# Official Journal C 164/8 Ma

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 164 |
| | |
| English edition | Information and Notices | Volume 668 May 2023 |

ISSN 1977-091X

Official Journal

of the European Union

C 164

English edition

Information and Notices

Volume 668 May 2023

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2023/C 164/01 | 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

2023/C 164/01

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

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2023/C 164/02 | Joined Cases C-439/20 P and C-441/20 P: Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Jiangsu Seraphim Solar System Co. Ltd, Council of the European Union (C-439/20 P), and Council of the European Union v Jiangsu Seraphim Solar System Co. Ltd, European Commission (C-441/20 P) (Appeal — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China — Implementing Regulation (EU) 2016/2146 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707/EU — Admissibility of the action at first instance — Fourth paragraph of Article 263 TFEU — Criterion of direct concern — Article 277 TFEU — Plea of illegality — Admissibility — Interest in bringing proceedings against the acts which served as the legal basis for the contested measure — Regulation (EU) 2016/1036 — Article 8(9) — Regulation (EU) 2016/1037 — Article 13(9) — Consequences of the withdrawal by the European Commission of acceptance of an undertaking — Implementing Regulation (EU) No 1238/2013 — Article 3 — Implementing Regulation (EU) No 1239/2013 — Article 2 — Loss of entitlement to exemption from duties — Implementing Regulation (EU) 2016/2146 — Article 2 — Invalidation of the undertaking invoices — Chargeability of duties on all the transactions concerned — Lack of retroactivity) | 2 |
| 2023/C 164/03 | Case C-517/20, OL (Extension of Italian licences): Judgment of the Court (Ninth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunale di Ascoli Piceno, Italy) — Criminal proceedings against OL (Reference for a preliminary ruling — Articles 49 and 56 TFEU — Betting and gaming — Licences for the collection of bets — Extension of licences already granted — Regularisation of data transmission centres carrying out that activity in the absence of a licence and police authorisation — Extension of the rights derived from that regularisation — Limited period) | 3 |
| 2023/C 164/04 | Case C-100/21, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices): Judgment of the Court (Grand Chamber) of 21 March 2023 (request for a preliminary ruling from the Landgericht Ravensburg — Germany) — QB v Mercedes-Benz Group AG, formerly Daimler AG (Reference for a preliminary ruling — Approximation of laws — Approval of motor vehicles — Directive 2007/46/EC — Article 18(1) — Article 26(1) — Article 46 — Regulation (EC) No 715/2007 — Article 5(2) — Motor vehicles — Diesel engine — Pollutant emissions — Exhaust gas recirculation valve (EGR valve) — Reduction in nitrogen oxide (NOx) emissions limited by a temperature window — Defeat device — Protection of the interests of an individual purchaser of a vehicle equipped with an unlawful defeat device — Right to compensation from the vehicle manufacturer on the basis of tortious liability — Method of calculating compensation — Principle of effectiveness — Article 267 TFEU — Admissibility — Reference to the Court from a single judge) | 4 |
| 2023/C 164/05 | Case C-127/21 P: Judgment of the Court (Third Chamber) of 16 March 2023 — American Airlines Inc. v European Commission, Delta Air Lines Inc. (Appeal — Regulation (EC) No 139/2004 — Concentrations between undertakings — Air transport market — Concentration declared compatible with the internal market — Commitments entered into by the parties to the concentration — Decision granting grandfathering rights — Concept of appropriate use) | 5 |
| 2023/C 164/06 | Case C-174/21: Judgment of the Court (Third Chamber) of 16 March 2023 — European Commission v Republic of Bulgaria (Failure of a Member State to fulfil obligations — Directive 2008/50/EC — Ambient air quality — Judgment of the Court establishing a failure to fulfil obligations — Article 260(2) TFEU — Obligation to take the necessary measures to comply with such a judgment — Failure to fulfil that obligation alleged by the European Commission — Lack of clarity of the letter of formal notice as to whether the judgment still had to be complied with on the reference date — Principle of legal certainty — Inadmissibility) | 5 |
| 2023/C 164/07 | Case C-339/21, Colt Technology Services and Others: Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Colt Technology Services SpA and Others v Ministero della Giustizia and Others (Reference for a preliminary ruling — Electronic communications networks and services — Directive (EU) 2018/1972 — Article 13 — Conditions attached to the general authorisation — Annex I, Part A, point 4 — Enabling of legal interception by competent national authorities — Article 3 — General objectives — National legislation on the reimbursement of costs associated with interception activities that telecommunications operators are ordered by the judicial authorities to carry out — Absence of full reimbursement mechanism — Principles of non-discrimination, proportionality and transparency) | 6 |
| 2023/C 164/08 | Case C-351/21, Beobank: Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Justice de paix du canton de Forest — Belgium) — ZG v Beobank SA (Reference for a preliminary ruling — Harmonisation of laws — Payment services in the internal market — Directive 2007/64/EC — Article 47(1)(a) — Information for the payer after receipt of the payment order — Articles 58, 60 and 61 — Payment service provider’s liability for unauthorised transactions — Obligation of that service provider to refund unauthorised transactions to the payer — Framework contracts — Obligation of that service provider to provide that payer with information relating to the payee concerned) | 6 |
| 2023/C 164/09 | Joined Cases C-438/21 P to C-440/21 P: Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Pharmaceutical Works Polpharma S.A., European Medicines Agency, Biogen Netherlands BV (C-438/21 P), Biogen Netherlands BV v Pharmaceutical Works Polpharma S.A., European Medicines Agency, European Commission (C-439/21 P), European Medicines Agency v Pharmaceutical Works Polpharma S.A, European Commission, Biogen Netherlands BV (C-440/21 P) (Appeal — Public health — Medicinal products for human use — Directive 2001/83/EC — Regulation (EC) No 726/2004 — Application for marketing authorisation for a generic version of the medicinal product Tecfidera — Decision of the European Medicines Agency (EMA) not to validate the application for marketing authorisation — Earlier European Commission decision taking the view that Tecfidera was not covered by the same global marketing authorisation as Fumaderm — Previously authorised combination medicinal product — Subsequent marketing authorisation for a component of the combination medicinal product — Assessment of the existence of a global marketing authorisation) | 7 |
| 2023/C 164/10 | Case C-449/21, Towercast: Judgment of the Court (Second Chamber) of 16 March 2023 (request for a preliminary ruling from the cour d’appel de Paris — France) — Towercast v Autorité de la concurrence, Ministre chargé de l’économie (Reference for a preliminary ruling — Competition — Control of concentrations between undertakings — Regulation (EC) No 139/2004 — Article 21(1) — Exclusive application of that regulation to operations covered by the concept of concentration — Scope — Concentration operation which has no Community dimension, is below the thresholds for mandatory ex ante control laid down in the law of a Member State and has not been referred to the European Commission — Control of such an operation by the competition authorities of that Member State in the light of Article 102 TFEU — Whether permissible) | 8 |
| 2023/C 164/11 | Case C-511/21 P: Judgment of the Court (Second Chamber) of 16 March 2023 — European Commission v Ana Calhau Correia de Paiva (Appeal — Rules on languages — Open Competition EPSO/AD/293/14 — Notice of competition — Limitation of the choice of the second language of the competition to English, French or German — Non-inclusion on the reserve list — Plea of illegality of the notice of competition — Admissibility) | 9 |
| 2023/C 164/12 | Case C-522/21, Saatgut-Treuhandverwaltung (KWS Meridian): Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Pfälzisches Oberlandesgericht Zweibrücken — Germany) — MS v Saatgut-Treuhandverwaltungs GmbH (Reference for a preliminary ruling — Intellectual property — Protection of plant varieties — Regulation (EC) No 2100/94 — Derogation provided for in Article 14(3) — Article 94(2) — Infringement — Right to compensation — Regulation (EC) No 1768/95 — Article 18(2) — Compensation for damage — Minimum lump sum calculated on the basis of quadruple the licence fee — Competence of the European Commission — Invalidity) | 9 |
| 2023/C 164/13 | Case C-565/21, Caixabank (Loan arrangement fees): Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Caixabank, S.A. v X (Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Articles 3, 4 and 5 — Consumer contracts — Mortgage loans — Unfair contract terms — Term concerning loan arrangement fees — Application seeking a declaration of invalidity of that term and reimbursement of the amount paid on that basis — Plainness and intelligibility of the terms — Existence of specific national legislation) | 10 |
| 2023/C 164/14 | Case C-696/21 P: Judgment of the Court (Seventh Chamber) of 16 March 2023 — GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG v European Commission (Appeal — Arbitration clause — Sixth and seventh framework programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) — Horizon 2020 Framework Programme for Research and Innovation (2014-2020) — Eligible costs — Set-off of claims — Claim for reimbursement — Admissibility of the application — Article 76(d) of the Rules of Procedure of the General Court of the European Union — Requirement of clarity and precision) | 11 |
| 2023/C 164/15 | Case C-725/21, SOMEO: Judgment of the Court (Tenth Chamber) of 9 March 2023 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — SOMEO S.A., formerly PEARL STREAM S.A. v Republika Slovenija (Reference for a preliminary ruling — Customs Union — Common Customs Tariff — Tariff classification — Combined Nomenclature — Subheading 9401 90 80 — Parts of seats for motor vehicles — Net for making pockets in the rear part of seats — Protection for the inside of seats) | 11 |
| 2023/C 164/16 | Case C-752/21, Otdel Mitnichesko razsledvane i razuznavane: Judgment of the Court (Eighth Chamber) of 9 March 2023 (request for a preliminary ruling from the Administrativen sad — Haskovo — Bulgaria) — JP EOOD v Otdel Mitnichesko razsledvane i razuznavane /MRR/ v TD Mitnitsa Burgas (Reference for a preliminary ruling — Regulation (EU) No 952/2013 — Union Customs Code — Legal remedies — Judicial cooperation in criminal matters — Framework Decision 2005/212/JHA — Smuggled goods — Goods belonging to a third party seized in the course of administrative-offence proceedings — National legislation excluding that third party from the category of persons entitled to bring an action against the administrative penalty notice ordering the seizure) | 12 |
| 2023/C 164/17 | Case C-6/22, M.B. and Others (Effects of the invalidation of a contract): Judgment of the Court (Sixth Chamber) of 16 March 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie — Poland) — M.B., U.B., M.B. v X S.A. (Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Articles 6 and 7 — Effects of a declaration that a term is unfair — Mortgage loan agreement indexed to a foreign currency — Continued existence of the contract without unfair terms — Consumer’s wish to have the contract declared invalid — Application of the directive after the invalidation of the contract — Powers and obligations of the national court) | 13 |
| 2023/C 164/18 | Case C-9/22, An Bord Pleanála and Others (Site of St Teresa’s Gardens): Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — NJ, OZ v An Bord Pleanála, Ireland, Attorney General (Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Article 2(a) — Concept of plans and programmes — Article 3(2)(a) — Environmental assessment — Non-statutory act prepared by a municipal council and a developer — Directive 2011/92/EU — Assessment of the effects of certain public and private projects on the environment — Article 3(1) — Obligation to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project — Binding ministerial guidelines on building height) | 14 |
| 2023/C 164/19 | Case C-42/22, Generali Seguros: Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Generali Seguros SA, formerly Global — Companhia de Seguros SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Exemption from VAT — Article 135(1)(a) — Exemption of insurance and reinsurance transactions — Article 136(a) — Exemption of supplies of goods used solely for an exempt activity — Concept of insurance transactions — Resale of parts from written-off motor vehicles purchased from insured persons — Principle of fiscal neutrality) | 15 |
| 2023/C 164/20 | Case C-50/22, Sogefinancement: Judgment of the Court (Third Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour d’appel de Paris — France) — Sogefinancement v RW, UV (Reference for a preliminary ruling — Consumer protection — Directive 2008/48/EC — Credit agreements for consumers — Scope — Right of withdrawal — Article 14(7) — National provisions establishing a period of time during which the performance of the contract may not begin — National procedural rules governing how the national courts raise of their own motion and penalise breaches of those provisions — Article 23 — Effective, proportionate and dissuasive sanctions) | 16 |
| 2023/C 164/21 | Case C-177/22, Wurth Automotive: Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Landesgericht Salzburg — Austria) — JA v Wurth Automotive GmbH (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Jurisdiction over consumer contracts — Concept of consumer — Conduct of the person claiming the status of consumer that may give rise to the impression, on the part of the other contracting party, that he or she is acting for professional purposes) | 16 |
| 2023/C 164/22 | Case C-239/22, État belge and Promo 54: Judgment of the Court (Eighth Chamber) of 9 March 2023 (Request for a preliminary ruling from the Cour de cassation — Belgium) — État belge, Promo 54 v Promo 54, État belge (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 12(1) and (2) — Supply, before first occupation, of a building or parts of a building and of the land on which the building stands — No provisions in national law providing for detailed rules for applying the criterion relating to first occupation — Article 135(1)(j) — Exemptions — Supply, after conversion, of a building which was the subject of a first occupation before the conversion — National administrative legal commentary treating buildings which have undergone substantial conversions in the same way as new buildings) | 17 |
| 2023/C 164/23 | Case C-358/22, Bolloré logistics: Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour de cassation — France) — Bolloré logistics SA v Direction interrégionale des douanes et droits indirects de Caen, Recette régionale des douanes et droits indirects de Caen, Bolloré Ports de Cherbourg SAS (Reference for a preliminary ruling — Customs union — Regulation (EEC) No 2913/92 — Community Customs Code — Article 195 — Article 217(1) — Article 221(1) — Common Customs Tariff — Obligations on the part of the guarantor of the debtor of a customs debt — Procedures for the communication of the customs debt — Duty corresponding to that debt which has not been lawfully communicated to the debtor — Whether the customs debt is payable by the joint and several guarantor) | 18 |
| 2023/C 164/24 | Joined Cases C-491/20 to C-496/20, C-506/20, C-509/20 and C-511/20, Sąd Najwyższy and Others: Order of the Court (Second Chamber) of 22 December 2022 (requests for a preliminary ruling from the Sąd Najwyższy — Poland) — W.Ż. v A.S., Sąd Najwyższy (C-491/20), W.Ż. v K.Z. (C-492/20), P.J. v A.T., R.W., Sąd Najwyższy (C-493/20), K.M. v T.P., Skarb Państwa — Sąd Najwyższ (C-494/20), T.M. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-495/20), M.F. v T.P. (C-496/20), T.B. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-506/20), M.F. v J.M. (C-509/20), B.S. v T.D., M.D., P.K., J.L., M.L., O.N., Skarb Państwa — Sąd Najwyższy (C-511/20) (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court of Justice — Article 267 TFEU — Need for interpretation of EU law to enable the referring court to give judgment — None — Manifest inadmissibility) | 19 |
| 2023/C 164/25 | Case C-574/20, Finanzamt Österreich: Order of the Court (Seventh Chamber) of 13 January 2023 (request for a preliminary ruling from the Bundesfinanzgericht -Austria) — XO v Finanzamt Österreich, formerly Finanzamt Waldviertel (Reference for a preliminary ruling — Article 53(2) and Article 99 of the Rules of Procedure of the Court — Social security — Family benefits — Indexation based on price — Answer to a question referred for a preliminary ruling which may be clearly deduced from existing case-law — No connection between the question referred for a preliminary ruling and the dispute in the main proceedings — Question manifestly inadmissible) | 20 |
| 2023/C 164/26 | Case C-379/21, TBI Bank: Order of the Court (Ninth Chamber) of 17 January 2023 (request for a preliminary ruling from the Sofiyski rayonen sad — Bulgaria) — Proceedings brought by TBI Bank (Reference for a preliminary ruling — Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice — Consumer credit — Directive 93/13/EEC — Article 6(1) — Unfair terms — Refusal to issue an immediate order for payment in the event of a claim based on an unfair term — Consequences relating to the unfairness of a contractual term — Directions from a higher court not observing those consequences) | 21 |
| 2023/C 164/27 | Case C-729/21, Dyrektor Izby Administracji Skarbowej w Łodzi: Order of the Court (Ninth Chamber) of 16 January 2023 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — W. Sp. z o. o. v Dyrektor Izby Administracji Skarbowej w Łodzi (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Directive 2006/112/EC — Value added tax (VAT) — Article 19 — Concept of transfer of a totality of assets or part thereof — Contract of sale relating to a shopping centre — Transfer of an undertaking — Partial transfer of the tangible and intangible assets of the undertaking) | 22 |
| 2023/C 164/28 | Joined Cases C-198/22 and C-199/22: Order of the Court (Sixth Chamber) of 6 March 2023 (requests for a preliminary ruling from the Juzgado de lo Mercantil No 11 de Barcelona — Spain) — QJ and IP v Deutsche Bank AG (References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Article 101 TFEU — Directive 2014/104/EU — Article 10 — Scope ratione temporis — Actions for damages for infringements of EU competition law provisions — Limitation period — Infringement committed before the entry into force of the directive — Consumer protection) | 22 |
| 2023/C 164/29 | Case C-289/22, A.T.S. 2003: Order of the Court (Fifth Chamber) of 9 January 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt., in liquidation v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Reference for a preliminary ruling — Article 99 of the Rules of Procedure — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Articles 167, 168 and 178 — Right to deduct input VAT — Fraud — Proof — Duty of care of the taxable person — Consideration of an infringement of the national provisions governing the supply of services at issue) | 23 |
| 2023/C 164/30 | Case C-350/22, Eurobank Bulgaria: Order of the Court (Seventh Chamber) of 23 January 2023 (request for a preliminary ruling from the Apelativen sad — Sofia — Bulgaria) — HO v EUROBANK BULGARIA AD (Removal from the register) | 25 |
| 2023/C 164/31 | Case C-493/22, ARMAPROCURE: Order of the Court (Eighth Chamber) of 16 March 2023 (Request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Armaprocure SRL v Ministerul Apărării Naţionale, BlueSpace Technology SRL (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Public Procurement — Directive 2009/81/EC — Article 55(4) — Article 57(2) — Interest in bringing proceedings — Access to the review procedures — Tenderer excluded from a public procurement procedure by a decision of the contracting authority that has become final — National regulation depriving such a tenderer of access to a means of appeal — No interest in bringing proceedings) | 25 |
| 2023/C 164/32 | Case C-530/22, Dunaj-Finanse: Order of the Court (Sixth Chamber) of 16 February 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie — Poland) — Dunaj-Finanse sp. z o.o. v KG (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Rail transport — Passengers’ rights and obligations — Regulation (EC) No 1371/2007 — Article 3(8) — Transport contract — Concept — Passenger without a ticket at the time of boarding a train — Consumer protection) | 26 |
| 2023/C 164/33 | Case C-681/22 P: Appeal brought on 7 November 2022 by Olimp Laboratories sp. z o.o. against the judgment of the General Court delivered on 7 September 2022 in Case T-9/22, Olimp Laboratories v EUIPO | 26 |
| 2023/C 164/34 | Case C-788/22 P: Appeal brought on 28 December 2022 by Louis Vuitton Malletier against the judgment of the General Court (Tenth Chamber) delivered on 19 October 2022 in Case T-275/21, Louis Vuitton Malletier v EUIPO — Wisniewski | 27 |
| 2023/C 164/35 | Case C-792/22, Energotehnica: Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 23 December 2022 — Criminal proceedings against MG | 27 |
| 2023/C 164/36 | Case C-796/22, INSS: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 30 December 2022 — Instituto Nacional de la Seguridad Social (INSS) v Bernardino | 28 |
| 2023/C 164/37 | Case C-4/23, Asociaţia Accept: Request for a preliminary ruling from the Judecătoria Sectorului 6 București (Romania) lodged on 3 January 2023 — M.-A. A. v Direcția de Evidență a Persoanelor Cluj, Direcția pentru Evidența Persoanelor și Administrarea Bazelor de Date din Ministerul Afacerilor Interne, and Municipiul Cluj-Napoca, with the participation of Consiliul Național pentru Combaterea Discriminării and Asociația Accept | 29 |
| 2023/C 164/38 | Case C-10/23, Remia Com Impex: Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 11 January 2023 — Remia Com Impex SRL v Autoritatea Națională Sanitară Veterinară și pentru Siguranța Alimentelor, Direcția Sanitară Veterinară și pentru Siguranța Alimentelor Dolj | 29 |
| 2023/C 164/39 | Case C-20/23, Instituto da Segurança Social and Others: Request for a preliminary ruling from the Tribunal da Relação do Porto (Portugal) lodged on 16 January 2023 — SF v MV, Instituto da Segurança Social, IP, Autoridade Tributária e Aduaneira, Cofidis SA — Branch in Portugal | 30 |
| 2023/C 164/40 | Case C-36/23, Familienkasse Sachsen: Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 25 January 2023 — L v Familienkasse Sachsen der Bundesagentur für Arbeit | 31 |
| 2023/C 164/41 | Case C-52/23, flightright: Request for a preliminary ruling from the Amtsgericht Frankfurt am Main (Germany) lodged on 3 February 2023 — flightright GmbH v TAP Portugal | 32 |
| 2023/C 164/42 | Case C-73/23, Chaudfontaine Loisirs: Request for a preliminary ruling from the Court of First Instance of Liège (Belgium) lodged on 10 February 2023 — Chaudfontaine Loisirs SA v État belge | 32 |
| 2023/C 164/43 | Case C-152/21, Ogres HES: Order of the President of the Court of 7 February 2023 (request for a preliminary ruling from the Augstākā tiesa (Senāts) — Latvia) — SIA Ogres HES, intervening parties: Sabiedrisko pakalpojumu regulēšanas komisija, Ekonomikas ministrija, Finanšu ministrija | 33 |
| 2023/C 164/44 | Case C-317/21, G-Finance: Order of the President of the Court of 28 December 2022 (request for a preliminary ruling from the Tribunal d’arrondissement de Luxembourg — Luxembourg) — G-Finance SARL, DV v Luxembourg Business Registers | 33 |
| 2023/C 164/45 | Case C-423/21, Grand Production: Order of the President of the First Chamber of the Court of 13 February 2023 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Grand Production d.o.o. v GO4YU GmbH, DH, GO4YU d.o.o, MTEL Austria GmbH | 34 |
| 2023/C 164/46 | Case C-698/22, TP and OF: Order of the President of the Court of 12 January 2023 (request for a preliminary ruling from the Apelativen sad — Varna — Bulgaria) — Criminal proceedings against TP, OF | 34 |
| | General Court |
| 2023/C 164/47 | Case T-597/21: Judgment of the General Court of 15 March 2023 — Basaglia v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents concerning various projects in the context of the eTEN programmes and of the fifth and sixth framework programmes for research and technological development — Partial refusal to grant access — Unavailability of documents — Unilateral restriction of the scope of the request for access — Obligation to carry out a specific and individual examination — Unreasonable workload — Article 266 TFEU — Decision adopted to give effect to a judgment of the General Court — Measures necessary to give effect to a judgment delivered in an action for annulment) | 35 |
| 2023/C 164/48 | Case T-727/21: Judgment of the General Court of 15 March 2023 — TO v EUAA (Action for annulment and for damages — Civil service — Temporary staff — Recruitment — External vacancy notice [confidential] — Decision not to extend the validity of a reserve list — Time limit for complaints — Publication on the internet — No excusable error — Inadmissibility) | 35 |
| 2023/C 164/49 | Case T-89/22: Judgment of the General Court of 15 March 2023 — Homy Casa v EUIPO — Albatros International (Chairs) (Community design — Invalidity proceedings — Registered Community design representing a chair — Earlier design — Ground for invalidity — Disclosure of the earlier design — Disclosure via the Internet — Identification of the earlier design — Discretion of the Board of Appeal — Article 63(1) of Regulation (EC) No 6/2002) | 36 |
| 2023/C 164/50 | Case T-91/22: Judgment of the General Court of 8 March 2023 — Ruhorimbere v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in the Democratic Republic of the Congo — Freezing of funds — Restriction on admission to the territories of the Member States — Retention of the applicant’s name on the lists of persons covered — Right to be heard — Proof that inclusion and retention on the lists is well founded — Manifest error of assessment — Continuation of the factual and legal circumstances which led to the adoption of the restrictive measures) | 37 |
| 2023/C 164/51 | Case T-94/22: Judgment of the General Court of 8 March 2023 — Mutondo v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in the Democratic Republic of the Congo — Freezing of funds — Restriction on admission to the territories of the Member States — Retention of the applicant’s name on the lists of persons covered — Proof that inclusion and retention on the lists is well founded — Manifest error of assessment — Change of the factual and legal circumstances which led to the adoption of the restrictive measures) | 37 |
| 2023/C 164/52 | Case T-133/22: Judgment of the General Court of 15 March 2023 — Katjes Fassin v EUIPO (THE FUTURE IS PLANT-BASED) (EU trade mark — Application for EU word mark THE FUTURE IS PLANT-BASED — Mark consisting of an advertising slogan — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001) | 38 |
| 2023/C 164/53 | Case T-174/22: Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTREV) (EU trade mark — Opposition proceedings — Application for the EU word mark BREZTREV — Earlier EU word marks ONBREZ, DAYBREZ, BREZILIZER and BREEZHALER — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001) | 39 |
| 2023/C 164/54 | Case T-175/22: Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTRI) (EU trade mark — Invalidity proceedings — EU word mark BREZTRI — Earlier EU word marks ONBREZ, BREZILIZER and BREEZHALER — No likelihood of confusion — Lack of enhanced distinctiveness of the earlier marks — Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001 — Article 27(3)(b) of Regulation (EU) 2018/625) | 39 |
| 2023/C 164/55 | Case T-178/22: Judgment of the General Court of 15 March 2023 — FA World Entertainment v EUIPO (FUCKING AWESOME) (EU trade mark — International registration designating the European Union — Word mark FUCKING AWESOME — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001 — Legal certainty — Equal treatment — Principle of sound administration) | 40 |
| 2023/C 164/56 | Case T-194/22: Judgment of the General Court of 15 March 2023 — Zelmotor v EUIPO — B&B Trends (zelmotor) (EU trade mark — Revocation proceedings — EU figurative mark zelmotor — No genuine use of the mark — Article 58(1)(a) of Regulation (EU) 2017/1001) | 40 |
| 2023/C 164/57 | Case T-429/22: Order of the General Court of 6 March 2023 — Oatly v EUIPO — D’s Naturals (Wow no cow!) (EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate) | 41 |
| 2023/C 164/58 | Case T-615/22: Order of the General Court of 16 February 2023 — Cyprus v EUIPO — Cemet (Halime) (EU trade mark — Opposition proceedings — Final dismissal of the application for registration of the trade mark in parallel opposition proceedings — Action which has become devoid of purpose — No need to adjudicate) | 42 |
| 2023/C 164/59 | Case T-43/23: Action brought on 27 January 2023 — SCC Legal v Commission | 42 |
| 2023/C 164/60 | Case T-67/23: Action brought on 13 February 2023 — UH v ECB | 43 |
| 2023/C 164/61 | Case T-95/23: Action brought on 17 February 2023 — RWE Supply & Trading v ACER | 45 |
| 2023/C 164/62 | Case T-96/23: Action brought on 17 February 2023 — Uniper Global Commodities v ACER | 46 |
| 2023/C 164/63 | Case T-141/23: Action brought on 14 March 2023 — Merlin and Others v Commission | 48 |
| 2023/C 164/64 | Case T-143/23: Action brought on 15 March 2023 — VF v Council | 48 |
| 2023/C 164/65 | Case T-145/23: Action brought on 17 March 2023 — Eurosemillas v CPVO — Nador Cott Protection and Carpa Dorada (Nadorcott) | 49 |
| 2023/C 164/66 | Case T-153/23: Action brought on 21 March 2023 — WhatsApp Ireland v European Data Protection Board | 50 |
| 2023/C 164/67 | Case T-485/20: Order of the General Court of 9 March 2023 — Junqueras i Vies v Parliament | 51 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2023/C 164/02

