ddrg/super_eurlex huggingface dataset:
Case C-655/17 P: Appeal brought on 24 November 2017 by Berliner Stadtwerke GmbH against the order of the General Court (Seventh Chamber) made on 20 September 2017 in Case T-719/16, Berliner Stadtwerke GmbH v European Union Intellectual Property Office

Appeal brought on 24 November 2017 by Berliner Stadtwerke GmbH against the order of the General Court (Seventh Chamber) made on 20 September 2017 in Case T-719/16, Berliner Stadtwerke GmbH v European Union Intellectual Property Office

(Case C-655/17 P)

Parties

Appellant: Berliner Stadtwerke GmbH (represented by: O. Spieker and A. Schönfleisch, Rechtsanwälte)

Other party to the proceedings: European Union Intellectual Property Office

By order of 31 May 2018, the Court of Justice of the European Union (Tenth Chamber) dismissed the appeal as being in part manifestly inadmissible and in part manifestly unfounded and ordered the appellant to bear its own costs.
EN Official Journal of the European Union C 142/20

Appeal brought on 10 December 2017 by BMB sp. z o.o. against the judgment of the General Court (First Chamber) delivered on 3 October 2017 in Case T-695/15: BMB sp. z o.o. v European Union Intellectual Property Office

(Case C-693/17 P)

(2018/C 142/27)

Language of the case: English

Parties

Appellant: BMB sp. z o.o. (represented by: K. Czubkowski, radca prawny)

Other parties to the proceedings: European Union Intellectual Property Office, Ferrero SpA

Form of order sought

The appellant claims that the Court should:

— set aside the Judgment of the General Court (First Chamber) of 3 September 2017 in Case T-695/15 served on the appellant on 11 October 2017; and

— set aside the decision of the Third Board of Appeal of EUIPO of 8 September 2015 in Case R 1150/2012-3;

Alternatively the Court of Justice shall set aside the judgment and refer the case back to the General Court if the state of proceedings does not permit a decision by the Court of Justice.

According to article 138(1) of the Rules the Court of Justice should also:

— order Ferrero Spa and EUIPO to pay the costs of the present appeal; and

— order Ferrero Spa and EUIPO to pay the costs incurred by the appellant before the General Court; and

— order Ferrero Spa to pay the costs of proceedings before EUIPO concerning Decision.

Pleas in law and main arguments

In support of the appeal, the appellant relies on 2 pleas in law.

First plea in law, alleging infringement of Article 25(l)(e) of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Design (1) due to error of law and manifest error in assessment:

i. that the graphical representation of the earlier trade mark is included in the contested design;

ii. that the earlier trade mark and contested design are highly similar; and

iii. that the Board of Appeal committed no error when it held that there is a likelihood of confusion between earlier trade mark and contested design.

Second plea in law, alleging infringement of Article 25(l)(e) of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Design in connection with the general principles of sound administration and the protection of legitimate expectations due to an error of law and manifest error in assessment that reference made by the Board of Appeal to Article 8(l)(b) of Regulation No 207/2009 (2) in paragraph 33 of the Decision, is a mere formal error that did not have a decisive effect of the resolution of the dispute, and that it is not necessary to take into consideration national case-law on the IR in the assessment of the likelihood of confusion.

(1) OJ 2002, L 3, p. 1

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009, L 78, p. 1).
Case C-362/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 9 June 2017 — Boris Feuser v TUIfly GmbH

Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 9 June 2017 — Boris Feuser v TUIfly GmbH

(Case C-362/17)

Referring court

Amtsgericht Hannover

Parties to the main proceedings

Applicant: Boris Feuser

Defendant: TUIfly GmbH

By decision of the Court of Justice of 28 May 2018 the case was removed from the Court’s register.
Case C-317/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 30 May 2017 — Gerhard Schneider and Christa Schneider v TUIfly GmbH

Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 30 May 2017 — Gerhard Schneider and Christa Schneider v TUIfly GmbH

(Case C-317/17)

Referring court

Amtsgericht Hannover

Parties to the main proceedings

Applicants: Gerhard Schneider, Christa Schneider

Defendant: TUIfly GmbH

By decision of the Court of Justice of 17 May 2018 the case was removed from the Court’s register.
EN Official Journal of the European Union C 63/10

Appeal brought on 3 January 2018 by the Hellenic Republic against the judgment of the General Court (Seventh Chamber) delivered on 25 October 2017 in Case T-26/16, Hellenic Republic v European Commission

(Case C-6/18 P)

(2018/C 063/14)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: G. Kanellopoulos, Ι. Pachi and A. Vasilopoulou)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that this appeal should be upheld, that the judgment under appeal of the General Court of the European Union of 25 October 2017 in Case Τ-26/16 should be set aside in so far as the General Court thereby dismissed its action, that the action brought by the Hellenic Republic on 22 January 2016 should be upheld, that the decision of the European Commission 2015/2098 of 13 November 2015 (1) should be annulled to the extent to which that decision imposed on the Hellenic Republic, following the IR/2009/004/GR and IR/2009/0017/GR investigations, one-off and flat-rate financial corrections with respect to delays in recovery procedures, non reporting and weaknesses in debt management procedures, to a total amount of EUR 11 534 827,97, and that the Commission should be ordered to pay the costs.

