# Official Journal C 270/25 J

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 270 |
| | |
| English edition | Information and Notices | Volume 5925 July 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 270

English edition

Information and Notices

Volume 5925 July 2016

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2016/C 270/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |
| | General Court |
| 2016/C 270/02 | Conduct of the activity of the General Court from 1 to 19 September 2016 | 2 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2016/C 270/01

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

General Court

2016/C 270/02

Conduct of the activity of the General Court from 1 to 19 September 2016

2

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2016/C 270/03 | Joined Cases C-210/14 to C-214/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (requests for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Daniela Tomassi (C-210/14), Massimiliano Di Adamo (C-211/14), Andrea De Ciantis (C-212/14), Romina Biolzi (C-213/14), Giuseppe Proia (C-214/14) (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 3 |
| 2016/C 270/04 | Case C-433/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Domenico Rosa (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 4 |
| 2016/C 270/05 | Case C-434/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Raffaele Mignone (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 4 |
| 2016/C 270/06 | Case C-435/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Mauro Barletta (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 5 |
| 2016/C 270/07 | Case C-436/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (reference for a preliminary ruling from the Tribunale di Bari (Italy)) — Criminal proceedings against Davide Cazzorla (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 6 |
| 2016/C 270/08 | Case C-437/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Nicola Seminario (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 7 |
| 2016/C 270/09 | Case C-462/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Lorenzo Carlucci (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 7 |
| 2016/C 270/10 | Case C-467/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Chiara Baldo (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 8 |
| 2016/C 270/11 | Case C-474/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Salerno — Italy) — Criminal proceedings against Cristiano Pontillo (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 9 |
| 2016/C 270/12 | Case C-495/14: Order of the Court (Ninth Chamber) of 7 April 2016 (request for a preliminary ruling from the Tribunale regionale di giustizia amministrativa di Trento (Italy)) — Antonio Tita, Alessandra Carlin and Piero Constantini v Ministero della Giustizia, Ministero dell’Economia e della Finanze, Presidenza del Consiglio dei Ministri, Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA) (Reference for a preliminary ruling — Article 99 of the Court’s Rules of Procedure — Directive 89/665/EEC — Public procurement — National legislation — Fees for access to administrative proceedings in the field of public procurement — Right to an effective remedy — Dissuasive fees — Judicial review of administrative decisions — Principles of effectiveness and equivalence) | 10 |
| 2016/C 270/13 | Case C-534/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Andrea Gaiti, Sidi Amidou Billa, Joseph Arasomwan, Giuseppe Carissimi, Sahabou Songne (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 10 |
| 2016/C 270/14 | Case C-65/15: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Vito Santoro (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 11 |
| 2016/C 270/15 | Case C-504/15: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Antonio Paolo Conti (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 12 |
| 2016/C 270/16 | Case C-8/16: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Paola Tonachella (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality) | 13 |
| 2016/C 270/17 | Case C-278/15 P: Appeal brought on 4 June 2015 by The Royal County of Berkshire Polo Club Ltd against the judgment of the General Court (Ninth Chamber) delivered on 26 March 2015 in Case T-581/13: Royal County of Berkshire Polo Club v OHIM | 13 |
| 2016/C 270/18 | Case C-451/15 P: Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-395/14: Best-Lock (Europe) v EUIPO | 14 |
| 2016/C 270/19 | Case C-452/15 P: Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-396/14: Best-Lock (Europe) v EUIPO | 14 |
| 2016/C 270/20 | Case C-479/15 P: Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO | 14 |
| 2016/C 270/21 | Case C-480/15 P: Appeal brought on 10 September 2015 by KS Sports IPCo GmbH, successor in law to BH Stores BV against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 2 July 2015 in Case T-657/13: KS Sports v EUIPO | 15 |
| 2016/C 270/22 | Case C-602/15 P: Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-633/14: Monster Energy v EUIPO | 15 |
| 2016/C 270/23 | Case C-603/15 P: Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-666/14: Monster Energy v EUIPO | 15 |
| 2016/C 270/24 | Case C-636/15 P: Appeal brought on 30 November 2015 by August Storck KG against the judgment of the General Court (Second Chamber) delivered on 25 September 2015 in Case T-366/14: August Storck v EUIPO | 16 |
| 2016/C 270/25 | Case C-35/16 P: Appeal brought on 21 January 2016 by Matratzen Concord GmbH against the judgment of the General Court (Ninth Chamber) of 19 November 2015 in Case T-526/14 Matratzen Concord GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 16 |
| 2016/C 270/26 | Case C-76/16: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 11 February 2016 — INGSTEEL spol. s r. o., Metrostav a. s. v Úrad pre verejné obstarávanie | 16 |
| 2016/C 270/27 | Case C-77/16 P: Appeal brought on 11 February 2016 by Hewlett Packard Development Company LP against the judgment of the General Court (Sixth Chamber) delivered on 3 December 2015 in Case T-628/14: Hewlett Packard Development Company v EUIPO | 17 |
| 2016/C 270/28 | Case C-115/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — N Luxembourg 1 v Skatteministeriet | 17 |
| 2016/C 270/29 | Case C-116/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v T Danmark | 20 |
| 2016/C 270/30 | Case C-117/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps | 22 |
| 2016/C 270/31 | Case C-118/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — X Denmark A/S v Skatteministeriet | 25 |
| 2016/C 270/32 | Case C-119/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — C Danmark I v Skatteministeriet | 27 |
| 2016/C 270/33 | Case C-191/16: Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 5 April 2016 — Romano Pisciotti v Bundesrepublik Deutschland | 29 |
| 2016/C 270/34 | Case C-265/16: Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 12 May 2016 — VCAST Limited v R.T.I. SpA | 30 |
| 2016/C 270/35 | Case C-292/16: Request for a preliminary ruling from the Helsingin hallinto-oikeus (Finland) lodged on 25 May 2016 — A Oy | 31 |
| 2016/C 270/36 | Case C-301/16 P: Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission | 32 |
| 2016/C 270/37 | Case C-304/16: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 30 May 2016 — American Express Co. v The Lords Commissioners of Her Majesty’s Treasury | 33 |
| 2016/C 270/38 | Case C-305/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 30 May 2016 — Avon Cosmetics Ltd v The Commissioners for Her Majesty's Revenue and Customs | 34 |
| 2016/C 270/39 | Case C-323/16 P: Appeal brought on 8 June 2016 by Eurallumina SpA against the judgment of the General Court (First Chamber, Extended Composition) delivered on 22 April 2016 in joined cases T-60/06 RENV II and T-62/06 RENV II: Italian Republic and Eurallumina SpA v European Commission | 36 |
| | General Court |
| 2016/C 270/40 | Case T-162/13: Judgment of the General Court of 9 June 2016 — Magic Mountain Kletterhallen and Others v Commission (State aid — Aid for the construction and operation of climbing centres of Deutscher Alpenverein eV — Decision declaring the aid compatible with the internal market — Aid scheme — More detailed economic analysis — Market failure — Legitimate objective in the public interest — Article 108(2) and (3) TFEU — Serious difficulties) | 37 |
| 2016/C 270/41 | Case T-276/13: Judgment of the General Court of 9 June 2016 — Growth Energy and Renewable Fuels Association v Council (Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Association — Members not directly concerned — Inadmissibility — Countrywide anti-dumping duty — Individual treatment — Sampling — Rights of the defence — Non-discrimination — Duty of diligence) | 38 |
| 2016/C 270/42 | Case T-277/13: Judgment of the General Court of 9 June 2016 — Marquis Energy v Council (Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Direct concern — Admissibility — Countrywide anti-dumping duty — Individual treatment — Sampling) | 38 |
| 2016/C 270/43 | Case T-122/14: Judgment of the General Court of 9 June 2016 — Italy v Commission (Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations — Periodic penalty payment — Judgment quantifying the amount of the periodic penalty payment — Method of calculating the interest applicable to the recovery of unlawful aid — Compound interest) | 39 |
| 2016/C 270/44 | Case T-614/14: Judgment of the General Court of 16 June 2016 — Fútbol Club Barcelona v EUIPO — Kule (KULE) (European Union trade mark — Opposition proceedings — Application for European Union word mark KULE — Earlier national word marks and well-known mark CULE — Relative grounds for refusal — No genuine use of the earlier trade marks — Article 42(2) of Regulation (EC) No 207/2009 — Article 8(1)(b) of Regulation No 207/2009 — Article 8(5) of Regulation No 207/2009) | 40 |
| 2016/C 270/45 | Case T-789/14: Judgment of the General Court of 14 June 2016 — Staatliche Porzellan-Manufaktur Meissen v EUIPO — Meissen Keramik (MEISSEN) (EU trade mark — Opposition proceedings — Application for EU figurative mark MEISSEN — Earlier EU and national word and figurative marks MEISSEN, MEISSENER PORZELLAN, HAUS MEISSEN, Meissen and Meissener Porzellan — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Distinctive character and reputation of the earlier marks — Article 8(5) of Regulation No 207/2009 — Genuine use of the earlier marks — Article 42(2) and (3) of Regulation No 207/2009 — Article 15(1) of Regulation No 207/2009) | 41 |
| 2016/C 270/46 | Case T-385/15: Judgment of the General Court of 14 June 2016 — Loops v EUIPO (Shape of a toothbrush) (EU trade mark — International registration designating the European Union — Three-dimensional mark — Shape of a toothbrush — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009) | 41 |
| 2016/C 270/47 | Case T-583/15: Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (Representation of a peace symbol) (EU trade mark — Application for an EU figurative mark representing a peace symbol — Application for restitutio in integrum — Non-compliance with the time limit for bringing an action before the General Court) | 42 |
| 2016/C 270/48 | Case T-585/15: Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (GREEN BEANS) (EU trade mark — Application for the EU word mark GREEN BEANS — Application for restitutio in integrum — Non-compliance with the time limit for bringing an action before the General Court) | 43 |
| 2016/C 270/49 | Case T-362/14: Order of the General Court of 26 May 2016 — REWE-Zentral v EUIPO — Vicente Gandía Pla (MY PLANET) (EU trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate) | 43 |
| 2016/C 270/50 | Case T-825/14: Order of the General Court of 9 June 2016 — IREPA v Commission and Court of Auditors (Action for annulment — Fishing — Italian National Fisheries Data Collection Programme for the period 2009-2010 — Recovery of a part of the advances paid to the applicant — Court of Auditors’ preliminary report — Measure not open to challenge — Preparatory measure — Pre-information letters — Debit note — Fourth paragraph of Article 263 TFEU — Lack of direct concern — Inadmissibility) | 44 |
| 2016/C 270/51 | Case T-178/15: Order of the General Court of 8 June 2016 — Kohrener Landmolkerei and DHG v Commission (System of traditional specialities guaranteed — Regulation (EU) No 1151/2012 — Letter from the Commission informing the competent national authorities of their late lodging of their opposition measure — Action manifestly lacking any foundation in law) | 45 |
| 2016/C 270/52 | Case T-168/16: Action brought on 18 April 2016 — Grizzly Tools v Commission | 45 |
| 2016/C 270/53 | Case T-202/16: Action brought on 3 May 2016 — Keturi kambariai v EUIPO — Coffee In (coffee inn) | 46 |
| 2016/C 270/54 | Case T-222/16: Action brought on 11 May 2016 — Hansen Medical v EUIPO — Covidien (MAGELLAN) | 47 |
| 2016/C 270/55 | Case T-229/16: Action brought on 6 May 2016 — Pio De Bragança v EUIPO — Ordem de São Miguel da Ala (QUIS UT DEUS) | 48 |
| 2016/C 270/56 | Case T-240/16: Action brought on 14 May 2016 — Klyuyev v Council | 48 |
| 2016/C 270/57 | Case T-242/16: Action brought on 17 May 2016 — Stavytskyi v Council | 50 |
| 2016/C 270/58 | Case T-247/16: Action brought on 13 May 2016 — Trasta Komercbanka and others v ECB | 51 |
| 2016/C 270/59 | Case T-248/16: Action brought on 19 May 2016 — Walfood v EUIPO — Romanov Holding (CHATKA) | 52 |
| 2016/C 270/60 | Case T-261/16: Action brought on 25 May 2016 — Portugal v Commission | 52 |
| 2016/C 270/61 | Case T-272/16: Action brought on 25 May 2016 — Greece v Commission | 53 |
| 2016/C 270/62 | Case T-273/16: Action brought on 30 May 2016 — Sun Media v EUIPO — Meta4 Spain (METAPORN) | 55 |
| 2016/C 270/63 | Case T-274/16: Action brought on 27 May 2016 — Saleh Thabet v Council | 56 |
| 2016/C 270/64 | Case T-275/16: Action brought on 27 May 2016 — Mubarak and others v Council | 57 |
| 2016/C 270/65 | Case T-282/16: Action brought on 30 May 2016 — Inpost Paczkomaty v Commission | 58 |
| 2016/C 270/66 | Case T-283/16: Action brought on 30 May 2016 — Inpost v Commission | 60 |
| 2016/C 270/67 | Case T-284/16: Action brought on 23 May 2016 — Gulli v EUIPO — Laverana (Lybera) | 61 |
| 2016/C 270/68 | Case T-287/16: Action brought on 30 May 2016 — Belgium v Commission | 62 |
| 2016/C 270/69 | Case T-289/16: Action brought on 3 June 2016 — Inox Mare v Commission | 63 |
| 2016/C 270/70 | Case T-290/16: Action brought on 7 June 2016 — Fruits de Ponent v Commission | 64 |
| 2016/C 270/71 | Case T-298/16: Action brought on 13 June 2016 — East West Consulting v Commission | 66 |
| 2016/C 270/72 | Case T-560/12: Order of the General Court of 6 June 2016 — Miejskie Przedsiębiorstwo Energetyki Cieplnej v ECHA | 67 |
| 2016/C 270/73 | Case T-537/14: Order of the General Court of 1 June 2016 — Laboratoire Nuxe v EUIPO — NYX, Los Angeles (NYX) | 67 |
| 2016/C 270/74 | Case T-84/15: Order of the General Court of 31 May 2016 — Laboratorios Thea v EUIPO — Sebapharma (Sebacur) | 67 |
| | European Union Civil Service Tribunal |
| 2016/C 270/75 | Case F-121/15: Judgment of the Civil Service Tribunal (Single Judge) of 14 June 2016 — Fernández González v Commission (Civil service — Temporary member of staff — Staff member posted in the cabinet of a European commissioner — Recruitment of a temporary member of staff under Article 2(b) of the CEOS — Condition requiring a six-month break from any form of employment with the Commission — Point 3.2 of Commission Note D(2005)18064 of 28 July 2005 on the hiring of temporary members of staff under Article 2(b) and (d) of the CEOS to fill permanent posts in the event that no candidates are shortlisted following a competition) | 68 |
| 2016/C 270/76 | Case F-133/15: Judgment of the Civil Service Tribunal (Single Judge) of 10 June 2016 — HI v Commission (Civil service — Officials — Article 11 of the Staff Regulations — Duty of loyalty — Article 11a — Conflict of interests — Official responsible for monitoring a project funded by the European Union — Family link between that official and an employee recruited for the purposes of the project by the company responsible for that project — Disciplinary procedure — Disciplinary action — Downgrading — Lawfulness of the composition of the Disciplinary Board — Obligation to state reasons — Length of the procedure — Reasonable time — Infringement of the rights of the defence — Principle of ne bis in idem — Manifest error of assessment — Proportionality of the penalty — Mitigating circumstances) | 69 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2016/C 270/03

Joined Cases C-210/14 to C-214/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (requests for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Daniela Tomassi (C-210/14), Massimiliano Di Adamo (C-211/14), Andrea De Ciantis (C-212/14), Romina Biolzi (C-213/14), Giuseppe Proia (C-214/14) (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

3

2016/C 270/04

Case C-433/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Domenico Rosa (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

4

2016/C 270/05

Case C-434/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Raffaele Mignone (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

4

2016/C 270/06

Case C-435/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Mauro Barletta (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

5

2016/C 270/07

Case C-436/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (reference for a preliminary ruling from the Tribunale di Bari (Italy)) — Criminal proceedings against Davide Cazzorla (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

6

2016/C 270/08

Case C-437/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Nicola Seminario (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

7

2016/C 270/09

Case C-462/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Lorenzo Carlucci (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

7

2016/C 270/10

Case C-467/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Chiara Baldo (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

8

2016/C 270/11

Case C-474/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Salerno — Italy) — Criminal proceedings against Cristiano Pontillo (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

9

2016/C 270/12

Case C-495/14: Order of the Court (Ninth Chamber) of 7 April 2016 (request for a preliminary ruling from the Tribunale regionale di giustizia amministrativa di Trento (Italy)) — Antonio Tita, Alessandra Carlin and Piero Constantini v Ministero della Giustizia, Ministero dell’Economia e della Finanze, Presidenza del Consiglio dei Ministri, Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA) (Reference for a preliminary ruling — Article 99 of the Court’s Rules of Procedure — Directive 89/665/EEC — Public procurement — National legislation — Fees for access to administrative proceedings in the field of public procurement — Right to an effective remedy — Dissuasive fees — Judicial review of administrative decisions — Principles of effectiveness and equivalence)

Antonio Tita, Alessandra Carlin and Piero Constantini

Ministero della Giustizia, Ministero dell’Economia e della Finanze, Presidenza del Consiglio dei Ministri, Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA)

10

2016/C 270/13

Case C-534/14: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Andrea Gaiti, Sidi Amidou Billa, Joseph Arasomwan, Giuseppe Carissimi, Sahabou Songne (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

10

2016/C 270/14

Case C-65/15: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Vito Santoro (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

11

2016/C 270/15

Case C-504/15: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Antonio Paolo Conti (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

12

2016/C 270/16

Case C-8/16: Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Paola Tonachella (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Identical questions referred for a preliminary ruling — Articles 49 and 56 TFEU — Freedom of establishment — Freedom to provide services — Betting and gaming — National legislation — Reorganisation of the licensing system through the alignment of licence expiry dates — New call for tenders — Licences for a shorter term than that of the former licences — Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets — Restriction — Overriding reasons in the public interest — Proportionality)

13

2016/C 270/17

Case C-278/15 P: Appeal brought on 4 June 2015 by The Royal County of Berkshire Polo Club Ltd against the judgment of the General Court (Ninth Chamber) delivered on 26 March 2015 in Case T-581/13: Royal County of Berkshire Polo Club v OHIM

13

2016/C 270/18

Case C-451/15 P: Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-395/14: Best-Lock (Europe) v EUIPO

14

2016/C 270/19

Case C-452/15 P: Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-396/14: Best-Lock (Europe) v EUIPO

14

2016/C 270/20

Case C-479/15 P: Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO

14

2016/C 270/21

Case C-480/15 P: Appeal brought on 10 September 2015 by KS Sports IPCo GmbH, successor in law to BH Stores BV against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 2 July 2015 in Case T-657/13: KS Sports v EUIPO

15

2016/C 270/22

Case C-602/15 P: Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-633/14: Monster Energy v EUIPO

15

2016/C 270/23

Case C-603/15 P: Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-666/14: Monster Energy v EUIPO

15

2016/C 270/24

Case C-636/15 P: Appeal brought on 30 November 2015 by August Storck KG against the judgment of the General Court (Second Chamber) delivered on 25 September 2015 in Case T-366/14: August Storck v EUIPO

16

2016/C 270/25

Case C-35/16 P: Appeal brought on 21 January 2016 by Matratzen Concord GmbH against the judgment of the General Court (Ninth Chamber) of 19 November 2015 in Case T-526/14 Matratzen Concord GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Matratzen Concord GmbH

Office for Harmonisation in the Internal Market (Trade Marks and Designs)

16

2016/C 270/26

Case C-76/16: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 11 February 2016 — INGSTEEL spol. s r. o., Metrostav a. s. v Úrad pre verejné obstarávanie

16

2016/C 270/27

Case C-77/16 P: Appeal brought on 11 February 2016 by Hewlett Packard Development Company LP against the judgment of the General Court (Sixth Chamber) delivered on 3 December 2015 in Case T-628/14: Hewlett Packard Development Company v EUIPO

17

2016/C 270/28

Case C-115/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — N Luxembourg 1 v Skatteministeriet

17

2016/C 270/29

Case C-116/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v T Danmark

20

2016/C 270/30

Case C-117/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps

22

2016/C 270/31

Case C-118/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — X Denmark A/S v Skatteministeriet

25

2016/C 270/32

Case C-119/16: Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — C Danmark I v Skatteministeriet

27

2016/C 270/33

Case C-191/16: Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 5 April 2016 — Romano Pisciotti v Bundesrepublik Deutschland

29

2016/C 270/34

Case C-265/16: Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 12 May 2016 — VCAST Limited v R.T.I. SpA

30

2016/C 270/35

Case C-292/16: Request for a preliminary ruling from the Helsingin hallinto-oikeus (Finland) lodged on 25 May 2016 — A Oy

31

2016/C 270/36

Case C-301/16 P: Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission

32

2016/C 270/37

Case C-304/16: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 30 May 2016 — American Express Co. v The Lords Commissioners of Her Majesty’s Treasury

33

2016/C 270/38

Case C-305/16: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 30 May 2016 — Avon Cosmetics Ltd v The Commissioners for Her Majesty's Revenue and Customs

34

2016/C 270/39

Case C-323/16 P: Appeal brought on 8 June 2016 by Eurallumina SpA against the judgment of the General Court (First Chamber, Extended Composition) delivered on 22 April 2016 in joined cases T-60/06 RENV II and T-62/06 RENV II: Italian Republic and Eurallumina SpA v European Commission

36

General Court

2016/C 270/40

Case T-162/13: Judgment of the General Court of 9 June 2016 — Magic Mountain Kletterhallen and Others v Commission (State aid — Aid for the construction and operation of climbing centres of Deutscher Alpenverein eV — Decision declaring the aid compatible with the internal market — Aid scheme — More detailed economic analysis — Market failure — Legitimate objective in the public interest — Article 108(2) and (3) TFEU — Serious difficulties)