Joined Cases C-439/20 P and C-441/20 P: Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Jiangsu Seraphim Solar System Co. Ltd, Council of the European Union (C-439/20 P), and Council of the European Union v Jiangsu Seraphim Solar System Co. Ltd, European Commission (C-441/20 P) (Appeal — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China — Implementing Regulation (EU) 2016/2146 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707/EU — Admissibility of the action at first instance — Fourth paragraph of Article 263 TFEU — Criterion of direct concern — Article 277 TFEU — Plea of illegality — Admissibility — Interest in bringing proceedings against the acts which served as the legal basis for the contested measure — Regulation (EU) 2016/1036 — Article 8(9) — Regulation (EU) 2016/1037 — Article 13(9) — Consequences of the withdrawal by the European Commission of acceptance of an undertaking — Implementing Regulation (EU) No 1238/2013 — Article 3 — Implementing Regulation (EU) No 1239/2013 — Article 2 — Loss of entitlement to exemption from duties — Implementing Regulation (EU) 2016/2146 — Article 2 — Invalidation of the undertaking invoices — Chargeability of duties on all the transactions concerned — Lack of retroactivity)

2

2023/C 164/03

Case C-517/20, OL (Extension of Italian licences): Judgment of the Court (Ninth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunale di Ascoli Piceno, Italy) — Criminal proceedings against OL (Reference for a preliminary ruling — Articles 49 and 56 TFEU — Betting and gaming — Licences for the collection of bets — Extension of licences already granted — Regularisation of data transmission centres carrying out that activity in the absence of a licence and police authorisation — Extension of the rights derived from that regularisation — Limited period)

3

2023/C 164/04

Case C-100/21, Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices): Judgment of the Court (Grand Chamber) of 21 March 2023 (request for a preliminary ruling from the Landgericht Ravensburg — Germany) — QB v Mercedes-Benz Group AG, formerly Daimler AG (Reference for a preliminary ruling — Approximation of laws — Approval of motor vehicles — Directive 2007/46/EC — Article 18(1) — Article 26(1) — Article 46 — Regulation (EC) No 715/2007 — Article 5(2) — Motor vehicles — Diesel engine — Pollutant emissions — Exhaust gas recirculation valve (EGR valve) — Reduction in nitrogen oxide (NOx) emissions limited by a temperature window — Defeat device — Protection of the interests of an individual purchaser of a vehicle equipped with an unlawful defeat device — Right to compensation from the vehicle manufacturer on the basis of tortious liability — Method of calculating compensation — Principle of effectiveness — Article 267 TFEU — Admissibility — Reference to the Court from a single judge)

4

2023/C 164/05

Case C-127/21 P: Judgment of the Court (Third Chamber) of 16 March 2023 — American Airlines Inc. v European Commission, Delta Air Lines Inc. (Appeal — Regulation (EC) No 139/2004 — Concentrations between undertakings — Air transport market — Concentration declared compatible with the internal market — Commitments entered into by the parties to the concentration — Decision granting grandfathering rights — Concept of appropriate use)

5

2023/C 164/06

Case C-174/21: Judgment of the Court (Third Chamber) of 16 March 2023 — European Commission v Republic of Bulgaria (Failure of a Member State to fulfil obligations — Directive 2008/50/EC — Ambient air quality — Judgment of the Court establishing a failure to fulfil obligations — Article 260(2) TFEU — Obligation to take the necessary measures to comply with such a judgment — Failure to fulfil that obligation alleged by the European Commission — Lack of clarity of the letter of formal notice as to whether the judgment still had to be complied with on the reference date — Principle of legal certainty — Inadmissibility)

5

2023/C 164/07

Case C-339/21, Colt Technology Services and Others: Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Colt Technology Services SpA and Others v Ministero della Giustizia and Others (Reference for a preliminary ruling — Electronic communications networks and services — Directive (EU) 2018/1972 — Article 13 — Conditions attached to the general authorisation — Annex I, Part A, point 4 — Enabling of legal interception by competent national authorities — Article 3 — General objectives — National legislation on the reimbursement of costs associated with interception activities that telecommunications operators are ordered by the judicial authorities to carry out — Absence of full reimbursement mechanism — Principles of non-discrimination, proportionality and transparency)

6

2023/C 164/08

Case C-351/21, Beobank: Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Justice de paix du canton de Forest — Belgium) — ZG v Beobank SA (Reference for a preliminary ruling — Harmonisation of laws — Payment services in the internal market — Directive 2007/64/EC — Article 47(1)(a) — Information for the payer after receipt of the payment order — Articles 58, 60 and 61 — Payment service provider’s liability for unauthorised transactions — Obligation of that service provider to refund unauthorised transactions to the payer — Framework contracts — Obligation of that service provider to provide that payer with information relating to the payee concerned)

6

2023/C 164/09

Joined Cases C-438/21 P to C-440/21 P: Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Pharmaceutical Works Polpharma S.A., European Medicines Agency, Biogen Netherlands BV (C-438/21 P), Biogen Netherlands BV v Pharmaceutical Works Polpharma S.A., European Medicines Agency, European Commission (C-439/21 P), European Medicines Agency v Pharmaceutical Works Polpharma S.A, European Commission, Biogen Netherlands BV (C-440/21 P) (Appeal — Public health — Medicinal products for human use — Directive 2001/83/EC — Regulation (EC) No 726/2004 — Application for marketing authorisation for a generic version of the medicinal product Tecfidera — Decision of the European Medicines Agency (EMA) not to validate the application for marketing authorisation — Earlier European Commission decision taking the view that Tecfidera was not covered by the same global marketing authorisation as Fumaderm — Previously authorised combination medicinal product — Subsequent marketing authorisation for a component of the combination medicinal product — Assessment of the existence of a global marketing authorisation)

7

2023/C 164/10

Case C-449/21, Towercast: Judgment of the Court (Second Chamber) of 16 March 2023 (request for a preliminary ruling from the cour d’appel de Paris — France) — Towercast v Autorité de la concurrence, Ministre chargé de l’économie (Reference for a preliminary ruling — Competition — Control of concentrations between undertakings — Regulation (EC) No 139/2004 — Article 21(1) — Exclusive application of that regulation to operations covered by the concept of concentration — Scope — Concentration operation which has no Community dimension, is below the thresholds for mandatory ex ante control laid down in the law of a Member State and has not been referred to the European Commission — Control of such an operation by the competition authorities of that Member State in the light of Article 102 TFEU — Whether permissible)

8

2023/C 164/11

Case C-511/21 P: Judgment of the Court (Second Chamber) of 16 March 2023 — European Commission v Ana Calhau Correia de Paiva (Appeal — Rules on languages — Open Competition EPSO/AD/293/14 — Notice of competition — Limitation of the choice of the second language of the competition to English, French or German — Non-inclusion on the reserve list — Plea of illegality of the notice of competition — Admissibility)

9

2023/C 164/12

Case C-522/21, Saatgut-Treuhandverwaltung (KWS Meridian): Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Pfälzisches Oberlandesgericht Zweibrücken — Germany) — MS v Saatgut-Treuhandverwaltungs GmbH (Reference for a preliminary ruling — Intellectual property — Protection of plant varieties — Regulation (EC) No 2100/94 — Derogation provided for in Article 14(3) — Article 94(2) — Infringement — Right to compensation — Regulation (EC) No 1768/95 — Article 18(2) — Compensation for damage — Minimum lump sum calculated on the basis of quadruple the licence fee — Competence of the European Commission — Invalidity)

9

2023/C 164/13

Case C-565/21, Caixabank (Loan arrangement fees): Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Caixabank, S.A. v X (Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Articles 3, 4 and 5 — Consumer contracts — Mortgage loans — Unfair contract terms — Term concerning loan arrangement fees — Application seeking a declaration of invalidity of that term and reimbursement of the amount paid on that basis — Plainness and intelligibility of the terms — Existence of specific national legislation)

10

2023/C 164/14

Case C-696/21 P: Judgment of the Court (Seventh Chamber) of 16 March 2023 — GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG v European Commission (Appeal — Arbitration clause — Sixth and seventh framework programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) — Horizon 2020 Framework Programme for Research and Innovation (2014-2020) — Eligible costs — Set-off of claims — Claim for reimbursement — Admissibility of the application — Article 76(d) of the Rules of Procedure of the General Court of the European Union — Requirement of clarity and precision)

11

2023/C 164/15

Case C-725/21, SOMEO: Judgment of the Court (Tenth Chamber) of 9 March 2023 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — SOMEO S.A., formerly PEARL STREAM S.A. v Republika Slovenija (Reference for a preliminary ruling — Customs Union — Common Customs Tariff — Tariff classification — Combined Nomenclature — Subheading 9401 90 80 — Parts of seats for motor vehicles — Net for making pockets in the rear part of seats — Protection for the inside of seats)

11

2023/C 164/16

Case C-752/21, Otdel Mitnichesko razsledvane i razuznavane: Judgment of the Court (Eighth Chamber) of 9 March 2023 (request for a preliminary ruling from the Administrativen sad — Haskovo — Bulgaria) — JP EOOD v Otdel Mitnichesko razsledvane i razuznavane /MRR/ v TD Mitnitsa Burgas (Reference for a preliminary ruling — Regulation (EU) No 952/2013 — Union Customs Code — Legal remedies — Judicial cooperation in criminal matters — Framework Decision 2005/212/JHA — Smuggled goods — Goods belonging to a third party seized in the course of administrative-offence proceedings — National legislation excluding that third party from the category of persons entitled to bring an action against the administrative penalty notice ordering the seizure)

12

2023/C 164/17

Case C-6/22, M.B. and Others (Effects of the invalidation of a contract): Judgment of the Court (Sixth Chamber) of 16 March 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie — Poland) — M.B., U.B., M.B. v X S.A. (Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Articles 6 and 7 — Effects of a declaration that a term is unfair — Mortgage loan agreement indexed to a foreign currency — Continued existence of the contract without unfair terms — Consumer’s wish to have the contract declared invalid — Application of the directive after the invalidation of the contract — Powers and obligations of the national court)

13

2023/C 164/18

Case C-9/22, An Bord Pleanála and Others (Site of St Teresa’s Gardens): Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — NJ, OZ v An Bord Pleanála, Ireland, Attorney General (Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Article 2(a) — Concept of plans and programmes — Article 3(2)(a) — Environmental assessment — Non-statutory act prepared by a municipal council and a developer — Directive 2011/92/EU — Assessment of the effects of certain public and private projects on the environment — Article 3(1) — Obligation to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project — Binding ministerial guidelines on building height)

14

2023/C 164/19

Case C-42/22, Generali Seguros: Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Generali Seguros SA, formerly Global — Companhia de Seguros SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Exemption from VAT — Article 135(1)(a) — Exemption of insurance and reinsurance transactions — Article 136(a) — Exemption of supplies of goods used solely for an exempt activity — Concept of insurance transactions — Resale of parts from written-off motor vehicles purchased from insured persons — Principle of fiscal neutrality)

15

2023/C 164/20

Case C-50/22, Sogefinancement: Judgment of the Court (Third Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour d’appel de Paris — France) — Sogefinancement v RW, UV (Reference for a preliminary ruling — Consumer protection — Directive 2008/48/EC — Credit agreements for consumers — Scope — Right of withdrawal — Article 14(7) — National provisions establishing a period of time during which the performance of the contract may not begin — National procedural rules governing how the national courts raise of their own motion and penalise breaches of those provisions — Article 23 — Effective, proportionate and dissuasive sanctions)

16

2023/C 164/21

Case C-177/22, Wurth Automotive: Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Landesgericht Salzburg — Austria) — JA v Wurth Automotive GmbH (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Jurisdiction over consumer contracts — Concept of consumer — Conduct of the person claiming the status of consumer that may give rise to the impression, on the part of the other contracting party, that he or she is acting for professional purposes)

16

2023/C 164/22

Case C-239/22, État belge and Promo 54: Judgment of the Court (Eighth Chamber) of 9 March 2023 (Request for a preliminary ruling from the Cour de cassation — Belgium) — État belge, Promo 54 v Promo 54, État belge (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 12(1) and (2) — Supply, before first occupation, of a building or parts of a building and of the land on which the building stands — No provisions in national law providing for detailed rules for applying the criterion relating to first occupation — Article 135(1)(j) — Exemptions — Supply, after conversion, of a building which was the subject of a first occupation before the conversion — National administrative legal commentary treating buildings which have undergone substantial conversions in the same way as new buildings)

17

2023/C 164/23

Case C-358/22, Bolloré logistics: Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour de cassation — France) — Bolloré logistics SA v Direction interrégionale des douanes et droits indirects de Caen, Recette régionale des douanes et droits indirects de Caen, Bolloré Ports de Cherbourg SAS (Reference for a preliminary ruling — Customs union — Regulation (EEC) No 2913/92 — Community Customs Code — Article 195 — Article 217(1) — Article 221(1) — Common Customs Tariff — Obligations on the part of the guarantor of the debtor of a customs debt — Procedures for the communication of the customs debt — Duty corresponding to that debt which has not been lawfully communicated to the debtor — Whether the customs debt is payable by the joint and several guarantor)

18

2023/C 164/24

Joined Cases C-491/20 to C-496/20, C-506/20, C-509/20 and C-511/20, Sąd Najwyższy and Others: Order of the Court (Second Chamber) of 22 December 2022 (requests for a preliminary ruling from the Sąd Najwyższy — Poland) — W.Ż. v A.S., Sąd Najwyższy (C-491/20), W.Ż. v K.Z. (C-492/20), P.J. v A.T., R.W., Sąd Najwyższy (C-493/20), K.M. v T.P., Skarb Państwa — Sąd Najwyższ (C-494/20), T.M. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-495/20), M.F. v T.P. (C-496/20), T.B. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-506/20), M.F. v J.M. (C-509/20), B.S. v T.D., M.D., P.K., J.L., M.L., O.N., Skarb Państwa — Sąd Najwyższy (C-511/20) (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court of Justice — Article 267 TFEU — Need for interpretation of EU law to enable the referring court to give judgment — None — Manifest inadmissibility)

19

2023/C 164/25

Case C-574/20, Finanzamt Österreich: Order of the Court (Seventh Chamber) of 13 January 2023 (request for a preliminary ruling from the Bundesfinanzgericht -Austria) — XO v Finanzamt Österreich, formerly Finanzamt Waldviertel (Reference for a preliminary ruling — Article 53(2) and Article 99 of the Rules of Procedure of the Court — Social security — Family benefits — Indexation based on price — Answer to a question referred for a preliminary ruling which may be clearly deduced from existing case-law — No connection between the question referred for a preliminary ruling and the dispute in the main proceedings — Question manifestly inadmissible)

20

2023/C 164/26

Case C-379/21, TBI Bank: Order of the Court (Ninth Chamber) of 17 January 2023 (request for a preliminary ruling from the Sofiyski rayonen sad — Bulgaria) — Proceedings brought by TBI Bank (Reference for a preliminary ruling — Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice — Consumer credit — Directive 93/13/EEC — Article 6(1) — Unfair terms — Refusal to issue an immediate order for payment in the event of a claim based on an unfair term — Consequences relating to the unfairness of a contractual term — Directions from a higher court not observing those consequences)

21

2023/C 164/27

Case C-729/21, Dyrektor Izby Administracji Skarbowej w Łodzi: Order of the Court (Ninth Chamber) of 16 January 2023 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — W. Sp. z o. o. v Dyrektor Izby Administracji Skarbowej w Łodzi (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Directive 2006/112/EC — Value added tax (VAT) — Article 19 — Concept of transfer of a totality of assets or part thereof — Contract of sale relating to a shopping centre — Transfer of an undertaking — Partial transfer of the tangible and intangible assets of the undertaking)

22

2023/C 164/28

Joined Cases C-198/22 and C-199/22: Order of the Court (Sixth Chamber) of 6 March 2023 (requests for a preliminary ruling from the Juzgado de lo Mercantil No 11 de Barcelona — Spain) — QJ and IP v Deutsche Bank AG (References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Article 101 TFEU — Directive 2014/104/EU — Article 10 — Scope ratione temporis — Actions for damages for infringements of EU competition law provisions — Limitation period — Infringement committed before the entry into force of the directive — Consumer protection)

22

2023/C 164/29

Case C-289/22, A.T.S. 2003: Order of the Court (Fifth Chamber) of 9 January 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt., in liquidation v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Reference for a preliminary ruling — Article 99 of the Rules of Procedure — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Articles 167, 168 and 178 — Right to deduct input VAT — Fraud — Proof — Duty of care of the taxable person — Consideration of an infringement of the national provisions governing the supply of services at issue)

23

2023/C 164/30

Case C-350/22, Eurobank Bulgaria: Order of the Court (Seventh Chamber) of 23 January 2023 (request for a preliminary ruling from the Apelativen sad — Sofia — Bulgaria) — HO v EUROBANK BULGARIA AD (Removal from the register)

25

2023/C 164/31

Case C-493/22, ARMAPROCURE: Order of the Court (Eighth Chamber) of 16 March 2023 (Request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Armaprocure SRL v Ministerul Apărării Naţionale, BlueSpace Technology SRL (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Public Procurement — Directive 2009/81/EC — Article 55(4) — Article 57(2) — Interest in bringing proceedings — Access to the review procedures — Tenderer excluded from a public procurement procedure by a decision of the contracting authority that has become final — National regulation depriving such a tenderer of access to a means of appeal — No interest in bringing proceedings)

25

2023/C 164/32

Case C-530/22, Dunaj-Finanse: Order of the Court (Sixth Chamber) of 16 February 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie — Poland) — Dunaj-Finanse sp. z o.o. v KG (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Rail transport — Passengers’ rights and obligations — Regulation (EC) No 1371/2007 — Article 3(8) — Transport contract — Concept — Passenger without a ticket at the time of boarding a train — Consumer protection)

26

2023/C 164/33

Case C-681/22 P: Appeal brought on 7 November 2022 by Olimp Laboratories sp. z o.o. against the judgment of the General Court delivered on 7 September 2022 in Case T-9/22, Olimp Laboratories v EUIPO

26

2023/C 164/34

Case C-788/22 P: Appeal brought on 28 December 2022 by Louis Vuitton Malletier against the judgment of the General Court (Tenth Chamber) delivered on 19 October 2022 in Case T-275/21, Louis Vuitton Malletier v EUIPO — Wisniewski

27

2023/C 164/35

Case C-792/22, Energotehnica: Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 23 December 2022 — Criminal proceedings against MG

27

2023/C 164/36

Case C-796/22, INSS: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 30 December 2022 — Instituto Nacional de la Seguridad Social (INSS) v Bernardino

28

2023/C 164/37

Case C-4/23, Asociaţia Accept: Request for a preliminary ruling from the Judecătoria Sectorului 6 București (Romania) lodged on 3 January 2023 — M.-A. A. v Direcția de Evidență a Persoanelor Cluj, Direcția pentru Evidența Persoanelor și Administrarea Bazelor de Date din Ministerul Afacerilor Interne, and Municipiul Cluj-Napoca, with the participation of Consiliul Național pentru Combaterea Discriminării and Asociația Accept

29

2023/C 164/38

Case C-10/23, Remia Com Impex: Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 11 January 2023 — Remia Com Impex SRL v Autoritatea Națională Sanitară Veterinară și pentru Siguranța Alimentelor, Direcția Sanitară Veterinară și pentru Siguranța Alimentelor Dolj

29

2023/C 164/39

Case C-20/23, Instituto da Segurança Social and Others: Request for a preliminary ruling from the Tribunal da Relação do Porto (Portugal) lodged on 16 January 2023 — SF v MV, Instituto da Segurança Social, IP, Autoridade Tributária e Aduaneira, Cofidis SA — Branch in Portugal

30

2023/C 164/40

Case C-36/23, Familienkasse Sachsen: Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 25 January 2023 — L v Familienkasse Sachsen der Bundesagentur für Arbeit

31

2023/C 164/41

Case C-52/23, flightright: Request for a preliminary ruling from the Amtsgericht Frankfurt am Main (Germany) lodged on 3 February 2023 — flightright GmbH v TAP Portugal

32

2023/C 164/42

Case C-73/23, Chaudfontaine Loisirs: Request for a preliminary ruling from the Court of First Instance of Liège (Belgium) lodged on 10 February 2023 — Chaudfontaine Loisirs SA v État belge

32

2023/C 164/43

Case C-152/21, Ogres HES: Order of the President of the Court of 7 February 2023 (request for a preliminary ruling from the Augstākā tiesa (Senāts) — Latvia) — SIA Ogres HES, intervening parties: Sabiedrisko pakalpojumu regulēšanas komisija, Ekonomikas ministrija, Finanšu ministrija

intervening parties:

33

2023/C 164/44

Case C-317/21, G-Finance: Order of the President of the Court of 28 December 2022 (request for a preliminary ruling from the Tribunal d’arrondissement de Luxembourg — Luxembourg) — G-Finance SARL, DV v Luxembourg Business Registers

