ddrg/super_eurlex huggingface dataset:
Appeal brought on 23 November 2018 by VTB Bank PAO, formerly VTB Bank OAO, against the judgment of the General Court (Sixth Chamber) delivered on13 September 2018 in Case T-734/14: VTB Bank v Council

(Case C-729/18 P)

(2019/C 93/35)

Language of the case: English

Parties

Appellant: VTB Bank PAO, formerly VTB Bank OAO (represented by: M. Lester QC, J. Dawid, Barristers, C. Claypoole, Solicitor, J. Ruiz Calzado, abogado)

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

Form of order sought

The appellant claims that the Court should:

— allow the appeal of VTB against the decision of the General Court;

— order that the restrictive acts be annulled insofar as they apply to VTB;

— make a declaration of illegality / inapplicability as regards article 1 of Council decision 2014/512/CFSP (1), article 5 of regulation 833/2014 (2), article 1 of Council decision 2014/659/CFSP (3), and article 1(5) of regulation 960/2014 (4);

— order the Council to pay VTB’s costs of this appeal and of the proceedings before the General Court.

Pleas in law and main arguments

First plea in law, alleging:

The General Court erred in its interpretation of article 5(1)(a) of the regulation in concluding that the condition that an institution have ‘an explicit mandate to promote competitiveness of the Russian economy, its diversification and encouragement of investment’ did not apply to VTB as a ‘major credit institution’. In consequence, the General Court erred in holding that the Council made no manifest error of assessment in finding that VTB satisfied the conditions to be listed under article 5(1)(a) of the regulation.

Second plea in law, alleging:

The General Court erred in finding that the criteria under which VTB was listed pursuant to article 1 of the decision and article 5(1)(a) of the regulation were appropriate and proportionate having regard to the objectives of the restrictive acts.

Third plea in law, alleging:

The General Court erred in finding that the restrictive acts applied to VTB represented a proportionate interference with VTB’s fundamental rights as guaranteed by article 16 and 17 of the Charter of Fundamental Rights and article 1, protocol 1 of the European Convention on Human Rights, both in respect of the criteria adopted under the restrictive acts and the decision to list VTB pursuant to those criteria.

(1) Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ 2014, L 229, p. 13).

(2) Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ 2014, L 229, p. 1).

(3) Council Decision 2014/659/CFSP of 8 September 2014 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ 2014, L 271, p. 54).

(4) Council Regulation (EU) No 960/2014 of 8 September 2014 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (OJ 2014, L 271, p. 3).
Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 17 December 2018 — Athesia Energy Srl and Others v Ministero dello Sviluppo Economico, Gestore dei Servizi Energetici (GSE) SpA

(Case C-799/18)

(2019/C 122/08)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Athesia Energy Srl, Pv Project Cologna S.r.l., Belriccetto S.r.l., Itt Energy S.r.l., Pietra dei Fiori S.r.l., Energia Solare S.r.l., Green Hunter S.p.A, Actasol 5 S.r.l., Actasol 6 S.r.l., Cinque S.r.l., Spf Energy Uno S.r.l., Spr Energy Due S.r.l., Spf Energy Tre S.r.l., Bulicata S.r.l., Energy Line S.r.l., Marche Solare 1 S.r.l.

Defendants: Ministero dello Sviluppo Economico, Gestore dei servizi energetici (GSE) SpA

Question referred

Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of Decree-Law No 91/2014, as converted by Law No 116/2014, which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with Gestore dei servizi energetici SpA, a public company responsible for that process?

In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, with Directive 2009/28/EC (1) and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the European Energy Charter Treaty?

(1) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).
Appeal brought on 30 November 2018 by Lux-Rehab Foglalkoztató Non-Profit Kft. (Lux-Rehab Non-Profit Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-710/17, Lux-Rehab Non-Profit v Commission

(Case C-747/18 P)

(2019/C 112/19)

Language of the case: Hungarian

Parties

Appellant: Lux-Rehab Foglalkoztató Non-Profit Kft. (Lux-Rehab Non-Profit Kft.) (represented by: L. Szabó)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— declare the appeal admissible and well-founded and, consequently, annul the order of the General Court (Seventh Chamber) of 28 September 2018 in Lux-Rehab Non-Profit v Commission (T-710/17, not published, EU:T:2018:630), as notified to the appellant on 2 October 2018;

— refer the case back to the General Court for a ruling on the second and fourth pleas of inadmissibility;

— order the defendant at first instance to pay the costs of the proceedings at first instance and on appeal, unless the case is referred back to the General Court, in which case the Court should reserve the costs at first instance and on appeal for final judgment by the General Court.