37

2016/C 270/41

Case T-276/13: Judgment of the General Court of 9 June 2016 — Growth Energy and Renewable Fuels Association v Council (Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Association — Members not directly concerned — Inadmissibility — Countrywide anti-dumping duty — Individual treatment — Sampling — Rights of the defence — Non-discrimination — Duty of diligence)

38

2016/C 270/42

Case T-277/13: Judgment of the General Court of 9 June 2016 — Marquis Energy v Council (Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Direct concern — Admissibility — Countrywide anti-dumping duty — Individual treatment — Sampling)

38

2016/C 270/43

Case T-122/14: Judgment of the General Court of 9 June 2016 — Italy v Commission (Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations — Periodic penalty payment — Judgment quantifying the amount of the periodic penalty payment — Method of calculating the interest applicable to the recovery of unlawful aid — Compound interest)

39

2016/C 270/44

Case T-614/14: Judgment of the General Court of 16 June 2016 — Fútbol Club Barcelona v EUIPO — Kule (KULE) (European Union trade mark — Opposition proceedings — Application for European Union word mark KULE — Earlier national word marks and well-known mark CULE — Relative grounds for refusal — No genuine use of the earlier trade marks — Article 42(2) of Regulation (EC) No 207/2009 — Article 8(1)(b) of Regulation No 207/2009 — Article 8(5) of Regulation No 207/2009)

40

2016/C 270/45

Case T-789/14: Judgment of the General Court of 14 June 2016 — Staatliche Porzellan-Manufaktur Meissen v EUIPO — Meissen Keramik (MEISSEN) (EU trade mark — Opposition proceedings — Application for EU figurative mark MEISSEN — Earlier EU and national word and figurative marks MEISSEN, MEISSENER PORZELLAN, HAUS MEISSEN, Meissen and Meissener Porzellan — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Distinctive character and reputation of the earlier marks — Article 8(5) of Regulation No 207/2009 — Genuine use of the earlier marks — Article 42(2) and (3) of Regulation No 207/2009 — Article 15(1) of Regulation No 207/2009)

41

2016/C 270/46

Case T-385/15: Judgment of the General Court of 14 June 2016 — Loops v EUIPO (Shape of a toothbrush) (EU trade mark — International registration designating the European Union — Three-dimensional mark — Shape of a toothbrush — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

41

2016/C 270/47

Case T-583/15: Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (Representation of a peace symbol) (EU trade mark — Application for an EU figurative mark representing a peace symbol — Application for restitutio in integrum — Non-compliance with the time limit for bringing an action before the General Court)

42

2016/C 270/48

Case T-585/15: Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (GREEN BEANS) (EU trade mark — Application for the EU word mark GREEN BEANS — Application for restitutio in integrum — Non-compliance with the time limit for bringing an action before the General Court)

43

2016/C 270/49

Case T-362/14: Order of the General Court of 26 May 2016 — REWE-Zentral v EUIPO — Vicente Gandía Pla (MY PLANET) (EU trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate)

43

2016/C 270/50

Case T-825/14: Order of the General Court of 9 June 2016 — IREPA v Commission and Court of Auditors (Action for annulment — Fishing — Italian National Fisheries Data Collection Programme for the period 2009-2010 — Recovery of a part of the advances paid to the applicant — Court of Auditors’ preliminary report — Measure not open to challenge — Preparatory measure — Pre-information letters — Debit note — Fourth paragraph of Article 263 TFEU — Lack of direct concern — Inadmissibility)

44

2016/C 270/51

Case T-178/15: Order of the General Court of 8 June 2016 — Kohrener Landmolkerei and DHG v Commission (System of traditional specialities guaranteed — Regulation (EU) No 1151/2012 — Letter from the Commission informing the competent national authorities of their late lodging of their opposition measure — Action manifestly lacking any foundation in law)

45

2016/C 270/52

Case T-168/16: Action brought on 18 April 2016 — Grizzly Tools v Commission

45

2016/C 270/53

Case T-202/16: Action brought on 3 May 2016 — Keturi kambariai v EUIPO — Coffee In (coffee inn)

46

2016/C 270/54

Case T-222/16: Action brought on 11 May 2016 — Hansen Medical v EUIPO — Covidien (MAGELLAN)

47

2016/C 270/55

Case T-229/16: Action brought on 6 May 2016 — Pio De Bragança v EUIPO — Ordem de São Miguel da Ala (QUIS UT DEUS)

48

2016/C 270/56

Case T-240/16: Action brought on 14 May 2016 — Klyuyev v Council

48

2016/C 270/57

Case T-242/16: Action brought on 17 May 2016 — Stavytskyi v Council

50

2016/C 270/58

Case T-247/16: Action brought on 13 May 2016 — Trasta Komercbanka and others v ECB

51

2016/C 270/59

Case T-248/16: Action brought on 19 May 2016 — Walfood v EUIPO — Romanov Holding (CHATKA)

52

2016/C 270/60

Case T-261/16: Action brought on 25 May 2016 — Portugal v Commission

52

2016/C 270/61

Case T-272/16: Action brought on 25 May 2016 — Greece v Commission

53

2016/C 270/62

Case T-273/16: Action brought on 30 May 2016 — Sun Media v EUIPO — Meta4 Spain (METAPORN)

55

2016/C 270/63

Case T-274/16: Action brought on 27 May 2016 — Saleh Thabet v Council

56

2016/C 270/64

Case T-275/16: Action brought on 27 May 2016 — Mubarak and others v Council

57

2016/C 270/65

Case T-282/16: Action brought on 30 May 2016 — Inpost Paczkomaty v Commission

58

2016/C 270/66

Case T-283/16: Action brought on 30 May 2016 — Inpost v Commission

60

2016/C 270/67

Case T-284/16: Action brought on 23 May 2016 — Gulli v EUIPO — Laverana (Lybera)

61

2016/C 270/68

Case T-287/16: Action brought on 30 May 2016 — Belgium v Commission

62

2016/C 270/69

Case T-289/16: Action brought on 3 June 2016 — Inox Mare v Commission

63

2016/C 270/70

Case T-290/16: Action brought on 7 June 2016 — Fruits de Ponent v Commission

64

2016/C 270/71

Case T-298/16: Action brought on 13 June 2016 — East West Consulting v Commission

66

2016/C 270/72

Case T-560/12: Order of the General Court of 6 June 2016 — Miejskie Przedsiębiorstwo Energetyki Cieplnej v ECHA

67

2016/C 270/73

Case T-537/14: Order of the General Court of 1 June 2016 — Laboratoire Nuxe v EUIPO — NYX, Los Angeles (NYX)

67

2016/C 270/74

Case T-84/15: Order of the General Court of 31 May 2016 — Laboratorios Thea v EUIPO — Sebapharma (Sebacur)

67

European Union Civil Service Tribunal

2016/C 270/75

Case F-121/15: Judgment of the Civil Service Tribunal (Single Judge) of 14 June 2016 — Fernández González v Commission (Civil service — Temporary member of staff — Staff member posted in the cabinet of a European commissioner — Recruitment of a temporary member of staff under Article 2(b) of the CEOS — Condition requiring a six-month break from any form of employment with the Commission — Point 3.2 of Commission Note D(2005)18064 of 28 July 2005 on the hiring of temporary members of staff under Article 2(b) and (d) of the CEOS to fill permanent posts in the event that no candidates are shortlisted following a competition)

68

2016/C 270/76

Case F-133/15: Judgment of the Civil Service Tribunal (Single Judge) of 10 June 2016 — HI v Commission (Civil service — Officials — Article 11 of the Staff Regulations — Duty of loyalty — Article 11a — Conflict of interests — Official responsible for monitoring a project funded by the European Union — Family link between that official and an employee recruited for the purposes of the project by the company responsible for that project — Disciplinary procedure — Disciplinary action — Downgrading — Lawfulness of the composition of the Disciplinary Board — Obligation to state reasons — Length of the procedure — Reasonable time — Infringement of the rights of the defence — Principle of ne bis in idem — Manifest error of assessment — Proportionality of the penalty — Mitigating circumstances)

69

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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

| 25.7.2016 | EN | Official Journal of the European Union | C 270/1 |
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25.7.2016

EN

Official Journal of the European Union

C 270/1

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

(2016/C 270/01)

Last publication

OJ C 260, 18.7.2016

Past publications

OJ C 251, 11.7.2016

OJ C 243, 4.7.2016

OJ C 232, 27.6.2016

OJ C 222, 20.6.2016

OJ C 211, 13.6.2016

OJ C 200, 6.6.2016

These texts are available on:

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

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General Court

| 25.7.2016 | EN | Official Journal of the European Union | C 270/2 |
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25.7.2016

EN

Official Journal of the European Union

C 270/2

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Conduct of the activity of the General Court from 1 to 19 September 2016

(2016/C 270/02)

At its plenum on 15 June 2016, the General Court took note of the fact that the new Members of the General Court will be taking the oath before the Court of Justice on 19 September 2016 and that, consequently, in accordance with the third paragraph of Article 5 of the Protocol on the Statute of the Court of Justice of the European Union, until the new Members of the General Court take up their duties:

| — | the President of the General Court will be President Jaeger; |
| --- | --- |

—

the President of the General Court will be President Jaeger;

| — | the Vice-President of the General Court will be Vice-President Kanninen; |
| --- | --- |

—

the Vice-President of the General Court will be Vice-President Kanninen;

| — | the Presidents of the Chambers of five or of three Judges will be Vice-President Kanninen, and Presidents of Chamber Ms Martins Ribeiro, Mr Papasavvas, Mr Prek, Mr Dittrich, Mr Frimodt Nielsen, Mr van der Woude, Mr Gratsias and Mr Berardis; |
| --- | --- |

—

the Presidents of the Chambers of five or of three Judges will be Vice-President Kanninen, and Presidents of Chamber Ms Martins Ribeiro, Mr Papasavvas, Mr Prek, Mr Dittrich, Mr Frimodt Nielsen, Mr van der Woude, Mr Gratsias and Mr Berardis;

| — | the decision on the assignment of Judges to Chambers of 23 October 2013 (OJ 2013 C 344, p. 2), as most recently amended by the decision of 9 June 2016 (OJ 2016 C 243, p. 2), the decisions of 13 May 2015 on the composition of the Grand Chamber and on the method of designation of the Judge replacing a Judge prevented from acting (OJ 2015 C 213, p. 2) and the decisions of 23 September 2013 on the criteria for assigning cases to Chambers and on the composition of the Appeal Chamber (OJ 2013 C 313, p. 4 and p. 5) will continue to apply. |
| --- | --- |

—

the decision on the assignment of Judges to Chambers of 23 October 2013 (OJ 2013 C 344, p. 2), as most recently amended by the decision of 9 June 2016 (OJ 2016 C 243, p. 2), the decisions of 13 May 2015 on the composition of the Grand Chamber and on the method of designation of the Judge replacing a Judge prevented from acting (OJ 2015 C 213, p. 2) and the decisions of 23 September 2013 on the criteria for assigning cases to Chambers and on the composition of the Appeal Chamber (OJ 2013 C 313, p. 4 and p. 5) will continue to apply.

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 25.7.2016 | EN | Official Journal of the European Union | C 270/3 |
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25.7.2016

EN

Official Journal of the European Union

C 270/3

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Order of the Court (Seventh Chamber) of 7 April 2016 — (requests for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Daniela Tomassi (C-210/14), Massimiliano Di Adamo (C-211/14), Andrea De Ciantis (C-212/14), Romina Biolzi (C-213/14), Giuseppe Proia (C-214/14)

(Joined Cases C-210/14 to C-214/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/03)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Criminal proceedings against

Daniela Tomassi (C-210/14), Massimiliano Di Adamo (C-211/14), Andrea De Ciantis (C-212/14), Romina Biolzi (C-213/14), Giuseppe Proia (C-214/14)

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 292, 1.9.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/4 |
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25.7.2016

EN

Official Journal of the European Union

C 270/4

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Domenico Rosa

(Case C-433/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/04)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Domenico Rosa

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

---

(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/4 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/4

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Raffaele Mignone

(Case C-434/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/05)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Raffaele Mignone

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

---

(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/5 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/5

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Mauro Barletta

(Case C-435/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/06)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Mauro Barletta

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

---

(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/6 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/6

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Order of the Court (Seventh Chamber) of 7 April 2016 — (reference for a preliminary ruling from the Tribunale di Bari (Italy)) — Criminal proceedings against Davide Cazzorla

(Case C-436/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/07)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Davide Cazzorla

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

---

(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/7 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/7

---

Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Nicola Seminario

(Case C-437/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/08)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Nicola Seminario

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

---

(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/7 |
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25.7.2016

EN

Official Journal of the European Union

C 270/7

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Lorenzo Carlucci

(Case C-462/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/09)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Lorenzo Carlucci

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify..

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(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/8 |
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25.7.2016

EN

Official Journal of the European Union

C 270/8

---

Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Chiara Baldo

(Case C-467/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/10)

Language of the case: Italian

Referring court

Tribunale di Bergamo

Criminal proceedings against

Chiara Baldo

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 448, 15.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/9 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/9

---

Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Salerno — Italy) — Criminal proceedings against Cristiano Pontillo

(Case C-474/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/11)

Language of the case: Italian

Referring court

Tribunale di Salerno

Criminal proceedings against

Cristiano Pontillo

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 462, 22.12.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/10 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/10

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Order of the Court (Ninth Chamber) of 7 April 2016 (request for a preliminary ruling from the Tribunale regionale di giustizia amministrativa di Trento (Italy)) — Antonio Tita, Alessandra Carlin and Piero Constantini v Ministero della Giustizia, Ministero dell’Economia e della Finanze, Presidenza del Consiglio dei Ministri, Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA)

(Case C-495/14) (1)

((Reference for a preliminary ruling - Article 99 of the Court’s Rules of Procedure - Directive 89/665/EEC - Public procurement - National legislation - Fees for access to administrative proceedings in the field of public procurement - Right to an effective remedy - Dissuasive fees - Judicial review of administrative decisions - Principles of effectiveness and equivalence))

(2016/C 270/12)

Language of the case: Italian

Referring court

Tribunale regionale di giustizia amministrativa di Trento

Parties to the main proceedings

Applicants: Antonio Tita, Alessandra Carlin, Piero Constantini

Defendants: Ministero della Giustizia, Ministero dell’Economia e della Finanze, Presidenza del Consiglio dei Ministri, Segretario Generale del Tribunale Regionale di Giustizia Amministrativa di Trento (TRGA)

Operative part of the order

Article 1 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation requiring the payment of court fees, such as the standard fee at issue in the main proceedings, when proceedings are brought in the public procurement field before the administrative courts.

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(1)  OJ C 26, 26.1.2015.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/10 |
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25.7.2016

EN

Official Journal of the European Union

C 270/10

---

Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bergamo — Italy) — Criminal proceedings against Andrea Gaiti, Sidi Amidou Billa, Joseph Arasomwan, Giuseppe Carissimi, Sahabou Songne

(Case C-534/14) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/13)

Language of the case: Italian

Referring court

Tribunale di Bergamo

Criminal proceedings against

Andrea Gaiti, Sidi Amidou Billa, Joseph Arasomwan, Giuseppe Carissimi, Sahabou Songne

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 34, 2.2.2015.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/11 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/11

---

Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Vito Santoro

(Case C-65/15) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/14)

Language of the case: Italian

Referring court

Tribunale di Bari

Criminal proceedings against

Vito Santoro

Operative part of the order

| 1. | Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates. |
| --- | --- |

1.

Articles 49 TFEU and 56 TFEU and the principles of equal treatment and effectiveness must be interpreted as not precluding national legislation on betting and gaming, such as that at issue in the main proceedings, which provides for the organisation of a new call for tenders for the award of licences with a shorter period of validity than that of the licences awarded in the past on account of the reorganisation of the system through the alignment of licence expiry dates.

| 2. | Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify. |
| --- | --- |

2.

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 138, 27.4.2015.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/12 |
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25.7.2016

EN

Official Journal of the European Union

C 270/12

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Antonio Paolo Conti

(Case C-504/15) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/15)

Language of the case: Italian

Referring court

Tribunale di Frosinone

Criminal proceedings against

Antonio Paolo Conti

Operative part of the order

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 406, 7.12.2015.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/13 |
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25.7.2016

EN

Official Journal of the European Union

C 270/13

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Order of the Court (Seventh Chamber) of 7 April 2016 — (request for a preliminary ruling from the Tribunale di Frosinone — Italy) — Criminal proceedings against Paola Tonachella

(Case C-8/16) (1)

((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Identical questions referred for a preliminary ruling - Articles 49 and 56 TFEU - Freedom of establishment - Freedom to provide services - Betting and gaming - National legislation - Reorganisation of the licensing system through the alignment of licence expiry dates - New call for tenders - Licences for a shorter term than that of the former licences - Transfer, free of charge, of the rights to use tangible and intangible assets owned constituting the network for the management and collection of bets - Restriction - Overriding reasons in the public interest - Proportionality))

(2016/C 270/16)

Language of the case: Italian

Referring court

Tribunale di Frosinone

Criminal proceedings against

Paola Tonachella

Operative part of the order

Articles 49 TFEU and 56 TFEU must be interpreted as precluding a restrictive national provision, such as that at issue in the main proceedings, which requires a licensee of a betting and gambling service to transfer, free of charge, on the cessation of business as a result of the expiry of the final term of the licence, the rights to use tangible and intangible assets which he owns and which constitute his network for the management and collection of bets, in so far as that restriction goes beyond what is necessary to attain the objective actually pursued by that provision, which is for the referring court to verify.

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(1)  OJ C 90, 7.3.2016.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/13 |
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25.7.2016

EN

Official Journal of the European Union

C 270/13

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Appeal brought on 4 June 2015 by The Royal County of Berkshire Polo Club Ltd against the judgment of the General Court (Ninth Chamber) delivered on 26 March 2015 in Case T-581/13: Royal County of Berkshire Polo Club v OHIM

(Case C-278/15 P)

(2016/C 270/17)

Language of the case: English

Parties

Appellant: Royal County of Berkshire Polo Club Ltd (represented by: J. Maitland-Walker, Solicitor)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

By order of 14 January 2016 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/14 |
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25.7.2016

EN

Official Journal of the European Union

C 270/14

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Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-395/14: Best-Lock (Europe) v EUIPO

(Case C-451/15 P)

(2016/C 270/18)

Language of the case: English

Parties

Appellant: Best-Lock (Europe) Ltd (represented by: J. Becker, Rechtsanwalt)

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

By order of 14 April 2016 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/14 |
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25.7.2016

EN

Official Journal of the European Union

C 270/14

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Appeal brought on 17 August 2015 by Best-Lock (Europe) Ltd against the judgment of the General Court (Third Chamber) delivered on 16 June 2015 in Case T-396/14: Best-Lock (Europe) v EUIPO

(Case C-452/15 P)

(2016/C 270/19)

Language of the case: English

Parties

Appellant: Best-Lock (Europe) Ltd (represented by: J. Becker, Rechtsanwalt)

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

By order of 14 April 2016 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/14 |
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25.7.2016

EN

Official Journal of the European Union

C 270/14

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Appeal brought on 7 September 2015 by Nanu-Nana Joachim Hoepp GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) delivered on 9 July 2015 in Case T-89/11: Nanu-Nana Joachim Hoepp v EUIPO

(Case C-479/15 P)

(2016/C 270/20)

Language of the case: English

Parties

Appellant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (represented by: A. Nordemann, Rechtsanwalt, M.C. Maier, Rechtsanwalt)

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

By order of 14 April 2016 the Court (Sixth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/15 |
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25.7.2016

EN

Official Journal of the European Union

C 270/15

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Appeal brought on 10 September 2015 by KS Sports IPCo GmbH, successor in law to BH Stores BV against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 2 July 2015 in Case T-657/13: KS Sports v EUIPO

(Case C-480/15 P)

(2016/C 270/21)

Language of the case: English

Parties

Appellant: KS Sports IPCo GmbH, successor in law to BH Stores BV (represented by: T. Dolde, Rechtsanwalt, M. Hawkins, Solicitor, P. Homann, Rechtsanwalt)

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

By order of 14 April 2016 the Court (Sixth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/15 |
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25.7.2016

EN

Official Journal of the European Union

C 270/15

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Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-633/14: Monster Energy v EUIPO

(Case C-602/15 P)

(2016/C 270/22)

Language of the case: English

Parties

Appellant: Monster Energy Company (represented by: P. Brownlow, Solicitor)

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

By order of 4 May 2016 the Court (Eighth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/15 |
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25.7.2016

EN

Official Journal of the European Union

C 270/15

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Appeal brought on 10 November 2015 by Monster Energy Company against the order of the General Court (Second Chamber) delivered on 9 September 2015 in Case T-666/14: Monster Energy v EUIPO

(Case C-603/15 P)

(2016/C 270/23)

Language of the case: English

Parties

Appellant: Monster Energy Company (represented by: P. Brownlow, Solicitor)

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

By order of 4 May 2016 the Court of Justice (Eighth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/16 |
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25.7.2016

EN

Official Journal of the European Union

C 270/16

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Appeal brought on 30 November 2015 by August Storck KG against the judgment of the General Court (Second Chamber) delivered on 25 September 2015 in Case T-366/14: August Storck v EUIPO

(Case C-636/15 P)

(2016/C 270/24)

Language of the case: English

Parties

Appellant: August Storck KG (represented by: N. Gregor, Rechtsanwalt)

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

By order of 11 May 2016 the Court of Justice (Ninth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/16 |
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25.7.2016

EN

Official Journal of the European Union

C 270/16

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Appeal brought on 21 January 2016 by Matratzen Concord GmbH against the judgment of the General Court (Ninth Chamber) of 19 November 2015 in Case T-526/14 Matratzen Concord GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-35/16 P)

(2016/C 270/25)

Language of the case: German

Parties

Appellant: Matratzen Concord GmbH (represented by: I. Selting, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Mariano Barranco Rodriguez, Pablo Barranco Schnitzler

By order of 28 April 2016, the Court of Justice of the European Union (Sixth Chamber) dismissed the appeal and ordered the appellant to bear its own costs.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/16 |
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25.7.2016

EN

Official Journal of the European Union

C 270/16

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Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (Slovakia) lodged on 11 February 2016 — INGSTEEL spol. s r. o., Metrostav a. s. v Úrad pre verejné obstarávanie

(Case C-76/16)

(2016/C 270/26)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: INGSTEEL spol. s r. o., Metrostav a. s.