33

2023/C 164/45

Case C-423/21, Grand Production: Order of the President of the First Chamber of the Court of 13 February 2023 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Grand Production d.o.o. v GO4YU GmbH, DH, GO4YU d.o.o, MTEL Austria GmbH

34

2023/C 164/46

Case C-698/22, TP and OF: Order of the President of the Court of 12 January 2023 (request for a preliminary ruling from the Apelativen sad — Varna — Bulgaria) — Criminal proceedings against TP, OF

34

General Court

2023/C 164/47

Case T-597/21: Judgment of the General Court of 15 March 2023 — Basaglia v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents concerning various projects in the context of the eTEN programmes and of the fifth and sixth framework programmes for research and technological development — Partial refusal to grant access — Unavailability of documents — Unilateral restriction of the scope of the request for access — Obligation to carry out a specific and individual examination — Unreasonable workload — Article 266 TFEU — Decision adopted to give effect to a judgment of the General Court — Measures necessary to give effect to a judgment delivered in an action for annulment)

35

2023/C 164/48

Case T-727/21: Judgment of the General Court of 15 March 2023 — TO v EUAA (Action for annulment and for damages — Civil service — Temporary staff — Recruitment — External vacancy notice [confidential] — Decision not to extend the validity of a reserve list — Time limit for complaints — Publication on the internet — No excusable error — Inadmissibility)

35

2023/C 164/49

Case T-89/22: Judgment of the General Court of 15 March 2023 — Homy Casa v EUIPO — Albatros International (Chairs) (Community design — Invalidity proceedings — Registered Community design representing a chair — Earlier design — Ground for invalidity — Disclosure of the earlier design — Disclosure via the Internet — Identification of the earlier design — Discretion of the Board of Appeal — Article 63(1) of Regulation (EC) No 6/2002)

36

2023/C 164/50

Case T-91/22: Judgment of the General Court of 8 March 2023 — Ruhorimbere v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in the Democratic Republic of the Congo — Freezing of funds — Restriction on admission to the territories of the Member States — Retention of the applicant’s name on the lists of persons covered — Right to be heard — Proof that inclusion and retention on the lists is well founded — Manifest error of assessment — Continuation of the factual and legal circumstances which led to the adoption of the restrictive measures)

37

2023/C 164/51

Case T-94/22: Judgment of the General Court of 8 March 2023 — Mutondo v Council (Common foreign and security policy — Restrictive measures taken in view of the situation in the Democratic Republic of the Congo — Freezing of funds — Restriction on admission to the territories of the Member States — Retention of the applicant’s name on the lists of persons covered — Proof that inclusion and retention on the lists is well founded — Manifest error of assessment — Change of the factual and legal circumstances which led to the adoption of the restrictive measures)

37

2023/C 164/52

Case T-133/22: Judgment of the General Court of 15 March 2023 — Katjes Fassin v EUIPO (THE FUTURE IS PLANT-BASED) (EU trade mark — Application for EU word mark THE FUTURE IS PLANT-BASED — Mark consisting of an advertising slogan — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001)

38

2023/C 164/53

Case T-174/22: Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTREV) (EU trade mark — Opposition proceedings — Application for the EU word mark BREZTREV — Earlier EU word marks ONBREZ, DAYBREZ, BREZILIZER and BREEZHALER — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)

39

2023/C 164/54

Case T-175/22: Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTRI) (EU trade mark — Invalidity proceedings — EU word mark BREZTRI — Earlier EU word marks ONBREZ, BREZILIZER and BREEZHALER — No likelihood of confusion — Lack of enhanced distinctiveness of the earlier marks — Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001 — Article 27(3)(b) of Regulation (EU) 2018/625)

39

2023/C 164/55

Case T-178/22: Judgment of the General Court of 15 March 2023 — FA World Entertainment v EUIPO (FUCKING AWESOME) (EU trade mark — International registration designating the European Union — Word mark FUCKING AWESOME — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EU) 2017/1001 — Legal certainty — Equal treatment — Principle of sound administration)

40

2023/C 164/56

Case T-194/22: Judgment of the General Court of 15 March 2023 — Zelmotor v EUIPO — B&B Trends (zelmotor) (EU trade mark — Revocation proceedings — EU figurative mark zelmotor — No genuine use of the mark — Article 58(1)(a) of Regulation (EU) 2017/1001)

40

2023/C 164/57

Case T-429/22: Order of the General Court of 6 March 2023 — Oatly v EUIPO — D’s Naturals (Wow no cow!) (EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

41

2023/C 164/58

Case T-615/22: Order of the General Court of 16 February 2023 — Cyprus v EUIPO — Cemet (Halime) (EU trade mark — Opposition proceedings — Final dismissal of the application for registration of the trade mark in parallel opposition proceedings — Action which has become devoid of purpose — No need to adjudicate)

42

2023/C 164/59

Case T-43/23: Action brought on 27 January 2023 — SCC Legal v Commission

42

2023/C 164/60

Case T-67/23: Action brought on 13 February 2023 — UH v ECB

43

2023/C 164/61

Case T-95/23: Action brought on 17 February 2023 — RWE Supply & Trading v ACER

45

2023/C 164/62

Case T-96/23: Action brought on 17 February 2023 — Uniper Global Commodities v ACER

46

2023/C 164/63

Case T-141/23: Action brought on 14 March 2023 — Merlin and Others v Commission

48

2023/C 164/64

Case T-143/23: Action brought on 15 March 2023 — VF v Council

48

2023/C 164/65

Case T-145/23: Action brought on 17 March 2023 — Eurosemillas v CPVO — Nador Cott Protection and Carpa Dorada (Nadorcott)

49

2023/C 164/66

Case T-153/23: Action brought on 21 March 2023 — WhatsApp Ireland v European Data Protection Board

50

2023/C 164/67

Case T-485/20: Order of the General Court of 9 March 2023 — Junqueras i Vies v Parliament

51

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| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 8.5.2023 | EN | Official Journal of the European Union | C 164/1 |
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8.5.2023

EN

Official Journal of the European Union

C 164/1

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

(2023/C 164/01)

Last publication

OJ C 155, 2.5.2023

Past publications

OJ C 134, 17.4.2023

OJ C 127, 11.4.2023

OJ C 121, 3.4.2023

OJ C 112, 27.3.2023

OJ C 104, 20.3.2023

OJ C 94, 13.3.2023

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 8.5.2023 | EN | Official Journal of the European Union | C 164/2 |
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8.5.2023

EN

Official Journal of the European Union

C 164/2

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Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Jiangsu Seraphim Solar System Co. Ltd, Council of the European Union (C-439/20 P), and Council of the European Union v Jiangsu Seraphim Solar System Co. Ltd, European Commission (C-441/20 P)

(Joined Cases C-439/20 P and C-441/20 P) (1)

(Appeal - Dumping - Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China - Implementing Regulation (EU) 2016/2146 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707/EU - Admissibility of the action at first instance - Fourth paragraph of Article 263 TFEU - Criterion of direct concern - Article 277 TFEU - Plea of illegality - Admissibility - Interest in bringing proceedings against the acts which served as the legal basis for the contested measure - Regulation (EU) 2016/1036 - Article 8(9) - Regulation (EU) 2016/1037 - Article 13(9) - Consequences of the withdrawal by the European Commission of acceptance of an undertaking - Implementing Regulation (EU) No 1238/2013 - Article 3 - Implementing Regulation (EU) No 1239/2013 - Article 2 - Loss of entitlement to exemption from duties - Implementing Regulation (EU) 2016/2146 - Article 2 - Invalidation of the undertaking invoices - Chargeability of duties on all the transactions concerned - Lack of retroactivity)

(2023/C 164/02)

Language of the case: English

Parties

(Case C-439/20 P)

Appellant: European Commission (represented by: G. Luengo and T. Maxian Rusche, acting as Agents)

Other parties to the proceedings: Jiangsu Seraphim Solar System Co. Ltd (represented initially by: P. Heeren, advocaat, Y. Melin and B. Vigneron, avocats, and subsequently by P. Heeren, advocaat, and Y. Melin, avocat), Council of the European Union (represented by: H. Marcos Fraile, acting as Agent, and by N. Tuominen, avocată)

(Case C-441/20 P)

Appellant: Council of the European Union (represented by: H. Marcos Fraile, acting as Agent, and by N. Tuominen, avocată)

Other parties to the proceedings: Jiangsu Seraphim Solar System Co. Ltd (represented initially by: P. Heeren, advocaat, Y. Melin and B. Vigneron, avocats, and subsequently by P. Heeren, advocaat, and Y. Melin, avocat), European Commission (represented by: G. Luengo and T. Maxian Rusche, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 8 July 2020, Jiangsu Seraphim Solar System v Commission (T-110/17, EU:T:2020:315); |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 8 July 2020, Jiangsu Seraphim Solar System v Commission (T-110/17, EU:T:2020:315);

| 2. | Dismisses the application for annulment lodged by Jiangsu Seraphim Solar System Co. Ltd before the General Court of the European Union; |
| --- | --- |

2.

Dismisses the application for annulment lodged by Jiangsu Seraphim Solar System Co. Ltd before the General Court of the European Union;

| 3. | Orders Jiangsu Seraphim Solar System Co. Ltd to pay the costs incurred by the European Commission and the Council of the European Union at first instance and in the appeal proceedings. |
| --- | --- |

3.

Orders Jiangsu Seraphim Solar System Co. Ltd to pay the costs incurred by the European Commission and the Council of the European Union at first instance and in the appeal proceedings.

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(1)  OJ C 378, 9.11.2020.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/3 |
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8.5.2023

EN

Official Journal of the European Union

C 164/3

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Judgment of the Court (Ninth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunale di Ascoli Piceno, Italy) — Criminal proceedings against OL

(Case C-517/20, (1) OL (Extension of Italian licences))

(Reference for a preliminary ruling - Articles 49 and 56 TFEU - Betting and gaming - Licences for the collection of bets - Extension of licences already granted - Regularisation of data transmission centres carrying out that activity in the absence of a licence and police authorisation - Extension of the rights derived from that regularisation - Limited period)

(2023/C 164/03)

Language of the case: Italian

Referring court

Tribunale di Ascoli Piceno

Party in the main criminal proceedings

OL

intervener: Procura della Repubblica presso il Tribunale di Ascoli Piceno

Operative part of the judgment

Articles 49 and 56 TFEU must be interpreted as precluding an extension of the licences in the betting and gaming sector and of the rights deriving from the regularisation of the situation of data transmission centres which were already carrying out, on a specific date, activities of bet collection in favour of foreign bookmakers not in possession of a licence and police authorisation, in so far as such an extension, which may be justified in particular by overriding reasons in the public interest such as the objective of ensuring the continuity of an inspection of the operators of that sector in order to guarantee consumer protection, is not appropriate for attaining that objective or goes beyond what is necessary to achieve it.

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(1)  OJ C 257, 4.7.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/4 |
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8.5.2023

EN

Official Journal of the European Union

C 164/4

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Judgment of the Court (Grand Chamber) of 21 March 2023 (request for a preliminary ruling from the Landgericht Ravensburg — Germany) — QB v Mercedes-Benz Group AG, formerly Daimler AG

(Case C-100/21, (1) Mercedes-Benz Group (Liability of manufacturers of vehicles fitted with defeat devices))

(Reference for a preliminary ruling - Approximation of laws - Approval of motor vehicles - Directive 2007/46/EC - Article 18(1) - Article 26(1) - Article 46 - Regulation (EC) No 715/2007 - Article 5(2) - Motor vehicles - Diesel engine - Pollutant emissions - Exhaust gas recirculation valve (EGR valve) - Reduction in nitrogen oxide (NOx) emissions limited by a ‘temperature window’ - Defeat device - Protection of the interests of an individual purchaser of a vehicle equipped with an unlawful defeat device - Right to compensation from the vehicle manufacturer on the basis of tortious liability - Method of calculating compensation - Principle of effectiveness - Article 267 TFEU - Admissibility - Reference to the Court from a single judge)

(2023/C 164/04)

Language of the case: German

Referring court

Landgericht Ravensburg

Parties to the main proceedings

Applicant: QB

Defendant: Mercedes-Benz Group AG, formerly Daimler AG

Operative part of the judgment

| 1. | Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), as amended by Commission Regulation (EC) No 385/2009 of 7 May 2009, read in conjunction with Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information,
  must be interpreted as protecting, in addition to public interests, the specific interests of the individual purchaser of a motor vehicle vis-à-vis the manufacturer of that vehicle where that vehicle is equipped with a prohibited defeat device, within the meaning of the latter provision. |
| --- | --- |

1.

Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), as amended by Commission Regulation (EC) No 385/2009 of 7 May 2009, read in conjunction with Article 5(2) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information,

must be interpreted as protecting, in addition to public interests, the specific interests of the individual purchaser of a motor vehicle vis-à-vis the manufacturer of that vehicle where that vehicle is equipped with a prohibited defeat device, within the meaning of the latter provision.

| 2. | EU law must be interpreted as meaning that, in the absence of provisions of EU law governing the matter, it is for the law of the Member State concerned to determine the rules concerning compensation for damage actually caused to the purchaser of a vehicle equipped with a prohibited defeat device, within the meaning of Article 5(2) of Regulation No 715/2007, provided that that compensation is adequate with respect to the damage suffered. |
| --- | --- |

2.

EU law must be interpreted as meaning that, in the absence of provisions of EU law governing the matter, it is for the law of the Member State concerned to determine the rules concerning compensation for damage actually caused to the purchaser of a vehicle equipped with a prohibited defeat device, within the meaning of Article 5(2) of Regulation No 715/2007, provided that that compensation is adequate with respect to the damage suffered.

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(1)  OJ C 217, 7.6.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/5 |
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8.5.2023

EN

Official Journal of the European Union

C 164/5

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Judgment of the Court (Third Chamber) of 16 March 2023 — American Airlines Inc. v European Commission, Delta Air Lines Inc.

(Case C-127/21 P) (1)

(Appeal - Regulation (EC) No 139/2004 - Concentrations between undertakings - Air transport market - Concentration declared compatible with the internal market - Commitments entered into by the parties to the concentration - Decision granting grandfathering rights - Concept of ‘appropriate use’)

(2023/C 164/05)

Language of the case: English

Parties

Appellant: American Airlines Inc. (represented by: J.-P. Poitras, avocat, J. Ruiz Calzado, abogado, and J. Wileur, avocat)

Other parties to the proceedings: European Commission (represented by: T. Franchoo, H. Leupold and L. Wildpanner, acting as Agents), Delta Air Lines Inc. (represented by: C. Angeli, avocate, M. Demetriou, Barrister-at-Law, and I. Giles, advocaat)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders American Airlines Inc. to bear its own costs and to pay those incurred by the European Commission and Delta Air Lines Inc. in the present proceedings. |
| --- | --- |

2.

Orders American Airlines Inc. to bear its own costs and to pay those incurred by the European Commission and Delta Air Lines Inc. in the present proceedings.

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(1)  OJ C 163, 3.5.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/5 |
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8.5.2023

EN

Official Journal of the European Union

C 164/5

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Judgment of the Court (Third Chamber) of 16 March 2023 — European Commission v Republic of Bulgaria

(Case C-174/21) (1)

(Failure of a Member State to fulfil obligations - Directive 2008/50/EC - Ambient air quality - Judgment of the Court establishing a failure to fulfil obligations - Article 260(2) TFEU - Obligation to take the necessary measures to comply with such a judgment - Failure to fulfil that obligation alleged by the European Commission - Lack of clarity of the letter of formal notice as to whether the judgment still had to be complied with on the reference date - Principle of legal certainty - Inadmissibility)

(2023/C 164/06)

Language of the case: Bulgarian

Parties

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

Defendant: Republic of Bulgaria (represented initially by L. Zaharieva, T. Mitova and M. Georgieva, and finally by L. Zaharieva and T. Mitova, acting as Agents)

Intervener in support of the defendant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

Operative part of the judgment

The Court:

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

1.

Dismisses the action as inadmissible;

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

2.

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

| 3. | Orders the Republic of Poland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Poland to bear its own costs.

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(1)  OJ C 206, 31.5.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/6 |
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8.5.2023

EN

Official Journal of the European Union

C 164/6

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Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Colt Technology Services SpA and Others v Ministero della Giustizia and Others

(Case C-339/21, (1) Colt Technology Services and Others)

(Reference for a preliminary ruling - Electronic communications networks and services - Directive (EU) 2018/1972 - Article 13 - Conditions attached to the general authorisation - Annex I, Part A, point 4 - Enabling of legal interception by competent national authorities - Article 3 - General objectives - National legislation on the reimbursement of costs associated with interception activities that telecommunications operators are ordered by the judicial authorities to carry out - Absence of full reimbursement mechanism - Principles of non-discrimination, proportionality and transparency)

(2023/C 164/07)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Colt Technology Services SpA, Wind Tre SpA, Telecom Italia SpA, Vodafone Italia SpA, Ministero della Giustizia, Ministero dello Sviluppo Economico, Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria, Procura della Repubblica presso il Tribunale di Cagliari, Procura della Repubblica presso il Tribunale di Roma

Defendants: Ministero della Giustizia, Ministero dello Sviluppo Economico, Ministero dell’Economia e delle Finanze, Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria, Procura della Repubblica presso il Tribunale di Cagliari, Procura della Repubblica presso il Tribunale di Roma, Procura della Repubblica presso il Tribunale di Locri, Wind Tre SpA

Operative part of the judgment

Article 13, read in the light of Article 3 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code, and point 4 of Part A of Annex I to that directive, must be interpreted as not precluding national legislation which does not require full reimbursement of the costs actually incurred by providers of electronic communications services when they enable the legal interception of electronic communications by the competent national authorities, provided that that legislation is non-discriminatory, proportionate and transparent.

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(1)  OJ C 329, 16.8.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/6 |
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8.5.2023

EN

Official Journal of the European Union

C 164/6

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Judgment of the Court (Fifth Chamber) of 16 March 2023 (request for a preliminary ruling from the Justice de paix du canton de Forest — Belgium) — ZG v Beobank SA

(Case C-351/21, (1) Beobank)

(Reference for a preliminary ruling - Harmonisation of laws - Payment services in the internal market - Directive 2007/64/EC - Article 47(1)(a) - Information for the payer after receipt of the payment order - Articles 58, 60 and 61 - Payment service provider’s liability for unauthorised transactions - Obligation of that service provider to refund unauthorised transactions to the payer - Framework contracts - Obligation of that service provider to provide that payer with information relating to the payee concerned)

(2023/C 164/08)

Language of the case: French

Referring court

Justice de paix du canton de Forest

Parties to the main proceedings

Applicant: ZG

Defendant: Beobank SA

Operative part of the judgment

Article 47(1)(a) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC

must be interpreted as meaning that a payer’s payment service provider is required to provide that payer with information enabling the natural or legal person who benefited from a payment transaction debited from that payer’s account to be identified and not only the information which that provider, after making its best efforts, has available with regard to that payment transaction.

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(1)  OJ C 338, 23.8.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/7 |
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8.5.2023

EN

Official Journal of the European Union

C 164/7

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Judgment of the Court (Fourth Chamber) of 16 March 2023 — European Commission v Pharmaceutical Works Polpharma S.A., European Medicines Agency, Biogen Netherlands BV (C-438/21 P), Biogen Netherlands BV v Pharmaceutical Works Polpharma S.A., European Medicines Agency, European Commission (C-439/21 P), European Medicines Agency v Pharmaceutical Works Polpharma S.A, European Commission, Biogen Netherlands BV (C-440/21 P)

(Joined Cases C-438/21 P to C-440/21 P) (1)

(Appeal - Public health - Medicinal products for human use - Directive 2001/83/EC - Regulation (EC) No 726/2004 - Application for marketing authorisation for a generic version of the medicinal product Tecfidera - Decision of the European Medicines Agency (EMA) not to validate the application for marketing authorisation - Earlier European Commission decision taking the view that Tecfidera was not covered by the same global marketing authorisation as Fumaderm - Previously authorised combination medicinal product - Subsequent marketing authorisation for a component of the combination medicinal product - Assessment of the existence of a global marketing authorisation)

(2023/C 164/09)

Language of the case: English

Parties

(Case C-438/21 P)

Appellant: European Commission (represented by: initially, S. Bourgois, L. Haasbeek and A. Sipos, and subsequently, L. Haasbeek and A. Sipos, acting as Agents)

Other parties to the proceedings: Pharmaceutical Works Polpharma S.A. (represented by: N. Carbonnelle, avocat, S. Faircliffe, Solicitor, and M. Martens, advocaat), European Medicines Agency (represented by: S. Drosos, H. Kerr and S. Marino, acting as Agents), Biogen Netherlands BV (represented by: C. Schoonderbeek, advocaat)

(Case C-439/21 P)

Appellant: Biogen Netherlands BV (represented by: C. Schoonderbeek, advocaat)

Other parties to the proceedings: Pharmaceutical Works Polpharma S.A. (represented by: N. Carbonnelle, avocat, S. Faircliffe, Solicitor, and M. Martens, advocaat), European Medicines Agency (EMA) (represented by: S. Drosos, H. Kerr and S. Marino, acting as Agents), European Commission (represented by: initially, S. Bourgois, L. Haasbeek and A. Sipos, and subsequently, L. Haasbeek and A. Sipos, acting as Agents)

(Case C-440/21 P)

Appellant: European Medicines Agency (EMA) (represented by: S. Drosos, H. Kerr and S. Marino, acting as Agents)

Other parties to the proceedings: Pharmaceutical Works Polpharma S.A. (represented by: N. Carbonnelle, avocat, S. Faircliffe, Solicitor, and M. Martens, advocaat), European Commission (represented by: initially, S. Bourgois, L. Haasbeek and A. Sipos, and subsequently, L. Haasbeek and A. Sipos, acting as Agents), Biogen Netherlands BV (represented by: C. Schoonderbeek, advocaat)

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the General Court of the European Union of 5 May 2021, Pharmaceutical Works Polpharma v EMA (T-611/18, EU:T:2021:241); |
| --- | --- |

1.

Sets aside the judgment of the General Court of the European Union of 5 May 2021, Pharmaceutical Works Polpharma v EMA (T-611/18, EU:T:2021:241);

| 2. | Dismisses the action brought by Pharmaceutical Works Polpharma S.A. in Case T-611/18; |
| --- | --- |

2.

Dismisses the action brought by Pharmaceutical Works Polpharma S.A. in Case T-611/18;

| 3. | Orders Pharmaceutical Works Polpharma S.A. to bear its own costs and to pay those incurred by the European Commission, Biogen Netherlands BV and the European Medicines Agency (EMA). |
| --- | --- |

3.

Orders Pharmaceutical Works Polpharma S.A. to bear its own costs and to pay those incurred by the European Commission, Biogen Netherlands BV and the European Medicines Agency (EMA).

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(1)  OJ C 391, 27.9.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/8 |
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8.5.2023

EN

Official Journal of the European Union

C 164/8

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Judgment of the Court (Second Chamber) of 16 March 2023 (request for a preliminary ruling from the cour d’appel de Paris — France) — Towercast v Autorité de la concurrence, Ministre chargé de l’économie

(Case C-449/21, (1) Towercast)

(Reference for a preliminary ruling - Competition - Control of concentrations between undertakings - Regulation (EC) No 139/2004 - Article 21(1) - Exclusive application of that regulation to operations covered by the concept of ‘concentration’ - Scope - Concentration operation which has no Community dimension, is below the thresholds for mandatory ex ante control laid down in the law of a Member State and has not been referred to the European Commission - Control of such an operation by the competition authorities of that Member State in the light of Article 102 TFEU - Whether permissible)

(2023/C 164/10)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: Towercast SASU

Defendants: Autorité de la concurrence, Ministre chargé de l’économie

Other parties: Tivana Topco SA, Tivana Midco SARL, TDF Infrastructure Holding SAS, TDF Infrastructure SAS, Tivana France Holdings SAS

Operative part of the judgment

Article 21(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

must be interpreted as not precluding the competition authority of a Member State from regarding a concentration of undertakings which has no Community dimension within the meaning of Article 1 thereof, is below the thresholds for mandatory ex ante control laid down in national law, and has not been referred to the European Commission under Article 22 of that regulation, as constituting an abuse of a dominant position prohibited under Article 102 TFEU, in the light of the structure of competition on a market which is national in scope.

