ddrg/super_eurlex huggingface dataset:
EN Official Journal of the European Union C 121/18

Appeal brought on 24 February 2017 by Koninklijke Philips NV, Philips France against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Case T-762/14: Koninklijke Philips NV, Philips France v Commission

(Case C-98/17 P)

(2017/C 121/26)

Language of the case: English

Parties

Appellants: Koninklijke Philips NV, Philips France (represented by: J.K. de Pree, advocaat, T.M. Snoep, advocaat, A.M. ter Haar, advocaat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment under appeal;

— annul the decision in so far as it concerns Koninklijke Philips NV and Philips France; and/or

— annul or reduce the fines imposed on Koninklijke Philips NV and Philips France; and

— order the Commission to pay the costs in first instance and on appeal.

Pleas in law and main arguments

In support of the action, the applicants rely on the following main pleas in law and arguments:

— The General Court erred in law by applying a wrong legal standard in establishing a restriction of competition by object.

— In establishing a restriction of competition by object, the General Court erred in law by exceeding its unlimited jurisdiction.

— In establishing a restriction of competition by object, the General Court erred in law by breaching its obligation to state reasons.

— The General Court applied a clearly and manifestly incorrect assessment of the existing evidence in the file, resulting in a distortion of the clear sense of the evidence, in finding that the alleged common object finds support in other evidence.

— The General Court erred in law by applying the wrong legal standard and by distorting the clear sense of the evidence by considering that Philips participated in a single and continuous infringement as a whole and, as such, could be held liable for it.
1.

Pursuant to and for the purposes of the third paragraph of Article 21(5) of Directive 2003/96/EC, (1) must entities which produce electricity for their own use be small producers in order for them to be … regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive, so that other entities (those which are not small producers) which produce electricity for their own use are excluded from that classification as distributors, or must all entities which produce electricity for their own use (regardless of their respective size and of whether they do so as their main or secondary economic activity), and are not exempt as small producers under the second sentence of the third paragraph of Article 21(5) of that directive, be regarded as distributors, and [thus] subject to tax in accordance with the first paragraph of Article 21(5) of that directive?
EN Official Journal of the European Union C 161/14

Appeal brought on 24 March 2017 by the European Union, represented by the Court of Justice of the European Union, against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 1 February 2017 in Case T-479/14, Kendrion v European Union

(Case C-150/17 P)

(2017/C 161/18)

Language of the case: Dutch

Parties

Appellant: European Union, represented by the Court of Justice of the European Union (represented by: J. Inghelram and E. Beysen, acting as Agents)

Other parties to the proceedings: Kendrion NV, European Commission

Form of order sought

The appellant submits that the Court of Justice should:

— annul point 1 of the operative part of the judgment under appeal;

— reject Kendrion’s claim at first instance for compensation in respect of the material damage allegedly suffered or, in the furthest alternative, reduce that claim for compensation to EUR 175 709,87;

— order Kendrion to pay the costs.

Grounds of appeal and main arguments

In support of its appeal, the appellant puts forward three grounds.

The first ground alleges an error of law in the interpretation of the concept of a causal link, in so far the General Court found that the failure to adjudicate within a reasonable period was the decisive cause of the alleged material damage consisting in the payment of bank guarantee charges, whereas an undertaking’s own choice not to pay the fine during the course of the proceedings before the EU Courts is, according to settled case-law, the decisive cause of the payment of such charges.

The second ground alleges an error of law in the interpretation of the concept of damage, in so far as the General Court refused to apply to the alleged material damage — relating to the payment of the charges for bank guarantees — the same condition as that which it had formulated for the alleged damage in relation to the payment of interest on the amount of the fine, namely that the applicant at first instance had to show that the financial burden linked to that latter payment was greater than the benefit which it might have derived from not paying the fine.

The third ground alleges an error in law in the determination of the period in which the alleged damage occurred and an inadequate statement of reasons, in so far as the General Court, without setting out reasons for so finding, found that the period in which the material damage consisting in the payment of bank guarantee charges occurred could have differed from the period in which the General Court had situated the unlawful conduct that had allegedly resulted in that damage.
1.