Defendant: Úrad pre verejné obstarávanie

Intervener: Slovenský futbalový zväz

Questions referred

| 1. | May the conduct of a national authority, which finds that a tenderer for a contract with an estimated value of EUR 3 million does not satisfy the selection criterion relating to economic and financial standing, even though a sworn statement submitted by the tenderer and a declaration provided by its bank, certify that it will be able to draw on funds under a secured loan which can be used for any purpose up to a maximum amount exceeding the value of the contract, be considered compatible with the objective of Article 47, in particular Article 47(1)(a) and (4), of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts? |
| --- | --- |

1.

May the conduct of a national authority, which finds that a tenderer for a contract with an estimated value of EUR 3 million does not satisfy the selection criterion relating to economic and financial standing, even though a sworn statement submitted by the tenderer and a declaration provided by its bank, certify that it will be able to draw on funds under a secured loan which can be used for any purpose up to a maximum amount exceeding the value of the contract, be considered compatible with the objective of Article 47, in particular Article 47(1)(a) and (4), of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts?

| 2. | Where, in a binding undertaking to grant credit, a bank operating on the banking-services market of a Member State, makes the release of funds conditional upon fulfilment of conditions for granting credit which are not specifically indicated in the loan agreement at the time of the tendering procedure, does such conduct constitute, for the purpose of Article 47(5) of Directive 2004/18, a valid reason why the tenderer cannot produce the references requested by the contracting authority, so that is it possible for the tenderer to prove its economic and financial standing by means of a sworn statement to the effect that its credit arrangement with the bank is sufficient for the purpose in question? |
| --- | --- |

2.

Where, in a binding undertaking to grant credit, a bank operating on the banking-services market of a Member State, makes the release of funds conditional upon fulfilment of conditions for granting credit which are not specifically indicated in the loan agreement at the time of the tendering procedure, does such conduct constitute, for the purpose of Article 47(5) of Directive 2004/18, a valid reason why the tenderer cannot produce the references requested by the contracting authority, so that is it possible for the tenderer to prove its economic and financial standing by means of a sworn statement to the effect that its credit arrangement with the bank is sufficient for the purpose in question?

| 3. | In an action for review of the decision of a national authority responsible for public tendering procedures to exclude a tenderer, may the fact that the successful tenderer has almost completed performance of the various contracts be regarded as an objective impediment precluding the national court from giving effect to the provisions of Article 47(1) and (2) of the Charter of Fundamental Rights of the European Union, in conjunction with Article 1(1) and Article 2(3), (6), (7) and (8) of Directive 89/665/EEC (2) of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts? |
| --- | --- |

3.

In an action for review of the decision of a national authority responsible for public tendering procedures to exclude a tenderer, may the fact that the successful tenderer has almost completed performance of the various contracts be regarded as an objective impediment precluding the national court from giving effect to the provisions of Article 47(1) and (2) of the Charter of Fundamental Rights of the European Union, in conjunction with Article 1(1) and Article 2(3), (6), (7) and (8) of Directive 89/665/EEC (2) of 21 December 1989 on the coordination of laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts?

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(1)  OJ 2004 L 134, p. 114.

(2)  OJ 1989 L 395, p. 33.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/17 |
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25.7.2016

EN

Official Journal of the European Union

C 270/17

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Appeal brought on 11 February 2016 by Hewlett Packard Development Company LP against the judgment of the General Court (Sixth Chamber) delivered on 3 December 2015 in Case T-628/14: Hewlett Packard Development Company v EUIPO

(Case C-77/16 P)

(2016/C 270/27)

Language of the case: English

Parties

Appellant: Hewlett Packard Development Company LP (represented by: T. Raab, Rechtsanwalt, H. Lauf, Rechtsanwalt)

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

By order of 26 May 2016 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/17 |
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25.7.2016

EN

Official Journal of the European Union

C 270/17

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Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — N Luxembourg 1 v Skatteministeriet

(Case C-115/16)

(2016/C 270/28)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: N Luxembourg 1

Defendant: Skatteministeriet

Questions referred

| 1. | Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?






  1.1. | Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention? |
| --- | --- | --- |

1.

Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?

1.1.

Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention?

| 1.2. | If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)? |
| --- | --- |

1.2.

If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)?

| 1.3. | If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?






  1.3.1. | Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly? |
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1.3.

If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?

1.3.1.

Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly?

| 1.4. | What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? |
| --- | --- |

1.4.

What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

| 2. | Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?






  2.1. | If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive? |
| --- | --- | --- |

2.

Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?

2.1.

If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive?

| 3. | Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive? |
| --- | --- |

3.

Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive?

| 4. | Is it abuse, etc. under Directive 2003/49/EC if, in the Member State where the interest payer is resident, tax deductions are allowed for interest, whilst interest in the Member State where the interest recipient is resident is not taxed? |
| --- | --- |

4.

Is it abuse, etc. under Directive 2003/49/EC if, in the Member State where the interest payer is resident, tax deductions are allowed for interest, whilst interest in the Member State where the interest recipient is resident is not taxed?

| 5. | Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? |
| --- | --- |

5.

Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

| 6. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State? |
| --- | --- |

6.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State?

| 7. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:






  (a) | the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State? |
| --- | --- | --- |

7.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

(a)

the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State?

| (b) | a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source? |
| --- | --- |

(b)

a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source?

The EU Court of Justice is requested to include the answer to question 6 in its answer to question 7.

---

(1)  Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.

OJ 2003 L 157, p. 49

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/20 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/20

---

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v T Danmark

(Case C-116/16)

(2016/C 270/29)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Skatteministeriet

Defendant: T Danmark

Questions referred

| 1. | Does a Member State’s s reliance on Article 1(2) of the Directive (1) on the application of national provisions for the prevention of fraud or abuse,, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article1(2)?






  1.1 | If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived ... under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive? |
| --- | --- | --- |

1.

Does a Member State’s s reliance on Article 1(2) of the Directive (1) on the application of national provisions for the prevention of fraud or abuse,, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article1(2)?

1.1

If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived ... under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive?

| 2. | Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive? |
| --- | --- |

2.

Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive?

| 3. | Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling? |
| --- | --- |

3.

Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling?

| 4. | Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law?






  (a) | Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof? |
| --- | --- | --- |

4.

Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law?

(a)

Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof?

| (b) | Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’? |
| --- | --- |

(b)

Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’?

| (c) | What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person? |
| --- | --- |

(c)

What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person?

| (d) | What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? |
| --- | --- |

(d)

What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

| 5. | If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder? |
| --- | --- |

5.

If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder?

| 6. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 49 TFEU, read in conjunction with Article 54 TFEU, preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends? |
| --- | --- |

6.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 49 TFEU, read in conjunction with Article 54 TFEU, preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends?

| 7. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 49 TFEU, read in conjunction with Article 54 TFEU, preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State? |
| --- | --- |

7.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 49 TFEU, read in conjunction with Article 54 TFEU, preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State?

| 8. | Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 4(3) TEU to state whom the Member State in that case deems to be the beneficial owner? |
| --- | --- |

8.

Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 4(3) TEU to state whom the Member State in that case deems to be the beneficial owner?

| 9. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 49 TFEU, read in conjunction with Article 54 TFEU (in the alternative Article 63 TFEU), viewed separately or as a whole, preclude legislation under which:






  (a) | the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State? |
| --- | --- | --- |

9.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 49 TFEU, read in conjunction with Article 54 TFEU (in the alternative Article 63 TFEU), viewed separately or as a whole, preclude legislation under which:

(a)

the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State?

| (b) | the latter Member State calculates overdue interest on the tax at source owing? |
| --- | --- |

(b)

the latter Member State calculates overdue interest on the tax at source owing?

The EU Court of Justice is requested to include the answer to questions 6 and 7 in its answer to question 9.

| 10. | In circumstances where:






  (1) | a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2011) at least 10 % of the share capital of a company (subsidiary) resident in another Member State; |
| --- | --- | --- |

10.

In circumstances where:

(1)

a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2011) at least 10 % of the share capital of a company (subsidiary) resident in another Member State;

| (2) | the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary; |
| --- | --- |

(2)

the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary;

| (3) | the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question; |
| --- | --- |

(3)

the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question;

| (4) | the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement; |
| --- | --- |

(4)

the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement;

does Article 63 TFEU then preclude legislation under which the Member State where the subsidiary is situated taxes the dividends in question when the Member State in question deems resident companies fulfilling the capital requirement in Directive 90/435/EEC, that is to say, in fiscal year 2011 owns at least 10 % of the share capital in the dividend-distributing company, to be tax-exempt on such dividends?

---

(1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States.

OJ 1990 L 225, p. 6

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/22 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/22

---

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — Skatteministeriet v Y Denmark Aps

(Case C-117/16)

(2016/C 270/30)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Skatteministeriet

Defendant: Y Denmark Aps

Questions referred

| 1. | Does a Member State’s reliance on Article 1(2) of the Directive (1) on the application of domestic provisions required for the prevention of fraud or abuse presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud and abuse that can be interpreted in accordance with Article 1(2)?






  1.1 | If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived ... under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive? |
| --- | --- | --- |

1.

Does a Member State’s reliance on Article 1(2) of the Directive (1) on the application of domestic provisions required for the prevention of fraud or abuse presuppose that the Member State in question has adopted a specific domestic provision implementing Article 1(2) of the Directive, or that national law contains general provisions or principles on fraud and abuse that can be interpreted in accordance with Article 1(2)?

1.1

If question 1 is answered in the affirmative, can Paragraph 2(1)(c) of the Law on corporation tax, which provides that ‘it is a precondition that taxation of the dividends be waived ... under the provisions of Council Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 1(2) of the Directive?

| 2. | Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive?






  2.1. | If so, is the term ‘agreement’ in Article 1(2) of the Directive then to be construed as presupposing that the Member State may, under its domestic law, rely on the double taxation convention, to the detriment of the taxpayer? |
| --- | --- | --- |

2.

Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of distributed dividends is contingent on whether the dividends recipient is deemed to be the beneficial owner of the dividends, a conventional anti-abuse provision covered by Article 1(2) of the Directive?

2.1.

If so, is the term ‘agreement’ in Article 1(2) of the Directive then to be construed as presupposing that the Member State may, under its domestic law, rely on the double taxation convention, to the detriment of the taxpayer?

| 3. | Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling? |
| --- | --- |

3.

Should the Court answer question 2 in the affirmative, is it then for the national courts to define what is included in the concept ‘beneficial owner’, or should the concept, in the application of Directive 90/435/EEC, be interpreted as meaning that a specifically EU law significance should be attached to the concept referred to the EU Court of Justice for a ruling?

| 4. | Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law?






  (a) | Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof? |
| --- | --- | --- |

4.

Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, is the concept then to be interpreted as meaning that in a company resident in a Member State which, in circumstances such as those of the present case, receives dividends from a subsidiary in another Member State, is the ‘beneficial owner’ of those dividends as that concept is to be interpreted under EU law?

(a)

Is the concept ‘beneficial owner’ to be interpreted in accordance with the corresponding concept in Article 1(1) of Directive 2003/49/EC (‘the Interest & Royalties Directive’), read in conjunction with Article 1(4) thereof?

| (b) | Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’? |
| --- | --- |

(b)

Should the concept be interpreted solely in the light of the commentary on Article 10 of the OECD 1977 Model Tax Convention (paragraph 12), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’, and the additions made in 2014 regarding ‘contractual or legal obligations’?

| (c) | What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person? |
| --- | --- |

(c)

What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ if the dividends recipient has had a contractual or legal obligation to pass the interest to another person?

| (d) | What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? |
| --- | --- |

(d)

What significance does it have for the assessment of the issue whether the dividends recipient must be deemed to be a ‘beneficial owner’ that the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

| 5. | If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder? |
| --- | --- |

5.

If it is assumed in the case that there are ‘domestic provisions required for the prevention of fraud or abuse’, see Article 1(2) of Directive 90/435/EEC, that dividends have been distributed from a company (A) resident in a Member State to a parent company (B) in another Member State and from there passed to that company’s parent company (C), resident outside the EU/EEA, which in turn has distributed the funds to its parent company (D), also resident outside the EU/EEA, that no double taxation convention has been entered into between the first-mentioned State and the State where C is resident, that a double taxation convention has been entered into between the first-mentioned State and the State where D is resident, and that the first-mentioned State, under its legislation, would therefore not have had a claim to tax at source on dividends distributed from A to D, had D been the direct owner of A, is there abuse under the Directive so that B is not protected thereunder?

| 6. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends? |
| --- | --- |

6.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member State taxes the parent company resident in the other Member State on the dividends, then the Member State in question deems resident parent companies in otherwise similar circumstances to the exempt from tax on such dividends?

| 7. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State? |
| --- | --- |

7.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) of Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), and the parent company in the latter Member State is deemed to have limited tax liability in that Member State on the dividends in question, does Article 43 EC, read in conjunction with Article 48 EC (and/or Article 56 EC), preclude legislation under which the latter Member requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims lodged against a company resident in the same Member State?

| 8. | Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? |
| --- | --- |

8.

Should the Court answer question 2 in the affirmative and the answer to question 3 is that it is not for the national courts to define what is included in the concept ‘beneficial owner’, and if a company (parent company) resident in a Member State cannot, on that basis, be deemed exempt from tax at source pursuant to Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), is the latter Member State then bound pursuant to Directive 90/435/EEC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

| 9. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:






  (a) | the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State? |
| --- | --- | --- |

9.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 90/435/EEC concerning dividends received from a company resident in another Member State (subsidiary), does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

(a)

the latter Member State requires the subsidiary to retain tax at source on the dividends and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the parent company is resident in the Member State?

| (b) | the latter Member State calculates overdue interest on the tax at source owing?
  The EU Court of Justice is requested to include the answer to questions 6 and 7 in its answer to question 9. |
| --- | --- |

(b)

the latter Member State calculates overdue interest on the tax at source owing?

The EU Court of Justice is requested to include the answer to questions 6 and 7 in its answer to question 9.

| 10. | In circumstances where:






  (1) | a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2005 and 2006) at least 20 % of the share capital of a company (subsidiary) resident in another Member State; |
| --- | --- | --- |

10.

In circumstances where:

(1)

a company (parent company) resident in a Member State fulfils the requirement in Directive 90/435/EEC of owning (in 2005 and 2006) at least 20 % of the share capital of a company (subsidiary) resident in another Member State;

| (2) | the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary; |
| --- | --- |

(2)

the parent company is in fact deemed not to be exempt from tax at source pursuant to Article 1(2) in Directive 90/435/EEC concerning dividends distributed by the subsidiary;

| (3) | the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question; |
| --- | --- |

(3)

the parent company’s (direct or indirect) shareholder(s), resident in a non-EU/EEA country, are deemed to be the beneficial owner(s) of the dividends in question;

| (4) | the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement;
  does Article 56 EC then preclude legislation under which the Member State where the subsidiary is situated taxes the dividends in question when the Member State in question deems resident companies fulfilling the capital requirement in Directive 90/435/EEC, that is to say, in fiscal years 2005 and 2006 owns at least 20 % of the share capital in the dividend-distributing company (15 % in 2007 and 2008 and 10 % thereafter), to be tax-exempt on such dividends? |
| --- | --- |

(4)

the aforementioned (direct or indirect) shareholder(s) also do not fulfil the aforementioned capital requirement;

does Article 56 EC then preclude legislation under which the Member State where the subsidiary is situated taxes the dividends in question when the Member State in question deems resident companies fulfilling the capital requirement in Directive 90/435/EEC, that is to say, in fiscal years 2005 and 2006 owns at least 20 % of the share capital in the dividend-distributing company (15 % in 2007 and 2008 and 10 % thereafter), to be tax-exempt on such dividends?

---

(1)  Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States.

OJ 1990 L 225, p. 6

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/25 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/25

---

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — X Denmark A/S v Skatteministeriet

(Case C-118/16)

(2016/C 270/31)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: X Denmark A/S

Defendant: Skatteministeriet

Questions referred

| 1. | Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?






  1.1. | Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention? |
| --- | --- | --- |

1.

Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?

1.1.

Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention?

| 1.2. | If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)? |
| --- | --- |

1.2.

If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)?

| 1.3. | If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?






  1.3.1. | Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly? |
| --- | --- | --- |

1.3.

If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?

1.3.1.

Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly?

| 1.4. | What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? |
| --- | --- |

1.4.

What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

| 2. | Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?






  2.1. | If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive? |
| --- | --- | --- |

2.

Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?

2.1.

If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive?

| 3. | Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive? |
| --- | --- |

3.

Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive?

| 4. | Is it abuse, etc. under Directive 2003/49/EC if, in the Member State where the interest payer is resident, tax deductions are allowed for interest, whilst interest in the Member State where the interest recipient is resident is not taxed? |
| --- | --- |

4.

Is it abuse, etc. under Directive 2003/49/EC if, in the Member State where the interest payer is resident, tax deductions are allowed for interest, whilst interest in the Member State where the interest recipient is resident is not taxed?

| 5. | Is a company resident in Luxembourg, established and registered under Luxembourg company law as a ‘société en commandite par actions’ (S.C.A.) and also classified as a ‘société d’investissement en capital à risque’ (SICAR) under the Luxembourg law of 15 June 2004 relating to the investment company in risk capital (SICAR), covered by Directive 2003/49/EC?






  5.1 | If question 5 is answered in the affirmative, can a Luxembourg ‘S.C.A./SICAR’ then be ‘beneficial owner’ of interest under Directive 2003/49/EC, even though the Member State in which the interest-paying company is resident deems the company in question to be a tax-transparent entity under its domestic law? |
| --- | --- | --- |

5.

Is a company resident in Luxembourg, established and registered under Luxembourg company law as a ‘société en commandite par actions’ (S.C.A.) and also classified as a ‘société d’investissement en capital à risque’ (SICAR) under the Luxembourg law of 15 June 2004 relating to the investment company in risk capital (SICAR), covered by Directive 2003/49/EC?

5.1

If question 5 is answered in the affirmative, can a Luxembourg ‘S.C.A./SICAR’ then be ‘beneficial owner’ of interest under Directive 2003/49/EC, even though the Member State in which the interest-paying company is resident deems the company in question to be a tax-transparent entity under its domestic law?

| 5.2 | If question 1 is answered in the negative, so that the interest-receiving company is deemed not to be the ‘beneficial owner’ of the interest in question, can the S.C.A./SICAR then, in circumstances such as those of the present case, be deemed to be the ‘beneficial owner’ of the interest at issue herein for the purposes of the Directive? |
| --- | --- |

5.2

If question 1 is answered in the negative, so that the interest-receiving company is deemed not to be the ‘beneficial owner’ of the interest in question, can the S.C.A./SICAR then, in circumstances such as those of the present case, be deemed to be the ‘beneficial owner’ of the interest at issue herein for the purposes of the Directive?

| 6. | Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? |
| --- | --- |

6.

Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

| 7. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, then preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State? |
| --- | --- |

7.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, then preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State?

| 8. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:






  (a) | the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State? |
| --- | --- | --- |

8.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

(a)

the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State?

| (b) | a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source? |
| --- | --- |

(b)

a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source?

The EU Court of Justice is requested to include the answer to question 7 in its answer to question 8.

---

(1)  Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.

OJ L 157, 26.6.2003, p. 49

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/27 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/27

---

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 25 February 2016 — C Danmark I v Skatteministeriet

(Case C-119/16)

(2016/C 270/32)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: C Danmark I

Defendant: Skatteministeriet

Questions referred

| 1. | Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?






  1.1. | Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention? |
| --- | --- | --- |

1.

Is Article 1(1) of Directive 2003/49/EC, (1) read in conjunction with Article 1(4) thereof, to be interpreted as meaning that a company resident in a Member State that is covered by Article 3 of the Directive and, in circumstances such as those of the present case, receives interest from a subsidiary in another Member State, is the ‘beneficial owner’ of that interest for the purposes of the Directive?

1.1.

Is the concept ‘beneficial owner’ in Article 1(1) of Directive 2003/49/EC, read in conjunction with Article 1(4) thereof, to be interpreted in accordance with the corresponding concept in Article 11 of the OECD 1977 Model Tax Convention?

| 1.2. | If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)? |
| --- | --- |

1.2.

If question 1.1. is answered in the affirmative, should the concept then be interpreted solely in the light of the commentary on Article 11 of the 1977 Model Tax Convention (paragraph 8), or can subsequent commentaries be incorporated into the interpretation, including the additions made in 2003 regarding ‘conduit companies’ (paragraph 8.1, now paragraph 10.1), and the additions made in 2014 regarding ‘contractual or legal obligations’ (paragraph 10.2)?

| 1.3. | If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?






  1.3.1. | Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly? |
| --- | --- | --- |

1.3.

If the 2003 Commentaries can be incorporated into the interpretation, is it then a condition for deeming a company not to be a ‘beneficial owner’ for the purposes of Directive 2003/49/EC that there actually has been a channelling of funds to those persons who are deemed by the State in which the interest payer is resident to be ‘the beneficial owners’ of the interest in question, and — if so — is it then a further condition that the actual passing take place at a point close in time to the payment of the interest and/or take place as a payment of interest?

1.3.1.

Of what significance is it in that connection if equity capital is used for the loan, if the interest in question is entered on the principal (‘rolled up’), if the interest recipient has subsequently made an intra-group transfer to its parent company resident in the same State with a view to adjusting earnings for tax purposes under the prevailing rules in the State in question, if the interest in question is subsequently converted into equity in the borrowing company, if the interest recipient has had a contractual or legal obligation to pass the interest to another person, and if most of the persons deemed by the State where the person paying the interest is resident to be the ‘beneficial owners’ of the interest are resident in other Member States or other States with which Denmark has entered into a double taxation convention, so that under the Danish taxation legislation there would not have been a basis for retaining tax at source had those persons been lenders and thereby received the interest directly?

| 1.4. | What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention? |
| --- | --- |

1.4.