---

(1)  OJ C 452, 8.11.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/9 |
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8.5.2023

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Official Journal of the European Union

C 164/9

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Judgment of the Court (Second Chamber) of 16 March 2023 — European Commission v Ana Calhau Correia de Paiva

(Case C-511/21 P) (1)

(Appeal - Rules on languages - Open Competition EPSO/AD/293/14 - Notice of competition - Limitation of the choice of the second language of the competition to English, French or German - Non-inclusion on the reserve list - Plea of illegality of the notice of competition - Admissibility)

(2023/C 164/11)

Language of the case: English

Parties

Appellant: European Commission (represented by: I. Melo Sampaio, B. Schima and L. Vernier, acting as Agents)

Other party to the proceedings: Ana Calhau Correia de Paiva (represented by: D. Rovetta and V. Villante, avvocati)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders the European Commission to pay, in addition to its own costs, the costs incurred by Ms Ana Calhau Correia de Paiva in the present appeal proceedings. |
| --- | --- |

2.

Orders the European Commission to pay, in addition to its own costs, the costs incurred by Ms Ana Calhau Correia de Paiva in the present appeal proceedings.

---

(1)  OJ C 2, 3.1.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/9 |
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8.5.2023

EN

Official Journal of the European Union

C 164/9

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Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Pfälzisches Oberlandesgericht Zweibrücken — Germany) — MS v Saatgut-Treuhandverwaltungs GmbH

(Case C-522/21, (1) Saatgut-Treuhandverwaltung (KWS Meridian))

(Reference for a preliminary ruling - Intellectual property - Protection of plant varieties - Regulation (EC) No 2100/94 - Derogation provided for in Article 14(3) - Article 94(2) - Infringement - Right to compensation - Regulation (EC) No 1768/95 - Article 18(2) - Compensation for damage - Minimum lump sum calculated on the basis of quadruple the licence fee - Competence of the European Commission - Invalidity)

(2023/C 164/12)

Language of the case: German

Referring court

Pfälzisches Oberlandesgericht Zweibrücken

Parties to the main proceedings

Applicant: MS

Defendant: Saatgut-Treuhandverwaltungs GmbH

Operative part of the judgment

Article 18(2) of Commission Regulation (EC) No 1768/95 of 24 July 1995 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community plant variety rights, as amended by Commission Regulation (EC) No 2605/98 of 3 December 1998, is invalid.

---

(1)  OJ C 513, 20.12.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/10 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/10

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Judgment of the Court (Fourth Chamber) of 16 March 2023 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Caixabank, S.A. v X

(Case C-565/21, (1) Caixabank (Loan arrangement fees))

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Articles 3, 4 and 5 - Consumer contracts - Mortgage loans - Unfair contract terms - Term concerning loan arrangement fees - Application seeking a declaration of invalidity of that term and reimbursement of the amount paid on that basis - Plainness and intelligibility of the terms - Existence of specific national legislation)

(2023/C 164/13)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Caixabank, S.A.

Defendant: X

Operative part of the judgment

| 1. | Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
  must be interpreted as precluding national case-law which, in the light of national legislation providing that the arrangement fee pays for services connected with the examination, granting or processing of the mortgage loan or credit or other similar services, considers that the clause establishing such a fee comes within ‘the main subject matter of the contract’, within the meaning of that provision on the ground that it represents one of the main components of the price. |
| --- | --- |

1.

Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as precluding national case-law which, in the light of national legislation providing that the arrangement fee pays for services connected with the examination, granting or processing of the mortgage loan or credit or other similar services, considers that the clause establishing such a fee comes within ‘the main subject matter of the contract’, within the meaning of that provision on the ground that it represents one of the main components of the price.

| 2. | Article 5 of Directive 93/13
  must be interpreted as meaning that, for the purposes of assessing whether a contractual term providing for the payment by the borrower of an arrangement fee is plain and intelligible, the court having jurisdiction is required to ascertain, in the light of all the relevant facts, that the borrower has indeed been placed in a position to assess the economic consequences for him or her, to understand the nature of the services provided in return for the costs provided for by that term and to ascertain that there is no overlap between the various costs provided for in the contract or between the services for which those costs are paid. |
| --- | --- |

2.

Article 5 of Directive 93/13

must be interpreted as meaning that, for the purposes of assessing whether a contractual term providing for the payment by the borrower of an arrangement fee is plain and intelligible, the court having jurisdiction is required to ascertain, in the light of all the relevant facts, that the borrower has indeed been placed in a position to assess the economic consequences for him or her, to understand the nature of the services provided in return for the costs provided for by that term and to ascertain that there is no overlap between the various costs provided for in the contract or between the services for which those costs are paid.

| 3. | Article 3(1) of Directive 93/13
  must be interpreted as not precluding national case-law which considers that a contractual term which, in accordance with the relevant national legislation, provides for the payment by the borrower of an arrangement fee intended to remunerate services connected with the examination, constitution and personal processing of an application for a mortgage loan or credit, may, as the case may be, not create a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, provided that the possible existence of such an imbalance is subject to effective review by the court having jurisdiction, in accordance with the criteria set out in the case-law of the Court. |
| --- | --- |

3.

Article 3(1) of Directive 93/13

must be interpreted as not precluding national case-law which considers that a contractual term which, in accordance with the relevant national legislation, provides for the payment by the borrower of an arrangement fee intended to remunerate services connected with the examination, constitution and personal processing of an application for a mortgage loan or credit, may, as the case may be, not create a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer, provided that the possible existence of such an imbalance is subject to effective review by the court having jurisdiction, in accordance with the criteria set out in the case-law of the Court.

---

(1)  OJ C 51, 31.1.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/11 |
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8.5.2023

EN

Official Journal of the European Union

C 164/11

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Judgment of the Court (Seventh Chamber) of 16 March 2023 — GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG v European Commission

(Case C-696/21 P) (1)

(Appeal - Arbitration clause - Sixth and seventh framework programmes for research, technological development and demonstration activities (2002-2006 and 2007-2013) - ‘Horizon 2020’ Framework Programme for Research and Innovation (2014-2020) - Eligible costs - Set-off of claims - Claim for reimbursement - Admissibility of the application - Article 76(d) of the Rules of Procedure of the General Court of the European Union - Requirement of clarity and precision)

(2023/C 164/14)

Language of the case: English

Parties

Appellant: GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG (represented by: C. Mayer, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by: L. André, M. Ilkova and L. Mantl, acting as Agents)

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG to bear its own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders GABO:mi Gesellschaft für Ablauforganisation:milliarium mbH & Co. KG to bear its own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 73, 14.2.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/11 |
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8.5.2023

EN

Official Journal of the European Union

C 164/11

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Judgment of the Court (Tenth Chamber) of 9 March 2023 (request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije — Slovenia) — SOMEO S.A., formerly PEARL STREAM S.A. v Republika Slovenija

(Case C-725/21, (1) SOMEO)

(Reference for a preliminary ruling - Customs Union - Common Customs Tariff - Tariff classification - Combined Nomenclature - Subheading 9401 90 80 - Parts of seats for motor vehicles - Net for making pockets in the rear part of seats - Protection for the inside of seats)

(2023/C 164/15)

Language of the case: Slovenian

Referring court

Vrhovno sodišče Republike Slovenije

Parties to the main proceedings

Applicant: SOMEO S.A., formerly PEARL STREAM S.A.

Defendant: Republika Slovenija

Operative part of the judgment

Heading 9401 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting from Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014, from Commission Implementing Regulation (EU) 2015/1754 of 6 October 2015, and from Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016,

must be interpreted as meaning that the concept of ‘parts’ of a seat of a motor vehicle does not cover goods which are not indispensable for such a seat to fulfil its function.

---

(1)  OJ C 109, 7.3.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/12 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/12

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Judgment of the Court (Eighth Chamber) of 9 March 2023 (request for a preliminary ruling from the Administrativen sad — Haskovo — Bulgaria) — JP EOOD v Otdel ‘Mitnichesko razsledvane i razuznavane’ /MRR/ v TD ‘Mitnitsa Burgas’

(Case C-752/21, (1) Otdel ‘Mitnichesko razsledvane i razuznavane’)

(Reference for a preliminary ruling - Regulation (EU) No 952/2013 - Union Customs Code - Legal remedies - Judicial cooperation in criminal matters - Framework Decision 2005/212/JHA - Smuggled goods - Goods belonging to a third party seized in the course of administrative-offence proceedings - National legislation excluding that third party from the category of persons entitled to bring an action against the administrative penalty notice ordering the seizure)

(2023/C 164/16)

Language of the case: Bulgarian

Referring court

Administrativen sad — Haskovo

Parties to the main proceedings

Applicant: JP EOOD

Defendant: Otdel ‘Mitnichesko razsledvane i razuznavane’ /MRR/ v TD ‘Mitnitsa Burgas’

intervener: Okrazhna prokuratura — Haskovo

Operative part of the judgment

| 1. | Article 44 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code
  must be interpreted as precluding national legislation which does not provide for a right of appeal against an administrative penalty notice for a person whose property has been seized on the basis of such a decision but who is not regarded, in that decision, as the person committing the administrative offence connected with the penalty imposed. |
| --- | --- |

1.

Article 44 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code

must be interpreted as precluding national legislation which does not provide for a right of appeal against an administrative penalty notice for a person whose property has been seized on the basis of such a decision but who is not regarded, in that decision, as the person committing the administrative offence connected with the penalty imposed.

| 2. | Article 4 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property
  must be interpreted as not applying to a decision concerning an act which does not constitute a criminal offence. |
| --- | --- |

2.

Article 4 of Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property

must be interpreted as not applying to a decision concerning an act which does not constitute a criminal offence.

---

(1)  OJ C 109, 7.3.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/13 |
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8.5.2023

EN

Official Journal of the European Union

C 164/13

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Judgment of the Court (Sixth Chamber) of 16 March 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie — Poland) — M.B., U.B., M.B. v X S.A.

(Case C-6/22, (1) M.B. and Others (Effects of the invalidation of a contract))

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Articles 6 and 7 - Effects of a declaration that a term is unfair - Mortgage loan agreement indexed to a foreign currency - Continued existence of the contract without unfair terms - Consumer’s wish to have the contract declared invalid - Application of the directive after the invalidation of the contract - Powers and obligations of the national court)

(2023/C 164/17)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Woli w Warszawie

Parties to the main proceedings

Applicants: M.B., U.B., M.B.

Defendant: X S.A.

Operative part of the judgment

| 1. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
  must be interpreted as meaning that, in the event that a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, in compliance with the protection granted to the consumer by that directive, in particular, by ensuring the restoration of the legal and factual situation that he or she would have been in if that unfair term had not existed. |
| --- | --- |

1.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as meaning that, in the event that a contract concluded between a consumer and a seller or supplier is declared invalid because one of its terms is unfair, it is for the Member States, by means of their national law, to make provision for the effects of that invalidation, in compliance with the protection granted to the consumer by that directive, in particular, by ensuring the restoration of the legal and factual situation that he or she would have been in if that unfair term had not existed.

| 2. | Article 6(1) and Article 7(1) of Directive 93/13
  must be interpreted as precluding a national court, first, from examining of its own motion, without any prerogative conferred on it by national law in that regard, the financial situation of a consumer who has sought the invalidation of the contract between him or her and a seller or supplier on account of the presence of an unfair term without which the contract cannot legally continue to exist, even if that invalidation is liable to expose the consumer to particularly unfavourable consequences and, second, refusing to declare that invalidation where the consumer has expressly sought it, after being objectively and exhaustively informed of the legal consequences and the particularly unfavourable financial consequences which it may have for him or her. |
| --- | --- |

2.

Article 6(1) and Article 7(1) of Directive 93/13

must be interpreted as precluding a national court, first, from examining of its own motion, without any prerogative conferred on it by national law in that regard, the financial situation of a consumer who has sought the invalidation of the contract between him or her and a seller or supplier on account of the presence of an unfair term without which the contract cannot legally continue to exist, even if that invalidation is liable to expose the consumer to particularly unfavourable consequences and, second, refusing to declare that invalidation where the consumer has expressly sought it, after being objectively and exhaustively informed of the legal consequences and the particularly unfavourable financial consequences which it may have for him or her.

| 3. | Article 6(1) of Directive 93/13
  must be interpreted as precluding a national court, after it has found that a term in a contract concluded between a seller or supplier and a consumer is unfair, from being able to fill gaps resulting from the removal of the unfair term contained therein by the application of a provision of national law which cannot be characterised as a supplementary provision. However, it is for the national court, taking account of its domestic law as a whole, to take all the measures necessary to protect the consumer from the particularly unfavourable consequences which annulment of the contract might entail for him or her. |
| --- | --- |

3.

Article 6(1) of Directive 93/13

must be interpreted as precluding a national court, after it has found that a term in a contract concluded between a seller or supplier and a consumer is unfair, from being able to fill gaps resulting from the removal of the unfair term contained therein by the application of a provision of national law which cannot be characterised as a supplementary provision. However, it is for the national court, taking account of its domestic law as a whole, to take all the measures necessary to protect the consumer from the particularly unfavourable consequences which annulment of the contract might entail for him or her.

---

(1)  OJ C 158, 11.4.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/14 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/14

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Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — NJ, OZ v An Bord Pleanála, Ireland, Attorney General

(Case C-9/22, (1) An Bord Pleanála and Others (Site of St Teresa’s Gardens))

(Reference for a preliminary ruling - Environment - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Article 2(a) - Concept of ‘plans and programmes’ - Article 3(2)(a) - Environmental assessment - Non-statutory act prepared by a municipal council and a developer - Directive 2011/92/EU - Assessment of the effects of certain public and private projects on the environment - Article 3(1) - Obligation to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project - Binding ministerial guidelines on building height)

(2023/C 164/18)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicants: NJ, OZ

Respondents: An Bord Pleanála, Ireland, Attorney General

Notice party: DBTR-SCR1 Fund, a Sub Fund of TWTC Multi-Family ICAV

Operative part of the judgment

| 1. | Article 2(a) and Article 3(2) and (3) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,
  must be interpreted as meaning that a plan comes within the scope of that directive where (i) it has been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and has been adopted by that authority, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) it envisages developments distinct from those envisaged in another plan or programme, provided, however, that it is at least binding on the authorities with competence to grant development consent. |
| --- | --- |

1.

Article 2(a) and Article 3(2) and (3) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,

must be interpreted as meaning that a plan comes within the scope of that directive where (i) it has been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and has been adopted by that authority, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) it envisages developments distinct from those envisaged in another plan or programme, provided, however, that it is at least binding on the authorities with competence to grant development consent.

| 2. | Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014,
  must be interpreted as not precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42. |
| --- | --- |

2.

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014,

must be interpreted as not precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42.

---

(1)  OJ C 158, 11.4.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/15 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/15

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Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Generali Seguros SA, formerly Global — Companhia de Seguros SA v Autoridade Tributária e Aduaneira

(Case C-42/22, (1) Generali Seguros)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Exemption from VAT - Article 135(1)(a) - Exemption of insurance and reinsurance transactions - Article 136(a) - Exemption of supplies of goods used solely for an exempt activity - Concept of ‘insurance transactions’ - Resale of parts from written-off motor vehicles purchased from insured persons - Principle of fiscal neutrality)

(2023/C 164/19)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Generali Seguros SA, formerly Global — Companhia de Seguros SA

Defendant: Autoridade Tributária e Aduaneira

Operative part of the judgment

| 1. | Article 135(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
  must be interpreted as meaning that transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, do not fall within the scope of that provision. |
| --- | --- |

1.

Article 135(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, do not fall within the scope of that provision.

| 2. | Article 136(a) of Directive 2006/112
  must be interpreted as meaning that transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, do not fall within the scope of that provision. |
| --- | --- |

2.

Article 136(a) of Directive 2006/112

must be interpreted as meaning that transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, do not fall within the scope of that provision.

| 3. | The principle of fiscal neutrality inherent in the common system of value added tax
  must be interpreted as not precluding the refusal to exempt transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, where those purchases did not give rise to deductibility. |
| --- | --- |

3.

The principle of fiscal neutrality inherent in the common system of value added tax

must be interpreted as not precluding the refusal to exempt transactions consisting of the sale by an insurance undertaking to third parties of parts from written-off motor vehicles that have been involved in accidents covered by that undertaking, which it has purchased from the persons whom it insures, where those purchases did not give rise to deductibility.

---

(1)  OJ C 171, 25.4.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/16 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/16

---

Judgment of the Court (Third Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour d’appel de Paris — France) — Sogefinancement v RW, UV

(Case C-50/22, (1) Sogefinancement)

(Reference for a preliminary ruling - Consumer protection - Directive 2008/48/EC - Credit agreements for consumers - Scope - Right of withdrawal - Article 14(7) - National provisions establishing a period of time during which the performance of the contract may not begin - National procedural rules governing how the national courts raise of their own motion and penalise breaches of those provisions - Article 23 - Effective, proportionate and dissuasive sanctions)

(2023/C 164/20)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: Sogefinancement

Defendant: RW, UV

Operative part of the judgment

Article 14(7) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC,

must be interpreted as meaning that the national procedural rules governing the raising by a national court of its own motion of, and the penalty it imposes for, a breach, by the lender, of a provision of national law establishing a period during which the performance of a credit agreement may not begin do not fall within the scope of that directive.

---

(1)  OJ C 191, 10.5.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/16 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/16

---

Judgment of the Court (Ninth Chamber) of 9 March 2023 (request for a preliminary ruling from the Landesgericht Salzburg — Austria) — JA v Wurth Automotive GmbH

(Case C-177/22, (1) Wurth Automotive)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 1215/2012 - Jurisdiction over consumer contracts - Concept of ‘consumer’ - Conduct of the person claiming the status of consumer that may give rise to the impression, on the part of the other contracting party, that he or she is acting for professional purposes)

(2023/C 164/21)

Language of the case: German

Referring court

Landesgericht Salzburg

Parties to the main proceedings

Applicant: JA

Defendant: Wurth Automotive GmbH

Operative part of the judgment

| 1. | Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
  must be interpreted as meaning that, in order to determine whether a person who concluded a contract falling under point (c) of that provision may be classified as a ‘consumer’, within the meaning of that provision, account must be taken of the current and future purposes of the conclusion of that contract, irrespective of the nature of the activity pursued by that person as an employed or self-employed person. |
| --- | --- |

1.

Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

must be interpreted as meaning that, in order to determine whether a person who concluded a contract falling under point (c) of that provision may be classified as a ‘consumer’, within the meaning of that provision, account must be taken of the current and future purposes of the conclusion of that contract, irrespective of the nature of the activity pursued by that person as an employed or self-employed person.

| 2. | Article 17(1) of Regulation No 1215/2012
  must be interpreted as meaning that, in order to determine whether a person who has concluded a contract falling under point (c) of that provision can be classified as a ‘consumer’, within the meaning of that provision, account may be taken of the impression created by that person’s conduct on the part of the other contracting party, consisting, in particular, in a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, where that person has concluded that contract through an intermediary, pursuing professional activities in the field covered by that contract, who, after signing that same contract, questioned the other party about the possibility of stating the value added tax on the relevant invoice or even where that person sold the goods covered by the contract shortly after its conclusion and potentially made a profit. |
| --- | --- |

2.

Article 17(1) of Regulation No 1215/2012

must be interpreted as meaning that, in order to determine whether a person who has concluded a contract falling under point (c) of that provision can be classified as a ‘consumer’, within the meaning of that provision, account may be taken of the impression created by that person’s conduct on the part of the other contracting party, consisting, in particular, in a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, where that person has concluded that contract through an intermediary, pursuing professional activities in the field covered by that contract, who, after signing that same contract, questioned the other party about the possibility of stating the value added tax on the relevant invoice or even where that person sold the goods covered by the contract shortly after its conclusion and potentially made a profit.

| 3. | Article 17(1) of Regulation No 1215/2012
  must be interpreted as meaning that, where it proves impossible to determine to the requisite legal standard, in the context of the overall assessment of the information that is available to a national court, certain circumstances surrounding the conclusion of a contract, as regards, in particular, the information in that contract or the involvement of an intermediary at the time of its conclusion, that court must assess the probative value of the information available to it in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of ‘consumer’, within the meaning of that provision. |
| --- | --- |

3.

Article 17(1) of Regulation No 1215/2012

must be interpreted as meaning that, where it proves impossible to determine to the requisite legal standard, in the context of the overall assessment of the information that is available to a national court, certain circumstances surrounding the conclusion of a contract, as regards, in particular, the information in that contract or the involvement of an intermediary at the time of its conclusion, that court must assess the probative value of the information available to it in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of ‘consumer’, within the meaning of that provision.

---

(1)  OJ C 213, 30.5.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/17 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/17

---

Judgment of the Court (Eighth Chamber) of 9 March 2023 (Request for a preliminary ruling from the Cour de cassation — Belgium) — État belge, Promo 54 v Promo 54, État belge

(Case C-239/22, (1) État belge and Promo 54)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 12(1) and (2) - Supply, before first occupation, of a building or parts of a building and of the land on which the building stands - No provisions in national law providing for detailed rules for applying the criterion relating to first occupation - Article 135(1)(j) - Exemptions - Supply, after conversion, of a building which was the subject of a first occupation before the conversion - National administrative legal commentary treating buildings which have undergone substantial conversions in the same way as new buildings)

(2023/C 164/22)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: État belge, Promo 54

Defendants: Promo 54, État belge

Operative part of the judgment

Article 135(1)(j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 12(1) and (2) thereof,

must be interpreted as meaning that the exemption provided for by that first provision for the supply of a building or a part of a building, and of the land on which the building stands, other than those which are supplied before their first occupation, also applies to the supply of a building which was first occupied before its conversion, even if the Member State concerned has not laid down, in national law, the detailed rules for applying the criterion of first occupation to conversions of buildings, as the second of those provisions authorised it to do.

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(1)  OJ C 257, 4.7.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/18 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/18

---

Judgment of the Court (Seventh Chamber) of 9 March 2023 (request for a preliminary ruling from the Cour de cassation — France) — Bolloré logistics SA v Direction interrégionale des douanes et droits indirects de Caen, Recette régionale des douanes et droits indirects de Caen, Bolloré Ports de Cherbourg SAS

(Case C-358/22, (1) Bolloré logistics)

(Reference for a preliminary ruling - Customs union - Regulation (EEC) No 2913/92 - Community Customs Code - Article 195 - Article 217(1) - Article 221(1) - Common Customs Tariff - Obligations on the part of the guarantor of the debtor of a customs debt - Procedures for the communication of the customs debt - Duty corresponding to that debt which has not been lawfully communicated to the debtor - Whether the customs debt is payable by the joint and several guarantor)

(2023/C 164/23)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Bolloré logistics SA

Defendants: Direction interrégionale des douanes et droits indirects de Caen, Recette régionale des douanes et droits indirects de Caen, Bolloré Ports de Cherbourg SAS

Operative part of the judgment

Article 195, Article 217(1) and Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005,

must be interpreted as meaning that customs authorities may not demand payment of a customs debt from the guarantor referred to in Article 195 when the amount of duty has not been lawfully communicated to the debtor.

---

(1)  OJ C 340, 5.9.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/19 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/19

---

Order of the Court (Second Chamber) of 22 December 2022 (requests for a preliminary ruling from the Sąd Najwyższy — Poland) — W.Ż. v A.S., Sąd Najwyższy (C-491/20), W.Ż. v K.Z. (C-492/20), P.J. v A.T., R.W., Sąd Najwyższy (C-493/20), K.M. v T.P., Skarb Państwa — Sąd Najwyższ (C-494/20), T.M. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-495/20), M.F. v T.P. (C-496/20), T.B. v T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy (C-506/20), M.F. v J.M. (C-509/20), B.S. v T.D., M.D., P.K., J.L., M.L., O.N., Skarb Państwa — Sąd Najwyższy (C-511/20)

(Joined Cases C-491/20 to C-496/20, C-506/20, C-509/20 and C-511/20, (1) Sąd Najwyższy and Others)

(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - Article 267 TFEU - Need for interpretation of EU law to enable the referring court to give judgment - None - Manifest inadmissibility)

(2023/C 164/24)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

(Case C-491/20)

Applicant: W.Ż.

Defendants: A.S., Sąd Najwyższy

Other interested party: Prokurator Generalny

(Case C-492/20)

Applicant: W.Ż.

Defendants: K.Z., Skarb Państwa — Sąd Najwyższy

Other interested party: Prokurator Generalny

(Case C-493/20)

Applicant: P.J.

