ddrg/super_eurlex huggingface dataset:
Appeal brought on 1 March 2019 by Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-165/16: Ryanair and Airport Marketing Services v Commission

(Case C-205/19 P)

(2019/C 164/38)

Language of the case: English

Parties

Appellants: Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd (represented by: E. Vahida, avocat, I.-G. Metaxas-Maranghidis, Δικηγόρος, G. Berrisch, Rechtsanwalt, B. Byrne, Solicitor)

Other parties to the proceedings: European Commission, Council of the European Union

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 13 December 2018 in Case T-165/16; and

— annul Article 1(4), and 2 to 4 of Commission Decision (EU) 2016/287 (1) of 15 October 2014 on State aid SA.26500 — 2012/C (ex 2011/NN, ex CP 227/2008), or in the alternative, refer the case back to the General Court for reconsideration; and in any event

— order the Commission to pay the appellants’ costs of this appeal and of the procedure in Case T-165/16 before the General Court.

Pleas in law and main arguments

The appellants submit that the judgment under appeal should be set aside on the following grounds.

First, the General Court misapplied Article 41 of the EU Charter of Fundamental Rights and the rights of defence of the appellants in the proceedings before the Commission. The General Court: erred in drawing a distinction between the specific rights in Article 41(2) of the Charter and the general right to good administration provided in Article 41(1) of the Charter; erred in finding that the rights in Article 41(2) of the Charter do not apply in State aid investigations; erred in finding that there is a conflict between Article 41(1) and (2) of the Charter and Articles 107 and 108 TFEU; and erred in finding that the appellants could merely be considered as a source of information in the investigation.

Second, the General Court violated Article 107(1) TFEU by misinterpreting the notion of advantage. The General Court: erred in concluding that there is no hierarchy of methodologies for applying the market economy operator (‘MEO’) test between the comparative analysis and other methods; erred in finding that the Commission was entitled to depart from the comparative analysis and reject the comparative evidence submitted by the appellants; and erred in concluding that, when applying the incremental profitability test, it is not necessary for the Commission to satisfy itself that the expected incremental costs and expected incremental non-aeronautical revenues reflect how an MEO would have operated the airport.

(1) Commission Decision (EU) 2016/287 of 15 October 2014 on State aid SA.26500 — 2012/C (ex 2011/NN, ex CP 227/2008) implemented by Germany for Flugplatz Altenburg-Nobitz GmbH and Ryanair Ltd (notified under document C(2014) 7369) (JO 2016, L 59, p. 22).
First Ground of Appeal: The General Court erred in law in finding that Matrix and Les Laboratoires Servier were potential competitors at the time of the settlement.

First plea: The General Court was wrong to conclude that the Commission was entitled to consider that Matrix and Niche could be classified as potential competitors on the basis of the Niche/Matrix Agreement.

Second plea: The General Court misapplied the legal test for potential competition in reaching the conclusion that Matrix and Servier were potential competitors at the time of entering into the Settlement.
Appeal brought on 1 March 2019 by Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-165/15: Ryanair and Airport Marketing Services v Commission

(Case C-203/19 P)

(2019/C 164/36)

Language of the case: English

Parties

Appellants: Ryanair DAC, formerly Ryanair Ltd, Airport Marketing Services Ltd (represented by: E. Vahida, avocat, I.-G. Metaxas-Maranghidis, Δικηγόρος, G. Berrisch, Rechtsanwalt, B. Byrne, Solicitor)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 13 December 2018 in Case T-165/15; and

— annul Article 1(1), 1(2) and (insofar as these concern Articles 1(1) and 1(2)) Articles 3, 4 and 5 of Commission Decision (EU) 2015/1227 (1) of 23 July 2014 on State aid SA.22614 (C 53/07), or in the alternative, refer the case back to the General Court for reconsideration; and in any event

— order the Commission to pay the appellants’ costs of this appeal and of the procedure in Case T-165/15 before the General Court.

Pleas in law and main arguments

The appellants submit that the judgment under appeal should be set aside on the following grounds.

First, the General Court misapplied Article 41 of the EU Charter of Fundamental Rights and the rights of defence of the appellants in the proceedings before the Commission. The General Court: erred in drawing a distinction between the specific rights in Article 41(2) of the Charter and the general right to good administration provided in Article 41(1) of the Charter; erred in finding that the rights in Article 41(2) of the Charter do not apply in State aid investigations; erred in finding that there is a conflict between Article 41(1) and (2) of the Charter and Articles 107 and 108 TFEU; and erred in finding that the appellants could merely be considered as a source of information in the investigation.

Second, the General Court violated Article 107(1) TFEU by misinterpreting the notion of advantage. The General Court: erred in concluding that there is no hierarchy of methodologies for applying the market economy operator (‘MEO’) test between the comparative analysis and other methods; erred in finding that the Commission was entitled to depart from the comparative analysis and reject the comparative evidence submitted by the appellants; and erred in concluding that, when applying the incremental profitability test, it is not necessary for the Commission to satisfy itself that the expected incremental costs and expected incremental non-aeronautical revenues reflect how an MEO would have operated the airport.