What significance does it have for the assessment of the issue whether the interest recipient must be deemed to be a ‘beneficial owner’ for the purposes of the Directive if the referring court, following an assessment of the facts of the case, concludes that the recipient — without having been contractually or legally bound to pass the interest received to another person — did not have the ‘full’ right to ‘use and enjoy’ the interest as referred to in the 2014 Commentaries on the 1977 Model Tax Convention?

| 2. | Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?






  2.1. | If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive? |
| --- | --- | --- |

2.

Does a Member State’s reliance on Article 5(1) of the Directive on the application of national provisions for the prevention of fraud or abuse, or of Article 5(2) of the Directive, presuppose that the Member State in question has adopted a specific domestic provision implementing Article 5 of the Directive, or that national law contains general provisions or principles on fraud, abuse and tax evasion that can be interpreted in accordance with Article 5?

2.1.

If question 2 is answered in the affirmative, can Paragraph 2(2)(d) of the Law on corporation tax, which provides that the limited tax liability on interest income does not include ‘interest which is tax-exempt ... under Directive 2003/49/EC on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States’, then be deemed to be a specific domestic provision as referred to in Article 5 of the Directive?

| 3. | Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive? |
| --- | --- |

3.

Is a provision in a double taxation convention entered into between two Member States and drafted in accordance with OECD’s Model Tax Convention, under which taxation of interest is contingent on whether the interest recipient is deemed to be the beneficial owner of the interest, a conventional anti-abuse provision covered by Article 5 of the Directive?

| 4. | Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner? |
| --- | --- |

4.

Is a Member State that does not wish to recognise that a company in another Member State is the beneficial owner of interest and claims that the company in the other Member State is a so-called artificial conduit company, bound under Directive 2003/49/EC or Article 10 EC to state whom the Member State in that case deems to be the beneficial owner?

| 5. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State? |
| --- | --- |

5.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to have limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 EC, preclude legislation under which the latter Member State requires the company liable for retaining the tax at source (subsidiary) to pay overdue interest in the event of overdue payment of the tax at source claim at a higher rate of interest than the overdue interest rate that the Member State charges on corporation tax claims (including interest income) lodged against a company resident in the same Member State?

| 6. | If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:






  (a) | the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State? |
| --- | --- | --- |

6.

If a company resident in a Member State (parent company) is in fact deemed not to be exempt from tax at source under Directive 2003/49/EC concerning interest received from a company resident in another Member State (subsidiary), and the parent company of the latter Member State is deemed to be a taxable person with limited tax liability on that interest in that Member State, does Article 43 EC, read in conjunction with Article 48 (in the alternative Article 56 EC), viewed separately or as a whole, preclude legislation under which:

(a)

the latter Member State requires the person paying the interest to retain tax at source on the interest and makes that person liable to the authorities for the non-retained tax at source, where there is no such duty to retain tax at source when the interest recipient is resident in the latter Member State?

| (b) | a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source? |
| --- | --- |

(b)

a parent company in the latter Member State would not have been required to make advance payments of corporation tax in the first two fiscal years, but would only have begun to pay corporation tax at a much later time than the due date for tax at source?

The EU Court of Justice is requested to include the answer to question 5 in its answer to question 6.

---

(1)  Council Directive 2003/49/EC of 3 June 2003 on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States.

OJ 2003 L 157, p. 49

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/29 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/29

---

Request for a preliminary ruling from the Landgericht Berlin (Germany) lodged on 5 April 2016 — Romano Pisciotti v Bundesrepublik Deutschland

(Case C-191/16)

(2016/C 270/33)

Language of the case: German

Referring court

Landgericht Berlin

Parties to the main proceedings

Applicant: Romano Pisciotti

Defendant: Bundesrepublik Deutschland

Questions referred

| 1. | (a) | Is extradition between a Member State and a third country a matter which, irrespective of the facts of the individual case, never comes within the material scope of the Treaties, with the result that the EU-law prohibition of discrimination under the first paragraph of Article 18 TFEU is not to be taken into account in the application of a (literally interpreted) rule of constitutional law (in this case, the first sentence of Article 16(2) of the German Basic Law (Grundgesetz)), which prohibits extradition only of that Member State’s own nationals to third countries? |
| --- | --- | --- |

1.

(a)

Is extradition between a Member State and a third country a matter which, irrespective of the facts of the individual case, never comes within the material scope of the Treaties, with the result that the EU-law prohibition of discrimination under the first paragraph of Article 18 TFEU is not to be taken into account in the application of a (literally interpreted) rule of constitutional law (in this case, the first sentence of Article 16(2) of the German Basic Law (Grundgesetz)), which prohibits extradition only of that Member State’s own nationals to third countries?

| (b) | If that question is answered in the affirmative: is the first question to be answered differently if the matter of extradition between a Member State and the United States of America is based on the Agreement on extradition between the European Union and the United States of America? |
| --- | --- |

(b)

If that question is answered in the affirmative: is the first question to be answered differently if the matter of extradition between a Member State and the United States of America is based on the Agreement on extradition between the European Union and the United States of America?

| 2. | In so far as the applicability of the Treaties with regard to extradition between Member States and the United States of America is not excluded from the outset:
  Is the first paragraph of Article 18 TFEU and the case-law of the Court of Justice relating to that provision to be interpreted as meaning that a Member State unjustifiably breaches the prohibition of discrimination under the first paragraph of Article 18 TFEU in the case where, on the basis of a rule of constitutional law (the first sentence of Article 16(2) of the Grundgesetz), it treats, in the matter of requests for extradition received from third countries, its own nationals and nationals of other EU Member States differently inasmuch as it extradites only the latter? |
| --- | --- |

2.

In so far as the applicability of the Treaties with regard to extradition between Member States and the United States of America is not excluded from the outset:

Is the first paragraph of Article 18 TFEU and the case-law of the Court of Justice relating to that provision to be interpreted as meaning that a Member State unjustifiably breaches the prohibition of discrimination under the first paragraph of Article 18 TFEU in the case where, on the basis of a rule of constitutional law (the first sentence of Article 16(2) of the Grundgesetz), it treats, in the matter of requests for extradition received from third countries, its own nationals and nationals of other EU Member States differently inasmuch as it extradites only the latter?

| 3. | Should such cases be found to fall foul of the general prohibition of discrimination laid down in the first paragraph of Article 18 TFEU:
  Is the case-law of the Court of Justice to be interpreted as meaning that, in a case such as the present — in which, for extradition to be authorised by the competent authority, there must mandatorily be a prior judicial review of its legality, the result of which, however, binds the authority only if that extradition is declared to be impermissible — a mere breach of the prohibition of discrimination under the first paragraph of Article 18 TFEU may itself constitute a serious breach, or must the breach be manifest? |
| --- | --- |

3.

Should such cases be found to fall foul of the general prohibition of discrimination laid down in the first paragraph of Article 18 TFEU:

Is the case-law of the Court of Justice to be interpreted as meaning that, in a case such as the present — in which, for extradition to be authorised by the competent authority, there must mandatorily be a prior judicial review of its legality, the result of which, however, binds the authority only if that extradition is declared to be impermissible — a mere breach of the prohibition of discrimination under the first paragraph of Article 18 TFEU may itself constitute a serious breach, or must the breach be manifest?

| 4. | If a manifest breach is not required:
  Is the case-law of the Court of Justice to be interpreted as meaning that there is a priori no sufficiently serious breach in a case such as that in the main proceedings, in which, in the absence of case-law of the Court of Justice with regard to the particular type of factual situation at issue (namely, the objective applicability of the general prohibition of discrimination under the first paragraph of Article 18 TFEU to matters relating to extradition between Member States and the United States of America), the highest national executive authority can, in support of its decision, point to the fact that its decision is in line with previous decisions of national courts in the same matter? |
| --- | --- |

4.

If a manifest breach is not required:

Is the case-law of the Court of Justice to be interpreted as meaning that there is a priori no sufficiently serious breach in a case such as that in the main proceedings, in which, in the absence of case-law of the Court of Justice with regard to the particular type of factual situation at issue (namely, the objective applicability of the general prohibition of discrimination under the first paragraph of Article 18 TFEU to matters relating to extradition between Member States and the United States of America), the highest national executive authority can, in support of its decision, point to the fact that its decision is in line with previous decisions of national courts in the same matter?

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/30 |
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Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 12 May 2016 — VCAST Limited v R.T.I. SpA

(Case C-265/16)

(2016/C 270/34)

Language of the case: Italian

Referring court

Tribunale ordinario di Torino

Parties to the main proceedings

Applicant: VCAST Limited

Defendant: R.T.I. SpA

Questions referred

| 1. | Are national rules prohibiting a commercial undertaking from providing private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording, without the rightholder’s consent, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2) and the founding Treaty)? |
| --- | --- |

1.

Are national rules prohibiting a commercial undertaking from providing private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording, without the rightholder’s consent, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2) and the founding Treaty)?

| 2. | Are national rules which allow a commercial undertaking to provide private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, even where the active involvement of that commercial undertaking in the recording is entailed, and even without the rightholder’s consent, against a flat-rate compensation in favour of the rightholder, in essence subjecting the services to a compulsory licensing system, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and the founding Treaty)? |
| --- | --- |

2.

Are national rules which allow a commercial undertaking to provide private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, even where the active involvement of that commercial undertaking in the recording is entailed, and even without the rightholder’s consent, against a flat-rate compensation in favour of the rightholder, in essence subjecting the services to a compulsory licensing system, compatible with EU law, in particular with Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (as well as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market and the founding Treaty)?

---

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

(2)  ‘Directive on electronic commerce’, OJ 2000 L 178, p. 1.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/31 |
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Request for a preliminary ruling from the Helsingin hallinto-oikeus (Finland) lodged on 25 May 2016 — A Oy

(Case C-292/16)

(2016/C 270/35)

Language of the case: Finnish

Referring court

Helsingin hallinto-oikeus

Parties to the main proceedings

Applicant: A Oy

Other parties: Veronsaajien oikeudenvalvontayksikkö

Questions referred

| 1. | Does Article 49 TFEU preclude Finnish legislation under which, where a Finnish company by way of a transfer of business disposes of assets of a permanent establishment situated in another EU Member State to a company established in that State in return for new shares, the transfer of the assets is taxed immediately in the year of transfer, but in a corresponding national situation is not taxed until the time of realisation? |
| --- | --- |

1.

Does Article 49 TFEU preclude Finnish legislation under which, where a Finnish company by way of a transfer of business disposes of assets of a permanent establishment situated in another EU Member State to a company established in that State in return for new shares, the transfer of the assets is taxed immediately in the year of transfer, but in a corresponding national situation is not taxed until the time of realisation?

| 2. | Is there indirect or direct discrimination if Finland levies tax immediately in the year of the transfer of business before the income has been realised, and in a domestic situation not until the time of realisation? |
| --- | --- |

2.

Is there indirect or direct discrimination if Finland levies tax immediately in the year of the transfer of business before the income has been realised, and in a domestic situation not until the time of realisation?

| 3. | If the answer to Questions 1 and 2 is in the affirmative, may the restriction of the right of establishment be justified on grounds such as an overriding reason of the public interest or the preservation of the national power of taxation? Does the prohibited restriction comply with the principle of proportionality? |
| --- | --- |

3.

If the answer to Questions 1 and 2 is in the affirmative, may the restriction of the right of establishment be justified on grounds such as an overriding reason of the public interest or the preservation of the national power of taxation? Does the prohibited restriction comply with the principle of proportionality?

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/32 |
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Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Fourth Chamber) delivered on 16/03/2016 in Case T-586/14: Xinyi PV Products (Anhui) Holdings Ltd v European Commission

(Case C-301/16 P)

(2016/C 270/36)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Maxian Rusche, L. Flynn, Agents)

Other party to the proceedings: Xinyi PV Products (Anhui) Holdings Ltd

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Fourth Chamber) of 16 March 2016, notified to the Commission of 17 March 2016, in Case T-586/14 Xinyi PV Products (Anhui) Holdings Ltd v Commission |
| --- | --- |

—

set aside the judgment of the General Court (Fourth Chamber) of 16 March 2016, notified to the Commission of 17 March 2016, in Case T-586/14 Xinyi PV Products (Anhui) Holdings Ltd v Commission

| — | reject the first limb of the first plea of the application at first instance as unfounded in law; |
| --- | --- |

—

reject the first limb of the first plea of the application at first instance as unfounded in law;

| — | refer the case for the second limb of the first plea and the second to fourth pleas of the application at first instance to the General Court for reconsideration; |
| --- | --- |

—

refer the case for the second limb of the first plea and the second to fourth pleas of the application at first instance to the General Court for reconsideration;

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

—

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

Pleas in law and main arguments

The Commission maintains that the judgment under appeal should be set aside on the following grounds:

First, the General Court has misinterpreted the notion ‘carried over from the former non-market economy’ in Article 2(7)(c) third indent of Council Regulation (EC) No 1225/2009 (1) on protection against dumped imports from countries not members of the European Community. That plea comprises five limbs:

| — | First limb: Measures implementing the five-year plan are carried over from the former non-market economy |
| --- | --- |

—

First limb: Measures implementing the five-year plan are carried over from the former non-market economy

| — | Second limb: The support of strategic business sectors (‘picking winners’) does not constitute a legitimate objective in a market economy |
| --- | --- |

—

Second limb: The support of strategic business sectors (‘picking winners’) does not constitute a legitimate objective in a market economy

| — | Third limb: Subsidies in a market economy are not open-ended, but linked to an investment |
| --- | --- |

—

Third limb: Subsidies in a market economy are not open-ended, but linked to an investment

| — | Fourth limb: The measures under assessment are not comparable to illegal and incompatible State aid observed in the Union |
| --- | --- |

—

Fourth limb: The measures under assessment are not comparable to illegal and incompatible State aid observed in the Union

| — | Fifth limb: Erroneous interpretation of the notion of ‘non-market economy’ |
| --- | --- |

—

Fifth limb: Erroneous interpretation of the notion of ‘non-market economy’

Second, the judgment is vitiated by lack of reasoning and contradictory reasoning.

Third, the General Court has committed a number of procedural irregularities:

| — | First limb: the General Court has ruled on a matter on which it had no jurisdiction (ultra vires), has violated the principle that the subject-matter of an action is defined by the parties, and has violated Article 21 of the Statute of the Court of Justice of the European Union and Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, as they were in force at the time of the introduction of the case at first instance |
| --- | --- |

—

First limb: the General Court has ruled on a matter on which it had no jurisdiction (ultra vires), has violated the principle that the subject-matter of an action is defined by the parties, and has violated Article 21 of the Statute of the Court of Justice of the European Union and Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, as they were in force at the time of the introduction of the case at first instance

| — | Second limb: The Commission has not been heard on the alleged comparability of the State aid mentioned in the judgments quoted in paragraph 66 with the measures under assessment |
| --- | --- |

—

Second limb: The Commission has not been heard on the alleged comparability of the State aid mentioned in the judgments quoted in paragraph 66 with the measures under assessment

| — | Third limb: The General Court has not answered the arguments of the Commission on the definition of ‘non-market economy’. |
| --- | --- |

—

Third limb: The General Court has not answered the arguments of the Commission on the definition of ‘non-market economy’.

---

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

OJ L 343, p. 51

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/33 |
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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 30 May 2016 — American Express Co. v The Lords Commissioners of Her Majesty’s Treasury

(Case C-304/16)

(2016/C 270/37)

Language of the case: English

Referring court

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

Parties to the main proceedings

Applicant: American Express Co.

Defendant: The Lords Commissioners of Her Majesty’s Treasury, Diners Club International Limited, MasterCard Europe S.A.

Questions referred

| 1. | Does the requirement in Articles 1(5) and 2(18) of Regulation (EU) 2015/751 (1) (‘the IFR’) that a three party payment card scheme issuing card-based payment instruments with a co-branding partner or through an agent, is considered to be a four party payment card scheme, apply only to the extent that the co-branding partner or agent acts as the ‘issuer’ within the meaning of Article 2(2) and recital (29) of the IFR (namely where that partner or agent has a contractual relationship with the payer, pursuant to which it contracts to provide the payer with a payment instrument to initiate and process the payer's card-based payment transactions)? |
| --- | --- |

1.

Does the requirement in Articles 1(5) and 2(18) of Regulation (EU) 2015/751 (1) (‘the IFR’) that a three party payment card scheme issuing card-based payment instruments with a co-branding partner or through an agent, is considered to be a four party payment card scheme, apply only to the extent that the co-branding partner or agent acts as the ‘issuer’ within the meaning of Article 2(2) and recital (29) of the IFR (namely where that partner or agent has a contractual relationship with the payer, pursuant to which it contracts to provide the payer with a payment instrument to initiate and process the payer's card-based payment transactions)?

| 2. | If the answer to Question (l) is ‘no’, are Articles 1(5) and 2(18) of the IFR invalid in so far as they provide that such arrangements are considered to be four party payment card schemes, on the grounds of:






  (a) | failure to provide reasons in accordance with Article 296 TFEU; |
| --- | --- | --- |

2.

If the answer to Question (l) is ‘no’, are Articles 1(5) and 2(18) of the IFR invalid in so far as they provide that such arrangements are considered to be four party payment card schemes, on the grounds of:

(a)

failure to provide reasons in accordance with Article 296 TFEU;

| (b) | manifest error of assessment; and/or |
| --- | --- |

(b)

manifest error of assessment; and/or

| (c) | breach of the principle of proportionality? |
| --- | --- |

(c)

breach of the principle of proportionality?

---

(1)  Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions.

OJ L 123, p. 1

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/34 |
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Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 30 May 2016 — Avon Cosmetics Ltd v The Commissioners for Her Majesty's Revenue and Customs

(Case C-305/16)

(2016/C 270/38)

Language of the case: English

Referring court

First-tier Tribunal (Tax Chamber)

Parties to the main proceedings

Applicant: Avon Cosmetics Ltd

Defendant: The Commissioners for Her Majesty's Commissioners of Revenue and Customs

Questions referred

| 1. | Where a direct seller sells goods (‘Sales Aids’) to unregistered resellers or the unregistered reseller purchases goods and services from third parties (‘Third Party Goods and Services’) which are in both cases used by the unregistered resellers to assist their economic activity of selling other goods which are also purchased from the direct seller and the subject of administrative arrangements issued pursuant to a derogation most recently authorised by Council Decision of 24 May 1989 (89/534/EEC (1)) (the ‘Derogation’), do the relevant authorisations, implementing legislation and/or administrative arrangements offend any relevant provisions and/or principles of European Union law in so far as they require the direct seller to account for output tax on the unregistered resellers' sale price of the other goods with no reduction for the VAT incurred by the unregistered reseller on such Sales Aids and/or Third Party Goods and Services? |
| --- | --- |

1.

Where a direct seller sells goods (‘Sales Aids’) to unregistered resellers or the unregistered reseller purchases goods and services from third parties (‘Third Party Goods and Services’) which are in both cases used by the unregistered resellers to assist their economic activity of selling other goods which are also purchased from the direct seller and the subject of administrative arrangements issued pursuant to a derogation most recently authorised by Council Decision of 24 May 1989 (89/534/EEC (1)) (the ‘Derogation’), do the relevant authorisations, implementing legislation and/or administrative arrangements offend any relevant provisions and/or principles of European Union law in so far as they require the direct seller to account for output tax on the unregistered resellers' sale price of the other goods with no reduction for the VAT incurred by the unregistered reseller on such Sales Aids and/or Third Party Goods and Services?

| 2. | Whether the UK was under any obligation to inform the Commission when seeking authorisation from the Council for the Derogation, that unregistered resellers incurred VAT on purchases of Sales Aids and/or Third Party Goods and Services used for the purposes of their economic activities and that, accordingly, an adjustment to reflect that irrecoverable input tax, or overpaid output tax, should be accommodated in the derogation? |
| --- | --- |

2.

Whether the UK was under any obligation to inform the Commission when seeking authorisation from the Council for the Derogation, that unregistered resellers incurred VAT on purchases of Sales Aids and/or Third Party Goods and Services used for the purposes of their economic activities and that, accordingly, an adjustment to reflect that irrecoverable input tax, or overpaid output tax, should be accommodated in the derogation?

| 3. | In the event that the answer to questions 1and/or 2 above is in the affirmative:






  a. | Whether any of the relevant authorisations, implementing legislation or administrative arrangements can and should be interpreted so as to make an allowance in respect of either (i) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (ii) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses. |
| --- | --- | --- |

3.

In the event that the answer to questions 1and/or 2 above is in the affirmative:

a.

Whether any of the relevant authorisations, implementing legislation or administrative arrangements can and should be interpreted so as to make an allowance in respect of either (i) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (ii) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses.

| b. | Whether:






  i. | The authorisation of the UK's derogation from Article 11A(1)(a) of the Sixth Directive was unlawful. |
| --- | --- | --- |

b.

Whether:

i.

The authorisation of the UK's derogation from Article 11A(1)(a) of the Sixth Directive was unlawful.

| ii. | a derogation from Article 17 of the Sixth Directive is necessary alongside the derogation from Article 11A(1)(a). If so, whether the UK acted unlawfully by failing to ask the Commission or the Council to authorise it to derogate from Article 17. |
| --- | --- |

ii.

a derogation from Article 17 of the Sixth Directive is necessary alongside the derogation from Article 11A(1)(a). If so, whether the UK acted unlawfully by failing to ask the Commission or the Council to authorise it to derogate from Article 17.

| iii. | the UK are acting unlawfully by failing to administer VAT in such a way as to allow direct sellers to claim a credit for either Sales Aids or Third Party Goods and Services VAT incurred by unregistered resellers for the purposes of their economic activities. |
| --- | --- |

iii.

the UK are acting unlawfully by failing to administer VAT in such a way as to allow direct sellers to claim a credit for either Sales Aids or Third Party Goods and Services VAT incurred by unregistered resellers for the purposes of their economic activities.

| iv. | all or any part of the relevant authorisations, implementing legislation or administrative arrangements are therefore invalid and/or unlawful. |
| --- | --- |

iv.

all or any part of the relevant authorisations, implementing legislation or administrative arrangements are therefore invalid and/or unlawful.

| c. | Whether the appropriate remedy is, from the Court of Justice of the European Union or from the national Tribunal or Court:






  i. | a direction that the Member State is required to give effect to the Derogation in domestic law by providing for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses; or |
| --- | --- | --- |

c.