Defendants: A.T., R.W., Sąd Najwyższy

Other interested party: Prokurator Generalny

(Case C-494/20)

Applicant: K.M.

Defendants: T.P., Skarb Państwa — Sąd Najwyższy,

Other interested party: Prokurator Generalny

(Case C-495/20)

Applicant: T.M.

Defendants: T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy,

Other interested party: Prokurator Generalny

(Case C-496/20)

Applicant: M.F.

Defendant: T.P.

Other interested party: Prokurator Generalny

(Case C-506/20)

Applicant: T.B.

Defendants: T.D., M.D., P.K., J.L., M.L., O.N., G.Z., A.S., Skarb Państwa — Sąd Najwyższy,

Other interested party: Prokurator Generalny

(Case C-509/20)

Applicant: M.F.

Defendant: J.M.

Other interested parties: Prokurator Generalny, Rzecznik Praw Obywatelskich

(Case C-511/20)

Applicant: B.S.

Defendants: T.D., M.D., P.K., J.L., M.L., O.N., Skarb Państwa — Sąd Najwyższy

Other interested party: Prokurator Generalny

Operative part of the order

The requests for a preliminary ruling made by the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland) by decisions of 15 July 2020 are inadmissible.

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(1)  OJ C 44, 8.2.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/20 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/20

---

Order of the Court (Seventh Chamber) of 13 January 2023 (request for a preliminary ruling from the Bundesfinanzgericht -Austria) — XO v Finanzamt Österreich, formerly Finanzamt Waldviertel

(Case C-574/20, (1) Finanzamt Österreich)

(Reference for a preliminary ruling - Article 53(2) and Article 99 of the Rules of Procedure of the Court - Social security - Family benefits - Indexation based on price - Answer to a question referred for a preliminary ruling which may be clearly deduced from existing case-law - No connection between the question referred for a preliminary ruling and the dispute in the main proceedings - Question manifestly inadmissible)

(2023/C 164/25)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Applicant: XO

Defendant: Finanzamt Österreich, formerly Finanzamt Waldviertel

Operative part of the order

| 1. | Examination of the first question referred for a preliminary ruling has revealed nothing capable of affecting the validity of Article 7 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, in the light of Article 45 TFEU. |
| --- | --- |

1.

Examination of the first question referred for a preliminary ruling has revealed nothing capable of affecting the validity of Article 7 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, in the light of Article 45 TFEU.

| 2. | The second question referred for a preliminary ruling by the Bundesfinanzgericht (Federal Finance Court, Austria) is manifestly inadmissible. |
| --- | --- |

2.

The second question referred for a preliminary ruling by the Bundesfinanzgericht (Federal Finance Court, Austria) is manifestly inadmissible.

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(1)  OJ C 35, 1.2.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/21 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/21

---

Order of the Court (Ninth Chamber) of 17 January 2023 (request for a preliminary ruling from the Sofiyski rayonen sad — Bulgaria) — Proceedings brought by TBI Bank

(Case C-379/21, (1) TBI Bank)

(Reference for a preliminary ruling - Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice - Consumer credit - Directive 93/13/EEC - Article 6(1) - Unfair terms - Refusal to issue an immediate order for payment in the event of a claim based on an unfair term - Consequences relating to the unfairness of a contractual term - Directions from a higher court not observing those consequences)

(2023/C 164/26)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: TBI Bank

Operative part of the order

| 1. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
  must be interpreted as meaning that the national court, on receiving an application for an order for payment and where the debtor-consumer does not take part in the proceedings until the order for payment is issued, is obliged to disapply ex officio an unfair term in the consumer credit agreement concluded between that consumer and the seller or supplier concerned, on which a part of the claim relied on is based. In that case, that court has the option of rejecting that application in part, provided, first, that that agreement can continue in existence without any further amendment, revision or supplementation, which it is for the court to verify, and second, that the claims arising from that term may be distinguished from the rest of the application. |
| --- | --- |

1.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,

must be interpreted as meaning that the national court, on receiving an application for an order for payment and where the debtor-consumer does not take part in the proceedings until the order for payment is issued, is obliged to disapply ex officio an unfair term in the consumer credit agreement concluded between that consumer and the seller or supplier concerned, on which a part of the claim relied on is based. In that case, that court has the option of rejecting that application in part, provided, first, that that agreement can continue in existence without any further amendment, revision or supplementation, which it is for the court to verify, and second, that the claims arising from that term may be distinguished from the rest of the application.

| 2. | Article 6(1) of Directive 93/13
  must be interpreted as precluding a national court, called upon to decide a case referred back to it by a higher court, from being bound, in accordance with national procedural law, by legal assessments or directions from that higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those assessments or directions fail to acknowledge the legal consequences arising from the unfair nature of a term of a consumer credit agreement. |
| --- | --- |

2.

Article 6(1) of Directive 93/13

must be interpreted as precluding a national court, called upon to decide a case referred back to it by a higher court, from being bound, in accordance with national procedural law, by legal assessments or directions from that higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those assessments or directions fail to acknowledge the legal consequences arising from the unfair nature of a term of a consumer credit agreement.

---

(1)  OJ C 368, 13.9.2021.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/22 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/22

---

Order of the Court (Ninth Chamber) of 16 January 2023 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — W. Sp. z o. o. v Dyrektor Izby Administracji Skarbowej w Łodzi

(Case C-729/21, (1) Dyrektor Izby Administracji Skarbowej w Łodzi)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Directive 2006/112/EC - Value added tax (VAT) - Article 19 - Concept of ‘transfer of a totality of assets or part thereof’ - Contract of sale relating to a shopping centre - Transfer of an undertaking - Partial transfer of the tangible and intangible assets of the undertaking)

(2023/C 164/27)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant in the appeal on a point of law: W. Sp. z o. o.

Respondent in the appeal on a point of law: Dyrektor Izby Administracji Skarbowej w Łodzi

Operative part of the order

| 1. | The first paragraph of Article 19 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
  must be interpreted as meaning that it does not preclude a provision of national law which provides that the ‘transfer of a totality of assets or part thereof’ is not subject to value added tax, without making its applicability subject to a condition that the person to whom the goods are transferred is to be treated as the successor to the transferor. |
| --- | --- |

1.

The first paragraph of Article 19 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that it does not preclude a provision of national law which provides that the ‘transfer of a totality of assets or part thereof’ is not subject to value added tax, without making its applicability subject to a condition that the person to whom the goods are transferred is to be treated as the successor to the transferor.

| 2. | The first paragraph of Article 19 of Directive 2006/112
  must be interpreted as meaning that the transfer of part of an undertaking, even though not all the tangible and intangible assets constituting it have been transferred to the acquirer, is covered by the concept of ‘transfer of a totality of assets or part thereof’, provided that the totality of the assets transferred is sufficient to enable that undertaking to continue an independent economic activity. |
| --- | --- |

2.

The first paragraph of Article 19 of Directive 2006/112

must be interpreted as meaning that the transfer of part of an undertaking, even though not all the tangible and intangible assets constituting it have been transferred to the acquirer, is covered by the concept of ‘transfer of a totality of assets or part thereof’, provided that the totality of the assets transferred is sufficient to enable that undertaking to continue an independent economic activity.

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(1)  OJ C 128, 21.3.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/22 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/22

---

Order of the Court (Sixth Chamber) of 6 March 2023 (requests for a preliminary ruling from the Juzgado de lo Mercantil No 11 de Barcelona — Spain) — QJ and IP v Deutsche Bank AG

(Joined Cases C-198/22 and C-199/22) (1)

(References for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Article 101 TFEU - Directive 2014/104/EU - Article 10 - Scope ratione temporis - Actions for damages for infringements of EU competition law provisions - Limitation period - Infringement committed before the entry into force of the directive - Consumer protection)

(2023/C 164/28)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 11 de Barcelona

Parties to the main proceedings

Applicant: QJ (C-198/22)

Applicant: IP (C-199/22)

Defendant: Deutsche Bank AG

Operative part of the order

| 1. | Article 101 TFEU and the principle of effectiveness must be interpreted as not precluding national legislation, as interpreted by the national court, according to which the limitation period for bringing an action for damages for an infringement of EU competition law provisions by a consumer begins to run on the date of publication in the Official Journal of the European Union of the summary of the European Commission’s final decision by which that infringement has been found, since the elements necessary to enable the injured party to bring an action for damages on the date of that publication can reasonably be considered to have been known to him or her. |
| --- | --- |

1.

Article 101 TFEU and the principle of effectiveness must be interpreted as not precluding national legislation, as interpreted by the national court, according to which the limitation period for bringing an action for damages for an infringement of EU competition law provisions by a consumer begins to run on the date of publication in the Official Journal of the European Union of the summary of the European Commission’s final decision by which that infringement has been found, since the elements necessary to enable the injured party to bring an action for damages on the date of that publication can reasonably be considered to have been known to him or her.

| 2. | Article 10(3) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (2) must be interpreted as meaning that an action for damages for an infringement of competition law that, although relating to an infringement that ceased before the entry into force of that directive, was brought after the entry into force of the provisions transposing it into national law falls within its temporal scope, in so far as the limitation period applicable to that action did not expire before the time limit for transposition of that directive. |
| --- | --- |

2.

Article 10(3) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (2) must be interpreted as meaning that an action for damages for an infringement of competition law that, although relating to an infringement that ceased before the entry into force of that directive, was brought after the entry into force of the provisions transposing it into national law falls within its temporal scope, in so far as the limitation period applicable to that action did not expire before the time limit for transposition of that directive.

---

(1)  Dates lodged: 14.3.2022.

(2)  OJ 2014 L 349, p. 1.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/23 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/23

---

Order of the Court (Fifth Chamber) of 9 January 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt., in liquidation v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-289/22, (1) A.T.S. 2003)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Articles 167, 168 and 178 - Right to deduct input VAT - Fraud - Proof - Duty of care of the taxable person - Consideration of an infringement of the national provisions governing the supply of services at issue)

(2023/C 164/29)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt., in liquidation

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Operative part of the order

| 1. | Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
  must be interpreted as precluding a national practice whereby the choice of a taxable person to carry on an economic activity in a way that enables that taxable person to reduce his or her costs is classified as ‘an unlawful exercise of the right’ and, on that ground, that taxable person is refused the right to deduct input value added tax, where it has not been established that there is a wholly artificial arrangement which does not reflect economic reality and is set up with the sole aim or, at the very least, with the essential aim, of obtaining a tax advantage the grant of which would be contrary to the purposes of that directive. |
| --- | --- |

1.

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

must be interpreted as precluding a national practice whereby the choice of a taxable person to carry on an economic activity in a way that enables that taxable person to reduce his or her costs is classified as ‘an unlawful exercise of the right’ and, on that ground, that taxable person is refused the right to deduct input value added tax, where it has not been established that there is a wholly artificial arrangement which does not reflect economic reality and is set up with the sole aim or, at the very least, with the essential aim, of obtaining a tax advantage the grant of which would be contrary to the purposes of that directive.

| 2. | Directive 2006/112
  must be interpreted as not precluding the tax authority from refusing a taxable person the right to deduct value added tax (VAT) in respect of a supply of services, on the basis of findings resulting from witness statements in the light of which that tax authority called into question the existence of that supply of services or considered that it was connected with VAT fraud, if, in the first case, it is not established by the taxable person that that supply of services has actually been made or if, in the second case, it is established by that tax authority, in accordance with the rules of evidence under national law, that that taxable person committed VAT fraud or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with such a fraud. |
| --- | --- |

2.

Directive 2006/112

must be interpreted as not precluding the tax authority from refusing a taxable person the right to deduct value added tax (VAT) in respect of a supply of services, on the basis of findings resulting from witness statements in the light of which that tax authority called into question the existence of that supply of services or considered that it was connected with VAT fraud, if, in the first case, it is not established by the taxable person that that supply of services has actually been made or if, in the second case, it is established by that tax authority, in accordance with the rules of evidence under national law, that that taxable person committed VAT fraud or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with such a fraud.

| 3. | Directive 2006/112
  must be interpreted as meaning that






  — | it precludes the tax authority from refusing a taxable person the right of deduction by considering as sufficient evidence of value added tax (VAT) fraud the fact that the taxable person, or other traders acting upstream in the supply chain, have breached the national rules on the supply of services at issue, without an actual link between that breach and the right to deduct VAT being established; |
| --- | --- | --- |

3.

Directive 2006/112

must be interpreted as meaning that

—

it precludes the tax authority from refusing a taxable person the right of deduction by considering as sufficient evidence of value added tax (VAT) fraud the fact that the taxable person, or other traders acting upstream in the supply chain, have breached the national rules on the supply of services at issue, without an actual link between that breach and the right to deduct VAT being established;

| — | such a breach may, however, depending on the factual circumstances of the case, constitute one of a number of indications of such a fraud and evidence which may be taken into account, in an overall assessment of the circumstances, to establish that the taxable person is the perpetrator of or actively participated in that fraud, or to establish that that taxable person knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with that fraud; |
| --- | --- |

—

such a breach may, however, depending on the factual circumstances of the case, constitute one of a number of indications of such a fraud and evidence which may be taken into account, in an overall assessment of the circumstances, to establish that the taxable person is the perpetrator of or actively participated in that fraud, or to establish that that taxable person knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with that fraud;

| — | it is for the tax authority to characterise the elements constituting VAT fraud, to adduce evidence of fraudulent activity and to establish that the taxable person is the perpetrator of or actively participated in that fraud, or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with that fraud; |
| --- | --- |

—

it is for the tax authority to characterise the elements constituting VAT fraud, to adduce evidence of fraudulent activity and to establish that the taxable person is the perpetrator of or actively participated in that fraud, or knew or ought to have known that the transaction relied on as a basis for the right of deduction was connected with that fraud;

| — | that requirement does not necessarily involve identifying all the perpetrators of the fraud and their respective actions. |
| --- | --- |

—

that requirement does not necessarily involve identifying all the perpetrators of the fraud and their respective actions.

| 4. | Directive 2006/112, read in conjunction with the principle of proportionality,
  must be interpreted as meaning that it is not, in principle, for the taxable person wishing to exercise the right to deduct value added tax (VAT) to verify that the supplier or other traders acting upstream in the supply chain have complied with the national rules on the supply of services at issue as well as the other national rules applicable to their activity. However, where there are indications, resulting from the breach of those rules and which are such as to give rise to suspicions on the part of the taxable person, at the time the acquisition is made, of irregularities or of fraud, that taxable person may be required to exercise greater care and to take measures that could reasonably be expected of him or her to ensure that, through that acquisition, he or she is not participating in a transaction connected with VAT fraud. |
| --- | --- |

4.

Directive 2006/112, read in conjunction with the principle of proportionality,

must be interpreted as meaning that it is not, in principle, for the taxable person wishing to exercise the right to deduct value added tax (VAT) to verify that the supplier or other traders acting upstream in the supply chain have complied with the national rules on the supply of services at issue as well as the other national rules applicable to their activity. However, where there are indications, resulting from the breach of those rules and which are such as to give rise to suspicions on the part of the taxable person, at the time the acquisition is made, of irregularities or of fraud, that taxable person may be required to exercise greater care and to take measures that could reasonably be expected of him or her to ensure that, through that acquisition, he or she is not participating in a transaction connected with VAT fraud.

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(1)  OJ C 266, 11.7.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/25 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/25

---

Order of the Court (Seventh Chamber) of 23 January 2023 (request for a preliminary ruling from the Apelativen sad — Sofia — Bulgaria) — HO v ‘EUROBANK BULGARIA’ AD

(Case C-350/22, (1) Eurobank Bulgaria)

(Removal from the register)

(2023/C 164/30)

Language of the case: Bulgarian

Referring court

Apelativen sad — Sofia

Parties to the main proceedings

Applicant: HO

Defendant:‘EUROBANK BULGARIA’ AD

The case was removed from the Register of the Court of Justice by order of the Court (Seventh Chamber) of 23 January 2023.

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(1)  Date lodged: 31.5.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/25 |
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Official Journal of the European Union

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Order of the Court (Eighth Chamber) of 16 March 2023 (Request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Armaprocure SRL v Ministerul Apărării Naţionale, BlueSpace Technology SRL

(Case C-493/22, (1) ARMAPROCURE)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Public Procurement - Directive 2009/81/EC - Article 55(4) - Article 57(2) - Interest in bringing proceedings - Access to the review procedures - Tenderer excluded from a public procurement procedure by a decision of the contracting authority that has become final - National regulation depriving such a tenderer of access to a means of appeal - No interest in bringing proceedings)

(2023/C 164/31)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Applicant at first instance and appellant: Armaprocure SRL

Defendants at first instance and respondents: Ministerul Apărării Naţionale, BlueSpace Technology SRL

Operative part of the order

Article 55(4) and Article 57(2) of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC,

must be interpreted as precluding a tenderer, that has been excluded from a public procurement procedure by a decision of the contracting authority that has become final, from having access to a means of appeal against, or review of the contract concluded with the successful tenderer.

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(1)  Date lodged: 22.7.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/26 |
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Official Journal of the European Union

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Order of the Court (Sixth Chamber) of 16 February 2023 (request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie — Poland) — Dunaj-Finanse sp. z o.o. v KG

(Case C-530/22, (1) Dunaj-Finanse)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Rail transport - Passengers’ rights and obligations - Regulation (EC) No 1371/2007 - Article 3(8) - Transport contract - Concept - Passenger without a ticket at the time of boarding a train - Consumer protection)

(2023/C 164/32)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie

Parties to the main proceedings

Applicant: Dunaj-Finanse sp. z o.o.

Defendant: KG

Operative part of the order

Article 3(8) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, read in conjunction with Article 6(1) and (2) of Appendix A in Annex I to that regulation

must be interpreted as precluding a provision of national law under which no transport contract is concluded between a carrier and a passenger who boards a freely accessible train without the intention of purchasing a ticket.

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(1)  Date lodged: 9.8.2022.

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Appeal brought on 7 November 2022 by Olimp Laboratories sp. z o.o. against the judgment of the General Court delivered on 7 September 2022 in Case T-9/22, Olimp Laboratories v EUIPO

(Case C-681/22 P)

(2023/C 164/33)

Language of the case: Polish

Parties

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

Other party to the proceedings: European Union Intellectual Property Office

By order of 27 February 2023, the General Court (Chamber determining whether appeals may proceed) decided that the appeal is not allowed to proceed and ordered the appellant to bear its own costs.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/27 |
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Appeal brought on 28 December 2022 by Louis Vuitton Malletier against the judgment of the General Court (Tenth Chamber) delivered on 19 October 2022 in Case T-275/21, Louis Vuitton Malletier v EUIPO — Wisniewski

(Case C-788/22 P)

(2023/C 164/34)

Language of the case: English

Parties

Appellant: Louis Vuitton Malletier SAS (represented by: P. Roncaglia and N. Parrotta, avvocati, and P.-Y. Gautier, avocat)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

By order of 21 March 2023, the Court of Justice (Chamber determining whether appeals may proceed) held that the appeal was not allowed to proceed and that Louis Vuitton Malletier SAS should bear its own costs.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/27 |
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Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 23 December 2022 — Criminal proceedings against MG

(Case C-792/22, Energotehnica)

(2023/C 164/35)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Criminal proceedings against

MG

Civil parties: LV, CRA and LCM

Party liable under civil law: SC Energotehnica SRL Sibiu

Questions referred

| 1. | Do the principle of the protection of workers and the principle of employer responsibility, enshrined in Article 1(1) and (2) and Article 5(1) of Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, (1) published in the Official Journal of the European Communities ... [and] transposed into national law by Legea nr. 319/2006 a securității și sănătății în muncă (Law No 319/2006 on Safety and Health at Work), read in the light of Article 31(1) of the Charter of Fundamental Rights of the European Union, preclude rules such as those which apply in the case in the main proceedings, imposed by a decision of the national Constitutional Court, in accordance with which an administrative court may, at the request of an employer and in inter partes proceedings involving only the State administrative authority, give a final ruling that an event does not constitute an accident at work, within the meaning of that directive, and may thus prevent a criminal court — seised both by a prosecutor bringing criminal proceedings against the worker responsible and by a civil party bringing civil proceedings against the employer as the party liable under civil law in the criminal proceedings, on the one hand, and the worker employed by that employer, on the other — from reaching a different decision regarding the characterisation of the same event as an accident at work, that characterisation being a constituent element of the offences tried in the criminal proceedings (without which it is impossible to make a finding of either criminal liability or civil liability alongside criminal liability), regard being had to the force of res judicata of the final administrative judgment? |
| --- | --- |

1.

Do the principle of the protection of workers and the principle of employer responsibility, enshrined in Article 1(1) and (2) and Article 5(1) of Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, (1) published in the Official Journal of the European Communities ... [and] transposed into national law by Legea nr. 319/2006 a securității și sănătății în muncă (Law No 319/2006 on Safety and Health at Work), read in the light of Article 31(1) of the Charter of Fundamental Rights of the European Union, preclude rules such as those which apply in the case in the main proceedings, imposed by a decision of the national Constitutional Court, in accordance with which an administrative court may, at the request of an employer and in inter partes proceedings involving only the State administrative authority, give a final ruling that an event does not constitute an accident at work, within the meaning of that directive, and may thus prevent a criminal court — seised both by a prosecutor bringing criminal proceedings against the worker responsible and by a civil party bringing civil proceedings against the employer as the party liable under civil law in the criminal proceedings, on the one hand, and the worker employed by that employer, on the other — from reaching a different decision regarding the characterisation of the same event as an accident at work, that characterisation being a constituent element of the offences tried in the criminal proceedings (without which it is impossible to make a finding of either criminal liability or civil liability alongside criminal liability), regard being had to the force of res judicata of the final administrative judgment?

| 2. | If the first question is answered in the affirmative, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national Constitutional Court and may not, for that reason, without committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 1(1) and (2) and Article 5(1) of [Directive 89/391], transposed into national law by Law No 319/2006, read in the light of Article 31(1) of [the Charter]? |
| --- | --- |

2.

If the first question is answered in the affirmative, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national Constitutional Court and may not, for that reason, without committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 1(1) and (2) and Article 5(1) of [Directive 89/391], transposed into national law by Law No 319/2006, read in the light of Article 31(1) of [the Charter]?

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(1)  Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/28 |
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Official Journal of the European Union

C 164/28

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Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 30 December 2022 — Instituto Nacional de la Seguridad Social (INSS) v Bernardino

(Case C-796/22, INSS)

(2023/C 164/36)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana

Parties to the main proceedings

Appellant: Instituto Nacional de la Seguridad Social (INSS)

Respondent: Bernardino

Other party to the proceedings: Lliza SL

Questions referred

| 1. | Should the term ‘employment conditions’ used in Clause 4 of the Framework agreement on part-time work annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (1) be interpreted as including partial retirement benefits from Social Security for which the beneficiaries can only be full-time workers, and not part-time workers? |
| --- | --- |

1.

Should the term ‘employment conditions’ used in Clause 4 of the Framework agreement on part-time work annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (1) be interpreted as including partial retirement benefits from Social Security for which the beneficiaries can only be full-time workers, and not part-time workers?

| 2. | Should the term ‘part-time workers’ used in Clauses 2 and 3 of [the Framework Agreement annexed to] Directive 97/81/EC be interpreted as including employees under a permanent seasonal contract (contrato fijo-discontinuo)? |
| --- | --- |

2.

Should the term ‘part-time workers’ used in Clauses 2 and 3 of [the Framework Agreement annexed to] Directive 97/81/EC be interpreted as including employees under a permanent seasonal contract (contrato fijo-discontinuo)?

| 3. | Should Clause 4 of the Framework Agreement annexed to Directive 97/81/EC be interpreted as precluding any legislation that prohibits part-time workers from receiving a partial retirement pension with a relief contract [(contrato de relevo; a part-time contract covering hours not worked by employees taking partial retirement)], therefore constituting discrimination not justified on objective grounds in relation to full-time workers? |
| --- | --- |

3.

Should Clause 4 of the Framework Agreement annexed to Directive 97/81/EC be interpreted as precluding any legislation that prohibits part-time workers from receiving a partial retirement pension with a relief contract [(contrato de relevo; a part-time contract covering hours not worked by employees taking partial retirement)], therefore constituting discrimination not justified on objective grounds in relation to full-time workers?

| 4. | Should Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (2) be interpreted as precluding regulations, such as the Spanish national regulations, that prevent persons working part-time from being beneficiaries and therefore from receiving a partial retirement pension (with the concurrent conclusion of a relief contract), thereby constituting discrimination on grounds of sex which is not justified on objective grounds? |
| --- | --- |

4.