Ground of appeal and main arguments

1. First ground of appeal

The appellant submits that it referred to the safeguarding of its procedural rights and it should therefore be regarded as an interested party if its action seeks the annulment of a decision not to raise objections, within the meaning of Article 4(3) of Regulation No 659/1999, (1) and that the application refers implicitly and by allusion to the safeguarding of rights.

2. Second ground of appeal

Since the General Court interpreted an annex to the application and ruled on the merits of the case on the basis of that interpretation, it cannot assert that it is not for it to seek and identify in the annexes the pleas invoked by the appellant.

By requiring the appellant to adduce evidence of a ‘concrete and tangible effect’ of the distortion of competition on its situation and thus demonstrate that it is directly concerned by the contested measure, the Commission enters into the factual assessment of the situation. In doing so, it distorts the condition of direct concern.

3. Third ground of appeal

If the defendant argues, during the proceedings, that the contested decisions cannot be challenged because they cannot be regarded as final decisions on the ground that the examination is still ongoing, the judicial determination on that issue must be made before the other admissibility issues are dealt with.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).
3.

Does national legislation which, regardless of the state of health of the patient submitting the request, establishes a procedural time limit of 31 days within which the competent authority may grant prior authorisation and of 23 days within which it may refuse authorisation, comply with the requirement to set a reasonable procedural period taking into account specific medical conditions, urgency and individual circumstances, laid down in Article 9(3) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare? The authority may assess, in respect of the request, whether the provision of healthcare is covered by social security and, if so, whether it may be delivered, within a time limit that is medically justifiable, by a publicly-funded healthcare provider, whereas if it is not covered by social security, the authority assesses the quality, safety and cost effectiveness of the healthcare delivered by the provider indicated by the patient.
2.

(a) If the answer to Question 1 is in the affirmative, what criterion or considerations should be used to determine whether a worker working as a driver in international road transport is posted ‘to the territory of a Member State’ as referred to in Article 1(1) and (3) of the Posting of Workers Directive, and whether that worker ‘for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works’ as referred to in Article 2(1) of the Posting of Workers Directive? (b) When answering question 2 (a), should any significance be attached to the fact that the undertaking posting the worker referred to in question 2(a) is affiliated — for example, in a group of companies — to the undertaking to which that worker is posted and, if so, what should that significance be? (c) If the work undertaken by the worker referred to in question 2(a) relates partly to cabotage transport — that is to say: transport carried out exclusively in the territory of a Member State other than that in which that worker habitually works — will that worker then in any case for that part of his work, be considered to be working temporarily in the territory of the first Member State? If so, does a lower limit apply in that regard, for example, in the form of a minimum period per month in which that cabotage transport takes place?
Official Journal of the European Union

Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (Austria) lodged on 22 August 2018 — DP, Finanzamt Linz

(Case C-545/18)

(2019/C 182/02)

Language of the case: German

Referring court

Landesverwaltungsgericht Oberösterreich

Parties to the main proceedings

Applicants: DP, Finanzamt Linz

Defendant authorities: Bezirkshauptmannschaft Braunau am Inn, Bezirkshauptmannschaft Linz-Land

Interested parties: Finanzamt Braunau-Ried-Schärding, EO

The Court of Justice of the European Union (Eighth Chamber) held in its order of 4 April 2019 that the request for a preliminary ruling referred by decision of the Landesverwaltungsgericht Oberösterreich dated 16 August 2018 is manifestly inadmissible.
Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 27 November 2018 — JA v Skarb Państwa, represented by the Sejm Rzeczypospolitej Polskiej, Senat Rzeczypospolitej Polskiej, Prezes Rady Ministrów, Minister Sprawiedliwości and Minister Finansów

(Case C-745/18)

(2019/C 164/04)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Appellant: JA

Respondent: Skarb Państwa, represented by the Sejm Rzeczypospolitej Polskiej, Senat Rzeczypospolitej Polskiej, Prezes Rady Ministrów, Minister Sprawiedliwości and Minister Finansów

Question referred

Should Articles 73 and 78(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and the preceding Article 11.A(1)(a) and 11.A(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, (2) understood in the light of the general principles of a Member State’s liability to provide compensation for damage, as established in the case-law of the Court of Justice (including, in particular, in the judgments of 19 November 1991, Francovich and Others, C-6/90 and C-9/90, EU:C:1991:428; and of 5 March 1996, Brasserie du Pêcheur and Factortame and Others, C-46/93 and C-48/93, EU:C:1996:79), be interpreted as meaning that, with effect from 1 May 2004, they give rise to an obligation on a Member State which acceded to the European Union on that date to lay down regulations providing for the granting to a trustee in bankruptcy or insolvency of remuneration increased by the amount of value added tax (VAT) payable on that remuneration?

