ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 21 July 2016 —

Nutria v Commission

(Case T‑832/14)

‛Non-contractual liability — Refusal to extend the deadline for the withdrawal of skimmed milk powder in the context of the programme for the distribution of food aid to the most deprived persons in the European Union for the year 2010 — Sufficiently serious breach of a rule of law conferring rights on individuals’

1. Actions for failure to act — Time-limits — Limitation period of five years — Prior request addressed to an institution within that time-limit, followed by an action for compensation within a period of two months after that institution adopted a position — Admissibility (Arts 263 TFEU and 265 TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.) (see paras 35-37)

2. Actions for failure to act — Institution called upon to act — Conditions — Clear and express request (Art. 265 TFEU) (see para. 43)

3. Actions for failure to act — Position taken within the meaning of Article 265, second para., TFEU before the action brought — Concept — Refusal to act in accordance with the invitation to act — Included (Art. 265, second para., TFEU) (see paras 44-46)

4. Non-contractual liability — Conditions — Unlawfulness — Damage — Causal link — Cumulative conditions — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para., TFEU) (see paras 53, 54)

5. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Requirement that the institutions manifestly and seriously disregard the limits of their discretion — Refusal to extend the deadline for the withdrawal of skimmed milk powder in the context of the programme for the distribution of food aid to the most deprived persons in the Union — Not sufficiently serious breach of a rule of law conferring rights on individuals — EU not liable (Art. 340, second para., TFEU; Council Regulation No 1234/2007, Art. 191; Commission Regulation No 1111/2009, Art. 3(1)) (see paras 55, 65, 69-72, 75, 78, 79, 83)

Re:

APPLICATION under Article 268 TFEU, seeking compensation for the damage which the applicant allegedly sustained on account of the Commission’s refusal to extend the deadline for the withdrawal of skimmed milk powder set in Article 3(1) of Commission Regulation (EC) No 1111/2009 of 19 November 2009 adopting the plan allocating to the Member States resources to be charged to the 2010 budget year for the supply of food from intervention stocks for the benefit of the most deprived persons in the Community and derogating from certain provisions of Regulation (EEC) No 3149/92 (OJ 2009 L 306, p. 5).

Operative part

The Court:

1. Dismisses the action;
It is clear from Article 86(1) and (2) of the Rules of Procedure that, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed, modify the application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU, within which the annulment of the measure justifying the modification of the application may be sought. Thus, a request for modification of the application made orally, at the hearing, is inadmissible.

Article 28(1) of Decision 2013/255 concerning restrictive measures against Syria and Article 14(1) of Regulation No 36/2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation No 442/2011 are essentially concerned with persons and bodies benefiting from the policies of the regime or supporting it, persons and bodies linked therewith, and all the funds and economic resources which they possess, hold or control. However, neither Decision 2013/255 nor Regulation No 36/2012 define the concepts of benefit from the policies of the Syrian regime or support for that regime. Nor do they contain any details regarding how those matters are to be proved. Consequently, neither Decision 2011/273 nor Regulation No 442/2011 establishes a presumption that the heads of the leading businesses of Syria provide support for the Syrian regime. Consequently, it cannot be inferred from the status of an important businessman that the person concerned supports the Syrian regime or benefits from its policies.

In that regard, documents supplied by the Council, merely describing the companies of a group not subject to restrictive measures and their areas of activity, without however providing any other evidence capable of demonstrating the support which the person directing that group gives to the regime or the benefit which he derives from its policies, contain only general information and provide no precision as to the link between those facts and the fact of benefit from the regime’s policies or support given to it. Such information is not capable of establishing such support or such a benefit.