The first ground of appeal is to the effect that the judgment under appeal is vitiated by an error of law in so far as it was held that, for the purposes of Article 8(4) of Council Regulation No 207/2009 (1) of 26 February 2009 on the European Union trade mark (‘the Regulation’), the requirement of ‘more than mere local’ significance is satisfied irrespective of the geographical scale on which the proprietor of the mark relied on conducts its business. That interpretation ignores the literal meaning of the word ‘local’ and the purpose underlying Article 8(4) of the Regulation. The judgment under appeal contains the error of law alleged in so far as, when determining whether the alleged unregistered trade name had merely local, or other, significance, it took into account documents which had effect outside Spanish territory. Moreover, the fact that the services provided by the establishment for whose designation the mark or trade name is used are provided to an international public does not lead to the inference that the use of the sign is more than local. The conclusion reached in the judgment under appeal concerning the ‘more than mere local’ requirement, therefore, disregards the purpose of Article 8(4) of the Regulation. Accordingly, that judgment acknowledges that that requirement applied to the trade name relied on in opposition to the application for an EU trade mark does not depend on the local significance of the establishment that uses it but on the ‘geographical dispersion of its clientele or the renown which it enjoys with the public at national, or even international, level’. By taking that view, the judgment under appeal goes beyond the restrictive purpose of Article 8(4) of the Regulation, since it allows simple proof of the break with the purely local by means of the mere use of the unregistered sign on the Internet or, in the circumstances of the present case, by the international character of the guests who stay at the establishment concerned.
Is the rule of subsidiarity set out in Article 4(2) of the 2007 Hague Protocol on the law applicable to maintenance obligations to be interpreted as meaning that that rule is applicable only where an application initiating maintenance proceedings is lodged in a State other than the State in which the maintenance creditor is habitually resident?

If that question is answered in the negative:
EN Official Journal of the European Union C 168/27

Appeal brought on 5 April 2017 by ANKO AE Antiprosopeion, Emporiou kai Viomichanias against the judgment of the General Court (Fourth Chamber) delivered on 25 January 2017 in Case T-768/14, ANKO v European Commission

(Case C-172/17 P)

(2017/C 168/36)

Language of the case: Greek

Parties

Appellant: ANKO AE Antiprosopeion, Emporiou kai Viomichanias (represented by: Stavroula Paliou, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice of the European Union should:

— set aside the judgment of the General Court of 25 January 2017 in Case Τ-768/14 and refer the case back to the General Court for it to rule on the substance.

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant claims that the judgment in Case Τ-768/14 of the General Court of 25 January 2017 contains findings of law which are contrary to rules of EU law and challenges those findings by this appeal.

The appellant considers that the judgment under appeal should be set aside:

i First , on the ground of a distortion of the sense of the evidence, in relation to the reliability of the system for the recording of work time.

ii Second , on the ground of an error in law, in relation to the rules that apply, with respect to the action, to the matters to be proved and the burden of proof.

iii Third , on the ground of an error in law, in relation to the rules that apply, with respect to the cross-action, to the allocation of the burden of proof.
3.

Is the judgment of the Grand Chamber of the Court of Justice of the European Union of 8 September 2015 in Case C-104/15, Taricco, to be interpreted as requiring the criminal court to disapply national legislation on limitation periods which precludes, in a significant number of cases, the punishment of serious fraud affecting the financial interests of the European Union, or which imposes shorter limitation periods for fraud affecting the financial interests of the European Union than for fraud affecting the financial interests of the State, even where such disapplication is at variance with the overriding principles of the constitution of the Member State concerned or with the inalienable rights of the individual conferred by the constitution of the Member State?
EN Official Journal of the European Union C 178/4

Appeal brought on 15 February 2017 by Société des produits Nestlé SA against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Case T-112/13: Mondelez UK Holdings & Services Ltd v European Union Intellectual Property Office

(Case C-84/17 P)

(2017/C 178/04)

Language of the case: English

Parties

Appellant: Société des produits Nestlé SA (represented by: G.S.P. Vos, advocaat)

Other parties to the proceedings: Mondelez UK Holdings & Services Ltd, European Union Intellectual Property Office (EUIPO)

Form of order sought

The appellant claims that the Court should:

— annul the contested judgment of the General Court of the European Union of 15 December 2016, case T-112/13, on that basis that the General Court infringed article 7(3) and 52(2) of the European Union Trade Mark Regulation (‘EUTMR’) (1); and

— order the respondent, applicant before the General Court, Mondelez UK Holdings & Services Ltd, to pay the costs.