Whether the appropriate remedy is, from the Court of Justice of the European Union or from the national Tribunal or Court:

i.

a direction that the Member State is required to give effect to the Derogation in domestic law by providing for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses; or

| ii. | a declaration that the authorisation of the Derogation, and by extension the derogation itself, is invalid; or |
| --- | --- |

ii.

a declaration that the authorisation of the Derogation, and by extension the derogation itself, is invalid; or

| iii. | a declaration that the domestic legislation is invalid; or |
| --- | --- |

iii.

a declaration that the domestic legislation is invalid; or

| iv. | a declaration that the Notice of Direction is invalid; or |
| --- | --- |

iv.

a declaration that the Notice of Direction is invalid; or

| v. | a declaration that the UK is obliged to apply for authorisation for a further derogation so to provide for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses. |
| --- | --- |

v.

a declaration that the UK is obliged to apply for authorisation for a further derogation so to provide for an appropriate adjustment for any of (a) irrecoverable VAT on Sales Aids or Third Party Goods and Services borne by unregistered resellers and used by such unregistered resellers for the purposes of their economic activities; OR (b) VAT in excess of the tax avoided being collected by Her Majesty's Revenue & Customs; OR (iii) the potential unfair competition that arises between direct sellers, their unregistered resellers and non-direct selling businesses.

| 4. | Under Article 27 of the Sixth Directive (Article 395 of the Principal VAT Directive), is the ‘tax eva[ded] or avoid[ed]’ to be measured as the net loss of tax (taking account of both the output tax paid and input tax recoverable in the structure giving rise to the tax evaded or avoided) to the Member State or the gross loss of tax (taking account of only the output tax in the structure giving rise to the tax evaded or avoided) to the Member State? |
| --- | --- |

4.

Under Article 27 of the Sixth Directive (Article 395 of the Principal VAT Directive), is the ‘tax eva[ded] or avoid[ed]’ to be measured as the net loss of tax (taking account of both the output tax paid and input tax recoverable in the structure giving rise to the tax evaded or avoided) to the Member State or the gross loss of tax (taking account of only the output tax in the structure giving rise to the tax evaded or avoided) to the Member State?

---

(1)  Council Decision of 24 May 1989 authorizing the United Kingdom to apply, in respect of certain supplies to unregistered resellers, a measure derogating from article 11 A (1) (a) of the Sixth Directive 77/388/EEC on the harmonization of the laws of the Member States relating to turnover taxes.

OJ L 280, p. 54

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/36 |
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Appeal brought on 8 June 2016 by Eurallumina SpA against the judgment of the General Court (First Chamber, Extended Composition) delivered on 22 April 2016 in joined cases T-60/06 RENV II and T-62/06 RENV II: Italian Republic and Eurallumina SpA v European Commission

(Case C-323/16 P)

(2016/C 270/39)

Language of the case: English

Parties

Appellant: Eurallumina SpA (represented by: L. Martin Alegi, A. Stratakis, L. Philippou, Solicitors)

Other parties to the proceedings: Italian Republic, European Commission

Form of order sought

The appellant claims that the Court should:

| — | set aside the Judgment, |
| --- | --- |

—

set aside the Judgment,

| — | annul the Decision (1) in so far as it orders the Italian Republic to recover the aid, or failing that, |
| --- | --- |

—

annul the Decision (1) in so far as it orders the Italian Republic to recover the aid, or failing that,

| — | refer the case back to the general Court, |
| --- | --- |

—

refer the case back to the general Court,

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The Appellant raises a single plea in law, divided into five parts, alleging infringement of Community law, in particular infringement of the principle of legitimate expectations and failure to state reasons. The Appellant's specific pleas in law are as follows:

| 1. | The General Court erred in law in interpreting the Judgment of 10 December 2013 so as to consider itself bound to find that publication of the opening of the proceedings on 2 February 2002 put an end to Eurallumina's legitimate expectations. |
| --- | --- |

1.

The General Court erred in law in interpreting the Judgment of 10 December 2013 so as to consider itself bound to find that publication of the opening of the proceedings on 2 February 2002 put an end to Eurallumina's legitimate expectations.

| 2. | In consequence of this error, the General Court failed to fulfil the very purpose of the referral back and failed to assess Eurallumina's arguments regarding the continuation of its legitimate expectations or assessed them in a distorted legal framework and erroneously. |
| --- | --- |

2.

In consequence of this error, the General Court failed to fulfil the very purpose of the referral back and failed to assess Eurallumina's arguments regarding the continuation of its legitimate expectations or assessed them in a distorted legal framework and erroneously.

| 3. | Even in the application of its distorted legal framework the General Court erred in law by finding that the Commission's unreasonable delay in conducting the investigation was not capable of having given rise to legitimate expectations on the part of Eurallumina preventing recovery of the aid. |
| --- | --- |

3.

Even in the application of its distorted legal framework the General Court erred in law by finding that the Commission's unreasonable delay in conducting the investigation was not capable of having given rise to legitimate expectations on the part of Eurallumina preventing recovery of the aid.

| 4. | The General Court misinterprets Directive 2003/96 (2)
  contra legem, in breach of Community law and its principles of interpretation. |
| --- | --- |

4.

The General Court misinterprets Directive 2003/96 (2)
  contra legem, in breach of Community law and its principles of interpretation.

| 5. | The General Court erred in law in rejecting Eurallumina's arguments based on its investments in the Sardinian plant. |
| --- | --- |

5.

The General Court erred in law in rejecting Eurallumina's arguments based on its investments in the Sardinian plant.

---

(1)  2006/323/EC: Commission Decision of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (notified under document number C(2005) 4436)

OJ L 119, p. 12

(2)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity

OJ L 283, p. 51

---

General Court

| 25.7.2016 | EN | Official Journal of the European Union | C 270/37 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/37

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Judgment of the General Court of 9 June 2016 — Magic Mountain Kletterhallen and Others v Commission

(Case T-162/13) (1)

((State aid - Aid for the construction and operation of climbing centres of Deutscher Alpenverein eV - Decision declaring the aid compatible with the internal market - Aid scheme - More detailed economic analysis - Market failure - Legitimate objective in the public interest - Article 108(2) and (3) TFEU - Serious difficulties))

(2016/C 270/40)

Language of the case: German

Parties

Applicants: Magic Mountain Kletterhallen GmbH (Berlin, Germany), Kletterhallenverband Klever eV (Leipzig, Germany), Neoliet Beheer BV (Son, Netherlands), and Pedriza BV (Haarlem, Netherlands) (represented by: initially M. von Oppen, A. Gerdung and R. Dreblow, then M. von Oppen, lawyers)

Defendant: European Commission (represented by: T. Maxian Rusche and R. Sauer, acting as Agents)

Interveners in support of the defendants: Deutscher Alpenverein eV (Munich, Germany), and Deutscher Alpenverein, Sektion Berlin eV (Berlin, Germany) (represented by: R. Geulen, lawyer)

Re:

Application on the basis of Article 263 TFEU and seeking the annulment of Commission Decision C(2012) 8761 of 5 December 2012 on State aid SA.33952 (2012/NN) — Germany — Climbing centres of Deutscher Alpenverein.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Magic Mountain Kletterhallen GmbH, Kletterhallenverband Klever eV, Neoliet Beheer BV and Pedriza BV jointly and severally to bear the costs incurred by the European Commission and their own costs; |
| --- | --- |

2.

Orders Magic Mountain Kletterhallen GmbH, Kletterhallenverband Klever eV, Neoliet Beheer BV and Pedriza BV jointly and severally to bear the costs incurred by the European Commission and their own costs;

| 3. | Orders Deutscher Alpenverein eV and Deutscher Alpenverein, Sektion Berlin eV to bear their own costs. |
| --- | --- |

3.

Orders Deutscher Alpenverein eV and Deutscher Alpenverein, Sektion Berlin eV to bear their own costs.

---

(1)  OJ C 147, 25.5.2013.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/38 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/38

---

Judgment of the General Court of 9 June 2016 — Growth Energy and Renewable Fuels Association v Council

(Case T-276/13) (1)

((Dumping - Imports of bioethanol originating in the United States - Definitive anti-dumping duty - Action for annulment - Association - Members not directly concerned - Inadmissibility - Countrywide anti-dumping duty - Individual treatment - Sampling - Rights of the defence - Non-discrimination - Duty of diligence))

(2016/C 270/41)

Language of the case: English

Parties

Applicants: Growth Energy (Washington, DC, United States), and Renewable Fuels Association (Washington) (represented initially by P. Vander Schueren, and subsequently by P. Vander Schueren and M. Peristeraki, lawyers)

Defendant: Council of the European Union (represented by: S. Boelaert, acting as Agent, and by B. Byrne, Solicitor, and G. Berrisch, lawyer, and subsequently by R. Bierwagen and C. Hipp, lawyers)

Interveners in support of the defendant: European Commission (represented by: M. França and T. Maxian Rusche, acting as Agents); and ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (represented by: O. Prost and A. Massot, lawyers)

Re:

Application for partial annulment of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10), in so far as it affects the applicants and their members.

Operative part of the judgment

The Court:

| 1. | Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC; |
| --- | --- |

1.

Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC;

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

2.

Dismisses the action as to the remainder;

| 3. | Orders Growth Energy and Renewable Fuels Association, the Council of the European Union, the European Commission and ePure, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs. |
| --- | --- |

3.

Orders Growth Energy and Renewable Fuels Association, the Council of the European Union, the European Commission and ePure, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs.

---

(1)  OJ C 226, 3.8.2013.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/38 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/38

---

Judgment of the General Court of 9 June 2016 — Marquis Energy v Council

(Case T-277/13) (1)

((Dumping - Imports of bioethanol originating in the United States - Definitive anti-dumping duty - Action for annulment - Direct concern - Admissibility - Countrywide anti-dumping duty - Individual treatment - Sampling))

(2016/C 270/42)

Language of the case: English

Parties

Applicant: Marquis Energy LLC (Hennepin, Illinois, United States) (represented initially by P. Vander Schueren, and subsequently by P. Vander Schueren and M. Peristeraki, lawyers)

Defendant: Council of the European Union (represented by: S. Boelaert, acting as Agent, and by B. Byrne, Solicitor, and G. Berrisch, lawyer, and subsequently by R. Bierwagen and C. Hipp, lawyers)

Interveners in support of the defendant: European Commission (represented by: M. França and T. Maxian Rusche, acting as Agents); and ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (represented by: O. Prost and A. Massot, lawyers)

Re:

Application for partial annulment of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10), in so far as it affects the applicant.

Operative part of the judgment

The Court:

| 1. | Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Marquis Energy LLC; |
| --- | --- |

1.

Annuls Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America in so far as it concerns Marquis Energy LLC;

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

2.

Orders the Council of the European Union to bear its own costs and to pay those incurred by Marquis Energy;

| 3. | Orders the European Commission and ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs. |
| --- | --- |

3.

Orders the European Commission and ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol to bear their own costs.

---

(1)  OJ C 226, 3.8.2013.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/39 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/39

---

Judgment of the General Court of 9 June 2016 — Italy v Commission

(Case T-122/14) (1)

((Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations - Periodic penalty payment - Judgment quantifying the amount of the periodic penalty payment - Method of calculating the interest applicable to the recovery of unlawful aid - Compound interest))

(2016/C 270/43)

Language of the case: Italian

Parties

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

Defendant: European Commission (represented by: V. Di Bucci, G. Conte and B. Stromsky, acting as Agents)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2013) 8681 final of 6 December 2013, by which, in order to comply with the judgment of 17 November 2011 in Commission v Italy (C-496/09, EU:C:2011:740), the Commission fixed the amount of the periodic penalty owed by the Italian Republic for the six months from 17 May to 17 November 2012.

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision C(2013) 8681 final of 6 December 2013; |
| --- | --- |

1.

Annuls Commission Decision C(2013) 8681 final of 6 December 2013;

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

2.

Orders the European Commission to pay the costs.

---

(1)  OJ C 102, 7.4.2014.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/40 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/40

---

Judgment of the General Court of 16 June 2016 — Fútbol Club Barcelona v EUIPO — Kule (KULE)

(Case T-614/14) (1)

((European Union trade mark - Opposition proceedings - Application for European Union word mark KULE - Earlier national word marks and well-known mark CULE - Relative grounds for refusal - No genuine use of the earlier trade marks - Article 42(2) of Regulation (EC) No 207/2009 - Article 8(1)(b) of Regulation No 207/2009 - Article 8(5) of Regulation No 207/2009))

(2016/C 270/44)

Language of the case: English

Parties

Applicant: Fútbol Club Barcelona (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

Defendant: European Union Intellectual Property Office (represented by: K. Zajfert and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Kule LLC (New York, New York, United States) (represented by: F. Rodgers, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 18 June 2014 (Case R 2375/2013-4), relating to opposition proceedings between Fútbol Club Barcelona and Kule.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Fútbol Club Barcelona to pay the costs. |
| --- | --- |

2.

Orders Fútbol Club Barcelona to pay the costs.

---

(1)  OJ C 351, 6.10.2014.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/41 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/41

---

Judgment of the General Court of 14 June 2016 — Staatliche Porzellan-Manufaktur Meissen v EUIPO — Meissen Keramik (MEISSEN)

(Case T-789/14) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark MEISSEN - Earlier EU and national word and figurative marks MEISSEN, MEISSENER PORZELLAN, HAUS MEISSEN, Meissen and Meissener Porzellan - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Distinctive character and reputation of the earlier marks - Article 8(5) of Regulation No 207/2009 - Genuine use of the earlier marks - Article 42(2) and (3) of Regulation No 207/2009 - Article 15(1) of Regulation No 207/2009))

(2016/C 270/45)

Language of the case: German

Parties

Applicant: Staatliche Porzellan-Manufaktur Meissen GmbH (Meissen, Germany) (represented by: O. Spuhler and M. Geitz, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Meissen Keramik GmbH (Meissen) (represented by: M. Vohwinkel and K. Gennen, acting as Agents)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 29 September 2014 (Joined Cases R 1182/2013-4 and R 1245/2013-4), relating to opposition proceedings between Staatliche Porzellan-Manufaktur Meissen and Meissen Keramik.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Staatliche Porzellan-Manufaktur Meissen GmbH to pay the costs. |
| --- | --- |

2.

Orders Staatliche Porzellan-Manufaktur Meissen GmbH to pay the costs.

---

(1)  OJ C 127, 20.4.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/41 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/41

---

Judgment of the General Court of 14 June 2016 — Loops v EUIPO (Shape of a toothbrush)

(Case T-385/15) (1)

((EU trade mark - International registration designating the European Union - Three-dimensional mark - Shape of a toothbrush - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))

(2016/C 270/46)

Language of the case: English

Parties

Applicant: Loops, LLC (Dover, Delaware, United States) (represented by: T. Schmidpeter, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 30 April 2015 (Case R 1917/2014-2), concerning an application for registration of a three-dimensional sign consisting of the shape of a toothbrush as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Loops, LLC, to pay the costs. |
| --- | --- |

2.

Orders Loops, LLC, to pay the costs.

---

(1)  OJ C 302, 14.9.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/42 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/42

---

Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (Representation of a peace symbol)

(Case T-583/15) (1)

((EU trade mark - Application for an EU figurative mark representing a peace symbol - Application for restitutio in integrum - Non-compliance with the time limit for bringing an action before the General Court))

(2016/C 270/47)

Language of the case: English

Parties

Applicant: Monster Energy Company (Corona, California, United States) (represented by: P. Brownlow, Solicitor)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 17 July 2015 (Case R 2788/2014-2), concerning an application for registration as an EU trade mark of a figurative sign representing a peace symbol.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Monster Energy Company to pay the costs. |
| --- | --- |

2.

Orders Monster Energy Company to pay the costs.

---

(1)  OJ C 414, 14.12.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/43 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/43

---

Judgment of the General Court of 8 June 2016 — Monster Energy v EUIPO (GREEN BEANS)

(Case T-585/15) (1)

((EU trade mark - Application for the EU word mark GREEN BEANS - Application for restitutio in integrum - Non-compliance with the time limit for bringing an action before the General Court))

(2016/C 270/48)

Language of the case: English

Parties

Applicant: Monster Energy Company (Corona, California, United States) (represented by: P. Brownlow, Solicitor)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 22 July 2015 (Case R 3002/2014-2), concerning an application for registration of the word mark GREEN BEANS as an EU trade mark.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Monster Energy Company to pay the costs. |
| --- | --- |

2.

Orders Monster Energy Company to pay the costs.

---

(1)  OJ C 406, 7.12.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/43 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/43

---

Order of the General Court of 26 May 2016 — REWE-Zentral v EUIPO — Vicente Gandía Pla (MY PLANET)

(Case T-362/14) (1)

((EU trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate))

(2016/C 270/49)

Language of the case: English

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by: M Kinkeldey, S. Brandstätter and A. Wagner, lawyers)

Defendant: European Union Intellectual Property Office (represented by: I. P. Harrington and P. Bullock, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO intervening before the General Court: Vicente Gandía Pla, SA (Chiva, Spain)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 6 March 2014 (Case R 201/2013-1), relating to opposition proceedings between Vicente Gandía PIa SA and REWE-Zentral AG.

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. | REWE-Zentral AG is ordered to pay the costs. |
| --- | --- |

2.

REWE-Zentral AG is ordered to pay the costs.

---

(1)  OJ C 261, 11.8.2014.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/44 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/44

---

Order of the General Court of 9 June 2016 — IREPA v Commission and Court of Auditors

(Case T-825/14) (1)

((Action for annulment - Fishing - Italian National Fisheries Data Collection Programme for the period 2009-2010 - Recovery of a part of the advances paid to the applicant - Court of Auditors’ preliminary report - Measure not open to challenge - Preparatory measure - Pre-information letters - Debit note - Fourth paragraph of Article 263 TFEU - Lack of direct concern - Inadmissibility))

(2016/C 270/50)

Language of the case: Italian

Parties

Applicant: Istituto di ricerche economiche per la pesca e l’acquacoltura — IREPA Onlus (Salerno, Italy) (represented by: F. Tedeschini, lawyer)

Defendants: European Commission (represented by: F. Moro, D. Nardi and K. Walkerová, acting as Agents), and Court of Auditors of the European Union (represented by: N. Scafarto and L. Massocchi, acting as Agents)

Re:

Application based on Article 263 TFEU and asking for the annulment of the decision which contained the debit note of 30 September 2014 issued by the Commission for the recovery of the amount of EUR 458 347,35, the Court of Auditors’ report of 27 February 2013, the Commission’s letters of 12 July 2013 and 6 August 2014 and of any other prior, related, or in any event subsequent measure, even unknown, affecting the applicant’s legal financial situation.

Operative part of the order

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

1.

The action is dismissed as being inadmissible.

| 2. | Istituto di ricerche economiche per la pesca e l’acquacoltura — IREPA Onlus shall bear its own costs and pay those incurred by the European Commission and the Court of Auditors of the European Union. |
| --- | --- |

2.

Istituto di ricerche economiche per la pesca e l’acquacoltura — IREPA Onlus shall bear its own costs and pay those incurred by the European Commission and the Court of Auditors of the European Union.

---

(1)  OJ C 65, 23.2.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/45 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/45

---

Order of the General Court of 8 June 2016 — Kohrener Landmolkerei and DHG v Commission

(Case T-178/15) (1)

((System of traditional specialities guaranteed - Regulation (EU) No 1151/2012 - Letter from the Commission informing the competent national authorities of their late lodging of their opposition measure - Action manifestly lacking any foundation in law))

(2016/C 270/51)

Language of the case: German

Parties

Applicants: Kohrener Landmolkerei GmbH (Penig, Germany) and DHG Deutsche Heumilchgesellschaft mbH (Frohburg, Germany) (represented by: A. Wagner, lawyer)

Defendant: European Commission (represented by: J. Guillem Carrau and G. von Rintelen, acting as Agents)

Re:

Application based on Article 263 TFEU and asking for annulment of the decision contained in the letter of 9 February 2015 from the Director of Directorate B ‘Multilateral relations and quality policy’ of the Commission’s ‘Agriculture and rural development’ Directorate General, with the reference Ares (2015)529719, informing the competent German authorities that their opposition measure under Article 51(1) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), which was lodged on 5 January 2015, was submitted after the deadline.

Operative part of the order

| 1. | The action is dismissed as being manifestly lacking any foundation in law. |
| --- | --- |

1.

The action is dismissed as being manifestly lacking any foundation in law.

| 2. | Kohrener Landmolkerei GmbH and DHG Deutsche Heumilchgesellschaft mbH shall bear their own costs and pay those incurred by the European Commission. |
| --- | --- |

2.

Kohrener Landmolkerei GmbH and DHG Deutsche Heumilchgesellschaft mbH shall bear their own costs and pay those incurred by the European Commission.

---

(1)  OJ C 245, 27.7.2015.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/45 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/45

---

Action brought on 18 April 2016 — Grizzly Tools v Commission

(Case T-168/16)

(2016/C 270/52)

Language of the case: German

Parties

Applicant: Grizzly Tools GmbH & Co. KG (Großostheim, Germany) (represented by: H. Fischer, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Decision (EU) 2016/175 of 8 February 2016 on a measure taken by Spain pursuant to Directive 2006/42/EC of the European Parliament and of the Council, to prohibit the placing on the market of a type of pressure washer (OJ 2016, L 33, p. 12); |
| --- | --- |

—

annul Commission Implementing Decision (EU) 2016/175 of 8 February 2016 on a measure taken by Spain pursuant to Directive 2006/42/EC of the European Parliament and of the Council, to prohibit the placing on the market of a type of pressure washer (OJ 2016, L 33, p. 12);

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | Infringement of essential requirements of form
  The applicant claims that the contested decision infringes the duty to state reasons under the second paragraph of Article 296 TFEU in so far as its recitals are contradictory and unclear.
  Moreover, the contested decision infringes the principle that the Commission is to state the facts of the case correctly. In the fourth recital, the Commission incorrectly alleges that the applicant made reference in the EC Declaration of Conformity to the standard EN-60335-2-67-2009, which is incorrect. |
| --- | --- |

1.