Should Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (2) be interpreted as precluding regulations, such as the Spanish national regulations, that prevent persons working part-time from being beneficiaries and therefore from receiving a partial retirement pension (with the concurrent conclusion of a relief contract), thereby constituting discrimination on grounds of sex which is not justified on objective grounds?

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(1)  OJ 1998 L 14, p. 9.

(2)  OJ 1979 L 6, p. 24.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/29 |
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Request for a preliminary ruling from the Judecătoria Sectorului 6 București (Romania) lodged on 3 January 2023 — M.-A. A. v Direcția de Evidență a Persoanelor Cluj, Direcția pentru Evidența Persoanelor și Administrarea Bazelor de Date din Ministerul Afacerilor Interne, and Municipiul Cluj-Napoca, with the participation of Consiliul Național pentru Combaterea Discriminării and Asociația Accept

(Case C-4/23, Asociaţia Accept)

(2023/C 164/37)

Language of the case: Romanian

Referring court

Judecătoria Sectorului 6 București

Parties to the main proceedings

Applicant: M.-A. A.

Defendants: Direcția de Evidență a Persoanelor Cluj, Direcția pentru Evidența Persoanelor și Administrarea Bazelor de Date din Ministerul Afacerilor Interne, and Municipiul Cluj-Napoca

Intervening parties: Consiliul Național pentru Combaterea Discriminării and Asociația Accept

Questions referred

| 1. | Does the fact that Article 43(i) and Article 57 of Legea nr. 119/1996 privind actele de stare civilă (Law No 119/1996 on civil status documents) do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status — proceedings which have been held to lack clarity and foreseeability by the European Court of Human Rights (X and Y v. Romania, nos. 2145/16 and 20607/16, 19 January 2021) and which may lead to a decision contrary to that taken by the other Member State — constitute an obstacle to the exercise of the right to European citizenship (Article 20 of the Treaty on the Functioning of the European Union) and/or the right of citizens of the Union to move and reside freely (Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union) in conditions of dignity, equality before the law and non-discrimination (Article 2 of the Treaty on European Union; Article 18 of the Treaty on the Functioning of the European Union, and Articles 1, 20 and 21 of the Charter of Fundamental Rights of the European Union), respecting the right to private and family life (Article 7 of the Charter of Fundamental Rights of the European Union)? |
| --- | --- |

1.

Does the fact that Article 43(i) and Article 57 of Legea nr. 119/1996 privind actele de stare civilă (Law No 119/1996 on civil status documents) do not recognise changes in civil status made in another Member State by means of the procedure for legal recognition of gender to entries concerning gender and first name by a transgender man who has dual nationality (Romanian and of another Member State) and require a Romanian citizen to bring, from the outset, separate judicial proceedings in Romania against the local Public Service for Personal Records and Civil Status — proceedings which have been held to lack clarity and foreseeability by the European Court of Human Rights (X and Y v. Romania, nos. 2145/16 and 20607/16, 19 January 2021) and which may lead to a decision contrary to that taken by the other Member State — constitute an obstacle to the exercise of the right to European citizenship (Article 20 of the Treaty on the Functioning of the European Union) and/or the right of citizens of the Union to move and reside freely (Article 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union) in conditions of dignity, equality before the law and non-discrimination (Article 2 of the Treaty on European Union; Article 18 of the Treaty on the Functioning of the European Union, and Articles 1, 20 and 21 of the Charter of Fundamental Rights of the European Union), respecting the right to private and family life (Article 7 of the Charter of Fundamental Rights of the European Union)?

| 2. | Does the departure of the United Kingdom of Great Britain and Northern Ireland from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised? |
| --- | --- |

2.

Does the departure of the United Kingdom of Great Britain and Northern Ireland from the European Union affect the answer to the above question, in particular where (i) the procedure for changing civil status was commenced before Brexit and was completed during the transition period, and (ii) the impact of Brexit means that the person cannot benefit from rights attached to European citizenship, including the right to free movement and residence, except on the basis of Romanian identity or travel documents in which that person appears with a female gender and first name, contrary to the gender identity that has already been legally recognised?

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/29 |
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Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 11 January 2023 — Remia Com Impex SRL v Autoritatea Națională Sanitară Veterinară și pentru Siguranța Alimentelor, Direcția Sanitară Veterinară și pentru Siguranța Alimentelor Dolj

(Case C-10/23, Remia Com Impex)

(2023/C 164/38)

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Appellant: Remia Com Impex SRL

Respondents: Autoritatea Națională Sanitară Veterinară și pentru Siguranța Alimentelor, Direcția Sanitară Veterinară și pentru Siguranța Alimentelor Dolj

Questions referred

| 1. | Must Regulation (EC) No 853/2004 (1) as a whole, and the provisions of Article 1(3) to (5) in particular, be interpreted as meaning that cold stores which carry out retail sales activities to other retail establishments, but not to the final consumer, have to be approved in accordance with that regulation, when the activity concerned does not fall within the exceptions provided for in Article 1(5)(b)? |
| --- | --- |

1.

Must Regulation (EC) No 853/2004 (1) as a whole, and the provisions of Article 1(3) to (5) in particular, be interpreted as meaning that cold stores which carry out retail sales activities to other retail establishments, but not to the final consumer, have to be approved in accordance with that regulation, when the activity concerned does not fall within the exceptions provided for in Article 1(5)(b)?

| 2. | Must that regulation and EU law, in general, be interpreted as meaning that the national authorities which are responsible for ensuring the implementation of the policy which constitutes the objective to be achieved by the legislation and ensuring compliance with the corresponding obligations of the economic operators concerned are required to interpret the condition relating to marginal, localised and restricted activity, contained in Article 1(5)(b)(ii), in the light of recital 13 of that regulation, or may they derogate from that interpretation by means of their own definitions of the terms? |
| --- | --- |

2.

Must that regulation and EU law, in general, be interpreted as meaning that the national authorities which are responsible for ensuring the implementation of the policy which constitutes the objective to be achieved by the legislation and ensuring compliance with the corresponding obligations of the economic operators concerned are required to interpret the condition relating to marginal, localised and restricted activity, contained in Article 1(5)(b)(ii), in the light of recital 13 of that regulation, or may they derogate from that interpretation by means of their own definitions of the terms?

| 3. | If the answer to Question 2 is in the affirmative, must the relevant definitions, contained in a national act transposing the regulation, respect the substance of the concepts, as described in recital 13? |
| --- | --- |

3.

If the answer to Question 2 is in the affirmative, must the relevant definitions, contained in a national act transposing the regulation, respect the substance of the concepts, as described in recital 13?

| 4. | In view of the fact that the provisions of Article 17 of the Normele atașate Ordinului No 111/2008 (rules annexed to Order No 111/2008) provide that the activity of retail sale of products of animal origin may also include activities of supply and sale of products to other retail establishments throughout the territory of Romania without the obligation to obtain a veterinary health permit, does EU law and, in particular, Regulation (EC) No 853/2004, preclude such a provision and/or such an administrative practice? |
| --- | --- |

4.

In view of the fact that the provisions of Article 17 of the Normele atașate Ordinului No 111/2008 (rules annexed to Order No 111/2008) provide that the activity of retail sale of products of animal origin may also include activities of supply and sale of products to other retail establishments throughout the territory of Romania without the obligation to obtain a veterinary health permit, does EU law and, in particular, Regulation (EC) No 853/2004, preclude such a provision and/or such an administrative practice?

| 5. | Does the principle of equivalence require that, where a measure of an administrative authority may be annulled on the ground that it does not comply with a national law, that administrative act may also be annulled on the ground that it does not comply with a relevant EU regulation, such as Regulation (EC) No 853/2004? |
| --- | --- |

5.

Does the principle of equivalence require that, where a measure of an administrative authority may be annulled on the ground that it does not comply with a national law, that administrative act may also be annulled on the ground that it does not comply with a relevant EU regulation, such as Regulation (EC) No 853/2004?

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(1)  Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139, p. 55).

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/30 |
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Request for a preliminary ruling from the Tribunal da Relação do Porto (Portugal) lodged on 16 January 2023 — SF v MV, Instituto da Segurança Social, IP, Autoridade Tributária e Aduaneira, Cofidis SA — Branch in Portugal

(Case C-20/23, Instituto da Segurança Social and Others)

(2023/C 164/39)

Language of the case: Portuguese

Referring court

Tribunal da Relação do Porto

Parties to the main proceedings

Appellant: SF

Respondents: MV, Instituto da Segurança Social, IP, Autoridade Tributária e Aduaneira, Cofidis SA — Branch in Portugal

Questions referred

| (1) | Must Article 23(4) of Directive [2019/1023] (1) be interpreted as meaning that the exclusion of other debts (other than those listed in the respective letters of Article 23(4)) is permitted only if it is ‘duly justified’? |
| --- | --- |

(1)

Must Article 23(4) of Directive [2019/1023] (1) be interpreted as meaning that the exclusion of other debts (other than those listed in the respective letters of Article 23(4)) is permitted only if it is ‘duly justified’?

| (2) | Must the possibility for Member States of excluding specific categories of debt from discharge of debt (where such exclusions are duly justified as provided for in Article 23(4) of Directive 2019/1023) be interpreted as allowing Member States to exclude tax debts (which are not listed in that article), thereby placing themselves in a privileged position? |
| --- | --- |

(2)

Must the possibility for Member States of excluding specific categories of debt from discharge of debt (where such exclusions are duly justified as provided for in Article 23(4) of Directive 2019/1023) be interpreted as allowing Member States to exclude tax debts (which are not listed in that article), thereby placing themselves in a privileged position?

| (3) | If the answer to those questions is in the affirmative, what criteria must that justification satisfy, within the meaning of EU law, in order to comply with the general principles of EU law and the protection of fundamental rights, to which the European and national legislatures are subject [‘prohibition of discrimination on grounds of nationality’ (Article 18 TFEU), ‘freedom to conduct a business’ (Article 16 of the [Charter of Fundamental Rights of the European Union]) and the fundamental economic freedoms of the internal market]? |
| --- | --- |

(3)

If the answer to those questions is in the affirmative, what criteria must that justification satisfy, within the meaning of EU law, in order to comply with the general principles of EU law and the protection of fundamental rights, to which the European and national legislatures are subject [‘prohibition of discrimination on grounds of nationality’ (Article 18 TFEU), ‘freedom to conduct a business’ (Article 16 of the [Charter of Fundamental Rights of the European Union]) and the fundamental economic freedoms of the internal market]?

| (4) | If the answer to the aforementioned question is in the negative, do the definitions (within the meaning of EU law and for the purposes of interpreting the directive in question) of ‘debts arising from or in connection with criminal penalties’ and ‘debts arising from “tortious liability”’ also include tax debts as provided for in the national legislative act transposing Directive 2019/1023 (Lei n.o 9/2022, de 11 de janeiro (Law No 9 of 11 January 2022))? |
| --- | --- |

(4)

If the answer to the aforementioned question is in the negative, do the definitions (within the meaning of EU law and for the purposes of interpreting the directive in question) of ‘debts arising from or in connection with criminal penalties’ and ‘debts arising from “tortious liability”’ also include tax debts as provided for in the national legislative act transposing Directive 2019/1023 (Lei n.o 9/2022, de 11 de janeiro (Law No 9 of 11 January 2022))?

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(1)  Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18).

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/31 |
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C 164/31

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Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 25 January 2023 — L v Familienkasse Sachsen der Bundesagentur für Arbeit

(Case C-36/23, Familienkasse Sachsen)

(2023/C 164/40)

Language of the case: German

Referring court

Finanzgericht Bremen

Parties to the main proceedings

Applicant: L

Defendant: Familienkasse Sachsen der Bundesagentur für Arbeit

Questions referred

Questions concerning the interpretation of the priority rules laid down in Article 68 of Regulation (EC) No 883/2004: (1)

| 1. | Does Article 68 of Regulation (EC) No 883/2004 allow German child benefit to be partly recovered retrospectively on the ground of a priority entitlement in another Member State, even though no family benefit has been or is being assessed or paid for the child in the other Member State, with the result that the amount remaining to the beneficiary under German law effectively falls below the German child benefit? |
| --- | --- |

1.

Does Article 68 of Regulation (EC) No 883/2004 allow German child benefit to be partly recovered retrospectively on the ground of a priority entitlement in another Member State, even though no family benefit has been or is being assessed or paid for the child in the other Member State, with the result that the amount remaining to the beneficiary under German law effectively falls below the German child benefit?

| 2. | In the event that the first question is answered in the affirmative:
  Does the answer to the question as to the grounds on which benefits are payable by more than one Member State within the meaning of Article 68 of Regulation (EC) No 883/2004, or the bases on which the entitlements to be coordinated arise, depend on the conditions of entitlement under the national rules, or on the circumstances on account of which the persons concerned are subject to the legislation of the relevant Member States in accordance with Articles 11 to 16 of Regulation (EC) No 883/2004? |
| --- | --- |

2.

In the event that the first question is answered in the affirmative:

Does the answer to the question as to the grounds on which benefits are payable by more than one Member State within the meaning of Article 68 of Regulation (EC) No 883/2004, or the bases on which the entitlements to be coordinated arise, depend on the conditions of entitlement under the national rules, or on the circumstances on account of which the persons concerned are subject to the legislation of the relevant Member States in accordance with Articles 11 to 16 of Regulation (EC) No 883/2004?

| 3. | In the event that the decisive criterion is the circumstances on account of which the persons concerned are subject to the legislation of the relevant Member States in accordance with Articles 11 to 16 of Regulation (EC) No 883/2004:
  Is Article 68 in conjunction with Article 1(a) and (b) and Article 11(3)(a) of Regulation (EC) No 883/2004 to be interpreted as meaning that an activity as an employed person or an activity as a self-employed person in another Member State, or an equivalent situation treated as such an activity for the purposes of social insurance legislation, is to be assumed to be present where the social insurance fund in the other Member State certifies that the person concerned is insured ‘as a farmer’ and the competent family benefits institution in that State confirms the existence of an activity as an employed person, even though the person concerned claims that that insurance is dependent only on ownership of the farm, which is registered as agriculturally productive land but is not actually in use? |
| --- | --- |

3.

In the event that the decisive criterion is the circumstances on account of which the persons concerned are subject to the legislation of the relevant Member States in accordance with Articles 11 to 16 of Regulation (EC) No 883/2004:

Is Article 68 in conjunction with Article 1(a) and (b) and Article 11(3)(a) of Regulation (EC) No 883/2004 to be interpreted as meaning that an activity as an employed person or an activity as a self-employed person in another Member State, or an equivalent situation treated as such an activity for the purposes of social insurance legislation, is to be assumed to be present where the social insurance fund in the other Member State certifies that the person concerned is insured ‘as a farmer’ and the competent family benefits institution in that State confirms the existence of an activity as an employed person, even though the person concerned claims that that insurance is dependent only on ownership of the farm, which is registered as agriculturally productive land but is not actually in use?

---

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

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/32 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/32

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Request for a preliminary ruling from the Amtsgericht Frankfurt am Main (Germany) lodged on 3 February 2023 — flightright GmbH v TAP Portugal

(Case C-52/23, flightright)

(2023/C 164/41)

Language of the case: German

Referring court

Amtsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: flightright GmbH

Defendant: TAP Portugal

Questions referred

| 1. | Do extraordinary circumstances within the meaning of Article 5(3) of Regulation (EU) No 261/2004 (1) exist where meteorological conditions occur which are incompatible with the operation of a flight, irrespective of whether those meteorological conditions are extraordinary? |
| --- | --- |

1.

Do extraordinary circumstances within the meaning of Article 5(3) of Regulation (EU) No 261/2004 (1) exist where meteorological conditions occur which are incompatible with the operation of a flight, irrespective of whether those meteorological conditions are extraordinary?

| 2. | If the answer to Question 1 is in the negative, can the extraordinary nature of the meteorological conditions be determined by reference to their regional and seasonal frequency at the place and time at which they occur? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, can the extraordinary nature of the meteorological conditions be determined by reference to their regional and seasonal frequency at the place and time at which they occur?

---

(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).

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/32 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/32

---

Request for a preliminary ruling from the Court of First Instance of Liège (Belgium) lodged on 10 February 2023 — Chaudfontaine Loisirs SA v État belge

(Case C-73/23, Chaudfontaine Loisirs)

(2023/C 164/42)

Language of the case: French

Referring court

Court of First Instance of Liège

Parties to the main proceedings

Applicant: Chaudfontaine Loisirs SA

Defendant and third-party applicant: État belge, represented by the Minister of Finance

Other party and third-party defendant: État belge, represented by the Minister of Justice

Questions referred

| 1. | Do Article 135(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and the principle of fiscal neutrality permit a Member State to exclude from the benefit of the exemption contained in that provision only gambling which is provided electronically while gambling which is not provided electronically remains exempt from VAT? |
| --- | --- |

1.

Do Article 135(1)(i) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and the principle of fiscal neutrality permit a Member State to exclude from the benefit of the exemption contained in that provision only gambling which is provided electronically while gambling which is not provided electronically remains exempt from VAT?

| 2. | Do Article 135(1)(i) of Directive 2006/112 and the principle of fiscal neutrality permit a Member State to exclude from the benefit of the exemption contained in that provision only gambling which is provided electronically to the exclusion of lotteries which remain exempt from VAT whether or not they are provided electronically? |
| --- | --- |

2.

Do Article 135(1)(i) of Directive 2006/112 and the principle of fiscal neutrality permit a Member State to exclude from the benefit of the exemption contained in that provision only gambling which is provided electronically to the exclusion of lotteries which remain exempt from VAT whether or not they are provided electronically?

| 3. | Does the third paragraph of Article 267 of the Treaty on the Functioning of the European Union permit a higher court to decide to maintain the effects of a provision of national law which it annuls because of an infringement of national law without ruling on the infringement of EU law which was also raised before it, and, therefore, without referring for a preliminary ruling the question of the compatibility of that provision of national law with EU law or asking the Court about the circumstances in which it could decide to maintain the effects of that provision in spite of its incompatibility with EU law? |
| --- | --- |

3.

Does the third paragraph of Article 267 of the Treaty on the Functioning of the European Union permit a higher court to decide to maintain the effects of a provision of national law which it annuls because of an infringement of national law without ruling on the infringement of EU law which was also raised before it, and, therefore, without referring for a preliminary ruling the question of the compatibility of that provision of national law with EU law or asking the Court about the circumstances in which it could decide to maintain the effects of that provision in spite of its incompatibility with EU law?

| 4. | If the answer to one of the previous questions is in the negative, could the Constitutional Court maintain the past effects of the provisions which it annulled because of their incompatibility with national rules on the division of powers when those provisions were also incompatible with Directive 2006/112, in order to prevent budgetary and administrative difficulties from arising from reimbursement of taxes already paid? |
| --- | --- |

4.

If the answer to one of the previous questions is in the negative, could the Constitutional Court maintain the past effects of the provisions which it annulled because of their incompatibility with national rules on the division of powers when those provisions were also incompatible with Directive 2006/112, in order to prevent budgetary and administrative difficulties from arising from reimbursement of taxes already paid?

| 5. | If the answer to the previous question is in the negative, can the taxable person be reimbursed the VAT which it has paid on the actual gross margin on the gaming and betting which it operates on the basis of provisions incompatible with Directive 2006/112 and the principle of fiscal neutrality? |
| --- | --- |

5.

If the answer to the previous question is in the negative, can the taxable person be reimbursed the VAT which it has paid on the actual gross margin on the gaming and betting which it operates on the basis of provisions incompatible with Directive 2006/112 and the principle of fiscal neutrality?

---

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

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/33 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/33

---

Order of the President of the Court of 7 February 2023 (request for a preliminary ruling from the Augstākā tiesa (Senāts) — Latvia) — SIA ‘Ogres HES’, intervening parties: Sabiedrisko pakalpojumu regulēšanas komisija, Ekonomikas ministrija, Finanšu ministrija

(Case C-152/21, (1) Ogres HES)

(2023/C 164/43)

Language of the case: Latvian

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

---

(1)  OJ C 242, 21.6.2021.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/33 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/33

---

Order of the President of the Court of 28 December 2022 (request for a preliminary ruling from the Tribunal d’arrondissement de Luxembourg — Luxembourg) — G-Finance SARL, DV v Luxembourg Business Registers

(Case C-317/21, (1) G-Finance)

(2023/C 164/44)

Language of the case: French

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

---

(1)  OJ C 297, 26.7.2021.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/34 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/34

---

Order of the President of the First Chamber of the Court of 13 February 2023 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Grand Production d.o.o. v GO4YU GmbH, DH, GO4YU d.o.o, MTEL Austria GmbH

(Case C-423/21, (1) Grand Production)

(2023/C 164/45)

Language of the case: German

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

---

(1)  OJ C 422, 18.10.2021.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/34 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/34

---

Order of the President of the Court of 12 January 2023 (request for a preliminary ruling from the Apelativen sad — Varna — Bulgaria) — Criminal proceedings against TP, OF

(Case C-698/22, (1) TP and OF)

(2023/C 164/46)

Language of the case: Bulgarian

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

---

(1)  OJ C 35, 30.1.2023.

---

General Court

| 8.5.2023 | EN | Official Journal of the European Union | C 164/35 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/35

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Judgment of the General Court of 15 March 2023 — Basaglia v Commission

(Case T-597/21) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents concerning various projects in the context of the eTEN programmes and of the fifth and sixth framework programmes for research and technological development - Partial refusal to grant access - Unavailability of documents - Unilateral restriction of the scope of the request for access - Obligation to carry out a specific and individual examination - Unreasonable workload - Article 266 TFEU - Decision adopted to give effect to a judgment of the General Court - Measures necessary to give effect to a judgment delivered in an action for annulment)

(2023/C 164/47)

Language of the case: Italian

Parties

Applicant: Giorgio Basaglia (Milan, Italy) (represented by: G. Balossi, lawyer)

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

Re:

By his action under Article 263 TFEU, the applicant seeks partial annulment of Commission Decision C(2021) 5741 final of 27 July 2021 concerning a confirmatory application for access to documents.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Giorgio Basaglia to pay the costs. |
| --- | --- |

2.

Orders Mr Giorgio Basaglia to pay the costs.

---

(1)  OJ C 462, 15.11.2021.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/35 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/35

---

Judgment of the General Court of 15 March 2023 — TO v EUAA

(Case T-727/21) (1)

(Action for annulment and for damages - Civil service - Temporary staff - Recruitment - External vacancy notice [confidential] - Decision not to extend the validity of a reserve list - Time limit for complaints - Publication on the internet - No excusable error - Inadmissibility)

(2023/C 164/48)

Language of the case: French

Parties

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

Defendant: European Union Agency for Asylum (represented by: P. Eyckmans and M. Stamatopoulou, acting as Agents, and T. Bontinck, A. Guillerme and T. Payan, lawyers)

Re:

By her action under Article 270 TFEU, the applicant seeks, first, annulment of Decision EASO/HR/2020/2331 of the European Union Agency for Asylum (EUAA) of 18 December 2020 not to extend, by an additional year, the validity of the reserve list drawn up following selection procedure [confidential] on which her name appeared and, secondly, compensation for the damage allegedly suffered.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders TO to pay the costs.

---

(1)  OJ C 11, 10.1.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/36 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/36

---

Judgment of the General Court of 15 March 2023 — Homy Casa v EUIPO — Albatros International (Chairs)

(Case T-89/22) (1)

(Community design - Invalidity proceedings - Registered Community design representing a chair - Earlier design - Ground for invalidity - Disclosure of the earlier design - Disclosure via the Internet - Identification of the earlier design - Discretion of the Board of Appeal - Article 63(1) of Regulation (EC) No 6/2002)

(2023/C 164/49)

Language of the case: German

Parties

Applicant: Homy Casa Ltd (Guangzhou, China) (represented by: J. Vogtmeier, lawyer)

Defendant: European Union Intellectual Property Office (represented by: E. Nicolás Gómez and J. Ivanauskas, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Albatros International GmbH (Nerdlen, Germany) (represented by: A. Biesterfeld-Kuhn, lawyer)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 November 2021 (Case R 837/2020-3).