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

(2) OJ 1977 L 145, p. 1.
Appeal brought on 22 November 2018 by EM Research Organization, Inc. against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-180/17: EM Research Organization v EUIPO - Christoph Fischer e.a

(Case C-728/18 P)

(2019/C 399/22)

Language of the case: English

Parties

Appellant: EM Research Organization, Inc. (represented by: J. Liesegang, N. Lang, Rechtsanwälte)

Other parties to the proceedings: European Union Intellectual Property Office, Christoph Fischer GmbH, Ole Weinkath, Multikraft Productions- und Handels GmbH, Phytodor AG

By order of 25 September 2019 the Court of Justice (Seventh Chamber) held that the appeal is dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded and that EM Research Organization, Inc. shall bear its own costs.
Official Journal of the European Union

Appeal brought on 27 December 2018 by Linak A/S against the judgment of the General Court (Fifth Chamber) delivered on 18 October 2018 in Case T-367/17: Linak v EUIPO — ChangZhou Kaidi Electrical

(Case C-821/18 P)

(2019/C 255/23)

Language of the case: English

Parties

Appellant: Linak A/S (represented by: V. von Bomhard, Rechtsanwältin, and J. Fuhrmann, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

By order of 19 June 2019 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 10 January 2019 — Diskrimineringsombudsmannen v Braathens Regional Aviation AB

(Case C-30/19)

(2019/C 103/16)

Language of the case: Swedish

Referring court

Högsta domstolen

Parties to the main proceedings

Appellant: Diskrimineringsombudsmannen

Opposing party: Braathens Regional Aviation AB

Question referred

In a case concerning an infringement of a prohibition laid down in Directive 2000/43/EC (1) where the person wronged claims compensation for discrimination, must a Member State, if so requested by the person wronged, always examine whether discrimination has occurred — and where appropriate conclude that that was the case — regardless of whether the person accused of discrimination has or has not admitted that discrimination has occurred, in order for the requirement in Article 15 for effective, proportionate and dissuasive sanctions to be regarded as satisfied?

(1) Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).
Action brought on 18 January 2019 — European Commission v Republic of Bulgaria

(Case C-33/19)

(2019/C 122/14)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by C. Georgieva-Kecsmar and J. Hottiaux)

Defendant: Republic of Bulgaria

Form of order sought

The Commission claims that the Court should:

Declare that Bulgaria has failed to fulfil its obligations in accordance with Article 21 of Directive 2004/49/EC (1) as follows:

— by failing to ensure the independence of the specialised investigation unit from the infrastructure manager, Bulgaria failed to fulfil its obligations under Article 21(1) of Directive 2004/49/ЕC;

— by failing to ensure sufficient resources for the specialised investigation unit in order for it to carry out its functions independently, Bulgaria failed to fulfil its obligations under Article 21(2) of Directive 2004/49/ЕC;

— Order the Republic of Bulgaria to pay the costs of the proceedings.

Pleas in law and main arguments

1. Under Article 21 of Directive 2004/49/ЕC, Member States must ensure that investigations of accidents and incidents referred to in Article 19 are conducted by a permanent body, which is to comprise at least one investigator able to perform the function of investigator-in-charge in the event of an accident or incident. This body is to be independent in its organisation, legal structure and decision-making from any infrastructure manager, railway undertaking, charging body, allocation body and notified body, and from any party whose interests could conflict with the tasks entrusted to the investigating body. It is furthermore to be functionally independent from the safety authority and from any regulator of railways.

2. In its application, the Commission maintains that the specialised unit for investigation of accidents and incidents set up under the Ministry of Transport, is not independent from the infrastructure manager — the national company ‘Zhelezoputna infrastruktura’. More specifically, the unit lacks decision-making autonomy. In that regard, the Republic of Bulgaria has failed to comply with the provisions of Article 21(1) of Directive 2004/49/ЕC.

3. In its application, the Commission also submits that the legislation of the Republic of Bulgaria does not ensure access to sufficient resources for the specialised unit to be able to carry out its functions independently, in accordance with Article 21(2) of Directive 2004/49/ЕC.