Infringement of essential requirements of form

The applicant claims that the contested decision infringes the duty to state reasons under the second paragraph of Article 296 TFEU in so far as its recitals are contradictory and unclear.

Moreover, the contested decision infringes the principle that the Commission is to state the facts of the case correctly. In the fourth recital, the Commission incorrectly alleges that the applicant made reference in the EC Declaration of Conformity to the standard EN-60335-2-67-2009, which is incorrect.

| 2. | Infringement of Article 11 of Directive 2006/42/EC (1) |
| --- | --- |

2.

Infringement of Article 11 of Directive 2006/42/EC (1)

The applicant claims that the Commission incorrectly took the view that the measure taken by Spain to prohibit the placing on the market was justified.

In particular, the Spanish authorities and the Commission characterised the pressure washer as of dual use, capable of being used not only as a portable appliance, but also as a hand-held appliance. They therefore considered a higher level of safety to be necessary despite the pressure washer not being intended for use as a hand-held appliance and there being no reasonably foreseeable misuse within the meaning of Article 11(1) of Directive 2006/42/EC in its use as a hand-held pressure washer.

---

(1)  Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (OJ 2006 L 157, p. 24).

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/46 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/46

---

Action brought on 3 May 2016 — Keturi kambariai v EUIPO — Coffee In (coffee inn)

(Case T-202/16)

(2016/C 270/53)

Language in which the application was lodged: English

Parties

Applicant: UAB Keturi kambariai (Vilnius, Lithuania) (represented by: R. Pumputienė, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: AS Coffee In (Tallinn, Estonia)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark with the colour claim ‘black, orange, white’ containing the word elements ‘coffee inn’ — Application for registration No 11 475 233

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 March 2016 in Case R 137/2015-4

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and, consequently, reject the opposition and authorise the registration of the mark applied for; |
| --- | --- |

—

annul the contested decision and, consequently, reject the opposition and authorise the registration of the mark applied for;

| — | order EUIPO and the intervener to pay the costs relating to the proceedings before the Court and the Board of Appeal. |
| --- | --- |

—

order EUIPO and the intervener to pay the costs relating to the proceedings before the Court and the Board of Appeal.

Pleas in law

| — | Infringement of Article 42(2) and (3) of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 42(2) and (3) of Regulation No 207/2009;

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

—

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

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/47 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/47

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Action brought on 11 May 2016 — Hansen Medical v EUIPO — Covidien (MAGELLAN)

(Case T-222/16)

(2016/C 270/54)

Language in which the application was lodged: English

Parties

Applicant: Hansen Medical, Inc. (Mountain View, California, United States) (represented by: R. Kunze, Solicitor, G. Würtenberger, T. Wittmann, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Covidien AG (Neuhausen am Rheinfall, Switzerland)

Details of the proceedings before EUIPO

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

Trade mark at issue: EU word mark ‘MAGELLAN’ – EU trade mark No 5 437 711

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 3 February 2016 in Joined Cases R 3092/2014-2 and R 3118/2014-2

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order EUIPO to pay the costs.

Pleas in law

| — | Infringement of Articles 15, 51(1)(a), 57(1), 63(2), 64, 75, 76(2) and 77 of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Articles 15, 51(1)(a), 57(1), 63(2), 64, 75, 76(2) and 77 of Regulation No 207/2009.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/48 |
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25.7.2016

EN

Official Journal of the European Union

C 270/48

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Action brought on 6 May 2016 — Pio De Bragança v EUIPO — Ordem de São Miguel da Ala (QUIS UT DEUS)

(Case T-229/16)

(2016/C 270/55)

Language in which the application was lodged: Portuguese

Parties

Applicant: Duarte Pio De Bragança (Sintra, Portugal) (represented by: J. Sardinha, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Ordem de São Miguel da Ala (Lisbon, Portugal)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union figurative mark containing the word elements ‘quis ut deus’ — European Union trade mark No 005747936

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Second Board of Appeal of EUIPO of 26 February 2016 in Case R 621/2015-2

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and, therefore, declare the total invalidity, on the grounds of lack of genuine use, of the contested trade mark including with respect to the ‘signboards of metal’ goods belonging to Class 6; |
| --- | --- |

—

annul the contested decision and, therefore, declare the total invalidity, on the grounds of lack of genuine use, of the contested trade mark including with respect to the ‘signboards of metal’ goods belonging to Class 6;

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

—

order EUIPO to pay the costs.

Plea in law

Infringement of Article 15(1) and Article 51(1)(a) and 51(2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, [the present action] having been brought under Article 65 of Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs).

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/48 |
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25.7.2016

EN

Official Journal of the European Union

C 270/48

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Action brought on 14 May 2016 — Klyuyev v Council

(Case T-240/16)

(2016/C 270/56)

Language of the case: English

Parties

Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: B. Kennelly and J. Pobjoy, Barristers, R. Gherson and T. Garner, Solicitors)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as they apply to the applicant; |
| --- | --- |

—

annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as they apply to the applicant;

| — | alternatively, declare that (i) Article 1 (1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and (2) Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable as far as they apply to the applicant by reason of illegality; |
| --- | --- |

—

alternatively, declare that (i) Article 1 (1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and (2) Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are inapplicable as far as they apply to the applicant by reason of illegality;

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

—

order the Council to pay the costs of the applicant.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging, in support of the application for annulment, that he Council has failed to identify a proper legal base for the contested measures.






  — | The applicant puts forward that Article 29 TEU is not a proper legal base for the Council decision 2014/119/CFSP of 5 March 2014 because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of Article 23 TEU and the general provisions in Article 21(2) TEU). As the third amending decision was invalid, so the applicant claims, the Council could not rely on Article 215(2) TFUE to enact the Council Regulation (EU) No 208/2014 of 5 March 2014. |
| --- | --- | --- |

1.

First plea in law, alleging, in support of the application for annulment, that he Council has failed to identify a proper legal base for the contested measures.

—

The applicant puts forward that Article 29 TEU is not a proper legal base for the Council decision 2014/119/CFSP of 5 March 2014 because the complaint made against the applicant did not identify him as an individual having undermined democracy in Ukraine or deprived the Ukrainian people of the benefits of the sustainable development of their country (within the meaning of Article 23 TEU and the general provisions in Article 21(2) TEU). As the third amending decision was invalid, so the applicant claims, the Council could not rely on Article 215(2) TFUE to enact the Council Regulation (EU) No 208/2014 of 5 March 2014.

| 2. | Second plea in law, alleging, in support of the application for annulment, the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU, and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Ukraine complied with fundamental human rights. |
| --- | --- |

2.

Second plea in law, alleging, in support of the application for annulment, the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU, and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Ukraine complied with fundamental human rights.

| 3. | Third plea in law, alleging, in support of the application for annulment, that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended) was satisfied. |
| --- | --- |

3.

Third plea in law, alleging, in support of the application for annulment, that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended) was satisfied.

| 4. | Fourth plea in law, alleging, in support of the application for annulment, that the council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, according to the applicant, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation. |
| --- | --- |

4.

Fourth plea in law, alleging, in support of the application for annulment, that the council violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, according to the applicant, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation.

| 5. | Fifth plea in law, alleging, in support of the application for annulment, that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. According to the applicant, the impact of the contested measures is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim still less that it is proportionate to such an aim. |
| --- | --- |

5.

Fifth plea in law, alleging, in support of the application for annulment, that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including his right to protection of his property and reputation. According to the applicant, the impact of the contested measures is far-reaching, both as regards to his property, and to his reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim still less that it is proportionate to such an aim.

| 6. | Sixth plea in law, alleging, in support of the application for illegality, that, if, contrary to the arguments advanced in the third plea, Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are to be interpreted to capture (a) any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it; and/or (b) any ‘abuse of office as a public-office holder in order to procure an unjustified advantage’ irrespective of whether there is an allegation of misappropriation of State funds, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014. The provisions would therefore be unlawful. |
| --- | --- |

6.

Sixth plea in law, alleging, in support of the application for illegality, that, if, contrary to the arguments advanced in the third plea, Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 (as amended) and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014 (as amended), are to be interpreted to capture (a) any investigation by a Ukrainian authority irrespective of whether there is any judicial decision or proceedings underpinning, controlling or overseeing it; and/or (b) any ‘abuse of office as a public-office holder in order to procure an unjustified advantage’ irrespective of whether there is an allegation of misappropriation of State funds, the designation criterion would, given the arbitrary width and scope that would result from such a broad interpretation, lack a proper legal base; and/or be disproportionate to the objectives of Article 1(1) of Council decision 2014/119/CFSP of 5 March 2014 and Article 3(1) of Council Regulation (EU) No 208/2014 of 5 March 2014. The provisions would therefore be unlawful.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/50 |
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25.7.2016

EN

Official Journal of the European Union

C 270/50

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Action brought on 17 May 2016 — Stavytskyi v Council

(Case T-242/16)

(2016/C 270/57)

Language of the case: English

Parties

Applicant: Edward Stavytskyi (Belgium) (represented by: J. Grayston, Solicitor, P. Gjørtler, G. Pandey and D. Rovetta, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as these acts retain the applicant in the list of persons and entities made subject to restrictive measures; |
| --- | --- |

—

annul the Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine as well as Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, insofar as these acts retain the applicant in the list of persons and entities made subject to restrictive measures;

| — | order the council to bear the costs of the present proceedings. |
| --- | --- |

—

order the council to bear the costs of the present proceedings.

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 that the listing suffers from illegality as it has been amended to allow for listing on the basis merely of being subject to criminal proceedings, without any requirement of judicial endorsement. |
| --- | --- |

1.

First plea in law, alleging that the listing suffers from illegality as it has been amended to allow for listing on the basis merely of being subject to criminal proceedings, without any requirement of judicial endorsement.

| 2. | Second plea in law, alleging that the Council gave an insufficient and stereotypical statement of reasons, as it merely copied the text found in the listing legislation. |
| --- | --- |

2.

Second plea in law, alleging that the Council gave an insufficient and stereotypical statement of reasons, as it merely copied the text found in the listing legislation.

| 3. | Third plea in law, alleging that the Council committed a manifest error of assessment as it did not have sufficiently solid factual basis for listing the applicant on the ground that he was subject to criminal proceeding by the Ukrainian authorities for the misappropriation of public funds or assets. |
| --- | --- |

3.

Third plea in law, alleging that the Council committed a manifest error of assessment as it did not have sufficiently solid factual basis for listing the applicant on the ground that he was subject to criminal proceeding by the Ukrainian authorities for the misappropriation of public funds or assets.

| 4. | Fourth plea in law, alleging that the measures taken by the Council do not, in relation to the applicant, constitute foreign policy measures, but instead constitute international cooperation in criminal proceedings, which accordingly have been adopted on an incorrect legal basis. |
| --- | --- |

4.

Fourth plea in law, alleging that the measures taken by the Council do not, in relation to the applicant, constitute foreign policy measures, but instead constitute international cooperation in criminal proceedings, which accordingly have been adopted on an incorrect legal basis.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/51 |
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25.7.2016

EN

Official Journal of the European Union

C 270/51

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Action brought on 13 May 2016 — Trasta Komercbanka and others v ECB

(Case T-247/16)

(2016/C 270/58)

Language of the case: English

Parties

Applicants: Trasta Komercbanka AS (Riga, Latvia) and 6 others (represented by: O. Behrends, L. Feddern and M. Kirchner, lawyers)

Defendant: European Central Bank

Form of order sought

The applicants claim that the Court should:

| — | annul the ECB's decision dated 3 March 2016 withdrawing the banking license of Trasta Komercbanka AS; and |
| --- | --- |

—

annul the ECB's decision dated 3 March 2016 withdrawing the banking license of Trasta Komercbanka AS; and

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

—

order the defendant to pay all costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the ECB failed to examine and appraise carefully and impartially all factual aspects including without limitation that the ECB did not respond appropriately to the fact that the information and documents submitted by the local Latvian regulatory authority were inaccurate. |
| --- | --- |

1.

First plea in law, alleging that the ECB failed to examine and appraise carefully and impartially all factual aspects including without limitation that the ECB did not respond appropriately to the fact that the information and documents submitted by the local Latvian regulatory authority were inaccurate.

| 2. | Second plea in law, alleging that the ECB violated the principle of proportionality by failing to recognise the availability of alternative measures. |
| --- | --- |

2.

Second plea in law, alleging that the ECB violated the principle of proportionality by failing to recognise the availability of alternative measures.

| 3. | Third plea in law, alleging that the ECB violated the principle of equal treatment. |
| --- | --- |

3.

Third plea in law, alleging that the ECB violated the principle of equal treatment.

| 4. | Fourth plea in law, alleging that the ECB violated Art. 19 and Recital 75 SSM Regulation (1) and committed a détournement de pouvoir. |
| --- | --- |

4.

Fourth plea in law, alleging that the ECB violated Art. 19 and Recital 75 SSM Regulation (1) and committed a détournement de pouvoir.

| 5. | Fifth plea in law, alleging that the ECB violated the principles of legitimate expectations and legal certainty. |
| --- | --- |

5.

Fifth plea in law, alleging that the ECB violated the principles of legitimate expectations and legal certainty.

| 6. | Sixth plea in law, alleging that the ECB violated procedural rules including the right to be heard, the right of access to the file, the right to an adequately reasoned decision, Art. 83(1) SSM Framework Regulation (2) and the right to a fair administrative procedure. |
| --- | --- |

6.

Sixth plea in law, alleging that the ECB violated procedural rules including the right to be heard, the right of access to the file, the right to an adequately reasoned decision, Art. 83(1) SSM Framework Regulation (2) and the right to a fair administrative procedure.

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(1)  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013, L 287, p. 63)

(2)  Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ 2014, L 141, p. 1)

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/52 |
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25.7.2016

EN

Official Journal of the European Union

C 270/52

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Action brought on 19 May 2016 — Walfood v EUIPO — Romanov Holding (CHATKA)

(Case T-248/16)

(2016/C 270/59)

Language in which the application was lodged: French

Parties

Applicant: Walfood SA (Luxembourg, Luxembourg) (represented by: E. Cornu, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Romanov Holding, SL (La Moraleja, Madrid, Spain)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark containing the word element ‘CHATKA’ — European Union trade mark No 943670

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 March 2016 in Case R 150/2015-5

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order the defendant to pay the costs.

Plea in law

| — | Infringement of Article 57(2) and (3) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 57(2) and (3) of Regulation No 207/2009.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/52 |
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25.7.2016

EN

Official Journal of the European Union

C 270/52

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Action brought on 25 May 2016 — Portugal v Commission

(Case T-261/16)

(2016/C 270/60)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo, P. Estêvão and J. Saraiva de Almeida, acting as Agents)

Defendant: European Commission

Form of order sought

| — | Annul Commission Implementing Decision (EU) 2016/417 of 17 March 2016 (OJ 2016 L 75, p. 16) excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it excludes from the financing an amount of EUR 385 762,22 for expenditure declared by Portugal in the context of the Specific Aid Measure established pursuant to Article 68 of Council Regulation (EC) No 73/2009 of 19 January, in the accounting years 2011, 2012 and 2013; |
| --- | --- |

—

Annul Commission Implementing Decision (EU) 2016/417 of 17 March 2016 (OJ 2016 L 75, p. 16) excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as it excludes from the financing an amount of EUR 385 762,22 for expenditure declared by Portugal in the context of the Specific Aid Measure established pursuant to Article 68 of Council Regulation (EC) No 73/2009 of 19 January, in the accounting years 2011, 2012 and 2013;

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

—

Order the European Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging infringement of Article 46(2) of Commission Regulation No 1122/2009 — Observance by the Portuguese authorities of all the rules concerning checks on the ‘supplementary payment per dairy cow equivalent unit’, in the context of the Specific Aid established by the Portuguese Government pursuant to Article 86 of Regulation No 73/2009. |
| --- | --- |

1.

First plea in law, alleging infringement of Article 46(2) of Commission Regulation No 1122/2009 — Observance by the Portuguese authorities of all the rules concerning checks on the ‘supplementary payment per dairy cow equivalent unit’, in the context of the Specific Aid established by the Portuguese Government pursuant to Article 86 of Regulation No 73/2009.

| 2. | Second plea in law, alleging infringement of Article 31(2) of Council Regulation No 1290/2005, by failing to meet the requirements established by the Commission in the uniform guidelines included in document No VI/5330/97, for the application of a financial correction at a flat rate of 2 %. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 31(2) of Council Regulation No 1290/2005, by failing to meet the requirements established by the Commission in the uniform guidelines included in document No VI/5330/97, for the application of a financial correction at a flat rate of 2 %.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/53 |
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25.7.2016

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Official Journal of the European Union

C 270/53

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Action brought on 25 May 2016 — Greece v Commission

(Case T-272/16)

(2016/C 270/61)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: G. Κanellopoulos, Ο. Tsirkinidou, Α. Vasilopoulou and D. Ntourntoureka)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul the contested Commission Implementing Decision of 17 Μarch 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), notified under document C(2016) 1509 and published in the Official Journal of the European Union, L 75 of 22 March 2016, p. 16:






  (a) | to the extent to which there is excluded from European Union financing expenditure amounting in total to EUR 166 797 866,22 which was incurred in the decoupled direct aid sector in claim years 2012 and 2013 and in particular there is imposed: (1) a 25 % flat rate financial correction for the year 2012 and (2) a flat rate and one off financial correction for the year 2013;· |
| --- | --- | --- |

—

annul the contested Commission Implementing Decision of 17 Μarch 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), notified under document C(2016) 1509 and published in the Official Journal of the European Union, L 75 of 22 March 2016, p. 16:

(a)

to the extent to which there is excluded from European Union financing expenditure amounting in total to EUR 166 797 866,22 which was incurred in the decoupled direct aid sector in claim years 2012 and 2013 and in particular there is imposed: (1) a 25 % flat rate financial correction for the year 2012 and (2) a flat rate and one off financial correction for the year 2013;·

| (b) | to the extent to which there is excluded from European Union financing expenditure amounting in total to EUR 3 880 460,50 which was incurred in the sector of Rural Development EAFRD, Axes 1 + 3 — Investment orientated measures (20072013), and in particular there is imposed: (1) a 5 % flat rate financial correction for the financial years 2010 to 2013 for measure 125 and (2) a one off financial correction for the financial years 2011 to 2013;· |
| --- | --- |

(b)

to the extent to which there is excluded from European Union financing expenditure amounting in total to EUR 3 880 460,50 which was incurred in the sector of Rural Development EAFRD, Axes 1 + 3 — Investment orientated measures (20072013), and in particular there is imposed: (1) a 5 % flat rate financial correction for the financial years 2010 to 2013 for measure 125 and (2) a one off financial correction for the financial years 2011 to 2013;·

| (c) | to the extent to which the final judgment of the General Court of the European Union of 19 Νοvember 2015 in Case Τ-107/14 has not been implemented and consequently the sum of EUR 29 366 975,06 has not been immediately repaid to the Hellenic Republic, and |
| --- | --- |

(c)

to the extent to which the final judgment of the General Court of the European Union of 19 Νοvember 2015 in Case Τ-107/14 has not been implemented and consequently the sum of EUR 29 366 975,06 has not been immediately repaid to the Hellenic Republic, and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action the applicant relies on eight grounds for annulment.

In particular, with respect to the financial correction amounting in total to EUR 166 797 866,22 applied to expenditure which was incurred in the decoupled direct aid sector for the claim years 2012 and 2013, the Hellenic Republic relies on three grounds for annulment.

The first ground for annulment concerning the correction imposed for the claim year 2012 is based on misinterpretation and misapplication of the provisions of Article 2(2) of Regulation No 796/2004 (1) (and the later Article 2(c) of Regulation No 1120/2009 (2)).

The second ground for annulment, which also concerns the correction imposed for the claim year 2012, is based on misinterpretation and misapplication of the Guidelines (Document VI/5330/97), with respect to whether the conditions for the imposition of a 25 % financial correction for the year 2012 are met, and it is specifically claimed that the Commission exceeded the limits of its discretion and at the same time both infringed the principle of proportionality (part Α) and erred in the calculation of the financial correction (part B).

By the third ground for annulment concerning the correction imposed for the claim year 2013 the applicant claims that that correction is unlawful, abusive, based on contradictory reasons, and on misinterpretation and misapplication of the Guidelines (Document VI/5330/97), and is in breach of the principles of sound management, proportionality, ne bis in idem and the applicant’s rights of defence.

Further, with respect to the financial correction in the sector of Rural Development EAFRD, Axes 1 + 3 — Investment orientated measures (20072013), the applicant relies on four grounds for annulment.

By the fourth and fifth grounds for annulment, concerning the correction imposed with respect to Measure 125, it is claimed that there is no legal basis, no statement of reasons and error as the facts, given that the Managing Authority acted lawfully and fully within its powers (the fourth ground for annulment), and that the imposition of a 5 % flat rate financial correction for the expenditure which was paid for the financial year 2010, amounting to EUR 506 480,19, was contrary to Article 31 of Regulation No 1290/2005, (3) since that expenditure was incurred more than 24 months before the Commission gave notification in writing of its inspection findings.

By the sixth ground for annulment, concerning the correction imposed with respect to Measure 121, the applicant claims that the decision is unlawful, because the correction imposed and the method adopted for the calculation of the correction by the analogous application of Article 63 of Regulation No 809/2014 (4) is incompatible with Article 31 of Regulation No 1290/2005 and with the Guidelines in Commission Document VI/5330/97, and its implementation leads to results that are disproportionate by comparison with the identified deficiencies. In addition, with respect to the same measure, the applicant claims in the action’s seventh ground for annulment that there was no legal basis for the contested decision and no statement of reasons, and that the Guidelines in Document VI/5330/97 of the European Union were infringed.

