ddrg/super_eurlex huggingface dataset:
Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 14 August 2018 — GN, represented by the father HM v ZU, acting as administrator in the insolvency of Niki Luftfahrt GmbH

(Case C-532/18)

(2018/C 427/13)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: GN, represented by the father HM

Defendant: ZU, acting as administrator in the insolvency of Niki Luftfahrt GmbH

Questions referred

Where a cup of hot coffee, which is located on the shelf of the seat in front of a person in an aircraft in flight, for unknown reasons slides and tips over, causing a passenger to suffer scalding, does this constitute an ‘accident’ triggering a carrier’s liability within the meaning of Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed on 9 December 1999 by the European Community on the basis of Article 300(2) EC and approved on behalf of the European Community by Council Decision 2001/539/EC (1) of 5 April 2001 (Montreal Convention, MC)?

(1) Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38).
—

rule definitively, in accordance with Article 61 of the Statute of the Court of Justice and, on that basis, annul the decision (1) in so far as it concerns appellant and, in the exercise of its unlimited jurisdiction, reduce the fine imposed on appellant;
Appeal brought on 21 September 2018 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 13 July 2018 in Case T-680/13: Dr. K. Chrysostomides & Co. LLC and Others v Council of the European Union and Others

(Case C-597/18 P)

(2018/C 427/32)

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: A. de Gregorio Merino, E. Chatziioakeimidou, I. Gurov, Agents)

Other parties to the proceedings: Dr. K. Chrysostomides & Co. LLC and Others, European Commission, European Central Bank, Euro Group, represented by the Council of the European Union, European Union, represented by the European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the parts of the contested judgments in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group;

— and order the respondents to pay the costs of the appeal.

Pleas in law and main arguments

The appeal of the Council seeks to set aside the parts of the contested judgment in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group and is based on the following grounds:

— the General Court has erred in law in deciding that the Euro Group is a ‘body of the Union formally established by the Treaties’;

— the General Court has erred in law in dismissing the plea of inadmissibility of the Council while failing to identify any ‘powers’ conferred on the Euro Group by the Treaties;
Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 October 2018 — AR v Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

(Case C-622/18)

(2018/C 436/43)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: AR

Defendants: Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

Question referred

Must Article 5(1)(b) and Articles 10 and 12 of Directive 2008/95 EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (1) be interpreted as meaning that a proprietor which has never exploited its trade mark and whose rights over it were revoked on expiry of the period of five years following publication of its registration can obtain compensation for injury caused by infringement, claiming an adverse effect on the essential function of its trade mark, caused by use by a third party, before the effective date of the revocation, of a sign similar to that trade mark to designate goods or services identical or similar to those for which that trade mark was registered?

(1) OJ 2008 L 299, p. 25.
Action brought on 5 October 2018 — European Commission v Republic of Slovenia

(Case C-628/18)

(2018/C 427/41)

Language of the case: Slovene

Parties

Applicant: European Commission (represented by: T. Scharf, G. von Rintelen and B. Rous Demiri)

Defendant: Republic of Slovenia

Form of order sought

The Commission claims that the Court should:

— declare that, by not having adopted (all) of the laws, regulations and administrative provisions necessary to ensure compliance with Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, and with Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 amending Directive 2014/65/EU on markets in financial instruments, or by not having notified the Commission of the adoption of such provisions, the Republic of Slovenia has failed to fulfil its obligations under Article 93 of Directive 2014/65/EU, as amended by Article 1 of Directive (EU) 2016/1034;

— order the Republic of Slovenia, pursuant to Article 260(3) TFEU, to pay a per diem penalty payment of EUR 7 224 from delivery of the judgment in the present case, for failure to fulfil its obligation to notify the measures transposing Directives 2014/65/EU and 2016/1034/EU;

— order the Republic of Slovenia, pursuant to Article 260(3) TFEU, to pay a per diem lump sum of EUR 1 978 multiplied by the number of days for which the infringement has persisted, for a minimum lump sum payment of EUR 496 000; and

— order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

Pursuant to Article 93 of Directive 2014/65/EU, as amended by Article 1 of Directive 2016/1034/EU, the Member States were required to adopt and publish, by 3 July 2017, the provisions necessary to ensure compliance with the aforementioned directive and forthwith to communicate those provisions to the Commission. As the Republic of Slovenia did not, within that deadline, communicate to the Commission the measures transposing those directives, the Commission has decided to bring an action before the Court of Justice.