(see paras 44, 49, 50)
Judgment of the General Court (Ninth Chamber) of 15 September 2016 —

PT Musim Mas v Council

(Case T‑80/14)

‛Dumping — Imports of biodiesel originating in Indonesia — Definitive collection of provisional anti-dumping duties — Definitive anti-dumping duties — Rights of the defence — Article 2(5) of Regulation (EC) No 1225/2009 — Normal value — Production costs’

1. EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Anti-dumping — Duty of the institutions to keep the undertakings concerned informed — Scope (Council Regulation No 1225/2009, Art. 20(2)) (see paras 35-37)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Derogations from the method of fixing the normal value by reference to the actual price laid down by the basic anti-dumping regulation — Exhaustive nature (Council Regulation No 1225/2009, Art. 2(3), first para.) (see para. 39)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Recourse to the constructed value — Calculation of production costs on the basis of accounting registers — Derogation — Costs linked to the production and sale of the product subject to the investigation not reasonably reflected in those registers — Burden of proof borne by the institutions — Judicial review — Scope (Council Regulations No 1972/2002, fourth recital, and No 1225/2009, Arts 2(3), second para., and 5, first to third paras) (see paras 65-69, 73-97)

4. Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Provision of a regulation imposing definitive anti-dumping duties — Annulment entailing a modification of the substance of the regulation (Art. 263 TFEU; Council Regulation No 1194/2013, Art. 1) (see paras 100-102)

Re:

ACTION pursuant to Article 263 TFEU for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2).

Operative part

The Court:

1. Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas);

2. Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Musim Mas;
1.

Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 March 2014 (Case R 1580/2013-5) in so far as it confirmed the decision of the Cancellation Division declaring the revocation of the contested mark as regards ‘confectionery’ included in Class 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;
Judgment of the General Court (Fifth Chamber) of 16 February 2017 — SolarWorld v Commission

(Case T‑783/14)

(Dumping — Subsidies — Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China — Approval of a downward adjustment of the minimum import price pursuant to an undertaking accepted in connection with anti-dumping and anti-subsidy proceedings — Union industry — Article 8(1) of Regulation (EC) No 1225/2009)

1. Judicial proceedings — Examination of the substance before examination of admissibility — Lawfulness (see para. 42)

2. Common commercial policy — Protection against dumping — Offer of price undertakings — Acceptance — Discretion of the institutions — Undertakings providing for an adjustment mechanism to the minimum import price — Judicial review — Limits (Council Regulation No 1225/2009, Art. 8(1)) (see paras 46-55)

Re:

APPLICATION pursuant to Article 263 TFEU for annulment of the Commission’s decision, contained in a letter of 15 September 2014 addressed to the Chinese Chamber of Commerce for the Import and Export of Machinery and Electronic Products, bearing the reference TRADE/H4 (2014) 3328168, on the downward adjustment of the minimum import price for imports of photovoltaic modules and cells manufactured by Chinese exporting producers subject to a price undertaking with effect from 1 October 2014 for the last quarter of 2014.

Operative part

The Court:

1. Dismisses the action;
On the contrary, the principle of democracy, which, as it is stated in particular in the preamble to the EU Treaty, in Article 2 TEU and in the preamble to the Charter of Fundamental Rights of the European Union, is one of the fundamental values of the European Union, as is the objective specifically pursued by the ECI mechanism, which consists in improving the democratic functioning of the European Union by granting every citizen a general right to participate in democratic life, requires an interpretation of the concept of legal act which covers legal acts such as a decision to open negotiations with a view to concluding an international agreement, which manifestly seeks to modify the legal order of the European Union.

The concept of a legal act, for the purposes of Article 11(4) TEU, Article 2(1) and Article 4(2)(b) of Regulation No 211/2011, cannot, in the absence of any indication to the contrary, be understood as being limited only to definitive European Union legal acts which produce legal effects vis-à-vis third parties. Neither the wording of the provisions at issue nor the objectives pursued by them justify in particular that a decision authorising the opening of negotiations with a view to concluding an international agreement, taken under Article 207(3) and (4) TFEU and Article 218 TFEU and which clearly constitute a decision for the purposes of the fourth subparagraph of Article 288 TFEU be excluded from the concept of a legal act for the purposes of a European Citizens’ Initiative (ECI).

The regulation on the ECI contains no indication that citizen participation cannot be undertaken in order to prevent the adoption of a legal act. Whilst, according to Article 11(4) TEU and Article 2(1) of Regulation No 211/2011, the proposed legal act must contribute to the implementation of the Treaties, that is the case with acts whose object is to prevent the conclusion of international agreements which seek to modify the legal order of the European Union.