Pleas in law and main arguments

Nestlé appeals the General Court’s judgment on the ground that the General Court infringed article 7(3) and article 52(2) of Regulation (EU) No. 207/2009 amended by Regulation (EU) No. 2015/2424 (2), also known as EUTMR.

More specifically, Nestlé’s appeal is directed against the decision of the General Court that concerning the extent of the territory in which it is necessary to establish distinctive character acquired through use of a mark, the distinctive character acquired through use of that mark must be shown throughout the territory of the European Union, that is, in all the Member States concerned.

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

(2) Regulation (EU) 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) (OJ 2015, L 341, p. 21).
(1)

Is the interpretation of national law that excludes review of prices in contracts relating to ‘special sectors’, particularly as regards those with a different object from those to which the Directive 2004/17 (1) refers, but that are connected with those sectors by an instrumental link, compatible with EU law (in particular, Article 3(3) TEU, Articles 26, 56 to 58 and 101 TFEU, and Article 16 of the Charter of Fundamental Rights of the European Union) and Directive 2004/17?
3.

If the consultations may begin only afterwards, when the decision to return that person and to impose an entry ban has been taken, does the fact that negotiations between Contracting States are on-going and that the other Contracting State has not indicated its intention to withdraw the residence permit of the third-country national prevent the decision to deport the third country national and the imposition of an entry ban with respect to the entire Schengen Area from taking effect?
1.

Can a future intention to provide management services to a takeover target, in the event that the takeover is successful, be sufficient to establish that the potential acquirer is engaged in economic activity for the purposes of Art. 4 of the Sixth VAT Directive (1) so that VAT charged to the potential acquirer on goods or services provided for the purposes of seeking to progress the relevant acquisition can potentially be considered as VAT on an input to the intended economic activity of providing such management services; and
1.a)

For the purposes of the principle of equivalence between workers with fixed-term contracts and those with contracts of indefinite duration, must ending of the employment contract due to ‘objective circumstances’ under Article 49(1)(c) ET [Estatuto de los Trabajadores: Workers’ Statute] and its ending on ‘objective grounds’ under Article 52 ET be regarded as ‘comparable situations’ and does, therefore, the difference between the compensation payable in either case constitute unequal treatment between workers with fixed-term contracts and those with contracts of indefinite duration, prohibited by Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP? (1)
EN Official Journal of the European Union C 249/19

Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 28 April 2017 — Medtronic GmbH v Finanzamt Neuss

(Case C-227/17)

(2017/C 249/29)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Medtronic GmbH

Defendant: Finanzamt Neuss

Question referred

Is the combined nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff as amended by Commission Implementing Regulation (EU) 2015/1754 (1) of 6 October 2015 to be interpreted as meaning that spinal fixation systems (2) as described in more detail in the order fall under subheading 9021 90 90?

(1) OJ 2015 L 285, p. 1.

(2) Wirbelsäulenfixationssysteme der Marke CD Horizon SOLERA Spinal System.
—

declare that the Republic of Croatia has failed to fulfil its obligations under Article 2 of Directive 2014/56/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2006/43/EC on statutory audits of annual accounts and consolidated accounts (OJ 2014 L 158, p. 196), by failing to take the necessary measures, by 17 June 2016, in order to comply with that directive or, in any event, by failing to communicate such measures to the Commission;
EN Official Journal of the European Union C 269/13

Action brought on 23 June 2017 — European Commission v Federal Republic of Germany

(Case C-377/17)

(2017/C 269/19)

Language of the case: German

Parties

Applicant: European Commission (represented by: W. Mölls, H. Tserepa-Lacombe and L. Malferrari, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

1. declare that, in so far as it has maintained compulsory fees for architects and engineers under the HOAI (Fee Ordinance for Architects and Engineers), the Federal Republic of Germany has failed to fulfil its obligations under Article 15(1), 15(2)(g) and 15(3) of Directive 2006/123/EC and under Article 49 TFEU;

2. order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The German Fee Ordinance for Architects and Engineers (Honorarordnung für Architekten und Ingenieure — ‘HOAI’) contains a system of minimum and maximum prices for the services of that group of professionals. That system makes it more difficult for architects and engineers who wish to compete with established providers by way of offers outside the permitted price range to become established. Those providers, it is submitted, are prevented in that regard from providing services of the same quality at lower prices and from providing services of a higher quality at higher prices.