By its action, the Commission claims that the Court should order the Republic of Slovenia to pay a lump sum and a per diem penalty payment.

The period for transposing the directive expired on 3 July 2017.
Action brought on 11 October 2018 — European Commission v Federal Republic of Germany

(Case C-635/18)

(2018/C 436/45)

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes und A.C. Becker, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The Commission claims that the Court should:

— declare that, since 2010, the Federal Republic of Germany has breached its obligations under Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50/EC (1) by systematically and continuously exceeding the annual limit value for nitrogen dioxide (NO2) in 26 zones of air quality assessment and management (DEZBXX0001A agglomeration of Berlin, DEZCXX0007A agglomeration of Stuttgart, DEZCXX0043S district of Tübingen, DEZCXX0063S district of Stuttgart, DEZCXX0004A agglomeration of Freiburg, DEZCXX0041S district of Karlsruhe (without agglomerations), DEZCXX0006A agglomeration of Mannheim/Heidelberg, DEZDXX0001A agglomeration of Munich, DEZDXX0003A agglomeration of Nuremberg/Fürth/Erlangen, DEZFXX0005S zone III Central and Northern Hesse, DEZFXX0001A agglomeration I (Rhine-Main), DEZFXX0002A agglomeration II (Kassel), DEZGLX0001A agglomeration of Hamburg, DEZJXX0015A Grevenbroich (Rhineland lignite mining area), DEZJXX0004A Cologne, DEZJXX0009A Düsseldorf, DEZJXX0006A Essen, DEZJXX0017A Duisburg, Oberhausen, Mülheim, DEZJXX0005A Hagen, DEZJXX0008A Dortmund, DEZJXX0002A Wuppertal, DEZJXX0011A Aachen, DEZJXX0016S urban and rural areas in North Rhine-Westphalia, DEZKXX0006S Mainz, DEZKXX0007S Worms/Frankenthal/Ludwigshafen, DEZKXX0004S Koblenz/Neuwied) and the hourly limit value for NO2 in two of those zones (DEZCXX0007A agglomeration of Stuttgart, DEZFXX0001A agglomeration I (Rhine-Main));

— declare that, since 11 June 2010, the Federal Republic of Germany has failed to fulfil its obligations under the second and third subparagraphs of Article 23(1) of, in conjunction with Section A of Annex XV to, the same directive and in particular the obligation to keep the exceedance period as short as possible in the 26 zones in question;

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

Pleas in law and main arguments

Since 2010, the Federal Republic of Germany has systematically and continuously exceeded the annual and hourly NO2 limit values set out in Annex XI in 26 and 2 areas respectively, and has thereby infringed Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe.

Contrary to the second and third subparagraphs of Article 23(1) of, in conjunction with Annex XV to, the directive, since 11 June 2010, the Federal Republic of Germany has failed to adopt measures in the air quality plans of the 26 zones in question which would be appropriate to keep the exceedance period as short as possible. The inappropriateness of the measures results from, inter alia, the duration, trend and severity of the exceedances of the limit values and the examination of the air quality plans established for the zones in question.

(1) OJ 2008 L 152, p. 1.
1.

Is Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) (1) applicable to the third-party effects of multiple assignments of claims?
Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 8 October 2018 — EN, FM, GL v Ryanair Designated Activity Company

(Case C-629/18)

(2018/C 455/34)

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Applicants: EN, FM, GL

Defendant: Ryanair Designated Activity Company

Question referred

Does Article 25 of Regulation (EU) No 1215/2012 (1) of the European Parliament and of the Council allow jurisdiction to be established on the basis of an agreement, concluded before a dispute arises, with regard to the examination of claims based on Regulation (EC) No 261/2004 (2) of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91?

