ddrg/super_eurlex huggingface dataset:
3.

a. Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87/EEC, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator? b. If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle ‘fraus omnia corrumpit’ be interpreted as precluding — as regards the penalty to be imposed pursuant to Article 16(3) of Directive 2003/87/EC, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added — an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently? c. If the answer to the previous question is in the negative, is the application of the flat rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter which guarantees the existence of an effective remedy? d. If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Articles 47 and 49(3) of the Charter? e. Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court in the context of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the CJEU and the national Supreme Courts under the influence of a pre-determined solution endorsed by the CJEU, except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue?
Appeal brought on 21 February 2019 by Syriatel Mobile Telecom (Joint Stock Company) against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-411/16 Syriatel Mobile Telecom v Council

(Case C-159/19 P)

(2019/C 172/20)

Language of the case: French

Parties

Appellant: Syriatel Mobile Telecom (Joint Stock Company) (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 appellant’s action admissible and well founded;

— Accordingly, set aside the judgment of 12 December 2018 given by the General Court of the European Union in Case T-411/16, Syriatel Mobile Telecom v Council of the European Union;

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 of the European Union to pay the costs of the proceedings.

Grounds of appeal and main arguments

In support of its appeal, the appellant relies on three grounds:

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

The second ground of appeal, alleging an error of law and distortion of the facts in so far as 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, alleging an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, (2) 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) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ L 141, p. 125).

(2) Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ L 147, p. 14).
Appeal brought on 15 February 2019 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-743/16 RENV, CX v Commission

(Case C-131/19 P)

(2019/C 182/20)

Language of the case: French

Parties

Appellant: European Commission (represented by: G. Berscheid, T. S. Bohr and C. Ehrbar, Agents)

Other party to the proceedings: CX

Form of order sought

The Commission claims that the Court should:

— set aside the judgment of the General Court of 13 December 2018 in Case T-743/16 RENV, CX v Commission, in so far as it annulled the disciplinary decision of removal from post;

— refer the case back to the General Court for a ruling on the other pleas in law of the action;

— reserve the costs.

Grounds of appeal and main arguments

First ground of appeal: misapplication of Articles 4 and 22 of Annex IX to the Staff Regulations of Officials in incorrectly interpreting the scope of the right to appear in person.

The arguments in support of the first ground of appeal are divided into several parts.

In the first part, the Commission submits that the judgment failed to have regard to the legal criteria applicable for the purpose of assessing the official’s inability to appear in person, the duty to state reasons and the rules governing burden of proof.

In the second part, the Commission submits that the judgment incorrectly applied the concept of a body of consistent evidence in order to establish that the official was unable to appear at the hearings and that the General Court carried out an incomplete examination of the relevant evidence.

In the third part, the Commission maintains that the judgment distorted the clear sense of two pieces of evidence.

Second ground of appeal: misapplication of Articles 4 and 22 of Annex IX to the Staff Regulations of Officials in incorrectly interpreting the scope of the right to be heard in writing or through a representative.

The arguments in support of the second ground of appeal are divided into two parts.

The first part relates to the failure to have regard to the legal criteria applicable for the purpose of assessing the official’s inability to submit his comments in writing or through a representative, the failure to have regard to the duty to state reasons, the failure to have regard to the rules governing burden of proof as regards the official’s inability to defend himself at the hearings and the incorrect application of the concept of a body of consistent evidence.

The second part relates to the inconsistency of the reasons concerning the official’s inability to ensure his defence.

Third ground of appeal: failure to have regard to the duty to state reasons regarding the consequences of the infringement of the right to be heard.

The General Court failed to state reasons why the procedural irregularity flowing from the infringement of the right to be heard led to the annulment of the decision at issue.
Can a contractual term that is likely to be void because it is unfair under Articles 3 and 4 of Directive 93/13 bind the consumer to whom it applies when the banking institution uses a procedure whereby it agrees with the customer, after the contract containing the term in question has been concluded, that the seller or supplier will refrain from applying the unfair term in return for some other consideration from the consumer? In other words, is the void term rendered effective by the agreement with the consumer to replace it with another term which is more favourable to him? Could an agreement of this kind be contrary to Article 6(1) of Directive [93/13]?
Appeal brought on 31 March 2019 by Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) against the judgment of the General Court (Fourth Chamber) delivered on 22 January 2019 in Case T-198/17, EKETA v European Commission

(Case C-274/19 P)

(2019/C 182/33)

Language of the case: Greek

Parties

Appellant: Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) (represented by: V. Christianos and K. Karagounis, lawyers)

Other party to the proceedings: European Commission

Form of order sought

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

1. Set aside the judgment of the General Court of 22 January 2019 in Case Τ-198/17 (1),

2. Refer the case back to the General Court for a further ruling;

3. Order the Commission to pay the costs.

Grounds of appeal and main arguments

The appellant claims that the judgment under appeal should be set aside on the following grounds:

— First ground of appeal: The General Court failed to give judgment in accordance with the law and did not assess all the arguments and evidence produced by ΕΚΕΤΑ. The General Court also distorted the facts, as they emerged from that evidence, erred in law as to the allocation of the burden of proof and was in breach of the obligation to state reasons for its decision.