(1) Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive)

OJ 2004, L 164, p. 44.
Appeal brought on 28 February 2019 by Biogaran against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-677/14, Biogaran v Commission

(Case C-207/19 P)

(2019/C 139/38)

Language of the case: French

Parties

Appellant: Biogaran (represented by: M. Utges Manley, Solicitor, A. Robert, advocate, O. de Juvigny, T. Reymond, J. Killick, J. Jourdan, avocats)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court delivered on 12 December 2018 in Case T-677/14 in its entirety;

— annul Articles 1(b)(iv), 7(1)(b) and 8 of Commission Decision C(2014) 4955 final (Case AT.39612 — Perindopril (Servier)), in so far as they concern Biogaran;

— order the Commission to pay the costs.

Grounds of appeal and main arguments

By its first ground of appeal, Biogaran submits that the judgment is vitiated by errors of law in that it finds the licence to be infringing on the ground that the settlement agreement has an anti-competitive object. According to the applicant, the judgment is based on a broad interpretation of the concept of a ‘by object’ infringement and disregards the absence of experience and of an obvious restriction. Moreover, the judgment is based on an incorrect legal test which ignores both the context of the settlement agreement between Servier and Niche and the fact that those undertakings were not potential competitors.

By its second ground of appeal, Biogaran submits that the General Court erred in law by substituting its own reasoning for that of the Commission. The General Court considered that Biogaran’s alleged inducement was ‘decisive’ in that it determined Niche’s decision not to enter the market. However, neither the statement of reasons, nor the decision state or establish that that inducement, characterised only as ‘additional’, was ‘decisive’ in Niche’s acceptance of the terms of the settlement.

Biogaran argues, in the third ground of appeal, that the General Court disregarded the principle of proportionality and the objectives of Article 101 TFEU by finding it liable, in addition to its parent company. Since the General Court held that the parent company had directly participated in the infringement and used its power to influence its subsidiary to take part in its own infringing conduct, with the result that the subsidiary had no autonomy whatsoever, it could not find the subsidiary liable in addition to its parent company without going beyond what is strictly necessary for the proper application of the competition rules.

By its fourth ground of appeal, Biogaran submits that the judgment must be set aside in that it validates the principle and the method of calculating the fine, despite the complex and unprecedented nature of the present case and the fact that Biogaran did not play a decisive role.
Appeal brought on 30 January 2019 by the European Commission against the judgment of the General Court (Fourth Chamber) delivered on 21 November 2018 in Case T-587/16, HM v European Commission

(Case C-70/19 P)

(2019/C 164/17)

Language of the case: German

Parties

Appellant: European Commission (represented by: T.S. Bohr and G. Gattinara, acting as Agents)

Other party to the proceedings: HM

Form of order sought

The appellant claims that the Court of Justice should:

— set aside the judgment of the General Court of 21 November 2018 in Case T-587/16, HM v Commission;

— refer the case back to the General Court;

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

Grounds of appeal and main arguments

The Commission relies on two grounds of appeal.

The first ground of appeal, which consists of three parts, alleges that the General Court erred in law as regards the division of competences between the selection board and the European Personnel Selection Office (EPSO).

In the first part of that ground of appeal, the Commission submits that the General Court erred in its legal categorisation of the contested measure, that is to say, EPSO’s decision of 17 August 2015 not to submit the appellant’s request for review to the selection board on the ground of delay. That notification was made in the context of the competence conferred on EPSO by Section 3.1.3. of the General Rules governing competitions to conduct all correspondence with candidates.

In the second part, the Commission argues that the General Court erred in law in its interpretation of the General Rules. Section 3.4.3. of those General Rules should not to be read only in conjunction with Section 3.1.3., but also in the light of the wording and purpose of Section 3.4.3., which grants EPSO the competence to conduct the internal review procedure.

The third part alleges an error in law in the interpretation of Article 7 of Annex III to the Staff Regulations. The notification in question constitutes an administrative measure to ensure the application of uniform standards in competitions in accordance with the first paragraph of that article. It also corresponds to EPSO’s role of assisting the selection board, as noted by the General Court in the judgment in Case T-361/10 P, Commission v Pachtitis. (1)

The second ground of appeal alleges that the General Court erred in law in the interpretation of the plea concerning the lack of competence of the author of the measure. In the present case, the General Court failed to examine whether, if the error concerning lack of competence had been corrected, a measure with the same or a different content would have been taken. In the absence of such an examination, the General Court could not annul the contested measure.

(1) ECLI:EU:T:2011:742.