |
| --- | --- | --- |

1.

First plea in law, alleging lack of competence ratione materiae of the Bureau.

—

First, the contested act was adopted in infringement of the Statute for Members of the European Parliament adopted by decision of the European Parliament of 28 September 2005, 2005/684/EC, Euratom (OJ 2005 L 262, p.1) (‘the Statute’). The contested act infringes, inter alia, Article 27 of the Statute which requires that ‘acquired rights’ and ‘future entitlements’ be maintained.

| — | Second, the contested act creates a tax by introducing a special levy of 5 % of the nominal amount of the pension although the creation of a tax does not fall within the competence of the Bureau according to Article 223(2) TFEU. |
| --- | --- |

—

Second, the contested act creates a tax by introducing a special levy of 5 % of the nominal amount of the pension although the creation of a tax does not fall within the competence of the Bureau according to Article 223(2) TFEU.

| 2. | Second plea in law, alleging infringement of essential procedural requirements.






  — | First, the applicant alleges that the Bureau adopted the contested act without complying with the rules laid down in Article 223 TFEU. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of essential procedural requirements.

—

First, the applicant alleges that the Bureau adopted the contested act without complying with the rules laid down in Article 223 TFEU.

| — | Second, the contested act is insufficiently reasoned and therefore it infringes the duty to state reasons laid down in the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

—

Second, the contested act is insufficiently reasoned and therefore it infringes the duty to state reasons laid down in the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

| 3. | Third plea in law, alleging infringement of acquired rights and future entitlements and of the principle of legitimate expectations.






  — | First, the contested act infringes the acquired rights and future entitlements resulting both from the general principles of law and the Statute, which expressly requires that they be maintained ‘in full’ (Article 27). |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of acquired rights and future entitlements and of the principle of legitimate expectations.

—

First, the contested act infringes the acquired rights and future entitlements resulting both from the general principles of law and the Statute, which expressly requires that they be maintained ‘in full’ (Article 27).

| — | Second, the contested act infringes the principle of legitimate expectations. |
| --- | --- |

—

Second, the contested act infringes the principle of legitimate expectations.

| 4. | Fourth plea in law, alleging infringement of the principle of proportionality and the principles of equal treatment and non-discrimination.






  — | First, the prejudice to the applicants’ rights is disproportionate to the objectives pursued by the contested act. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of the principle of proportionality and the principles of equal treatment and non-discrimination.

—

First, the prejudice to the applicants’ rights is disproportionate to the objectives pursued by the contested act.

| — | Second, the contested act must be annulled on the ground that it infringes the principles of equal treatment and non-discrimination. |
| --- | --- |

—

Second, the contested act must be annulled on the ground that it infringes the principles of equal treatment and non-discrimination.

| 5. | Fifth plea in law alleging infringement of the legal certainty and the absence of transitional measures.






  — | First, the contested act infringes the principle of legal certainty in that it has unlawful retroactive consequences. |
| --- | --- | --- |

5.

Fifth plea in law alleging infringement of the legal certainty and the absence of transitional measures.

—

First, the contested act infringes the principle of legal certainty in that it has unlawful retroactive consequences.

| — | Second, the contested act infringes the principle of legal certainty in that it failed to take transitional measures. |
| --- | --- |

—

Second, the contested act infringes the principle of legal certainty in that it failed to take transitional measures.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/58 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/58

---

Action brought on 1 March 2019 — Corporació Catalana de Mitjans Audiovisuals v EUIPO — Dalmat (LaTV3D)

(Case T-135/19)

(2019/C 148/56)

Language of the case: English

Parties

Applicant: Corporació Catalana de Mitjans Audiovisuals, SA (Barcelona, Spain) (represented by: J. Erdozain López, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Stéphane Dalmat (Paris, France)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark LaTV3D — Application for registration No 15 630 833

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 13 December 2018 in Case R 874/2018-2

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order EUIPO to pay the costs.