(1) Commission Decision (EU) 2015/1227 of 23 July 2014 on State aid SA.22614 (C 53/07) implemented by France in favour of the Chamber of Commerce and Industry of Pau-Béarn, Ryanair, Airport Marketing Services and Transavia (notified under document C(2014) 5085) (JO 2015, L 201, p. 109).
Appeal brought on 04 January 2019 by the European Union Intellectual Property Office against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 October 2018 in Case T-447/16: Pirelli Tyre v EUIPO

(Case C-6/19 P)

(2019/C 148/12)

Language of the case: English

Parties

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

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

Form of order sought

The appellant claims that the Court should:

— annul the contested judgment;

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

Pleas in law and main arguments

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

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

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

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

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

Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 18 March 2019 — United Biscuits (Pensions Trustees) Limited, United Biscuits Pension Investments Limited v Commissioners for Her Majesty's Revenue and Customs

(Case C-235/19)

(2019/C 172/25)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicants: United Biscuits (Pensions Trustees) Limited, United Biscuits Pension Investments Limited

Defendant: Commissioners for Her Majesty's Revenue and Customs

Question referred

Are supplies of such pension fund management services (PFM Services) as are provided to the Trustees by (a) Insurers and/or (b) Non-Insurers ‘insurance transactions’ within the meaning of Article 135(1)(a) of the VAT Directive (1) (formerly Article 13B(a) of the Sixth Directive)?

(1) Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006, L 347, p. 1).
1.

The first plea in law is that the General Court erred in law by holding that the patent settlement agreement concluded by Lupin and Servier on 30 January 2007 was a restriction by object under Article 101(1) TFEU. In particular: a. The General Court misdirected itself as to the applicable legal test for a finding of infringement by object, particularly in light of the legal principles upheld in Case C-67/13 P, Cartes Bancaire. b. The General Court failed to recognise that the effect on competition of non-compete and non-challenge clauses in settlement agreements is the same regardless of the existence of any inducement. c. The General Court failed to analyse or explain the distinction between justified and unjustified reverse payments, contrary to the principle of legal certainty. d. The General Court erred in finding that the existence of an ‘inducement’ to a generic company justifies a finding of a restriction by object. Nor can the receipt of a ‘benefit’ by the generic company justify such a finding. e. The General Court erred in law by holding that the ambiguous drafting of the restrictions under the agreement should be construed as extending to products beyond the scope of the patent being litigated by the parties. No restriction by effect
4.

For the purposes of the classification under TARIC codes of the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force — having regard to the objectives set out in recitals 35 and 36 of Regulation No 945/2005 of applying the measures in force to the new product types on the basis of the principle of proportionality, and of simplifying the customs procedure and the application of the appropriate duty rates corresponding to the amount of product concerned incorporated in the compound — can the presumption specified in paragraph 16 of the decision of the Tax Disputes Commission be relied upon when calculating (determining) the ammonium nitrate content of such fertilisers? In other words, after the content of nitrogen (N) in the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission has been determined (on the basis of the documents provided by the importer at the time of customs clearance, or during laboratory tests), is the ammonium nitrate content calculated (determined) having regard to the ratio between the ammonium nitrate (AN) content and nitrogen (N) content defined in recital 20 of Regulation No 945/2005, which depends on the atomic weight of the elements and is 2.86, without any additional laboratory tests being conducted to determine the exact ammonium nitrate content?
Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 8 February 2019 — Pfeifer & Langen GmbH & Co. KG v Hauptzollamt Köln

(Case C-97/19)

(2019/C 182/14)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Pfeifer & Langen GmbH & Co. KG

Defendant: Hauptzollamt Köln

Question referred

Is Article 78(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) to be interpreted as meaning that, according to that provision, in a case such as that in the main proceedings, a customs declaration must be checked and corrected in such a way that the particulars relating to the declarant are replaced by the designation of the person to whom an import licence was issued for the imported goods, and this person is represented by the person who was named as the declarant in the customs declaration and who has submitted a power of attorney from the holder of the import licence to the customs office?

(1) OJ 1992 L 302, p. 1.
5.

Must Article 3(6) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees be interpreted as meaning that, when a contract for the purchase of a vehicle has been concluded under which a vehicle is to be supplied which must comply with statutory (EU-law) provisions and such vehicle has been installed with a ‘switch logic’ (i.e. is regulated in such a way that when the vehicle is started it is in mode 1, and if the software detects a test situation — i.e. the operation of the vehicle in the framework of the New European Drive Cycle (NEDC) — the vehicle remains in mode 1 (NEDC), but if the software detects the movement of the vehicle outside the tolerance levels of the NEDC (deviations from the speed profile of +/- 2 km/h or +/- 1s), the vehicle switches to mode 0 (drive mode), in which the exhaust gas recirculation valve is regulated in such a way that the limits of Regulation No 715/2007 can no longer be met, whereby this method of regulation occurs so promptly that as a result the vehicle is essentially operated only in mode 0), this does not constitute a minor breach of contract?
1.