In that regard, the objective of participation in the democratic life of the European Union pursued by the ECI mechanism manifestly includes the power to request an amendment of legal acts in force or their annulment, in whole or in part. Therefore, nothing justifies excluding from democratic debate legal acts seeking the withdrawal of a decision authorising the opening of negotiations with a view to concluding an international agreement, as well as acts whose object is to prevent the signing and conclusion of such an agreement, which clearly produce independent legal effects by preventing, as the case may be, an announced modification of European Union law.

Consequently, far from amounting to an interference in an ongoing legislative procedure, ECI proposals that the Council annul the negotiating mandate for one international agreement and refrain from concluding another constitute an expression of the effective participation of citizens of the European Union in the democratic life thereof, without undermining the institutional balance intended by the Treaties.

(see paras 41-43, 47)
Judgment of the General Court (Sixth Chamber) of 1 February 2018 — Larko v Commission

(Case T‑412/14)

(Action for annulment — State aid — Sale of certain assets operated by an undertaking or belonging to that undertaking in the context of a privatisation programme — No economic continuity — Action by the beneficiary of the aid — No interest in bringing proceedings — Inadmissibility)

Actions for annulment—Natural or legal persons—Interest in bringing proceedings—Need for an actual and current interest—Assessment at the time when the action was lodged—Action incapable of securing a benefit for the applicant—Inadmissibility

(Art. 263, fourth para., TFEU)

(see paras 21-24, 29-43)

Re:

APPLICATION pursuant to Article 263 TFEU seeking annulment of Commission Decision C(2014) 1805 of 27 March 2014 on the State aid SA.37954 (2013/N) — Greece — Sale of certain assets of Larco General Mining & Metallurgical Company S.A. (OJ 2014 C 156, p. 1).

Operative part

The Court:

1. Dismisses the action as inadmissible;
Common commercial policy—Protection against dumping—Harm—Establishing a causal link—Obligations of the institutions—Taking into account of matters extraneous to the dumping—Relevance of such factors for establishing the causal link—Judicial review—Manifest error of assessment—Burden of proof

(Council Regulation No 1225/2009, Arts 1(1) and 3(1), (2), (5) to (7))

(see paras 39-42, 61-81)
Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Presumption of innocence — Applicability — Evidential obligations of undertakings disputing the reality of the infringement — Judicial review — Scope

(Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 48)

(see paras 64-79, 88)
In the specific case where a parent company has a 100% shareholding in a subsidiary that has infringed the competition rules of the European Union: (i) the parent company is able to exercise decisive influence over the conduct of the subsidiary; and (ii) there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. In those circumstances, the parent company may be regarded as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market.

The Commission is entitled to apply the presumption of actual exercise of decisive influence where the parent company is in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary. That is the case where a parent company is able to exercise all the voting rights associated with its subsidiary’s shares, in particular in combination with a very high majority stake in the share capital of that subsidiary, since that parent company is able to determine the economic and commercial strategy of the subsidiary concerned, even if it does not hold all or virtually all the share capital of that subsidiary.

Admittedly, it cannot be ruled out that, in certain cases, minority shareholders who have no voting rights associated with the shares of such a subsidiary may exercise, with respect to that subsidiary, certain rights enabling them, in certain circumstances, to also have an influence over the conduct of that subsidiary. However, in those circumstances, the parent company may then rebut the presumption of actual exercise of decisive influence by adducing evidence capable of showing that it does not determine the commercial policy of the subsidiary concerned on the market.

(see paras 44, 45, 49, 50, 52)
The condition that there must be direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the contested EU measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules.

The provisions on access to the capital market in Decision 2014/512/CFSP and Regulation No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, which leave no discretion to the addressees entrusted with their implementation, are of direct concern to a commercial company specialising in oil and gas exploration and production, the sale and distribution of crude oil and the production and sale of petroleum products, whose name is listed in the annexes to those acts. The resulting restrictive measures, prohibiting all EU operators from carrying out certain types of financial transaction or from concluding agreements with entities established in Russia which are publicly controlled or with over 50% public ownership which have estimated total assets of over RUB 1 trillion and at least 50% of whose estimated revenues originate from the sale or transportation of crude oil or petroleum products, and whose names are listed in those annexes, apply directly to that company, as an immediate consequence of the fact that it is an entity referred to in Article 1(2)(b) and (3) of Decision 2014/512/CFSP and Article 5(2)(b) and (3) of Regulation No 833/2014 and that its name is listed in Annex III to that decision and in Annex VI to that contested regulation.