— Second ground of appeal: The General Court erred in law, in that it misinterpreted the issue of whether there was a risk of conflict of interest.

— Third ground of appeal: The General Court erred in law in its interpretation of the principle of proportionality, which it disregarded.

(1) ECLI:EU:T:2019:27.
Appeal brought on 19 February 2019 by BTB Holding Investments SA and Duferco Participations Holding SA against the judgment of the General Court (First Chamber) delivered on 11 December 2018 in Case T-100/17, BTB Holding Investments SA and Duferco Participations Holding SA v Commission

(Case C-148/19 P)

(2019/C 182/22)

Language of the case: French

Parties

Appellants: BTB Holding Investments SA, Duferco Participations Holding SA (represented by: J.-F. Bellis, R. Luff, M. Favart, Q. Declève, avocats)

Other parties to the proceedings: European Commission, Foreign Strategic Investments Holding (FSIH)

Form of order sought

The appellants submit that the Court should:

— Set aside the judgment of the General Court of 11 December 2018, BTB Holding Investments and Duferco Participations Holding v Commission (T-100/17);

— Refer the case back to the General Court;

— Order the defendant to pay the costs of these proceedings and the costs of the proceedings before the General Court.

Grounds of appeal and main arguments

By their appeal against judgment T-100/17, the appellants submit that, in the judgment under appeal, the General Court infringed their right to a fair hearing when it stated that, ‘in order to establish that the Commission made a manifest error in the [complex economic] assessment of the facts justifying the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the assessment of the facts in the decision at issue implausible’. The appellants submit that, in particular, the General Court infringed the principles relating to the burden of proof and the principle of equality of arms.
2.

In a context where, when being granted a loan in a foreign currency, the consumer was not given calculations/estimates relating to the economic impact that any exchange rate fluctuation would have as regards the overall payment obligations arising under the agreement, can it reasonably be maintained that such a term, under which the exchange risk is borne entirely by the consumer (in accordance with the nominalist principle) is clear and intelligible and that the seller or supplier/bank has complied in good faith with the obligation to provide information to the other party to the agreement, in circumstances in which the maximum degree of indebtedness of consumers established by the Banca Națională a României (National Bank of Romania) has been calculated by reference to the exchange rate prevailing on the date when the loan was granted?
Action brought on 26 March 2019 — European Commission v Ireland

(Case C-257/19)

(2019/C 206/36)

Language of the case: English

Parties

Applicant: European Commission (represented by: S. L. Kalėda, N. Yerrell, Agents)

Defendant: Ireland

The applicant claims that the Court should:

— declare that by failing to provide for an investigative body which is independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it, Ireland has failed to fulfil its obligations under Article 8(1) of Directive 2009/18/EC (1) of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council;

— order Ireland to pay the costs.

Pleas in law and main arguments

According to Article 8(1) of Directive 2009/18/EC, Member States must ensure that safety investigations into very serious marine casualties are conducted under the responsibility of an impartial permanent investigative body. In order to carry out a safety investigation in an unbiased manner, Article 8(1) requires the investigative body to be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it.

The Commission considers that this requirement is not satisfied by the Marine Casualty Investigation Board set up by Ireland, on the grounds that two of its five members also have general regulatory and enforcement responsibilities in relation to the maritime safety of vessels flying the Irish flag and safety inspections in Irish waters.

(1) OJ 2009, L 131, p. 114.
3.

Does the principle of the primacy of European law, as enshrined in the judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, and by subsequent settled case-law of the Court of Justice, preclude national legislation which allows a politico-judicial institution, such as the Curtea Constituțională a României (Romanian Constitutional Court), to infringe the aforementioned principle by means of decisions which are not open to appeal?
2.

If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention, as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, while seeking information concerning contracts and the associated invoices and payments which are unspecified but which are defined by criteria concerning, first, the fact that the contracts were concluded by the identified holder of the information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their relationship with the identified taxpayer concerned?
3.

If Question 2 is answered in the negative (and there are no concerns in principle against a reference to provisions of national law): Does Article 10(2)(p) of Directive 2008/48 preclude an interpretation to the effect that withdrawal information is ‘clear’ and ‘concise’ if the reference to a provision of national law — in the present case, Paragraph 492(2) of the BGB in the version valid from 30 July 2010 up to 12 June 2014 — and the further reference — in the present case, to Article 247, Paragraphs 3 to 13, of the EGBGB in the version valid from 4 August 2011 up to 12 June 2014 — necessarily mean that the consumer has to carry out a process of legal inference beyond simply reading the provisions — for instance, as to whether the loan was granted to him under conditions customary for contracts secured by mortgage and the interim financing thereof or whether linked agreements exist — so that he can gain clarity as to what mandatory information must be provided in order for the period of withdrawal to start to run in the case of his loan agreement?
Appeal brought on 1 May 2019 by Région de Bruxelles-Capitale against the order of the General Court (Fifth Chamber) delivered on 28 February 2019 in Case T-178/18 Région de Bruxelles-Capitale v Commission