(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ.2012 L 351, p. 1).

(2) OJ 2004 L 46, p. 1.
Appeal brought on 13 August 2018 by Outsource Professional Services Ltd against the judgment of the General Court (Seventh Chamber) delivered on 31 May 2018 in Case T-340/16: Flatworld Solutions Pvt Ltd v European Union Intellectual Property Office

(Case C-528/18 P)

(2018/C 445/05)

Language of the case: English

Parties

Appellant: Outsource Professional Services Ltd (represented by: A. Kempter, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office, Flatworld Solutions Pvt. Ltd

Form of order sought

The appellant claims that the Court should:

— annul the judgement of the General Court (Seventh Chamber) of 31 May 2018 in Case T-340/16;

— confirm the decision of the Fourth board of Appeal of EUIPO of 15 April 2016 in case number R 611/2015-4;

— order Flatworld Solutions Pvt. Ltd to pay the costs including the costs necessarily incurred by the EUTM owner/successor/appellant.

Pleas in law and main arguments

The appeal is based on the infringement of Union Law by the General Court, namely Article 52(1)b of Council Regulation 207/2009 (1) on the Community trade mark, last amended by Council Regulation 2015/2424 (2).

The General Court erred in law by finding that the EUTM owner/predecessor was acting in bad faith when it filed an application to register the trade mark No 006035547. The General Court misinterpreted the concept of bad faith. There is nothing dishonest or unethical about using descriptive wording to describe a business. Hence the registration as a trademark was not in bad faith.

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

(2) Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015, L 341, p. 21).
Official Journal of the European Union

Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 19 October 2018 — F. v Koninklijke Luchtvaart Maatschappij NV

(Case C-656/18)

(2019/C 16/37)

Language of the case: German

Referring court

Amtsgericht Erding

Parties to the main proceedings

Applicant: F.

Defendant: Koninklijke Luchtvaart Maatschappij NV

The case was removed from the Register of the Court of Justice by order of the Court of 7 November 2018.
2.

In its assessment of ‘genuine use’ referred to in Article 42(2) and (3) of Regulation No 207/2009, the General Court finds it to be decisive that, when compared with the turnover figures included in the affidavit submitted, the turnover figures used for the purposes of calculations were too low. However, the General Court ought at most to have taken into account the objective production and sales capacities for that sector. The current, subjective circumstances of a particular undertaking should be irrelevant for the purposes of establishing use. Further, the use of a particular mark can be classified as genuine even where it is insignificant in quantitative terms, as there are no absolute minimum levels. It is not appropriate to carry out an assessment of the business strategy and of the commercial success of the goods in question. All that is relevant is whether the use is purely symbolic.
3.

Does the CIR constitute a breach of the principal of sincere co-operation set out in Article 4(3) of the Treaty on European Union in circumstances where: a) the European Commission must respect the decisions of national courts, but must also promote the uniform (and correct) application of the Customs Code and CN; b) the United Kingdom Supreme Court came to the unanimous conclusion that the MBs are properly to be classified under Chapter 90 of the CN with tariff heading 9021; and c) the Supreme Court's decision was put before the European Commission and submitted by it to all EU Member States along with a summary of the Supreme Court's reasoning?
1.

Is the rule of the presumption of innocence — enshrined in Articles 3 and 4, read in conjunction with recital 16, of Directive (EU) 2016/343 (1) of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings — observed where a co-defendant in joint criminal proceedings, on the basis of the indictment and after the commencement of the main hearing, denies participation in the act or acts alleged against him, declaring himself to be innocent, and, subsequently, the court, by means of an order which contains no description of the act or its legal qualification or any assessment on the court’s part, decides to accept the declaration of another co-defendant that he is guilty of committing one or more of the acts described in the indictment, thus waiving his right to the taking of evidence regarding his guilt, and, subsequently, after the taking of evidence at the main hearing, the court reaches its decision on the indictment in a joint judgment? 1.1 Where the decision of a court to accept the declaration of guilt of one co-defendant denotes another co-defendant — who has denied guilt — as being guilty, before evidence is taken which proves him to be guilty, is that manner of proceeding in accordance with Article 48 of the Charter of Fundamental Rights of the European Union?
1.