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 November 2021 (Case R 837/2020-3); |
| --- | --- |

1.

Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 November 2021 (Case R 837/2020-3);

| 2. | Orders EUIPO to pay the costs, including the costs necessarily incurred by Homy Casa Ltd for the purposes of the proceedings before the Board of Appeal of EUIPO; |
| --- | --- |

2.

Orders EUIPO to pay the costs, including the costs necessarily incurred by Homy Casa Ltd for the purposes of the proceedings before the Board of Appeal of EUIPO;

| 3. | Orders Albatros International GmbH to bear its own costs. |
| --- | --- |

3.

Orders Albatros International GmbH to bear its own costs.

---

(1)  OJ C 148, 4.4.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/37 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/37

---

Judgment of the General Court of 8 March 2023 — Ruhorimbere v Council

(Case T-91/22) (1)

(Common foreign and security policy - Restrictive measures taken in view of the situation in the Democratic Republic of the Congo - Freezing of funds - Restriction on admission to the territories of the Member States - Retention of the applicant’s name on the lists of persons covered - Right to be heard - Proof that inclusion and retention on the lists is well founded - Manifest error of assessment - Continuation of the factual and legal circumstances which led to the adoption of the restrictive measures)

(2023/C 164/50)

Language of the case: French

Parties

Applicant: Éric Ruhorimbere (Mbuji-Mayi, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, A. Guillerme and T. Payan, lawyers)

Defendant: Council of the European Union (represented by: M.-C. Cadilhac and S. Lejeune, acting as Agents)

Re:

By his action under Article 263 TFEU, the applicant seeks the annulment, first, of Council Decision (CFSP) 2021/2181 of 9 December 2021 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2021 L 443, p. 75) and, second, of Council Implementing Regulation (EU) 2021/2177 of 9 December 2021, implementing Article 9 of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2021 L 443, p. 3), in so far as those acts concern him.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Éric Ruhorimbere to pay the costs. |
| --- | --- |

2.

Orders Mr Éric Ruhorimbere to pay the costs.

---

(1)  OJ C 148, 4.4.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/37 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/37

---

Judgment of the General Court of 8 March 2023 — Mutondo v Council

(Case T-94/22) (1)

(Common foreign and security policy - Restrictive measures taken in view of the situation in the Democratic Republic of the Congo - Freezing of funds - Restriction on admission to the territories of the Member States - Retention of the applicant’s name on the lists of persons covered - Proof that inclusion and retention on the lists is well founded - Manifest error of assessment - Change of the factual and legal circumstances which led to the adoption of the restrictive measures)

(2023/C 164/51)

Language of the case: French

Parties

Applicant: Kalev Mutondo (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, A. Guillerme and T. Payan, lawyers)

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

Re:

By his action under Article 263 TFEU, the applicant seeks the annulment, first, of Council Decision (CFSP) 2021/2181 of 9 December 2021 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo (OJ 2021 L 443, p. 75) and, second, of Council Implementing Regulation (EU) 2021/2177 of 9 December 2021, implementing Article 9 of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2021 L 443, p. 3), in so far as those acts concern him.

Operative part of the judgment

The Court:

| 1. | Annuls Council Decision (CFSP) 2021/2181 of 9 December 2021 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo and, Council Implementing Regulation (EU) 2021/2177 of 9 December 2021, implementing Article 9 of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo, in so far as those acts concern Mr Kalev Mutondo. |
| --- | --- |

1.

Annuls Council Decision (CFSP) 2021/2181 of 9 December 2021 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo and, Council Implementing Regulation (EU) 2021/2177 of 9 December 2021, implementing Article 9 of Regulation (EC) No 1183/2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo, in so far as those acts concern Mr Kalev Mutondo.

| 2. | Orders the Council of the European Union to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 148, 4.4.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/38 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/38

---

Judgment of the General Court of 15 March 2023 — Katjes Fassin v EUIPO (THE FUTURE IS PLANT-BASED)

(Case T-133/22) (1)

(EU trade mark - Application for EU word mark THE FUTURE IS PLANT-BASED - Mark consisting of an advertising slogan - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001)

(2023/C 164/52)

Language of the case: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany) (represented by: T. Schmitz and S. Stolzenburg-Wiemer, lawyers)

Defendant: European Union Intellectual Property Office (represented by: D. Stoyanova-Valchanova and E. Markakis, acting as Agents)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 December 2021 (Case R 1023/2021-5).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders Katjes Fassin GmbH & Co. KG to pay the costs.

---

(1)  OJ C 171, 25.4.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/39 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/39

---

Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTREV)

(Case T-174/22) (1)

(EU trade mark - Opposition proceedings - Application for the EU word mark BREZTREV - Earlier EU word marks ONBREZ, DAYBREZ, BREZILIZER and BREEZHALER - No likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2023/C 164/53)

Language of the case: English

Parties

Applicant: Novartis AG (Basle, Switzerland) (represented by: A. Nordemann-Schiffel, lawyer)

Defendant: European Union Intellectual Property Office (represented by: N. Lamsters and T. Frydendahl, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: AstraZeneca AB (Södertälje, Sweden) (represented by: C. Tenkhoff and T. Herzog, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2022 (Case R 738/2021-2).

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 207, 23.5.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/39 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/39

---

Judgment of the General Court of 15 March 2023 — Novartis v EUIPO — AstraZeneca (BREZTRI)

(Case T-175/22) (1)

(EU trade mark - Invalidity proceedings - EU word mark BREZTRI - Earlier EU word marks ONBREZ, BREZILIZER and BREEZHALER - No likelihood of confusion - Lack of enhanced distinctiveness of the earlier marks - Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001 - Article 27(3)(b) of Regulation (EU) 2018/625)

(2023/C 164/54)

Language of the case: English

Parties

Applicant: Novartis AG (Basle, Switzerland) (represented by: A. Nordemann-Schiffel, lawyer)

Defendant: European Union Intellectual Property Office (represented by: N. Lamsters and T. Frydendahl, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: AstraZeneca AB (Södertälje, Sweden) (represented by: C. Tenkhoff and T. Herzog, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2022 (Case R 737/2021-2).

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 207, 23.5.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/40 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/40

---

Judgment of the General Court of 15 March 2023 — FA World Entertainment v EUIPO (FUCKING AWESOME)

(Case T-178/22) (1)

(EU trade mark - International registration designating the European Union - Word mark FUCKING AWESOME - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001 - Legal certainty - Equal treatment - Principle of sound administration)

(2023/C 164/55)

Language of the case: English

Parties

Applicant: FA World Entertainment Inc. (Los Angeles, California, United States) (represented by: M. Breuer, I. Dimitrov and C. Tenbrock, lawyers)

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

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of the decision of the Fifth Board of Appeal of the European Intellectual Office (EUIPO) of 3 February 2022 (Case R 1131/2021-5).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders FA World Entertainment Inc. to pay the costs. |
| --- | --- |

2.

Orders FA World Entertainment Inc. to pay the costs.

---

(1)  OJ C 207, 23.5.2022.

---

| 8.5.2023 | EN | Official Journal of the European Union | C 164/40 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/40

---

Judgment of the General Court of 15 March 2023 — Zelmotor v EUIPO — B&B Trends (zelmotor)

(Case T-194/22) (1)

(EU trade mark - Revocation proceedings - EU figurative mark zelmotor - No genuine use of the mark - Article 58(1)(a) of Regulation (EU) 2017/1001)

(2023/C 164/56)

Language of the case: English

Parties

Applicant: Zelmotor sp. z o.o. (Rzeszów, Poland) (represented by: M. Rumak, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: B&B Trends, SL (Santa Perpètua de Mogoda, Spain) (represented by: J. Mora Cortés, lawyer)

Re:

By its action under Article 263 TFEU, the applicant seeks the partial annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 February 2022 (Case R 927/2021-2).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Zelmotor sp. z o.o. to bear its own costs and to pay those incurred by B&B Trends, SL; |
| --- | --- |

2.

Orders Zelmotor sp. z o.o. to bear its own costs and to pay those incurred by B&B Trends, SL;

| 3. | Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. |
| --- | --- |

3.

Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.

---

(1)  OJ C 222, 7.6.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/41 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/41

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Order of the General Court of 6 March 2023 — Oatly v EUIPO — D’s Naturals (Wow no cow!)

(Case T-429/22) (1)

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

(2023/C 164/57)

Language of the case: English

Parties

Applicant: Oatly AB (Malmö, Sweden) (represented by: M. Johansson, lawyer)

Defendant: European Union Intellectual Property Office (represented by: T. Klee and J. Ivanauskas, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: D’s Naturals LLC (Cincinnati, Ohio, United States) (represented by: M. Hawkins and T. Dolde, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 May 2022 (Case R 1539/2021-2).

Operative part of the order

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

1.

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

| 2. | Oatly AB and D’s Naturals LLC shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2.

Oatly AB and D’s Naturals LLC shall bear their own costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

---

(1)  OJ C 326, 29.8.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/42 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/42

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Order of the General Court of 16 February 2023 — Cyprus v EUIPO — Cemet (Halime)

(Case T-615/22) (1)

(EU trade mark - Opposition proceedings - Final dismissal of the application for registration of the trade mark in parallel opposition proceedings - Action which has become devoid of purpose - No need to adjudicate)

(2023/C 164/58)

Language of the case: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz and C. Milbradt, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Cemet Oy (Helsinki, Finland)

Re:

By its action under Article 263 TFEU, the Republic of Cyprus seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 June 2022 (Case R 121/2022-5).

Operative part of the order

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

1.

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

| 2. | The Republic of Cyprus and the European Union Intellectual Property Office (EUIPO) shall each bear their own costs. |
| --- | --- |

2.

The Republic of Cyprus and the European Union Intellectual Property Office (EUIPO) shall each bear their own costs.

---

(1)  OJ C 432, 14.11.2022.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/42 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/42

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Action brought on 27 January 2023 — SCC Legal v Commission

(Case T-43/23)

(2023/C 164/59)

Language of the case: German

Parties

Applicant: SCC Legal Rechtsanwaltgesellschaft mbH (Bad Kreuznach, Germany) (represented by: C. Stallberg and C. Binder, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare that the defendant, following completion of the consultation procedure, failed, contrary to EU law, to initiate the subsequent regulatory procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), fourth subparagraph, in conjunction with Article 79(3) of 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 (OJ 2009 L 309, p. 1); |
| --- | --- |

—

declare that the defendant, following completion of the consultation procedure, failed, contrary to EU law, to initiate the subsequent regulatory procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), fourth subparagraph, in conjunction with Article 79(3) of 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 (OJ 2009 L 309, p. 1);

| — | in the alternative, declare that the defendant, following initiation of the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009, upon receipt and assessment of the Member States’ comments, failed, contrary to EU law, to pursue the procedure, in particular to inform the authority and the interested party and to set a time limit for comments; |
| --- | --- |

—

in the alternative, declare that the defendant, following initiation of the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009, upon receipt and assessment of the Member States’ comments, failed, contrary to EU law, to pursue the procedure, in particular to inform the authority and the interested party and to set a time limit for comments;

| — | in the further alternative, declare that the defendant failed, contrary to EU law, to initiate the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009; |
| --- | --- |

—

in the further alternative, declare that the defendant failed, contrary to EU law, to initiate the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of the obligation to initiate the withdrawal procedure for the approval of a basic substance for which the approval criteria have subsequently been removed
  The applicant is the holder of an authorisation of the plant protection product NatriSan® which contains sodium hydrogen carbonate as an active substance. By authorising NatriSan®, the approval criteria for sodium hydrogen carbonate as a basic substance pursuant to Article 23(1), subparagraph 2, point (d), of Regulation (EC) No 1107/2009 have been removed, with the result that the defendant is under an obligation to withdraw the approval of the basic substance. By failing to initiate the relevant regulatory procedure for withdrawal of the approval of the basic substance despite requests to do so, the defendant infringes that obligation. |
| --- | --- |

1.

First plea in law, alleging infringement of the obligation to initiate the withdrawal procedure for the approval of a basic substance for which the approval criteria have subsequently been removed

The applicant is the holder of an authorisation of the plant protection product NatriSan® which contains sodium hydrogen carbonate as an active substance. By authorising NatriSan®, the approval criteria for sodium hydrogen carbonate as a basic substance pursuant to Article 23(1), subparagraph 2, point (d), of Regulation (EC) No 1107/2009 have been removed, with the result that the defendant is under an obligation to withdraw the approval of the basic substance. By failing to initiate the relevant regulatory procedure for withdrawal of the approval of the basic substance despite requests to do so, the defendant infringes that obligation.

| 2. | Second plea in law, alleging infringement of the principle of subsidiarity in relation to the approval procedure for basic substances
  Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance infringes the phytosanitary principle of subsidiarity protecting the applicant, according to which the approval of a basic substance is to be withdrawn as soon as a substance is marketed as a plant protection product. |
| --- | --- |

2.

Second plea in law, alleging infringement of the principle of subsidiarity in relation to the approval procedure for basic substances

Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance infringes the phytosanitary principle of subsidiarity protecting the applicant, according to which the approval of a basic substance is to be withdrawn as soon as a substance is marketed as a plant protection product.

| 3. | Third plea in law, alleging infringement of the priority principle during the approval procedure for basic substances
  According to the priority principle, the authorisation of NatriSan® precludes the approval of that substance as a basic substance and requires the defendant to withdraw the approval of the basic substance and to initiate the relevant procedure. |
| --- | --- |

3.

Third plea in law, alleging infringement of the priority principle during the approval procedure for basic substances

According to the priority principle, the authorisation of NatriSan® precludes the approval of that substance as a basic substance and requires the defendant to withdraw the approval of the basic substance and to initiate the relevant procedure.

| 4. | Fourth plea in law, alleging infringement of the principle of the protection of legitimate expectations
  The applicant was entitled to rely on a legitimate expectation that, following the phytosanitary authorisation of NatriSan®, the defendant would immediately withdraw the authorisation of sodium hydrogen carbonate as a basic substance. Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance thus gives rise to an infringement of the principle of the protection of legitimate expectations under EU law. |
| --- | --- |

4.

Fourth plea in law, alleging infringement of the principle of the protection of legitimate expectations

The applicant was entitled to rely on a legitimate expectation that, following the phytosanitary authorisation of NatriSan®, the defendant would immediately withdraw the authorisation of sodium hydrogen carbonate as a basic substance. Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance thus gives rise to an infringement of the principle of the protection of legitimate expectations under EU law.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/43 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/43

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Action brought on 13 February 2023 — UH v ECB

(Case T-67/23)

(2023/C 164/60)

Language of the case: German

Parties

Applicant: UH (represented by: M. Burianski, R. Janjuah and W. Häring, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s decision of 13 December 2022 withdrawing the applicant’s authorisation as a credit institution (ECB-SSM-2022-DE-22 WHD-2022-0001); |
| --- | --- |

—

annul the defendant’s decision of 13 December 2022 withdrawing the applicant’s authorisation as a credit institution (ECB-SSM-2022-DE-22 WHD-2022-0001);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging formal illegality of the decision
  The operative part of the ECB’s decision is based on different legal bases than those set out in the statement of reasons. There is thus an infringement of the obligation to state reasons pursuant to Paragraph 39 of the Verwaltungsverfahrensgesetz (Law on administrative procedure), Article 296(2) TFEU and Article 41(2)(c) of the Charter of Fundamental Rights. |
| --- | --- |

1.

First plea in law, alleging formal illegality of the decision

The operative part of the ECB’s decision is based on different legal bases than those set out in the statement of reasons. There is thus an infringement of the obligation to state reasons pursuant to Paragraph 39 of the Verwaltungsverfahrensgesetz (Law on administrative procedure), Article 296(2) TFEU and Article 41(2)(c) of the Charter of Fundamental Rights.

| 2. | Second plea in law, alleging infringement of the right to be heard
  The ECB failed to take into account the applicant’s observations in the context of the consultation procedure. This constitutes an infringement of Article 41(2)(a) of the Charter of Fundamental Rights. |
| --- | --- |

2.

Second plea in law, alleging infringement of the right to be heard

The ECB failed to take into account the applicant’s observations in the context of the consultation procedure. This constitutes an infringement of Article 41(2)(a) of the Charter of Fundamental Rights.

| 3. | Third plea in law, alleging failure to satisfy the conditions for application of Paragraph 35(2)(4)(a) of the Kreditwesengesetz (Law on the activities of credit institutions)
  The conditions for application laid down in Paragraph 35(2)(4)(a) of the Kreditwesengesetz relied on as the legal basis for the statement of reasons of the ECB’s decision have not been satisfied. Moreover, the presumption provided for in that legal basis does not exist or has been rebutted. |
| --- | --- |

3.

Third plea in law, alleging failure to satisfy the conditions for application of Paragraph 35(2)(4)(a) of the Kreditwesengesetz (Law on the activities of credit institutions)

The conditions for application laid down in Paragraph 35(2)(4)(a) of the Kreditwesengesetz relied on as the legal basis for the statement of reasons of the ECB’s decision have not been satisfied. Moreover, the presumption provided for in that legal basis does not exist or has been rebutted.

| 4. | Fourth plea in law, alleging failure to satisfy the conditions for application of Paragraph 35(2)(6) of the Kreditwesengesetz
  The conditions for application laid down in Paragraph 35(2)(6) of the Kreditwesengesetz relied on as the legal basis for the statement of reasons of the ECB’s decision have not been satisfied. The ECB fails to take into account the dynamic definition of own funds of that legal basis. Furthermore, a reference to the increase in own funds requirements by the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority) constitutes an infringement of Article 41(1) of the Charter of Fundamental Rights. |
| --- | --- |

4.

Fourth plea in law, alleging failure to satisfy the conditions for application of Paragraph 35(2)(6) of the Kreditwesengesetz

The conditions for application laid down in Paragraph 35(2)(6) of the Kreditwesengesetz relied on as the legal basis for the statement of reasons of the ECB’s decision have not been satisfied. The ECB fails to take into account the dynamic definition of own funds of that legal basis. Furthermore, a reference to the increase in own funds requirements by the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority) constitutes an infringement of Article 41(1) of the Charter of Fundamental Rights.

| 5. | Fifth plea in law, alleging error of assessment and misuse of powers by the ECB






  — | The withdrawal of the banking authorisation is disproportionate. First, there is a misuse of powers inasmuch as the ECB also justifies the withdrawal of the banking authorisation on the ground that it should be disclosed that allegedly ‘serious’ infringements of prudential requirements have been committed. The ECB thus confers on its decision a punitive character not provided for by law which is not required under Paragraph 35 of the Kreditwesengesetz. This constitutes an infringement of Paragraph 40 of the Verwaltungsverfahrensgesetz, the second sentence of Article 5(1) TFEU and Article 263(2) TFEU. |
| --- | --- | --- |

5.

Fifth plea in law, alleging error of assessment and misuse of powers by the ECB

—

The withdrawal of the banking authorisation is disproportionate. First, there is a misuse of powers inasmuch as the ECB also justifies the withdrawal of the banking authorisation on the ground that it should be disclosed that allegedly ‘serious’ infringements of prudential requirements have been committed. The ECB thus confers on its decision a punitive character not provided for by law which is not required under Paragraph 35 of the Kreditwesengesetz. This constitutes an infringement of Paragraph 40 of the Verwaltungsverfahrensgesetz, the second sentence of Article 5(1) TFEU and Article 263(2) TFEU.

| — | In addition there is a misuse of powers. The withdrawal of the banking authorisation is inherently inappropriate to achieving the objective pursued by that measure. Withdrawal of the authorisation would entail serious disadvantages in particular for the applicant’s creditors and the deposit guarantee which could be avoided in the context of the internal resolution envisaged by the applicant. |
| --- | --- |

—

In addition there is a misuse of powers. The withdrawal of the banking authorisation is inherently inappropriate to achieving the objective pursued by that measure. Withdrawal of the authorisation would entail serious disadvantages in particular for the applicant’s creditors and the deposit guarantee which could be avoided in the context of the internal resolution envisaged by the applicant.

| — | The withdrawal of the banking authorisation is also unnecessary on the ground that the applicant’s internal resolution scheme provides an equally effective but less intrusive means of achieving the objective pursued by the withdrawal. This internal resolution scheme has become the basis of a decision by the Bundesanstalt für Finanzdienstleistungsaufsicht. |
| --- | --- |

—

The withdrawal of the banking authorisation is also unnecessary on the ground that the applicant’s internal resolution scheme provides an equally effective but less intrusive means of achieving the objective pursued by the withdrawal. This internal resolution scheme has become the basis of a decision by the Bundesanstalt für Finanzdienstleistungsaufsicht.

| — | The withdrawal of the banking authorisation is also inappropriate. There is an unjustified interference with the fundamental right enshrined in Article 12(1) in conjunction with Article 19(3) of the Grundgesetz (Basic Law). The subsequent measures likely to be taken pursuant to Paragraph 38 of the Kreditwesengesetz on account of the withdrawal of the banking authorisation are inappropriate. In addition, the applicant’s creditors and shareholders would suffer significant disadvantages which could be avoided by means of an internal resolution with banking authorisation. |
| --- | --- |

—

The withdrawal of the banking authorisation is also inappropriate. There is an unjustified interference with the fundamental right enshrined in Article 12(1) in conjunction with Article 19(3) of the Grundgesetz (Basic Law). The subsequent measures likely to be taken pursuant to Paragraph 38 of the Kreditwesengesetz on account of the withdrawal of the banking authorisation are inappropriate. In addition, the applicant’s creditors and shareholders would suffer significant disadvantages which could be avoided by means of an internal resolution with banking authorisation.

| — | Moreover, there is a misuse of powers on the ground that Paragraph 35(2)(4)(a) of the Kreditwesengesetz requires a double examination of proportionality which the defendant does not carry out. |
| --- | --- |

—

Moreover, there is a misuse of powers on the ground that Paragraph 35(2)(4)(a) of the Kreditwesengesetz requires a double examination of proportionality which the defendant does not carry out.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/45 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/45

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Action brought on 17 February 2023 — RWE Supply & Trading v ACER

(Case T-95/23)

(2023/C 164/61)

Language of the case: German

Parties

Applicant: RWE Supply & Trading GmbH (Essen, Germany) (represented by: U. Scholz, H. Weßling and M. von Falkenhausen, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators (ACER)

Form of order sought

The applicant claims that the Court should:

| — | annul the Board of Appeal’s decision of 9 December 2022 (Ref. A 0[0]2-2022); |
| --- | --- |

—

annul the Board of Appeal’s decision of 9 December 2022 (Ref. A 0[0]2-2022);

| — | in the alternative, annul the defendant’s initial decision of 25 February 2022 (No 03/2022); |
| --- | --- |

—

in the alternative, annul the defendant’s initial decision of 25 February 2022 (No 03/2022);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the principal form of order sought, the applicant relies on two pleas in law.

| 1. | First plea
  The defendant’s Board of Appeal failed to recognise that Decision No 03/2022 is not only of direct but also individual concern to the applicant, and that the applicant was entitled to appeal under Article 28(1) of Regulation (EU) 2019/942. (1) |
| --- | --- |

1.

First plea

The defendant’s Board of Appeal failed to recognise that Decision No 03/2022 is not only of direct but also individual concern to the applicant, and that the applicant was entitled to appeal under Article 28(1) of Regulation (EU) 2019/942. (1)

| 2. | Second plea
  The defendant’s Board of Appeal failed to recognise that a party may also bring an appeal under Article 28(1) of Regulation (EU) 2019/942 where the contested measure is a regulatory act which — as in the present case — is of direct concern to the party bringing the appeal and does not entail implementing measures. |
| --- | --- |

2.

Second plea

The defendant’s Board of Appeal failed to recognise that a party may also bring an appeal under Article 28(1) of Regulation (EU) 2019/942 where the contested measure is a regulatory act which — as in the present case — is of direct concern to the party bringing the appeal and does not entail implementing measures.

In support of its form of order sought in the alternative, which is put forward in the event that the principal form of order sought is unfounded, the applicant relies on six pleas in law.

| 1. | First plea
  The temporary price limits of +/- EUR 15 000/MWh adopted in Decision No 03/2022 breach the prohibition of non-technical price limits on balancing energy markets under Article 10(1) of Regulation (EU) 2019/943 (2) of the European Parliament and of the Council, read in conjunction with Article 30(2) of Regulation (EU) 2017/2195, (3) because they did not meet the requirements of Article 30(2) of Regulation (EU) 2017/2195, as the defendant itself has also acknowledged. |
| --- | --- |

1.