Plea in law

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

—

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

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/58 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/58

---

Action brought on 28 February 2019 — Souruh v Council

(Case T-137/19)

(2019/C 148/57)

Language of the case: French

Parties

Applicant: Souruh SA (Damascus, Syria) (represented by: E. Ruchat, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | declare the applicant’s action admissible and well founded; |
| --- | --- |

—

declare the applicant’s action admissible and well founded;

| — | as a consequence, order the European Union to pay compensation for all the harm suffered by the applicant at an amount to be determined by the Court on an equitable basis; |
| --- | --- |

—

as a consequence, order the European Union to pay compensation for all the harm suffered by the applicant at an amount to be determined by the Court on an equitable basis;

| — | in the alternative, order an expert to be appointed in order to establish the total extent of the harm suffered by the applicant; |
| --- | --- |

—

in the alternative, order an expert to be appointed in order to establish the total extent of the harm suffered by the applicant;

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

—

order the Council of the European Union to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on a principal plea and an alternative plea, which are, in essence, identical or similar to those raised in Case T-55/19, Cham Holding and Bena Properties v Council.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/59 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/59

---

Action brought on 14 February 2019 — WH v EUIPO

(Case T-138/19)

(2019/C 148/58)

Language of the case: Spanish

Parties

Applicant: WH (represented by: E. Fontes Vila, lawyer)

Defendant: European Union Intellectual Property Office

Form of order sought

The applicant claims that the Court should hold that the dismissal of her action is unjustified and grant her, with full retroactive effect, the promotion which she rightfully deserves.

Pleas in law and main arguments

The present action concerns the defendant’s decision not to promote the applicant in the 2018 promotion procedure.

In support of her action, the applicant relies on a single plea in law alleging infringement of her rights of defence as a result of procedural unfairness.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/60 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/60

---

Action brought on 4 March 2019 — Sabo and Others v Parliament and Council

(Case T-141/19)

(2019/C 148/59)

Language of the case: English

Parties

Applicants: Peter Sabo (Tulčik, Slovakia) and six other applicants (represented by: R. Smith, Solicitor)

Defendants: European Parliament and Council of the European Union

Form of order sought

The applicants claim that the Court should declare void those provisions of the Directive (EU) 2018/2001 of the European Parliament and of the Council (1) that allow for energy from forest biomass to count towards the Article 29(1) purposes: namely (a) contributing towards the Collective Target for 2030; (b) measuring compliance with renewable energy obligations, and (c) eligibility for financial support.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Directive 2018/2001 violates Art 191 TFEU because it fails to preserve, protect or improve the quality of the environment, to protect human health, or to use natural resources prudently or rationally. It does not aim at a high level of environmental protection, it fails to rectify damage at source and fails to apply the precautionary principle or make the polluter pay. It also ignores available scientific data on the climate change impacts of burning forest biomass. |
| --- | --- |

1.

First plea in law, alleging that the Directive 2018/2001 violates Art 191 TFEU because it fails to preserve, protect or improve the quality of the environment, to protect human health, or to use natural resources prudently or rationally. It does not aim at a high level of environmental protection, it fails to rectify damage at source and fails to apply the precautionary principle or make the polluter pay. It also ignores available scientific data on the climate change impacts of burning forest biomass.

| 2. | Second plea in law, alleging that the Directive 2018/2001 violates numerous rights of the applicants (recognized by Articles 7, 10, 14, 17, 22, 24, 35 and 37 of the Charter of Fundamental Rights of the European Union) that are universal and must be respected for both EU and non-EU applicants. These infringements cannot possibly be justified, because the infringing provisions of the contested Directive are not necessary or rationally connected to the environmental protection objectives of the Union, to which they run contrary. |
| --- | --- |

2.