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?
Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Industria Italiana Autobus SpA v Comune di Palermo

(Case C-111/19)

(2019/C 182/17)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Industria Italiana Autobus SpA

Defendant: Comune di Palermo

Question referred

Does EU law (in particular the principles of legitimate expectations, legal certainty, freedom of movement, freedom of establishment and freedom to provide services) preclude a national legislative provision, such as Article 83(9), Article 95(10) and Article 97(5) of the Italian ‘Codice dei contratti pubblici’ (‘Public Procurement Code’), under which failure to indicate labour costs and costs relating to the safety of workers by a tenderer in a public procurement procedure results in any event in the tenderer being excluded from the procedure without the tenderer being given, at a later stage, the benefit of the ‘soccorso istruttorio’ procedure (whereby a tenderer is given an opportunity to remedy shortcomings in his tender documentation after submission of his tender), even where the existence of such an obligation to indicate those costs is apparent from sufficiently clear legal provisions in the public domain and irrespective of the fact that the contract notice does not expressly refer to the legal obligation to provide specific information?
3)

In the event that the answer to Question (1) is ‘yes’, what considerations are the competent authority required to have regard to in carrying out a Stage 1 screening exercise pursuant to Article 6(3) of the Habitats Directive? For example, is the competent authority required to have regard to any or all of the following considerations: (i) whether there are any changes to the proposed works and use; (ii) whether there has been any change in the environmental background, e.g. in terms of the designation of European Sites subsequent to the date of the decision to grant development consent; (iii) whether there have been any relevant changes in scientific knowledge, e.g., more up-to-date surveys in respect of qualifying interests of European Sites? Alternatively, is the competent authority required to assess the environmental impacts of the entire development?
Official Journal of the European Union

Appeal brought on 18 March 2019 by George Haswani against the judgment of the General Court (Fifth Chamber) delivered on 16 January 2019 in Case T-477/17 Haswani v Council

(Case C-241/19 P)

(2019/C 187/51)

Language of the case: French

Parties

Appellant: George Haswani (represented by: G. Karouni, avocat)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The appellant submits that the Court should:

— Set aside the judgment of 16 January 2019, T-477/17, in its entirety;

— Order the removal of Mr George Haswani’s name from the annexes to the acts contested before the General Court;

— Dispose of the case and: — Annul Decision 2015/1836 and Regulation 2015/1828; — Order the Council to pay the sum of EUR 100 000 in respect of the non-pecuniary harm suffered by Mr Haswani;

— Order the Council to bear its own costs and pay those incurred by the appellant before both the General Court and the Court of Justice.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law, infringement of Decisions 2015/1836 (recital 6) and 2013/255 (recital 5) as amended by Decision 2015/1836, as well as the reversal of the burden of proof and breach of the principle of the presumption of innocence.

The second ground of appeal alleges breach of the obligation to state reasons and failure to state reasons.

The third ground of appeal alleges breach of the principle of proportionality and failure to state reasons.
Appeal brought on 29 April 2019 by Drex Technologies SA against the judgment of the General Court (Fifth Chamber) delivered on 28 February 2019 in Case T-414/16 Drex Technologies v Council

(Case C-348/19 P)

(2019/C 213/20)

Language of the case: French

Parties

Appellant: Drex Technologies SA (represented by: E. Ruchat, avocat)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant submits that the Court should:

— Declare the appeal admissible and well founded;

— Accordingly, set aside the judgment of 28 February 2019 (T-414/16);

And, giving judgment itself,

— Annul Decision (CFSP) 2016/850 of 27 May 2016 (1) and its subsequent implementing acts, in so far as they concern the appellant;

— Order the Council to pay the costs of the proceedings.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law in that the General Court disregarded the applicant’s right, enshrined in Article 41 of the Charter of Fundamental Rights, to be heard prior to the adoption of new restrictive measures.

The second ground of appeal alleges an error of law and distortion of the facts in that the General Court disregarded the items submitted by the applicant in support of its action for annulment to demonstrate that it did not support the Syrian regime.

The third ground of appeal alleges an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

(1) Council Decision (CFSP) of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016 L 141, p. 125).
Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 25 March 2019 — JE v KF

(Case C-249/19)

(2019/C 206/32)

Language of the case: Romanian

Referring court

Tribunalul București

Parties to the main proceedings

Appellant: JE

Rrespondent: KF

Question referred

On a proper construction of Article 10 of Regulation No 1259/2010, (1) under which ‘[w]here the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply’, is the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ to be interpreted in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?

(1) Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10).
2.

If the first question is answered in the affirmative, is Article 193 of Directive 2006/112/EC to be interpreted as meaning that, in circumstances such as those in the case under consideration, VAT is paid individually by each of the participants (in the instance under consideration, the applicant and his business partner) in the joint activity/partnership — which joint activity/partnership is, under national law, not regarded as constituting a taxable person and does not enjoy legal personality — on the part of each payment by way of consideration that is received by them (or is receivable by or owed to them) for the taxable supplies of immovable property? Is Article 287 of Directive 2006/112/EC to be interpreted as meaning that, in such circumstances such as those in this case, the annual turnover referred to in that provision is established by taking into account the entire revenue of the joint activity (received collectively by the participants in the joint activity)?