This constitutes a restriction of the freedom of establishment for the purposes of both Article 15(1), 15(2)(g) and 15(3) of Directive 2006/123/EC and Article 49 TFEU.

That restriction is not justified; in particular it is not justified by the interest of safeguarding the quality of services, which is not directly linked to the price.
EN Official Journal of the European Union C 283/14

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 25 April 2017 — Silvio Berlusconi, Finanziaria d’investimento Fininvest SpA (Fininvest) v Banca d’Italia, Istituto per la Vigilanza Sulle Assicurazioni (IVASS)

(Case C-219/17)

(2017/C 283/20)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Silvio Berlusconi, Finanziaria d’investimento Fininvest SpA (Fininvest)

Defendants: Banca d’Italia, Istituto per la Vigilanza Sulle Assicurazioni (IVASS)

Questions referred

1. Is Article 263(1), (2) and (5) of the Treaty on the Functioning of the European Union, read in conjunction with Article 256(1) thereof, to be interpreted as meaning that the Courts of the European Union have jurisdiction, or that the national courts have jurisdiction, in an action challenging decisions to initiate procedures, measures of inquiry and non-binding proposals adopted by the competent national authority (as specified in paragraph 1 of the present order) in proceedings governed by Articles 22 and 23 of Directive 2013/36/EU (1) of the European Parliament and of the Council of 26 June 2013, by Articles 1(5), 4(1)(c) and 15 of Council Regulation (EU) No 1024/2013 (2) of 15 October 2013, by Articles 85, 86 and 87 of Regulation (EU) No 468/2014 (3) of the European Central Bank of 16 April 2014 and by Articles 19, 22 and 25 of the Italian Banking Act?

2. In particular, may the jurisdiction of the Courts of the European Union be asserted when the abovementioned measures are challenged, not in a general action for annulment, but in an action for a declaration of invalidity on the grounds of breach or circumvention of the ruling in Judgment No 882/2016 of 3 March 2016 of the Consiglio di Stato brought in accordance with Article 112 et seq. of the Italian Code of Administrative Procedure relating to compliance with a judgment (that is to say, in proceedings peculiar to Italian administrative procedural law), when the decision of the EU Courts involves the interpretation and identification, in accordance with national law, of the objective limits of the ruling given in the judgment in question?

(1) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC Text with EEA relevance (OJ 2013 L 176, p. 338).

(2) 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).

(3) 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).
2.

Can the executing judicial authority: — in a case where the requested person did not appear in person at the trial resulting in the decision, — but where the issuing judicial authority has not, either in the EAW [European Arrest Warrant] or in the supplementary information requested pursuant to Article 15(2) of Framework Decision 2002/584/JHA, provided information about the applicability of one or more of the circumstances referred to in subparagraphs (a) to (d) of Article 4a(1) of Framework Decision 2002/584/JHA, in accordance with the wording of one or more of the categories of point 3 of paragraph (d) of the EAW form, for those very reasons conclude that none of the conditions of Article 4a(1)(a) to (d) of Framework Decision 2002/584/JHA has been satisfied and for those very reasons refuse to execute the EAW?
1.

First ground of appeal, alleging infringement of EU law in the interpretation and application of Article 6(4) of the SSM Regulation (1) and Article 70 of the SSM Framework Regulation (2) The General Court incorrectly interpreted the relevant legal provisions of the second subparagraph of Article 6(4) of the SSM Regulation, in conjunction with Article 70(1) of the SSM Framework Regulation. It incorrectly concluded that ‘particular circumstances’, which must lead to the classification of an entity as a less significant entity, exist only if direct supervision by the national authorities is better suited to achieving the aim of the SSM Regulation than direct supervision by the ECB. The General Court relied solely on the English language version of the SSM Framework Regulation in its interpretation and infringed the principle that all language versions are equally authentic. The General Court wrongly failed to interpret the standards in the light of superior law through the competence approach of the principle of proportionality. It incorrectly rejected a manifest error of assessment in the analysis of the facts of the case by the ECB and assessed as little as the ECB had done previously whether the appellant, by reason of the specific factual circumstances put forward by it, is to be classified as a less significant entity within the meaning of the second subparagraph of Article 6(4) of the SSM Regulation, in conjunction with Article 70(1) of the SSM Framework Regulation, due to ‘particular circumstances’. The General Court therefore infringed its obligation comprehensively to review the contested decision for errors of assessment.