Second plea in law, alleging that the Directive 2018/2001 violates numerous rights of the applicants (recognized by Articles 7, 10, 14, 17, 22, 24, 35 and 37 of the Charter of Fundamental Rights of the European Union) that are universal and must be respected for both EU and non-EU applicants. These infringements cannot possibly be justified, because the infringing provisions of the contested Directive are not necessary or rationally connected to the environmental protection objectives of the Union, to which they run contrary.

---

(1)  Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (OJ L 328, 21.12.2018, p. 82).

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/60 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/60

---

Action brought on 1 March 2019 — Nosio v EUIPO — Passi (PASSIATA)

(Case T-142/19)

(2019/C 148/60)

Language of the case: English

Parties

Applicant: Nosio SpA (Mezzocorona, Italy) (represented by: J. Graffer and A. Ottolini, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Passi AG (Rothrist, Switzerland)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark PASSIATA — Application for registration No 14 593 123

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 23 November 2018 in Case R 927/2018-2

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | order the adverse parties to bear the costs of the present proceedings. |
| --- | --- |

—

order the adverse parties to bear the costs of the present proceedings.

Plea in law

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

—

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

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/61 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/61

---

Action brought on 2 March 2019 — Solar Ileias Bompaina v Commission

(Case T-143/19)

(2019/C 148/61)

Language of the case: English

Parties

Applicant: Solar Ileias Bompaina AE (Athens, Greece) (represented by: A. Metaxas and A. Bartosch, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the contested acts of the Commission, i.e., Decision C(2018) 6777 final of 10 October 2018 to the extent that it rejects the complaints brought before the Commission in Case SA.41794 and specifically only the paragraphs 111-121 of that Decision as well as the Letter dated 8.2.2019 (B.2 VI/MJ/mkl D*2019/019026); |
| --- | --- |

—

annul the contested acts of the Commission, i.e., Decision C(2018) 6777 final of 10 October 2018 to the extent that it rejects the complaints brought before the Commission in Case SA.41794 and specifically only the paragraphs 111-121 of that Decision as well as the Letter dated 8.2.2019 (B.2 VI/MJ/mkl D*2019/019026);

| — | order the Commission to bear the costs incurred by the applicant. |
| --- | --- |

—

order the Commission to bear the costs incurred by the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging infringement of the procedural rights of the applicant, because of the omission to define the relevant reference system as the prerogative for assessing the material selectivity of the contested measure, the incorrect assessment of facts presented to the Commission during the administrative procedure as to the compatibility of RES producers and energy suppliers, the wrongful legal analysis of the criterion of comparability to be carried out when assessing the material selectivity of the contested measure, the insufficient reasoning underpinning the apparent lack of carrying out a diligent assessment, as well as the erroneous assessment of the subject due to incorrect application of the invoked jurisprudence.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/62 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/62

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Action brought on 6 March 2019 — Flovax v EUIPO — Dagniaux and Gervais Danone (GLACIER DAGNIAUX DEPUIS 1923)

(Case T-147/19)

(2019/C 148/62)

Language in which the application was lodged: French

Parties

Applicant: Flovax Sàrl (Doncols, Luxembourg) (represented by: C.-S. Marchiani, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other parties to the proceedings before the Board of Appeal: Dagniaux (Roubaix, France), Compagnie Gervais Danone (Paris, France)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal, Compagnie Gervais Danone

Trade mark at issue: EU figurative colour mark GLACIER DAGNIAUX DEPUIS 1923 ‘Text and paint: Pantone blue no 302; background Pantone no 1205c (cream)’ — EU trade mark No 896 480

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 18 May 2018 in Case R 2210/2016-1 and R 2211/2016-1

Form of order sought

The applicant claims that the Court should:

| — | alter the decision of the First Board of Appeal of the European Union Intellectual Property Office of 18 May 2018 in Cases R 2210/2016-1 and R 2211/2016-1; |
| --- | --- |

—

alter the decision of the First Board of Appeal of the European Union Intellectual Property Office of 18 May 2018 in Cases R 2210/2016-1 and R 2211/2016-1;

| — | declare admissible appeal R 2211/2016-1 lodged by FLOVAX before the Board of Appeal of the European Union Intellectual Property Office; |
| --- | --- |