(C-352/19 P)

(2019/C 220/32)

Language of the case: French

Parties

Appellant: Région de Bruxelles-Capitale (Brussels, Belgium) (represented by: A. Bailleux, lawyer)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the order of 28 February 2019 (T-178/18);

— Rule on the admissibility of the action for annulment brought by the Région de Bruxelles-Capitale against Commission Implementing Regulation (EU) 2017/2324 of 12 December 2017 renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (1), and, as to the remainder, refer the case back to the General Court;

— Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

By the contested order, the General Court declared the action brought by the Région de Bruxelles-Capitale inadmissible on the ground of lack of interest in bringing proceedings. More specifically, the Court held that the Région de Bruxelles-Capitale was not directly concerned by the contested regulation, within the meaning of Article 263(4) TFEU.

In support of its appeal, the Région de Bruxelles-Capitale raises a single plea in law which is divided into two parts.

First, the Court’s refusal to examine the conditions for admissibility of the action in the light of Article 9 of the Aarhus Convention was based on an incorrect interpretation of Articles 2(4) and 9 of that Convention and is inadequately reasoned.

Secondly, the General Court’s finding that the applicant has not been directly affected results from insufficient reasoning and failure to comply with Article 263(4) TFEU and Articles 20(2), 32(1), 36(3), 41(1), 43(5) and 43(6) of Regulation 1107/2009.

In the second part of its application, developed in the event that the Court grants the application for annulment of the contested order and decides to rule itself on the admissibility of the appeal, the Région de Bruxelles-Capitale sets out the grounds on which its appeal must be declared admissible in so far as it satisfies the conditions of Article 263(4) TFEU.

(1) OJ 2017 L 333, p. 10.
Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 11 March 2019 — Promociones Oliva Park, S.L. v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana

(Case C-220/19)

(2019/C 213/06)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Valenciana

Parties to the main proceedings

Applicant: Promociones Oliva Park, S.L.

Defendant: Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana

Questions referred

1. Should Article 1(2) of Directive 2008/118/EC (1) be interpreted as precluding and being incompatible with a tax such as the IVPEE (tax on the value of electricity production), which is nominally a direct tax but which, having regard to its true nature, is actually an indirect, purely revenue-raising, tax without a specific purpose, given that the classification of the tax under national law cannot override the interpretation provided by EU law, which is governed by the objectives of EU law and reflects the objective characteristics of the tax in question?

2. In spite of the fact that it is classed as an environmental tax, is the fundamental aim of the IVPEE to raise revenue, in that activities involving the production of electricity and its incorporation into the electricity system are taxed in the same way, regardless of their intensity and environmental impact, in breach of Article 1, Article 3(1) and (2) and Article 3(3)(a) as read with Article 2(k) of Directive 2009/28/EC? (2)

3. Should the principle of free competition and promotion of energy from renewable sources be interpreted as precluding the IVPEE, since it applies the same fiscal treatment to energy from non-renewable and from renewable sources, thus discriminating against the latter and breaching the support scheme established in Article 2(k) and related provisions of Directive 2009/28/EC?

4. Finally, do the aforementioned principle of free competition and Articles 32, 33 and 34 of Directive 2009/72/EC (3) (CHAPTER VIII, ORGANISATION OF ACCESS TO THE SYSTEM) preclude the IVPEE, on the grounds that it permits positive discrimination in favour of non-national electricity producers, to the detriment of Spanish producers, thereby distorting the internal electricity market and access to the system?

(1) Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

(2) 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).

(3) Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).
—

First, the Commission submits that the General Court erred in finding that the examination to determine whether a particular tax regime confers an advantage on its beneficiaries requires not only an analysis of the inherent and well established criteria of the regime being examined, which may place the beneficiaries in a more favourable position in comparison with other undertakings subject to the general regime, but also that that assessment also requires the analysis of unfavourable elements caused by variable circumstances outside the regime in each tax year, even when those unfavourable elements are uncertain and cannot systematically negate the advantage and that, furthermore, they cannot be foreseen in an ex ante review of the regime.
1)

Is a person (‘P’) who is in physical possession of excise goods at a point when those goods become chargeable to excise duty in Member State B, liable for that excise duty pursuant to Article 33(3) of Directive 2008/118/EC (1) in circumstances where that person: a) had no legal or beneficial interest in the excise goods; b) was transporting the excise goods, for a fee, on behalf of others between Member State A and Member State B; and c) knew that the goods he was in possession of were excise goods but did not know and did not have reason to suspect that the goods had become chargeable to excise duty in Member State B at or prior to the time that they became so chargeable?