The eighth ground for annulment concerns the infringement of Article 266 TFEU with respect to the Commission’s obligation to take measures to ensure the implementation of the judgment of the General Court on the failure to repay the sum of EUR 29 366 975,06 to the Hellenic Republic, after the judgment of the General Court in Case Τ-107/14, and also breach of the principles of sound management, legal certainty and sincere cooperation between the Commission and the Member States.

---

(1)  Commission Regulation (ΕC) No 796/2004 of 21 April 2004, laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ L 141, 2004, p. 18)

(2)  Commission Regulation (ΕC) No 1120/2009 of 29 October 2009 laying down detailed rules for the implementation of the single payment scheme provided for in Title III of Council Regulation (EC) No 73/2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers (OJ L 316, 2009, p. 1)

(3)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ L 209, 2005, p. 1)

(4)  Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross compliance (OJ L 227, 2014, p. 69)

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/55 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/55

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Action brought on 30 May 2016 — Sun Media v EUIPO — Meta4 Spain (METAPORN)

(Case T-273/16)

(2016/C 270/62)

Language in which the application was lodged: English

Parties

Applicant: Sun Media Ltd (Central Hong Kong, Hong-Kong Special Administrative Region of China) (represented by: A. Schnider, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Meta4 Spain, SA (Las Rozas, Spain)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘METAPORN’ — Application for registration No 11 819 281

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 3 March 2016 in Joined Cases R 653/2015-2 and R 674/2015-2

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | order EUIPO and, in case it intervenes in writing, the other party to the proceedings before EUIPO, to bear their own costs and to compensate the costs incurred by the plaintiff in the proceedings before the General Court and in the appellate proceedings before EUIPO. |
| --- | --- |

—

order EUIPO and, in case it intervenes in writing, the other party to the proceedings before EUIPO, to bear their own costs and to compensate the costs incurred by the plaintiff in the proceedings before the General Court and in the appellate proceedings before EUIPO.

Pleas in law

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

—

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

| — | Infringement of Articles 75 et seq of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Articles 75 et seq of Regulation No 207/2009;

| — | Infringement of the EUIPO’s duty to exercise its powers in accordance with the general principles of European Union law. |
| --- | --- |

—

Infringement of the EUIPO’s duty to exercise its powers in accordance with the general principles of European Union law.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/56 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/56

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Action brought on 27 May 2016 — Saleh Thabet v Council

(Case T-274/16)

(2016/C 270/63)

Language of the case: English

Parties

Applicant: Suzanne Saleh Thabet (Cairo, Egypt) (represented by B. Kennelly and J. Pobjoy, Barristers, and by G. Martin and M. Rushton, Solicitors)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40), insofar as it applies to the applicant; |
| --- | --- |

—

annul Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40), insofar as it applies to the applicant;

| — | declare that Article 1(1) of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) and Article 2(1) of Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4) are inapplicable insofar as they apply to the applicant, and, as a consequence, annul the Decision (CFSP) 2016/411, insofar as it applies to the applicant, |
| --- | --- |

—

declare that Article 1(1) of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) and Article 2(1) of Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4) are inapplicable insofar as they apply to the applicant, and, as a consequence, annul the Decision (CFSP) 2016/411, insofar as it applies to the applicant,

| — | order the Council to pay the applicant’s costs. |
| --- | --- |

—

order the Council to pay the applicant’s costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Council has failed to identify a proper legal base for Article 1(1) of Decision 2011/172/CFSP (the ‘Decision’) and Article 2(1) of Regulation (EU) No 270/2011 (the ‘Regulation’). There is no evidence that the Council undertook any review of the legal basis of Article 1(1) of the Decision in adopting the Contested Decision, notwithstanding the express obligation to do so under Article 5 of the Decision. The fact that Article 1(1) may have had a valid legal basis when it was first adopted on 21 March 2011 does not provide the provision with an enduring legal basis until 2016 or later. |
| --- | --- |

1.

First plea in law, alleging that the Council has failed to identify a proper legal base for Article 1(1) of Decision 2011/172/CFSP (the ‘Decision’) and Article 2(1) of Regulation (EU) No 270/2011 (the ‘Regulation’). There is no evidence that the Council undertook any review of the legal basis of Article 1(1) of the Decision in adopting the Contested Decision, notwithstanding the express obligation to do so under Article 5 of the Decision. The fact that Article 1(1) may have had a valid legal basis when it was first adopted on 21 March 2011 does not provide the provision with an enduring legal basis until 2016 or later.

| 2. | Second plea in law, alleging the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Egypt complied with fundamental human rights. |
| --- | --- |

2.

Second plea in law, alleging the violation of the applicant’s rights under Article 6, read with Articles 2 and 3, TEU and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Egypt complied with fundamental human rights.

| 3. | Third plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in Article 1(1) of the Decision and Article 2(1) of the Regulation was satisfied. |
| --- | --- |

3.

Third plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicant in Article 1(1) of the Decision and Article 2(1) of the Regulation was satisfied.

| 4. | Fourth plea in law, alleging that the Council has failed to provide adequate reasons for re-designating the applicant. |
| --- | --- |

4.

Fourth plea in law, alleging that the Council has failed to provide adequate reasons for re-designating the applicant.

| 5. | Fifth plea in law, alleging that the Council has violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation. |
| --- | --- |

5.

Fifth plea in law, alleging that the Council has violated the applicant’s right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicant prior to re-designation.

| 6. | Sixth plea in law, alleging that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including her right to protection of property and reputation. The impact of the Council Decision (CFSP) 2016/411 on the applicant is far-reaching, both as regards to her property, and to her reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim. |
| --- | --- |

6.

Sixth plea in law, alleging that the Council has infringed, without justification or proportion, the applicant’s fundamental rights, including her right to protection of property and reputation. The impact of the Council Decision (CFSP) 2016/411 on the applicant is far-reaching, both as regards to her property, and to her reputation worldwide. The Council has failed to demonstrate that the freezing of the applicant’s assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/57 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/57

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Action brought on 27 May 2016 — Mubarak and others v Council

(Case T-275/16)

(2016/C 270/64)

Language of the case: English

Parties

Applicants: Gamal Mohamed Hosni Elsayed Mubarak (Cairo, Egypt), Alaa Mohamed Hosni Elsayed Mubarak (Cairo), Heidy Mahmoud Magdy Hussein Rasekh (Cairo), Khadiga Mahmoud El Gammal (Cairo) (represented by B. Kennelly and J. Pobjoy, Barristers, and by G. Martin and M. Rushton, Solicitors)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

| — | annul Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40), insofar as it applies to the applicants; |
| --- | --- |

—

annul Council Decision (CFSP) 2016/411 of 18 March 2016 amending Decision 2011/172/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2016 L 74, p. 40), insofar as it applies to the applicants;

| — | declare that Article 1(1) of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) and Article 2(1) of Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4) are inapplicable insofar as they apply to the applicants, and, as a consequence, annul the Decision (CFSP) 2016/411, insofar as it applies to the applicants, |
| --- | --- |

—

declare that Article 1(1) of Council Decision 2011/172/CFSP of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 63) and Article 2(1) of Council Regulation (EU) No 270/2011 of 21 March 2011 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Egypt (OJ 2011 L 76, p. 4) are inapplicable insofar as they apply to the applicants, and, as a consequence, annul the Decision (CFSP) 2016/411, insofar as it applies to the applicants,

| — | order the Council to pay the applicants’ costs. |
| --- | --- |

—

order the Council to pay the applicants’ costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Council has failed to identify a proper legal base for Article 1(1) of Decision 2011/172/CFSP (the ‘Decision’) and Article 2(1) of Regulation (EU) No 270/2011 (the ‘Regulation’). There is no evidence that the Council undertook any review of the legal basis of Article 1(1) of the Decision in adopting Decision (CFSP) 2016/411 (the ‘Contested Decision’), notwithstanding the express obligation to do so under Article 5 of the Decision. The fact that Article 1(1) may have had a valid legal basis when it was first adopted on 21 March 2011 does not provide the provision with an enduring legal basis until 2016 or later. |
| --- | --- |

1.

First plea in law, alleging that the Council has failed to identify a proper legal base for Article 1(1) of Decision 2011/172/CFSP (the ‘Decision’) and Article 2(1) of Regulation (EU) No 270/2011 (the ‘Regulation’). There is no evidence that the Council undertook any review of the legal basis of Article 1(1) of the Decision in adopting Decision (CFSP) 2016/411 (the ‘Contested Decision’), notwithstanding the express obligation to do so under Article 5 of the Decision. The fact that Article 1(1) may have had a valid legal basis when it was first adopted on 21 March 2011 does not provide the provision with an enduring legal basis until 2016 or later.

| 2. | Second plea in law, alleging the violation of the applicants’ rights under Article 6, read with Articles 2 and 3, TEU and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Egypt complied with fundamental human rights. |
| --- | --- |

2.

Second plea in law, alleging the violation of the applicants’ rights under Article 6, read with Articles 2 and 3, TEU and Articles 47 and 48 of the EU Charter of Fundamental Rights by the Council’s assumption that the judicial proceedings in Egypt complied with fundamental human rights.

| 3. | Third plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicants in Article 1(1) of the Decision and Article 2(1) of the Regulation was satisfied. |
| --- | --- |

3.

Third plea in law, alleging that the Council has made manifest errors of assessment in considering that the criterion for listing the applicants in Article 1(1) of the Decision and Article 2(1) of the Regulation was satisfied.

| 4. | Fourth plea in law, alleging that the Council has failed to provide adequate reasons for re-designating the applicants. |
| --- | --- |

4.

Fourth plea in law, alleging that the Council has failed to provide adequate reasons for re-designating the applicants.

| 5. | Fifth plea in law, alleging that the Council has violated the applicants’ right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicants prior to re-designation. |
| --- | --- |

5.

Fifth plea in law, alleging that the Council has violated the applicants’ right of defence and the right to good administration and effective judicial review. In particular, the Council failed to carefully and impartially examine whether the alleged reasons said to justify re-designation were well founded in light of the representations made by the applicants prior to re-designation.

| 6. | Sixth plea in law, alleging that the Council has infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of property and reputation. The impact of the Contested Decision on the applicants is far-reaching, both as regards to their property, and to their reputation worldwide. The Council has failed to demonstrate that the freezing of the applicants’ assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim. |
| --- | --- |

6.

Sixth plea in law, alleging that the Council has infringed, without justification or proportion, the applicants’ fundamental rights, including their right to protection of property and reputation. The impact of the Contested Decision on the applicants is far-reaching, both as regards to their property, and to their reputation worldwide. The Council has failed to demonstrate that the freezing of the applicants’ assets and economic resources is related to, or justified by, any legitimate aim, still less that it is proportionate to such an aim.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/58 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/58

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Action brought on 30 May 2016 — Inpost Paczkomaty v Commission

(Case T-282/16)

(2016/C 270/65)

Language of the case: Polish

Parties

Applicant: Inpost Paczkomaty sp. z o.o. (Cracow, Poland) (represented by: T. Proć, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul European Commission Decision (EU) C(2015) 8236 of 26 November 2015 on State aid SA.38869 (2014/N), which Poland intends to grant to the Polish postal service as compensation for net costs arising in the years 2013-2015 in connection with the duty to provide universal services; |
| --- | --- |

—

annul European Commission Decision (EU) C(2015) 8236 of 26 November 2015 on State aid SA.38869 (2014/N), which Poland intends to grant to the Polish postal service as compensation for net costs arising in the years 2013-2015 in connection with the duty to provide universal services;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant raises seven pleas in law.

| 1. | First plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 19 (Clause 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)], infringement of the Treaty principles on public procurement and incorrect application of Article 7(2) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14; ‘the Postal Services Directive’)






  — | The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on the internal market freedoms, and also with Article 106(2) TFEU, which was not the case in the present dispute. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 19 (Clause 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)], infringement of the Treaty principles on public procurement and incorrect application of Article 7(2) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14; ‘the Postal Services Directive’)

—

The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on the internal market freedoms, and also with Article 106(2) TFEU, which was not the case in the present dispute.

| 2. | Second plea in law, alleging infringement of Article 106(2) of the Treaty and incorrect assessment as to meeting the requirements of headings 14 (Clause 2.2) and 60 (Clause 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)]






  — | The European Commission proceeded on the incorrect assumption that the duty borne by the Polish postal service to provide public services is in fact consistent with the requirements laid down in the Postal Services Directive and that it is therefore not necessary, as proof of the exact assessment of public service needs, to carry out a public consultation or use some other appropriate means to take the interests of users and service providers into account. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 106(2) of the Treaty and incorrect assessment as to meeting the requirements of headings 14 (Clause 2.2) and 60 (Clause 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)]

—

The European Commission proceeded on the incorrect assumption that the duty borne by the Polish postal service to provide public services is in fact consistent with the requirements laid down in the Postal Services Directive and that it is therefore not necessary, as proof of the exact assessment of public service needs, to carry out a public consultation or use some other appropriate means to take the interests of users and service providers into account.

| 3. | Third plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 52 (Clause 2.9) of the [European Union] framework [for State aid in the form of public service compensation (2011)] and infringement of Article 7(1), (3) and (5) of the Postal Services Directive






  — | The European Commission proceeded on the incorrect assumption that the compensation fund fulfils the requirement of non-discrimination in relation to the uniform maximum contribution in the amount of 2 % of the revenue of the provider of universal services or substitutable services; this percentage of the contribution to be paid by providers applies uniformly to all market operators, which is discriminatory since the situation of the provider of universal services and the situation of the provider of substitutable services are not the same. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 52 (Clause 2.9) of the [European Union] framework [for State aid in the form of public service compensation (2011)] and infringement of Article 7(1), (3) and (5) of the Postal Services Directive

—

The European Commission proceeded on the incorrect assumption that the compensation fund fulfils the requirement of non-discrimination in relation to the uniform maximum contribution in the amount of 2 % of the revenue of the provider of universal services or substitutable services; this percentage of the contribution to be paid by providers applies uniformly to all market operators, which is discriminatory since the situation of the provider of universal services and the situation of the provider of substitutable services are not the same.

| 4. | Fourth plea in law, alleging infringement of Article 7(1) of the Postal Services Directive, since the European Commission acknowledges that the costs of the universal service were financed through a multitude of exclusive and special rights which were granted to the Polish postal service






  — | Article 7(1) of the Postal Services Directive provides that the Member States may not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. At the same time, the Commission acknowledges that the Polish postal service was granted exclusive and special rights in connection with the universal services being provided by it. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of Article 7(1) of the Postal Services Directive, since the European Commission acknowledges that the costs of the universal service were financed through a multitude of exclusive and special rights which were granted to the Polish postal service

—

Article 7(1) of the Postal Services Directive provides that the Member States may not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. At the same time, the Commission acknowledges that the Polish postal service was granted exclusive and special rights in connection with the universal services being provided by it.

| 5. | Fifth plea in law, alleging infringement of Article 102, in conjunction with Article 106(1), of the Treaty






  — | The disproportionately high contribution to the compensation fund leads to ‘anticompetitive foreclosure’ of the postal services market. |
| --- | --- | --- |

5.

Fifth plea in law, alleging infringement of Article 102, in conjunction with Article 106(1), of the Treaty

—

The disproportionately high contribution to the compensation fund leads to ‘anticompetitive foreclosure’ of the postal services market.

| 6. | Sixth plea in law, alleging infringement of Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union






  — | By the contested decision, a State aid scheme (programme) was confirmed which results in a disproportionate interference with the applicant’s right to property and a disproportionate restriction of its freedom to conduct a business. |
| --- | --- | --- |

6.

Sixth plea in law, alleging infringement of Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union

—

By the contested decision, a State aid scheme (programme) was confirmed which results in a disproportionate interference with the applicant’s right to property and a disproportionate restriction of its freedom to conduct a business.

| 7. | Seventh plea in law, alleging infringement of essential procedural requirements and failure to comply with the obligation to state reasons under Article 296 of the Treaty






  — | The Commission incorrectly determined the circumstances and frequently based its decision on incorrectly determined facts. In addition, the Commission thereby failed to state adequate reasons, since it did not — contrary to its own decision-making practice — take account, as regards the effect on competition, of the failure to launch a call for tenders as an incriminating factor. |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of essential procedural requirements and failure to comply with the obligation to state reasons under Article 296 of the Treaty

—

The Commission incorrectly determined the circumstances and frequently based its decision on incorrectly determined facts. In addition, the Commission thereby failed to state adequate reasons, since it did not — contrary to its own decision-making practice — take account, as regards the effect on competition, of the failure to launch a call for tenders as an incriminating factor.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/60 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/60

---

Action brought on 30 May 2016 — Inpost v Commission

(Case T-283/16)

(2016/C 270/66)

Language of the case: Polish

Parties

Applicant: Inpost S.A. (Cracow, Poland) (represented by: W. Knopkiewicz, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul European Commission Decision (EU) C(2015) 8236 of 26 November 2015 on State aid SA.38869 (2014/N), which Poland intends to grant to the Polish postal service as compensation for net costs arising in the years 2013-2015 in connection with the duty to provide universal services; |
| --- | --- |

—

annul European Commission Decision (EU) C(2015) 8236 of 26 November 2015 on State aid SA.38869 (2014/N), which Poland intends to grant to the Polish postal service as compensation for net costs arising in the years 2013-2015 in connection with the duty to provide universal services;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant raises seven pleas in law.

| 1. | First plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 19 (Clause 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)], infringement of the Treaty principles on public procurement and incorrect application of Article 7(2) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14; ‘the Postal Services Directive’)






  — | The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on the internal market freedoms and also with Article 106(2) TFEU, which was not the case in the present dispute. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 19 (Clause 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)], infringement of the Treaty principles on public procurement and incorrect application of Article 7(2) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14; ‘the Postal Services Directive’)

—

The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on the internal market freedoms and also with Article 106(2) TFEU, which was not the case in the present dispute.

| 2. | Second plea in law, alleging infringement of Article 106(2) of the Treaty and incorrect assessment as to meeting the requirements of headings 14 (Clause 2.2) and 60 (Clause 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)]






  — | The European Commission proceeded on the incorrect assumption that the duty borne by the Polish postal service to provide public services is in fact consistent with the requirements laid down in the Postal Services Directive and that it is therefore not necessary, as proof of the exact assessment of public service needs, to carry out a public consultation or use some other appropriate means to take the interests of users and service providers into account. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 106(2) of the Treaty and incorrect assessment as to meeting the requirements of headings 14 (Clause 2.2) and 60 (Clause 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)]

—

The European Commission proceeded on the incorrect assumption that the duty borne by the Polish postal service to provide public services is in fact consistent with the requirements laid down in the Postal Services Directive and that it is therefore not necessary, as proof of the exact assessment of public service needs, to carry out a public consultation or use some other appropriate means to take the interests of users and service providers into account.

| 3. | Third plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 52 (Clause 2.9) of the [European Union] framework [for State aid in the form of public service compensation (2011)] and infringement of Article 7(1), (3) and (5) of the Postal Services Directive






  — | The European Commission proceeded on the incorrect assumption that the compensation fund fulfils the requirement of non-discrimination in relation to the uniform maximum contribution in the amount of 2 % of the revenue of the provider of universal services or substitutable services; this percentage of the contribution to be paid by providers applies uniformly to all market operators, which is discriminatory since the situation of providers of universal services and the situation of providers of substitutable services are not the same. |
| --- | --- | --- |

3.

Third plea in law, alleging infringement of Article 106(2) of the Treaty, incorrect assessment as to meeting the requirements of heading 52 (Clause 2.9) of the [European Union] framework [for State aid in the form of public service compensation (2011)] and infringement of Article 7(1), (3) and (5) of the Postal Services Directive

—

The European Commission proceeded on the incorrect assumption that the compensation fund fulfils the requirement of non-discrimination in relation to the uniform maximum contribution in the amount of 2 % of the revenue of the provider of universal services or substitutable services; this percentage of the contribution to be paid by providers applies uniformly to all market operators, which is discriminatory since the situation of providers of universal services and the situation of providers of substitutable services are not the same.

| 4. | Fourth plea in law, alleging infringement of Article 7(1) of the Postal Services Directive, since the European Commission acknowledges that the costs of the universal service were financed through a multitude of exclusive and special rights which were granted to the Polish postal service






  — | Article 7(1) of the Postal Services Directive provides that the Member States may not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. At the same time, the Commission acknowledges that the Polish postal service was granted exclusive and special rights in connection with the universal services being provided by it. |
| --- | --- | --- |

4.

Fourth plea in law, alleging infringement of Article 7(1) of the Postal Services Directive, since the European Commission acknowledges that the costs of the universal service were financed through a multitude of exclusive and special rights which were granted to the Polish postal service

—

Article 7(1) of the Postal Services Directive provides that the Member States may not grant or maintain in force exclusive or special rights for the establishment and provision of postal services. At the same time, the Commission acknowledges that the Polish postal service was granted exclusive and special rights in connection with the universal services being provided by it.

| 5. | Fifth plea in law, alleging infringement of Article 102, in conjunction with Article 106(1), of the Treaty






  — | The disproportionately high contribution to the compensation fund leads to ‘anticompetitive foreclosure’ of the postal services market. |
| --- | --- | --- |

5.

Fifth plea in law, alleging infringement of Article 102, in conjunction with Article 106(1), of the Treaty

—

The disproportionately high contribution to the compensation fund leads to ‘anticompetitive foreclosure’ of the postal services market.

| 6. | Sixth plea in law, alleging infringement of Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union






  — | By the contested decision, a State aid scheme (programme) was confirmed which results in a disproportionate interference with the applicant’s right to property and a disproportionate restriction of its freedom to conduct a business. |
| --- | --- | --- |

6.