—

declare admissible appeal R 2211/2016-1 lodged by FLOVAX before the Board of Appeal of the European Union Intellectual Property Office;

| — | annul Cancellation Division Decision No 10417 C taken on the basis of Article 55(1) of the EU trade mark regulation, following the application for revocation registered on 22 October 2015 by Compagnie Gervais Danone, rejecting in its entirety that application for revocation; |
| --- | --- |

—

annul Cancellation Division Decision No 10417 C taken on the basis of Article 55(1) of the EU trade mark regulation, following the application for revocation registered on 22 October 2015 by Compagnie Gervais Danone, rejecting in its entirety that application for revocation;

| — | order Compagnie Gervais Danone to pay to the proprietor of the mark the cancellation fee and representation costs, set out on the basis of the maximum rate indicated in Article 94 of the EU trade mark regulation. |
| --- | --- |

—

order Compagnie Gervais Danone to pay to the proprietor of the mark the cancellation fee and representation costs, set out on the basis of the maximum rate indicated in Article 94 of the EU trade mark regulation.

Pleas in law

| — | Infringement of Article 70 of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 70 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Breach of the principle of audi alteram partem; |
| --- | --- |

—

Breach of the principle of audi alteram partem;

| — | Error of law in the Board of Appeal’s assessment of the conditions for establishing inadmissibility in the action before it. |
| --- | --- |

—

Error of law in the Board of Appeal’s assessment of the conditions for establishing inadmissibility in the action before it.

---

| 29.4.2019 | EN | Official Journal of the European Union | C 148/63 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/63

---

Action brought on 12 March 2019 — Koenig & Bauer v EUIPO (we’re on it)

(Case T-156/19)

(2019/C 148/63)

Language of the case: German

Parties

Applicant: Koenig & Bauer AG (Würzburg, Germany) (represented by: B. Reinisch, B. Sorg and M. Ringer, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Registration of EU word mark we’re on it — Application for registration No 16 983 066

Contested decision: Decision of the First Board of Appeal of EUIPO of 16 January 2019 in Case R 1027/2018-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and amend it to the effect that EUIPO’s decision of 23 April 2018 rejecting EU trade mark application No 16 983 066 is annulled, continue the registration procedure of EU trade mark application No 16 983 066 and refund the applicant (applicant for the contested mark) the costs incurred in relation to the appeal; |
| --- | --- |

—

annul the contested decision and amend it to the effect that EUIPO’s decision of 23 April 2018 rejecting EU trade mark application No 16 983 066 is annulled, continue the registration procedure of EU trade mark application No 16 983 066 and refund the applicant (applicant for the contested mark) the costs incurred in relation to the appeal;

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

—

order EUIPO to pay the costs.

Pleas in law

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

—

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

| — | Infringement of Article 94(1), first sentence, of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 94(1), first sentence, of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of Article 94(1), second sentence, of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 94(1), second sentence, of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/64 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/64

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Order of the General Court of 1 March 2019 — Baradel and Others v EIF

(Case T-507/16) (1)

(2019/C 148/64)

Language of the case: French

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

---

(1)  OJ C 226, 3.8.2013 (case initially registered at the European Union Civil Service Tribunal as Case F-51/13 and transferred to the General Court of the European Union on 1.9.2016).

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| 29.4.2019 | EN | Official Journal of the European Union | C 148/64 |
| --- | --- | --- | --- |

29.4.2019

EN

Official Journal of the European Union

C 148/64

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Order of the General Court of 15 February 2019 — Intercontinental Exchange Holdings v EUIPO — New York Mercantile Exchange (NYMEX BRENT)

(Case T-760/18) (1)

(2019/C 148/65)

Language of the case: English

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

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(1)  OJ C 93, 11.3.2019.

---