Although those provisions lay down prohibitions which apply in the first place to credit institutions and other financial bodies established in the European Union, the aim and the effect of those prohibitions is directly to affect the entities listed in the annexes to those acts whose economic activity is limited as a result of the application of those measures to them. Self-evidently it is for the bodies established in the European Union to apply those measures, given that the acts adopted by the EU institutions are not, as a rule, intended to apply outside the territory of the European Union. That does not, however, mean that the entities affected by the provisions on access to the capital market are not directly concerned by the restrictive measures applied with regard to them.

(see paras 72-75)
61

Next, nothing in Regulation No 517/2014 provides that the Commission cannot, if necessary, request further information from the undertakings concerned. What is more, at the hearing, the Commission stated that Regulation No 517/2014 did not contain anything expressly prohibiting that. Likewise, even supposing, as the Commission claims, that the legislature dispensed with the possibility of collecting data ex post relating to the reference period, that does not mean that the Commission is prohibited from collecting such information, if it is necessary to determine the quantities of HFCs placed on the market. In addition, in view of the small number of undertakings affected, it is not certain that this would have entailed significant administrative costs, delayed the start of the procedure or led to a particular risk of manipulation, as the Commission suggests. In any event, it should be noted that, as appears from the Annex to an email of 19 May 2014, sent by the Commission in response to a written question from the Court, the Commission did invite the undertakings concerned to provide it with certain data in connection with determination of the reference value, in particular, the quantities of HFCs produced or imported for the purposes listed in Article 15(2) of Regulation No 517/2014, which had not been reported previously and which were therefore not available. The explanations given for this by the Commission at the hearing do not lead to the conclusion that it would have been impossible to also ask those undertakings to provide data on the quantities of HFCs imported and released for free circulation which, as in the case of the quantities of HFCs produced or imported for the purposes listed in Article 15(2) of Regulation No 517/2014, had not been reported under Regulation No 842/2006. That therefore confirms not only that it would have been neither prohibited nor impossible for the Commission to collect non-available data ex post if necessary, but also that that was what actually occurred. What is more, it must be observed that those undertakings cannot be criticised for not having reported data themselves, during the reference period, which had not been requested by the Commission on the basis of Regulation No 842/2006 and the relevance of which only became apparent at a later stage.
32

Following its own reasoning set out in the abovementioned paragraph 66 of the judgment in Cavallaro v Commission, paragraph 8 above (EU:F:2007:164), the Civil Service Tribunal came to the conclusion, based on settled case-law, that, even in the event of reassignment, the reference period provided for in Article 4(1)(b) of Annex VII to the Staff Regulations always expired on the date of initial entry into service, as was correctly noted in paragraph 36 of the judgment under appeal. Moreover, contrary to what the appellant claims, it cannot be inferred from the finding made by the Civil Service Tribunal, in that paragraph of the judgment under appeal, that an official exercising care is deemed to know not only the provisions of the Staff Regulations, but also all the case-law of the Courts of the European Union interpreting those provisions. On the contrary, it is stated in paragraph 36 of the judgment under appeal that the Civil Service Tribunal merely responded to a specific argument of the appellant, based on the judgment in Cavallaro v Commission, paragraph 8 above (EU:F:2007:164), to inform him that that judgment contains no ambiguity as regards the interpretation of Article 4(1)(b) of Annex VII to the Staff Regulations. In any event, that paragraph of the judgment under appeal is perfectly consistent with the settled case-law, referred to in paragraph 26 above, according to which an official exercising ordinary care is deemed to know the rules governing his salary, since such knowledge necessarily includes the application and interpretation of those rules by the Courts of the European Union, provided that the case-law in question is not confusing, which it certainly was not in the present case.