Sixth plea in law, alleging infringement of Article 16 and Article 17(1) of the Charter of Fundamental Rights of the European Union

—

By the contested decision, a State aid scheme (programme) was confirmed which results in a disproportionate interference with the applicant’s right to property and a disproportionate restriction of its freedom to conduct a business.

| 7. | Seventh plea in law, alleging infringement of essential procedural requirements and failure to comply with the obligation to state reasons under Article 296 of the Treaty






  — | The Commission incorrectly determined the circumstances and frequently based its decision on incorrectly determined facts. In addition, the Commission thereby failed to state adequate reasons, since it did not — contrary to its own decision-making practice — take account, as regards the effect on competition, of the failure to launch a call for tenders as an incriminating factor. |
| --- | --- | --- |

7.

Seventh plea in law, alleging infringement of essential procedural requirements and failure to comply with the obligation to state reasons under Article 296 of the Treaty

—

The Commission incorrectly determined the circumstances and frequently based its decision on incorrectly determined facts. In addition, the Commission thereby failed to state adequate reasons, since it did not — contrary to its own decision-making practice — take account, as regards the effect on competition, of the failure to launch a call for tenders as an incriminating factor.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/61 |
| --- | --- | --- | --- |

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Action brought on 23 May 2016 — Gulli v EUIPO — Laverana (Lybera)

(Case T-284/16)

(2016/C 270/67)

Language in which the application was lodged: English

Parties

Applicant: Diego Gulli (Genoa, Italy) (represented by: M. Andreolini and F. Andreolini, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Laverana GmbH & Co.KG (Wennigsen, Germany)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark containing the word element ‘Lybera’ — Application for registration No 12 155 743

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fith Board of Appeal of EUIPO of 17 March 2016 in Case R 3219/2014-5

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order the defendants to pay the costs.

Plea in law

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

—

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

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/62 |
| --- | --- | --- | --- |

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Action brought on 30 May 2016 — Belgium v Commission

(Case T-287/16)

(2016/C 270/68)

Language of the case: French

Parties

Applicant: Kingdom of Belgium (represented by: J. C. Halleux and M. Jacobs, acting as Agents, and by É. Grégoire and J. Mariani, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Decision (EU) 2016/417 of 17 March 2016, in so far as it excludes from European Union financing in relation to the Kingdom of Belgium an amount of EUR 9 601 619,00 (budget item 6701); |
| --- | --- |

—

annul Commission Implementing Decision (EU) 2016/417 of 17 March 2016, in so far as it excludes from European Union financing in relation to the Kingdom of Belgium an amount of EUR 9 601 619,00 (budget item 6701);

| — | in the alternative, partially annul that decision to exclude from European Union financing the amount of EUR 9 601 619 in so far as it includes the sum of EUR 4 106 470,02 from which the EAGF has already benefited; |
| --- | --- |

—

in the alternative, partially annul that decision to exclude from European Union financing the amount of EUR 9 601 619 in so far as it includes the sum of EUR 4 106 470,02 from which the EAGF has already benefited;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging an infringement of Article 31(1) and Article 32(8) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), on the ground that the Commission fails to show that the expenditure effected by the Belgian paying agency is not compatible with EU law and that the failure to recover or the unlawfulness was caused by irregularity or negligence attributable to the Bureau d’intervention et de restitution belge (the Belgian Intervention and Restitution Board) (BIRB). |
| --- | --- |

1.

First plea in law, alleging an infringement of Article 31(1) and Article 32(8) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1), on the ground that the Commission fails to show that the expenditure effected by the Belgian paying agency is not compatible with EU law and that the failure to recover or the unlawfulness was caused by irregularity or negligence attributable to the Bureau d’intervention et de restitution belge (the Belgian Intervention and Restitution Board) (BIRB).

| 2. | Second plea in law, invoked in the alternative, alleging an infringement of Article 31(2) of Regulation No 1290/2005 and of the principle of proportionality on the ground that the amount excluded does not correspond to the significance of the lack of conformity found and that the financial loss caused to the European Union was not taken into account. |
| --- | --- |

2.

Second plea in law, invoked in the alternative, alleging an infringement of Article 31(2) of Regulation No 1290/2005 and of the principle of proportionality on the ground that the amount excluded does not correspond to the significance of the lack of conformity found and that the financial loss caused to the European Union was not taken into account.

---

| 25.7.2016 | EN | Official Journal of the European Union | C 270/63 |
| --- | --- | --- | --- |

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Action brought on 3 June 2016 — Inox Mare v Commission

(Case T-289/16)

(2016/C 270/69)

Language of the case: Italian

Parties

Applicant: Inox Mare Srl (Rimini, Italy) (represented by: R. Holzeisen, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Final Report OF/2013/0086/B1 THOR (2015) 40189 — 26.11.2015 because it is invalidated by serious illegalities; |
| --- | --- |

—

Annul Final Report OF/2013/0086/B1 THOR (2015) 40189 — 26.11.2015 because it is invalidated by serious illegalities;

| — | And, in consequence, annul Recommendation for action to be taken following an OLAF investigation THOR (2015) 4257 — 09.12.2015; |
| --- | --- |

—

And, in consequence, annul Recommendation for action to be taken following an OLAF investigation THOR (2015) 4257 — 09.12.2015;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The present action is brought against the contested measures, inasmuch as they find that, for a certain number of years, the applicant has evaded the payment of customs and anti-dumping duties. The applicant states in that regard that it has imported a large amount of stainless steel fixation goods, relying on the correctness of the certification in bulk by the customs authorities of the Philippines that the goods supplied by two Philippine companies allegedly originated from the Philippines, until it became aware of the opening by the European Union of an anti-circumvention procedure against the Philippines on the grounds of suspicion that the goods referred to above were goods originating from Taiwan and were, therefore, merely transhipped from Taiwan via the Philippines to the European Union.

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

| 1. | First plea in law alleging, as a preliminary point, that the measures against which the action has been brought are challengeable under Article 263 TFEU.






  — | It is argued in that regard that the contested measures, despite their nomen juris (legal name) which could infer the contrary, have in essence binding effect on the Italian customs authorities, and have direct legal effects that harm the interests and the personal and actual rights of the applicant, altering its legal position, and this is so taking into consideration (1) the nature of the customs duties as ‘EU own resources’ and of the consequential obligations for Member States, which are responsible simply for charging the duties, (2) the nature of OLAF as the administrative investigating body that replaces the Commission in external investigations, (3) the role of the European Commission, as the institution with an enforcement function in relation to the application of the European Union’s Customs Code. |
| --- | --- | --- |

1.

First plea in law alleging, as a preliminary point, that the measures against which the action has been brought are challengeable under Article 263 TFEU.

—

It is argued in that regard that the contested measures, despite their nomen juris (legal name) which could infer the contrary, have in essence binding effect on the Italian customs authorities, and have direct legal effects that harm the interests and the personal and actual rights of the applicant, altering its legal position, and this is so taking into consideration (1) the nature of the customs duties as ‘EU own resources’ and of the consequential obligations for Member States, which are responsible simply for charging the duties, (2) the nature of OLAF as the administrative investigating body that replaces the Commission in external investigations, (3) the role of the European Commission, as the institution with an enforcement function in relation to the application of the European Union’s Customs Code.

| — | To deny, in this legal context, direct challengeability under Article 263 TFEU of OLAF’s measures contested by the applicant would amount to denying the fundamental right of the applicant to effective remedies, and, therefore, an infringement of Article 47 of the Charter of Fundamental Rights of the EU and Article 13 of the European Convention on Human Rights. |
| --- | --- |

—

To deny, in this legal context, direct challengeability under Article 263 TFEU of OLAF’s measures contested by the applicant would amount to denying the fundamental right of the applicant to effective remedies, and, therefore, an infringement of Article 47 of the Charter of Fundamental Rights of the EU and Article 13 of the European Convention on Human Rights.

| 2. | Second plea in law, alleging the illegality of the contested measures.






  — | It is argued in this respect that Final Report OF/2013/0086/B1 THOR (2015) 40189 does not contain any of the mandatory essential information envisaged by the legislator in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013, (1) with the result that it is absolutely unlawful and lacking in any evidential value. |
| --- | --- | --- |

2.

Second plea in law, alleging the illegality of the contested measures.

—

It is argued in this respect that Final Report OF/2013/0086/B1 THOR (2015) 40189 does not contain any of the mandatory essential information envisaged by the legislator in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013, (1) with the result that it is absolutely unlawful and lacking in any evidential value.

| — | The contested measure is vitiated by the following illegalities: lack of information relating to procedural guarantees, to the persons involved in the investigation, to the hearing of the applicant’s legal representatives, to the required preliminary legal qualification, unreasoned and contradictory rejection of the responsibility of the competent authorities, failure by OLAF to fulfil its duty to conduct its investigations objectively and impartially and in accordance with the principle of presumption of innocence, and also incorrect information in the Final Report because of the lack of a preliminary investigation. |
| --- | --- |

—

The contested measure is vitiated by the following illegalities: lack of information relating to procedural guarantees, to the persons involved in the investigation, to the hearing of the applicant’s legal representatives, to the required preliminary legal qualification, unreasoned and contradictory rejection of the responsibility of the competent authorities, failure by OLAF to fulfil its duty to conduct its investigations objectively and impartially and in accordance with the principle of presumption of innocence, and also incorrect information in the Final Report because of the lack of a preliminary investigation.

| — | Because of all the illegalities outlined above, the recommendation of the Director General of OLAF that the Agenzia delle Dogane e dei Monopoli della Repubblica italiana should adopt all the measures necessary for the recovery of the duties from the applicant lacks any basis at all in law and is therefore unlawful. |
| --- | --- |

—

Because of all the illegalities outlined above, the recommendation of the Director General of OLAF that the Agenzia delle Dogane e dei Monopoli della Repubblica italiana should adopt all the measures necessary for the recovery of the duties from the applicant lacks any basis at all in law and is therefore unlawful.

---

(1)  Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013L 248, p. 1)

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/64 |
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Action brought on 7 June 2016 — Fruits de Ponent v Commission

(Case T-290/16)

(2016/C 270/70)

Language of the case: Spanish

Parties

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

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Order the European Commission to pay compensation for the damage suffered by Escarp. S.C.P., Agropecuaria Sebcar, S.L. and Rusfal 2000, S.L., as a result of their actions and omissions in connection with the disturbances suffered in the peach and nectarine markets during the 2014 marketing year and, in particular, as a result of adopting Commission Delegated Regulation (EU) No 913/2014 and Delegated Regulation (EU) No 932/2014. |
| --- | --- |

—

Order the European Commission to pay compensation for the damage suffered by Escarp. S.C.P., Agropecuaria Sebcar, S.L. and Rusfal 2000, S.L., as a result of their actions and omissions in connection with the disturbances suffered in the peach and nectarine markets during the 2014 marketing year and, in particular, as a result of adopting Commission Delegated Regulation (EU) No 913/2014 and Delegated Regulation (EU) No 932/2014.

| — | Order the European Commission to pay:






  — | To Escarp, S.C.P., an amount of EUR 121 085,11, and the corresponding compensatory and default interest. |
| --- | --- | --- |

—

Order the European Commission to pay:

—

To Escarp, S.C.P., an amount of EUR 121 085,11, and the corresponding compensatory and default interest.

| — | To Agropecuaria Sebcar, S.L., an amount of EUR 162 540,46, and the corresponding compensatory and default interest. |
| --- | --- |

—

To Agropecuaria Sebcar, S.L., an amount of EUR 162 540,46, and the corresponding compensatory and default interest.

| — | To Rusfal 2000, S.L., an amount of EUR 28 808,99, and the corresponding compensatory and default interest. |
| --- | --- |

—

To Rusfal 2000, S.L., an amount of EUR 28 808,99, and the corresponding compensatory and default interest.

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

—

Order the European Commission to pay the costs.

Pleas in law and main arguments

The present application seeks compensation for damage allegedly suffered as a result of the actions and omissions of the European Commission in connection with the disturbances suffered in the peach and nectarine markets during the 2014 marketing year and, in particular, but not exclusively, a result of adopting Delegated Regulation No 913/2014 (1) and Delegated Regulation (EU) No 932/2014 (2).

In support of its application, the applicant relies on a single plea, alleging that the conditions imposed by EU case-law, in order to recognise the right to compensation based on the non-contractual liability of the European Union, are fulfilled.

In that regard it is alleged, first, that by their actions and omissions the Commission has committed a sufficiently serious infringement of rules intended to confer rights on individuals, such as the principle of duty of diligence, the principles of assistance and protection, the principle of good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union and, finally, the principle of the prohibition against arbitrary action.

This is the case in so far as, by adopting measures to prevent disruptions in the peach and nectarine market in the summer of 2014, the Commission:

| — | Adopted a crisis mechanism that it had itself previously considered inappropriate and ineffective, as it was not used by the producer organisations because they are too small and lack the resources to avail of it. |
| --- | --- |

—

Adopted a crisis mechanism that it had itself previously considered inappropriate and ineffective, as it was not used by the producer organisations because they are too small and lack the resources to avail of it.

| — | It did not collect market information. |
| --- | --- |

—

It did not collect market information.

| — | It acted without obtaining adequate data concerning the withdrawal measures. |
| --- | --- |

—

It acted without obtaining adequate data concerning the withdrawal measures.

| — | It intervened belatedly. |
| --- | --- |

—

It intervened belatedly.

Furthermore, the applicant continues, the measures of co-financed withdrawal of products and of free advertising and distribution were objectively inadequate.

It is also alleged that the Commission infringed the obligation to state reasons.

Secondly, it is claimed that the three companies concerned suffered actual and certain damage, which is also quantifiable.

Finally, there is a causal link between that damage and the unlawful conduct of the Commission.

---

(1)  Commission Delegated Regulation (EU) No 913/2014 of 21 August 2014 laying down temporary exceptional support measures for producers of peaches and nectarines (OJ 2014 L 248, p. 1)

(2)  Commission Delegated Regulation (EU) No 932/2014 of 29 August 2014 laying down temporary exceptional support measures for producers of certain fruit and vegetables and amending Delegated Regulation (EU) No 913/2014 (OJ 2014 L 259, p. 2).

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/66 |
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Action brought on 13 June 2016 — East West Consulting v Commission

(Case T-298/16)

(2016/C 270/71)

Language of the case: French

Parties

Applicant: East West Consulting SPRL (Nandrin, Belgium) (represented by: L. Levi and A. Tymen, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the present action admissible and well founded; |
| --- | --- |

—

declare the present action admissible and well founded;

consequently,

| — | rule that the European Commission has incurred non-contractual liability; |
| --- | --- |

—

rule that the European Commission has incurred non-contractual liability;

| — | order the defendant to pay compensation for the damage suffered by the applicant, valued, subject to any adjustment, at EUR 496 000; |
| --- | --- |

—

order the defendant to pay compensation for the damage suffered by the applicant, valued, subject to any adjustment, at EUR 496 000;

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

—

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission committed sufficiently serious breaches of rules of law by activating, on the basis of Commission Decision 2008/969/EC, Euratom, of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies (OJ 2008 L 344, p. 125), Early Warning System (‘EWS’) Warning ‘W3b’ against the applicant, following an investigation by the European Anti-Fraud Office (OLAF), identifying the level of risk associated with the applicant in its capacity as the person awarded the public service contract concerning a project designed to strengthen the fight against undeclared work in the former Yugoslav Republic of Macedonia. That plea is divided into five parts:






  — | First part, alleging that the decision to issue an EWS warning against the applicant (‘the EWS decision’) is unlawful in that it has no basis in law, and that it infringes both Article 5 TEU and the fundamental right to the presumption of innocence; |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission committed sufficiently serious breaches of rules of law by activating, on the basis of Commission Decision 2008/969/EC, Euratom, of 16 December 2008 on the Early Warning System for the use of authorising officers of the Commission and the executive agencies (OJ 2008 L 344, p. 125), Early Warning System (‘EWS’) Warning ‘W3b’ against the applicant, following an investigation by the European Anti-Fraud Office (OLAF), identifying the level of risk associated with the applicant in its capacity as the person awarded the public service contract concerning a project designed to strengthen the fight against undeclared work in the former Yugoslav Republic of Macedonia. That plea is divided into five parts:

—

First part, alleging that the decision to issue an EWS warning against the applicant (‘the EWS decision’) is unlawful in that it has no basis in law, and that it infringes both Article 5 TEU and the fundamental right to the presumption of innocence;

| — | Second part, alleging that the EWS decision is unlawful in that it infringes the principle of legal certainty as regards the conditions relating to Warning ‘W3b’; |
| --- | --- |

—

Second part, alleging that the EWS decision is unlawful in that it infringes the principle of legal certainty as regards the conditions relating to Warning ‘W3b’;

| — | Third part, alleging that the EWS decision is unlawful in that it stems from infringements of Article 41 of the Charter of Fundamental Rights of the European Union, of the principle of sound administration, of the rights of the defence and of the fundamental right to be heard, and from a failure to comply with the duty to provide a statement of reasons; |
| --- | --- |

—

Third part, alleging that the EWS decision is unlawful in that it stems from infringements of Article 41 of the Charter of Fundamental Rights of the European Union, of the principle of sound administration, of the rights of the defence and of the fundamental right to be heard, and from a failure to comply with the duty to provide a statement of reasons;

| — | Fourth part, relied on in the alternative, alleging that the Commission infringed the EWS decision, failed to comply with the duty to provide a statement of reasons enshrined in Article 41 of the Charter and with the duty of diligence, and infringed the principle of proportionality; |
| --- | --- |

—

Fourth part, relied on in the alternative, alleging that the Commission infringed the EWS decision, failed to comply with the duty to provide a statement of reasons enshrined in Article 41 of the Charter and with the duty of diligence, and infringed the principle of proportionality;

| — | Fifth part, alleging that the Commission’s reason for refusing to give its agreement is irregular, in so far as it disregards the tender specifications. |
| --- | --- |

—

Fifth part, alleging that the Commission’s reason for refusing to give its agreement is irregular, in so far as it disregards the tender specifications.

| 2. | Second plea in law, alleging that the applicant has suffered damage and that there is a causal link between the Commission’s wrongful conduct and that damage. |
| --- | --- |

2.

Second plea in law, alleging that the applicant has suffered damage and that there is a causal link between the Commission’s wrongful conduct and that damage.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/67 |
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Order of the General Court of 6 June 2016 — Miejskie Przedsiębiorstwo Energetyki Cieplnej v ECHA

(Case T-560/12) (1)

(2016/C 270/72)

Language of the case: Polish

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

---

(1)  OJ C 79, 16.3.2013.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/67 |
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Order of the General Court of 1 June 2016 — Laboratoire Nuxe v EUIPO — NYX, Los Angeles (NYX)

(Case T-537/14) (1)

(2016/C 270/73)

Language of the case: English

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

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(1)  OJ C 329, 22.9.2014.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/67 |
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Order of the General Court of 31 May 2016 — Laboratorios Thea v EUIPO — Sebapharma (Sebacur)

(Case T-84/15) (1)

(2016/C 270/74)

Language of the case: English

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

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(1)  OJ C 118, 13.4.2015.

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European Union Civil Service Tribunal

| 25.7.2016 | EN | Official Journal of the European Union | C 270/68 |
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Judgment of the Civil Service Tribunal (Single Judge) of 14 June 2016 — Fernández González v Commission

(Case F-121/15) (1)

((Civil service - Temporary member of staff - Staff member posted in the cabinet of a European commissioner - Recruitment of a temporary member of staff under Article 2(b) of the CEOS - Condition requiring a six-month break from any form of employment with the Commission - Point 3.2 of Commission Note D(2005)18064 of 28 July 2005 on the hiring of temporary members of staff under Article 2(b) and (d) of the CEOS to fill permanent posts in the event that no candidates are shortlisted following a competition))

(2016/C 270/75)

Language of the case: French

Parties

Applicant: Elia Fernández González (Brussels, Belgium) (represented by: M. Casado García-Hirschfeld and É. Boigelot, lawyers)

Defendant: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents, and D. Waelbroeck and A. Duron, lawyers)

Re:

Application for annulment of the decision rejecting the applicant’s candidature for the post advertised in the vacancy notice COM/2014/2036, on the basis of the failure to comply with the condition requiring a six-month break between contracts prior to the recruitment of a member of staff who has previously been employed under a contract at grade AT2c, as provided for in note D(2005)18064 of 28 July 2005 of DG HR, and for compensation in respect of the material and non-material damage which the applicant claims to have suffered.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders the European Commission to bear its own costs and to pay those incurred by Ms Elia Fernández González. |
| --- | --- |

2.

Orders the European Commission to bear its own costs and to pay those incurred by Ms Elia Fernández González.

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(1)  OJ C 354, 26.10.2015, p. 57.

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| 25.7.2016 | EN | Official Journal of the European Union | C 270/69 |
| --- | --- | --- | --- |

25.7.2016

EN

Official Journal of the European Union

C 270/69

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Judgment of the Civil Service Tribunal (Single Judge) of 10 June 2016 — HI v Commission

(Case F-133/15) (1)

((Civil service - Officials - Article 11 of the Staff Regulations - Duty of loyalty - Article 11a - Conflict of interests - Official responsible for monitoring a project funded by the European Union - Family link between that official and an employee recruited for the purposes of the project by the company responsible for that project - Disciplinary procedure - Disciplinary action - Downgrading - Lawfulness of the composition of the Disciplinary Board - Obligation to state reasons - Length of the procedure - Reasonable time - Infringement of the rights of the defence - Principle of ne bis in idem - Manifest error of assessment - Proportionality of the penalty - Mitigating circumstances))

(2016/C 270/76)

Language of the case: French

Parties

Applicant: HI (represented by: M. Velardo, lawyer)

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

Re:

Application for annulment of the Commission’s decision to impose on the applicant, following an investigation concerning a conflict of interest, a penalty of permanent downgrading by two grades, and for compensation for the non-material damage which the applicant claims to have suffered.

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the action;

| 2. | Orders HI to bear his own costs and to pay those incurred by the European Commission. |
| --- | --- |

2.

Orders HI to bear his own costs and to pay those incurred by the European Commission.

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(1)  OJ C 414, 14.12.2015, p. 45.

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