Is Article 3(2) of Regulation (EC) No 1013/2006, (1) according to which shipments of the following wastes destined for recovery are to be subject to the general information requirements laid down in Article 18, if the amount of waste shipped exceeds 20 kg: (a) waste listed in Annex III or IIIB; (b) mixtures, not classified under one single entry in Annex III, of two or more wastes listed in Annex III, provided that the composition of these mixtures does not impair their environmentally sound recovery and provided that such mixtures are listed in Annex IIIA, in accordance with Article 58, to be interpreted as meaning that mixtures of paper, paperboard and paper product wastes, which — being composed in such a way that the fractions of the waste considered individually — come within the first three indents of entry B3020 of Annex IX to the Basel Convention, and which also contain up to 10 % impurities, come under Basel Code B3020 and are accordingly subject to the general information requirements laid down in Article 18, and not to the notification requirement under Article 4? If Question 1 is answered in the negative:
1.

When assessing the question of whether use is genuine in terms of nature and extent within the meaning of Article 12(1) of Directive 2008/95/EC (1) in the case of a trade mark which is registered in respect of a broad category of goods, in this case land vehicles, in particular motor cars and parts thereof, but is actually only used in respect of a particular market segment, in this case high-priced luxury sports cars and parts thereof, is account to be taken of the market for the registered category of goods overall or may account be taken of the particular market segment? If the use in respect of the particular market segment is sufficient, is the trade mark to be maintained in relation to that market segment in cancellation proceedings due to revocation?
4.

Should Articles 2, 9 and 11 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter of Fundamental Rights, be interpreted as meaning that in the case of discrimination on grounds of age of the judges of the court of final instance in a Member State, consisting in the lowering of the retirement age from the current 70 years to 65 years, that court — adjudicating in any case with the participation of a judge affected by the effects of such discriminatory national provisions who has not expressed a willingness to take advantage of the new retirement age — is required, when deciding the preliminary issue of the composition of the court, to refuse to apply national provisions that are contrary to Directive 2000/78 and Article 21 of the Charter of Fundamental Rights and to continue to adjudicate with the participation of that judge where that is the only effective means of ensuring effective judicial protection of the rights of judges under EU law?
Official Journal of the European Union

Appeal brought on 21 June 2018 by Senetic S.A. against the judgment of the General Court (Second Chamber) delivered on 24 April 2018 in Case T-208/17: Senetic v EUIPO

(Case C-409/18 P)

(2019/C 65/27)

Language of the case: English

Parties

Appellant: Senetic S.A. (represented by: M. Krekora, adwokat)

Other parties to the proceedings: European Union Intellectual Property Office, HP Hewlett Packard Group LLC

By order of 13 December 2018 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.
—

dismiss the application for annulment brought by the respondent to the appeal before the General Court of the European Union and give a final ruling on the questions which form the subject-matter of the present appeal or, if the state of the proceedings does not permit judgment to be given by the Court, refer the case back to the General Court for judgment;
1.

The General Court erred in considering that the Board of Appeal was correct to transpose the conclusions from the General Court’s earlier HELLIM and XAΛΛOYMI and HALLOUMI judgments to the present case. Those cases were not concerned with certification marks but different kinds of marks, namely collective and ordinary EU trade marks respectively. The essential function of such marks is to act as an indication of the commercial origin of the goods (a plurality of traders linked by membership of an association in the case of a collective mark). Certification marks, by contrast, do not have the essential function of indicating origin, but of distinguishing a class of goods, namely goods which are certified in that they in fact comply with and have been authorised to be made under the regulations for permitted use of the HALLOUMI certification mark. Moreover the relevant public in those earlier General Court judgments was different to the relevant public in the present case.