First plea

The temporary price limits of +/- EUR 15 000/MWh adopted in Decision No 03/2022 breach the prohibition of non-technical price limits on balancing energy markets under Article 10(1) of Regulation (EU) 2019/943 (2) of the European Parliament and of the Council, read in conjunction with Article 30(2) of Regulation (EU) 2017/2195, (3) because they did not meet the requirements of Article 30(2) of Regulation (EU) 2017/2195, as the defendant itself has also acknowledged.

| 2. | Second plea
  The defendant erred in basing its decision on Article 5(2)(b) of Regulation (EU) 2019/942, read in conjunction with Article 5(2)(f) and Article 6(3) of Regulation (EU) 2017/2195. Those provisions authorise the defendant to review and approve a proposal by the transmission system operators to introduce or amend methodologies for pricing balancing energy pursuant to Article 30(1) of Regulation (EU) 2017/2195. Price limits can form part of such a proposal only if they fulfil the requirements of Article 30(2) of Regulation (EU) 2017/2195, which the price limits proposed by the transmission system operators do not. The defendant itself acknowledges this. Therefore, there was no proposal to be approved or revised and, consequently, the defendant had no competence to make a decision under Article 5(2)(b) of Regulation (EU) 2019/942. |
| --- | --- |

2.

Second plea

The defendant erred in basing its decision on Article 5(2)(b) of Regulation (EU) 2019/942, read in conjunction with Article 5(2)(f) and Article 6(3) of Regulation (EU) 2017/2195. Those provisions authorise the defendant to review and approve a proposal by the transmission system operators to introduce or amend methodologies for pricing balancing energy pursuant to Article 30(1) of Regulation (EU) 2017/2195. Price limits can form part of such a proposal only if they fulfil the requirements of Article 30(2) of Regulation (EU) 2017/2195, which the price limits proposed by the transmission system operators do not. The defendant itself acknowledges this. Therefore, there was no proposal to be approved or revised and, consequently, the defendant had no competence to make a decision under Article 5(2)(b) of Regulation (EU) 2019/942.

| 3. | Third plea
  Even if the defendant were entitled to revise unlawful proposals of the transmission system operators to introduce price limits on the basis of Article 5(2)(b) of Regulation (EU) 2019/942, it did not make use of that competence. On the contrary, even according to its own reasoning, the defendant not only deviated from the transmission system operators’ proposal, but also adopted an entirely independent arrangement. Consequently, the defendant conferred on itself a right of initiative that is not provided for in EU law. |
| --- | --- |

3.

Third plea

Even if the defendant were entitled to revise unlawful proposals of the transmission system operators to introduce price limits on the basis of Article 5(2)(b) of Regulation (EU) 2019/942, it did not make use of that competence. On the contrary, even according to its own reasoning, the defendant not only deviated from the transmission system operators’ proposal, but also adopted an entirely independent arrangement. Consequently, the defendant conferred on itself a right of initiative that is not provided for in EU law.

| 4. | Fourth plea
  The temporary price limit adopted by the defendant is contrary to the objectives of Regulation (EU) 2017/2195 and Regulation (EU) 2019/943. |
| --- | --- |

4.

Fourth plea

The temporary price limit adopted by the defendant is contrary to the objectives of Regulation (EU) 2017/2195 and Regulation (EU) 2019/943.

| 5. | Fifth plea
  The contested decision lacks the statement of reasons required under Article 14(7) of Regulation (EU) 2019/942, Article 296 TFEU and Article 41(2) of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

5.

Fifth plea

The contested decision lacks the statement of reasons required under Article 14(7) of Regulation (EU) 2019/942, Article 296 TFEU and Article 41(2) of the Charter of Fundamental Rights of the European Union.

| 6. | Sixth plea
  The contested decision is based on an infringement of the applicant’s right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 14(6) of Regulation (EU) 2019/942, because the defendant submitted the draft of the adopted temporary price limits only to the transmission system operators, ENTSO-E (European Network of Transmission System Operators for Electricity) and the regulatory authorities with a request for comments while denying that opportunity to the other interested parties, within the meaning of Article 14(6) of Regulation (EU) 2019/942, including the applicant. |
| --- | --- |

6.

Sixth plea

The contested decision is based on an infringement of the applicant’s right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 14(6) of Regulation (EU) 2019/942, because the defendant submitted the draft of the adopted temporary price limits only to the transmission system operators, ENTSO-E (European Network of Transmission System Operators for Electricity) and the regulatory authorities with a request for comments while denying that opportunity to the other interested parties, within the meaning of Article 14(6) of Regulation (EU) 2019/942, including the applicant.

---

(1)  Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (OJ 2019 L 158, p. 22).

(2)  Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).

(3)  Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6).

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/46 |
| --- | --- | --- | --- |

8.5.2023

EN

Official Journal of the European Union

C 164/46

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Action brought on 17 February 2023 — Uniper Global Commodities v ACER

(Case T-96/23)

(2023/C 164/62)

Language of the case: German

Parties

Applicant: Uniper Global Commodities SE (Düsseldorf, Germany) (represented by: T. Richter, M. Schellberg, C. Sieberg and M. Schleifenbaum, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators (ACER)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the defendant’s Board of Appeal of 9 December 2022 (No A 003-2022); |
| --- | --- |

—

annul the decision of the defendant’s Board of Appeal of 9 December 2022 (No A 003-2022);

| — | in the alternative, annul the defendant’s decision of 25 February 2022 (No 03/2022); |
| --- | --- |

—

in the alternative, annul the defendant’s decision of 25 February 2022 (No 03/2022);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the principal form of order sought, the applicant relies on two pleas in law.

| 1. | First plea
  The defendant’s Board of Appeal erred in finding that the defendant’s decision (No 03/2022) was ‘addressed to another person’ within the meaning of Article 28(1) of Regulation (EU) 2019/942 (1) and that it was of ‘direct’ but not ‘individual’ concern to the applicant:






  — | The Board of Appeal’s finding is based on an unlawful interpretation of Article 28(1) of Regulation (EU) 2019/942 and on an insufficient assessment of the particular concern to the applicant. |
| --- | --- | --- |

1.

First plea

The defendant’s Board of Appeal erred in finding that the defendant’s decision (No 03/2022) was ‘addressed to another person’ within the meaning of Article 28(1) of Regulation (EU) 2019/942 (1) and that it was of ‘direct’ but not ‘individual’ concern to the applicant:

—

The Board of Appeal’s finding is based on an unlawful interpretation of Article 28(1) of Regulation (EU) 2019/942 and on an insufficient assessment of the particular concern to the applicant.

| — | The Board of Appeal based the alleged lack of individual concern on statements from the case-law on the fourth paragraph of Article 263 TFEU, which were not applicable to the present case or were assessed incorrectly. |
| --- | --- |

—

The Board of Appeal based the alleged lack of individual concern on statements from the case-law on the fourth paragraph of Article 263 TFEU, which were not applicable to the present case or were assessed incorrectly.

| 2. | Second plea
  Although the Board of Appeal confirmed that the defendant’s decision was a regulatory act pursuant to the third alternative provided for in the fourth paragraph of Article 263 TFEU, it unlawfully interpreted Article 28(1) of Regulation (EU) 2019/942 to the effect that, under that provision — by way of derogation from the third alternative provided for in the fourth paragraph of Article 263 TFEU — the applicant nevertheless was not entitled to appeal:






  — | The Board of Appeal’s interpretation does not take into account the purpose of the appeal procedure or the role of the defendant in connection with the self-regulation of the balancing energy market, which is subject to approval, under Regulation (EU) 2017/2195. (2) |
| --- | --- | --- |

2.

Second plea

Although the Board of Appeal confirmed that the defendant’s decision was a regulatory act pursuant to the third alternative provided for in the fourth paragraph of Article 263 TFEU, it unlawfully interpreted Article 28(1) of Regulation (EU) 2019/942 to the effect that, under that provision — by way of derogation from the third alternative provided for in the fourth paragraph of Article 263 TFEU — the applicant nevertheless was not entitled to appeal:

—

The Board of Appeal’s interpretation does not take into account the purpose of the appeal procedure or the role of the defendant in connection with the self-regulation of the balancing energy market, which is subject to approval, under Regulation (EU) 2017/2195. (2)

| — | The Board of Appeal’s interpretation entails inadequate legal protection in breach of primary law. |
| --- | --- |

—

The Board of Appeal’s interpretation entails inadequate legal protection in breach of primary law.

| — | Contrary to the Board of Appeal’s view, the wording of the provision does not preclude an interpretation according to which the applicant is entitled to appeal. |
| --- | --- |

—

Contrary to the Board of Appeal’s view, the wording of the provision does not preclude an interpretation according to which the applicant is entitled to appeal.

In support of its form of order sought in the alternative, the applicant puts forward six pleas in law.

| 1. | First plea
  The defendant exceeded its powers under the second sentence of Article 5(1) and Article 5(6), read in conjunction with Article 6(3) of Regulation (EU) 2017/2195, in so far as it did not decide upon the request made by ENTSO-E (European Network of Transmission System Operators for Electricity), but determined an entirely different matter. |
| --- | --- |

1.

First plea

The defendant exceeded its powers under the second sentence of Article 5(1) and Article 5(6), read in conjunction with Article 6(3) of Regulation (EU) 2017/2195, in so far as it did not decide upon the request made by ENTSO-E (European Network of Transmission System Operators for Electricity), but determined an entirely different matter.

| 2. | Second plea
  The defendant, even if it were deemed to have competence under Regulation (EU) 2017/2195 and Regulation (EU) 2019/942, should not have determined the price limits without a fresh consultation pursuant to Article 10 of Regulation (EU) 2017/2195. |
| --- | --- |

2.

Second plea

The defendant, even if it were deemed to have competence under Regulation (EU) 2017/2195 and Regulation (EU) 2019/942, should not have determined the price limits without a fresh consultation pursuant to Article 10 of Regulation (EU) 2017/2195.

| 3. | Third plea
  There is no legal basis for the price limit determined by the defendant. |
| --- | --- |

3.

Third plea

There is no legal basis for the price limit determined by the defendant.

| 4. | Fourth plea
  The defendant failed to state sufficient reasons for its determination of the price limit, in breach of Article 14(7) of Regulation (EU) 2019/942 and Article 296 TFEU. |
| --- | --- |

4.

Fourth plea

The defendant failed to state sufficient reasons for its determination of the price limit, in breach of Article 14(7) of Regulation (EU) 2019/942 and Article 296 TFEU.

| 5. | Fifth plea
  By its decision, the defendant infringed the provisions of Article 3(1)(a), (b) and (e) of Regulation (EU) 2017/2195. |
| --- | --- |

5.

Fifth plea

By its decision, the defendant infringed the provisions of Article 3(1)(a), (b) and (e) of Regulation (EU) 2017/2195.

| 6. | Sixth plea
  In determining the price limit, the defendant infringed the principle of proportionality under the first and second sentences of Article 5(4) TEU and Article 3(2)(a) of Regulation (EU) 2017/2195. |
| --- | --- |

6.

Sixth plea

In determining the price limit, the defendant infringed the principle of proportionality under the first and second sentences of Article 5(4) TEU and Article 3(2)(a) of Regulation (EU) 2017/2195.

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(1)  Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (OJ 2019 L 158, p. 22).

(2)  Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing (OJ 2017 L 312, p. 6).

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/48 |
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C 164/48

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Action brought on 14 March 2023 — Merlin and Others v Commission

(Case T-141/23)

(2023/C 164/63)

Language of the case: French

Parties

Applicants: Laurent Merlin (Equihen-Plage, France) and the 27 other applicants (represented by: F.-C. Laprévote and F. de Bure, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | find, under Article 265 TFEU, that the Commission’s failure to decide on the alleged existence of State aid on the basis of the information provided by the applicants constitutes a failure to act; |
| --- | --- |

—

find, under Article 265 TFEU, that the Commission’s failure to decide on the alleged existence of State aid on the basis of the information provided by the applicants constitutes a failure to act;

| — | order the Commission to take a decision within two months on the basis of Council Regulation (EU) 2015/1589 (1) of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union; |
| --- | --- |

—

order the Commission to take a decision within two months on the basis of Council Regulation (EU) 2015/1589 (1) of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union;

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

—

order the Commission to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on a single plea in law. They submit that the Commission unlawfully failed to act in so far as it did not adopt the decision provided for under Article 4 of Regulation 2015/1589 following the preliminary examination of the information provided in the context of the complaints addressed to it by the applicants as regards allegedly unlawful State aid granted by the Netherlands authorities in favour of owners of sea fishing vessels.

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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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| 8.5.2023 | EN | Official Journal of the European Union | C 164/48 |
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Action brought on 15 March 2023 — VF v Council

(Case T-143/23)

(2023/C 164/64)

Language of the case: English

Parties

Applicant: VF (represented by: C. Docclo, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul the Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (1), in so far as |
| --- | --- |

—

annul the Council Directive (EU) 2022/2523 of 14 December 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the Union (1), in so far as

| — | Article 17 excludes from its scope income from a shipping activity covered by Member States’ tonnage tax regime authorized under State aid rules, other than ‘international shipping income’ and ‘qualified ancillary international shipping income’; |
| --- | --- |

—

Article 17 excludes from its scope income from a shipping activity covered by Member States’ tonnage tax regime authorized under State aid rules, other than ‘international shipping income’ and ‘qualified ancillary international shipping income’;

| — | Article 17 applies only if ‘the constituent entity demonstrates that the strategic or commercial management of all ships concerned is effectively carried on from within the jurisdiction where the constituent entity is located’; |
| --- | --- |

—

Article 17 applies only if ‘the constituent entity demonstrates that the strategic or commercial management of all ships concerned is effectively carried on from within the jurisdiction where the constituent entity is located’;

| — | the Directive does not lay down transitional measures for taxpayers that made substantial investments relying on a national tonnage tax regime; |
| --- | --- |

—

the Directive does not lay down transitional measures for taxpayers that made substantial investments relying on a national tonnage tax regime;

| — | order the Council of the European Union to pay the costs of this procedure. |
| --- | --- |

—

order the Council of the European Union to pay the costs of this procedure.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Directive infringes the general principle of equal treatment of comparable enterprises. |
| --- | --- |

1.

First plea in law, alleging that the Directive infringes the general principle of equal treatment of comparable enterprises.

| 2. | Second plea in law, alleging that the Directive infringes the general principle of proportionality because its effects exceed what is necessary to achieve its purpose. |
| --- | --- |

2.

Second plea in law, alleging that the Directive infringes the general principle of proportionality because its effects exceed what is necessary to achieve its purpose.

| 3. | Third plea in law, alleging that the application of the Directive rules to purely domestic situations infringes the principle of proportionality. |
| --- | --- |

3.

Third plea in law, alleging that the application of the Directive rules to purely domestic situations infringes the principle of proportionality.

| 4. | Fourth plea in law, alleging the infringement of the principle of protection of legitimate expectations and legal certainty. |
| --- | --- |

4.

Fourth plea in law, alleging the infringement of the principle of protection of legitimate expectations and legal certainty.

| 5. | Fifth plea alleging an infringement of Articles 115 and 107 TFEU. |
| --- | --- |

5.

Fifth plea alleging an infringement of Articles 115 and 107 TFEU.

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(1)  OJ 2022, L 328, p. 1.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/49 |
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Action brought on 17 March 2023 — Eurosemillas v CPVO — Nador Cott Protection and Carpa Dorada (Nadorcott)

(Case T-145/23)

(2023/C 164/65)

Language in which the application was lodged: Spanish

Parties

Applicant: Eurosemillas, SA (Cordoba, Spain) (represented by: J. Muñoz-Delgado y Mérida and M. Esteve Sanz, lawyers)

Defendant: Community Plant Variety Office (CPVO)

Other parties to the proceedings before the Board of Appeal: Nador Cott Protection SARL (Saint-Raphaël, France), Carpa Dorada, SL (Almazora, Spain)

Details of the proceedings before CPVO

Proprietor of the Community plant variety right at issue: Nador Cott Protection SARL, other party to the proceedings before the Board of Appeal

Community plant variety right at issue: Community plant variety right No EU 14111 — Variety denomination: Nadorcott — Species: Citrus reticulata Blanco

Proceedings before CPVO: Nullity proceedings

Contested decision: Decision of the Board of Appeal of CPVO of 2 January 2023 in Case A002/2020

Form of order sought

The applicant claims that the Court should:

| — | uphold the first plea of the action, annul the contested decision and refer the case back to the Board of Appeal of CPVO to take the necessary measures to comply with the judgment. |
| --- | --- |

—

uphold the first plea of the action, annul the contested decision and refer the case back to the Board of Appeal of CPVO to take the necessary measures to comply with the judgment.

| — | in the alternative, if the Court does not uphold the first plea of the action, or if it upholds the first plea but considers itself to be in a position to determine, on the basis of the matters of fact and law raised in the proceedings, the decision which the Board of Appeal was required to take, uphold the action brought by Eurosemillas SA on the basis of any of its second to sixth pleas, annul the contested decision and, in its place, issue a new decision annulling Decision No NN20 of CPVO of 16 December 2019 and declare Community plant variety right No EU 14111 on the mandarin variety ‘Nadorcott’ null and void. |
| --- | --- |

—

in the alternative, if the Court does not uphold the first plea of the action, or if it upholds the first plea but considers itself to be in a position to determine, on the basis of the matters of fact and law raised in the proceedings, the decision which the Board of Appeal was required to take, uphold the action brought by Eurosemillas SA on the basis of any of its second to sixth pleas, annul the contested decision and, in its place, issue a new decision annulling Decision No NN20 of CPVO of 16 December 2019 and declare Community plant variety right No EU 14111 on the mandarin variety ‘Nadorcott’ null and void.

| — | order the defendants to pay the costs of the present action and to pay the costs of the proceedings before CPVO and its Board of Appeal. |
| --- | --- |

—

order the defendants to pay the costs of the present action and to pay the costs of the proceedings before CPVO and its Board of Appeal.

Pleas in law

| — | Breach of the fundamental right to good administration, in conjunction with the fundamental right to an effective remedy and to a fair trial in due process of law enshrined in Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, which the contested decision also infringed. |
| --- | --- |

—

Breach of the fundamental right to good administration, in conjunction with the fundamental right to an effective remedy and to a fair trial in due process of law enshrined in Articles 41 and 47 of the Charter of Fundamental Rights of the European Union, which the contested decision also infringed.

| — | Infringement, by non-application, of Article 20(1) of Council Regulation (EC) No 2100/1994 in conjunction with Article 10 thereof. |
| --- | --- |

—

Infringement, by non-application, of Article 20(1) of Council Regulation (EC) No 2100/1994 in conjunction with Article 10 thereof.

| — | Infringement, by improper application, of Article 116 of Council Regulation (EC) No 2100/1994. |
| --- | --- |

—

Infringement, by improper application, of Article 116 of Council Regulation (EC) No 2100/1994.

| — | Infringement, by non-application, of Article 20(1)(a) of Council Regulation (EC) No 2100/1994, in conjunction with Article 10 thereof, in that the contested decision rejects that the disposal of Nadorcott’s constituents and harvested material in the EU before the grace period (calculated without applying Article 116) destroyed the novelty of the variety. |
| --- | --- |

—

Infringement, by non-application, of Article 20(1)(a) of Council Regulation (EC) No 2100/1994, in conjunction with Article 10 thereof, in that the contested decision rejects that the disposal of Nadorcott’s constituents and harvested material in the EU before the grace period (calculated without applying Article 116) destroyed the novelty of the variety.

| — | Infringement, by non-application, of Article 20(1)(c) of Council Regulation (EC) No 2100/1994 in conjunction with Article 11(1) thereof. |
| --- | --- |

—

Infringement, by non-application, of Article 20(1)(c) of Council Regulation (EC) No 2100/1994 in conjunction with Article 11(1) thereof.

| — | Infringement, by non-application, of Article 20(1)(c) of Council Regulation (EC) No 2100/1994 in conjunction with Article 11(4) thereof. |
| --- | --- |

—

Infringement, by non-application, of Article 20(1)(c) of Council Regulation (EC) No 2100/1994 in conjunction with Article 11(4) thereof.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/50 |
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Action brought on 21 March 2023 — WhatsApp Ireland v European Data Protection Board

(Case T-153/23)

(2023/C 164/66)

Language of the case: English

Parties

Applicant: WhatsApp Ireland Ltd (Dublin, Ireland) (represented by: J. Killick, G. Forwood, I. Sarmas, H. Gafsen, lawyers, P. Nolan, B. Johnston, C. Monaghan, D. Breatnach, Solicitors, D. McGrath, SC, E. Egan McGrath, B. Kennedy, SC, C. Geoghegan, Barristers)

Defendant: European Data Protection Board (EDPB)

Form of order sought

The applicant claims that the Court should:

| — | Order the requested measures of organisation of procedure; |
| --- | --- |

—

Order the requested measures of organisation of procedure;

| — | Annul Binding Decision 5/2022 of the EDPB on the dispute submitted by the DPC regarding WhatsApp Ireland Limited (Art. 65 GDPR) dated 5 December 2022 (Contested decision); and |
| --- | --- |

—

Annul Binding Decision 5/2022 of the EDPB on the dispute submitted by the DPC regarding WhatsApp Ireland Limited (Art. 65 GDPR) dated 5 December 2022 (Contested decision); and

| — | Order the EDPB to bear WhatsApp Ireland’s costs and expenses in connection with these proceedings. |
| --- | --- |

—

Order the EDPB to bear WhatsApp Ireland’s costs and expenses in connection with these proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that EDPB failed to act as an impartial body, in violation of Article 41(1) of the Charter. |
| --- | --- |

1.

First plea in law, alleging that EDPB failed to act as an impartial body, in violation of Article 41(1) of the Charter.

| 2. | Second plea in law, alleging that, subject to confirmation through measures of organisation of procedure, the Contested Decision was vitiated by procedural irregularities in its adoption. |
| --- | --- |

2.

Second plea in law, alleging that, subject to confirmation through measures of organisation of procedure, the Contested Decision was vitiated by procedural irregularities in its adoption.

| 3. | Third plea in law, alleging that the EDPB exceeded its competence by considering matters that were outside the scope of the Complaint. |
| --- | --- |

3.

Third plea in law, alleging that the EDPB exceeded its competence by considering matters that were outside the scope of the Complaint.

| 4. | Fourth plea in law, alleging that the EDPB erred by instructing the Irish Data Protection Commission to find that the Applicant could not rely on contractual necessity under Article 6(1)(b) GDPR. |
| --- | --- |

4.

Fourth plea in law, alleging that the EDPB erred by instructing the Irish Data Protection Commission to find that the Applicant could not rely on contractual necessity under Article 6(1)(b) GDPR.

| 5. | Fifth plea in law alleging that the EDPB erred in law in instructing the Irish Data Protection Commission to find an infringement of the principle of fairness, enshrined in Article 5(1)(a) GDPR. |
| --- | --- |

5.

Fifth plea in law alleging that the EDPB erred in law in instructing the Irish Data Protection Commission to find an infringement of the principle of fairness, enshrined in Article 5(1)(a) GDPR.

| 6. | Sixth plea in law alleging that the EDPB erred in law and exceeded its competence by instructing the Irish Data Protection Commission to further investigate all of WhatsApp Ireland’s data processing to determine whether it includes special categories of data pursuant to Article 9 GDPR. |
| --- | --- |

6.

Sixth plea in law alleging that the EDPB erred in law and exceeded its competence by instructing the Irish Data Protection Commission to further investigate all of WhatsApp Ireland’s data processing to determine whether it includes special categories of data pursuant to Article 9 GDPR.

| 7. | Seventh plea in law alleging that the EDPB exceeded its competence and erred in law in instructing the Irish Data Protection Commission to impose an administrative fine. |
| --- | --- |

7.

Seventh plea in law alleging that the EDPB exceeded its competence and erred in law in instructing the Irish Data Protection Commission to impose an administrative fine.

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| 8.5.2023 | EN | Official Journal of the European Union | C 164/51 |
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Order of the General Court of 9 March 2023 — Junqueras i Vies v Parliament

(Case T-485/20) (1)

(2023/C 164/67)

Language of the case: Spanish

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

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(1)  OJ C 304, 14.9.2020.

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