Pleas in law and main arguments

In support of its appeal, the appellant relies on two grounds of appeal.

The first ground of appeal, with reference to the part of the Decision whereby the Commission imposed a flat-rate financial correction on the Hellenic Republic, is based on a claim that the General Court misinterpreted and misapplied Articles 31 and 32-33 of Regulation No 1290/2005, (2) erred in law, with respect to the application of the guidelines in Commission Document 5330/1997 for the application of flat-rate corrections in the case of Article 32(4) of Regulation 1290/2005, infringed the principle of legal certainty, and failed to state sufficient reasons in the judgment under appeal.

The second ground of appeal, with reference to the part of the Decision whereby the Commission imposed a one-off correction, is based on a claim that the General Court in the judgment under appeal misinterpreted and misapplied Articles 32(4) and 49 of Regulation No 1290/2005, disregarded the principles of non-retroactivity and legal certainty, and stated contradictory and insufficient reasons in that judgment.

(1) Commission Implementing Decision (EU) 2015/2098 of 13 November 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2015) 7716) ( OJ 2015 L 303, p. 35).

(2) Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy ( OJ 2005 L 209, p. 1).
EN Official Journal of the European Union C 112/21

Request for a preliminary ruling from the Okrazhen sad Blagoevgrad (Bulgaria) lodged on 16 January 2018 — Bryan Andrew Ker v Pavlo Postnov, Natalia Postnova

(Case C-25/18)

(2018/C 112/28)

Language of the case: Bulgarian

Referring court

Okrazhen sad Blagoevgrad

Parties to the main proceedings

Appellant: Bryan Andrew Ker

Respondents: Pavlo Postnov, Natalia Postnova

Questions referred

1. Do the decisions of unincorporated associations created by operation of law due to the special ownership of a right, which are taken by a majority of their members but which bind all of them, including those who did not cast a vote, form the basis of a ‘contractual obligation’ for the purposes of determining international jurisdiction pursuant to Article 7(1)(a) of Regulation (EU) No 1215/2012? (1)

2. If the first question is answered in the negative: Are the rules on determining the applicable law for contractual relationships under Regulation (EC) No 593/2008 (2) of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) applicable to such decisions?

3. If the first and the second questions are answered in the negative: Are the provisions of Regulation (EC) No 864/2007 (3) of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) applicable to such decisions, and which of the non-contractual bases of liability referred to in that regulation is relevant here?

4. If the first or second question is answered in the affirmative: Should the decisions of unincorporated associations regarding expenditure for building maintenance be regarded as constituting a ‘contract for the provision of services’ within the meaning of Article 4(1)(b) 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) or as a contract relating to a ‘right in rem’ or a ‘tenancy’ within the meaning of Article 4(1)(c) of that regulation?

(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) 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) (OJ 2008 L 177, p. 6).

(3) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40).
EN Official Journal of the European Union C 94/15

Action brought on 30 January 2018 — Italian Republic v Council of the European Union

(Case C-59/18)

(2018/C 094/18)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, S. Fiorentino and C. Colelli, avvocati dello Stato)

Defendant: Council of the European Union

Form of order sought

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

— annul the decision adopted in the margins of the meeting of 20 November 2017 — 14559/17 of the Council of the European Union in its General Affairs formation, published by means of the press release containing the report [Outcome of the Council meeting (3579th Council meeting)], in so far as it established that Amsterdam would be the new seat of the European Medicines Agency, and, consequently, allocate that seat to the city of Milan.

Pleas in law and main arguments

The Italian Government has brought an action before the Court of Justice of the European Union against the decision, adopted in the margins of the meeting of 20 November 2017 — 14559/17 of the Council of the European Union in its General Affairs formation, published by means of the press release containing the report [Outcome of the Council meeting (3579th Council meeting)], in so far as it established that the new seat of the European Medicines Agency would be Amsterdam. In support of its action the Italian Government has put forward a single plea in law, alleging misuse of powers through failure to investigate adequately and distortion of facts, since there is inconsistency between the factual situation of the location of Amsterdam and the information provided in the bid.
2.

If question 1 is answered in the affirmative, with the result that the attachment requirement is generally deemed to be suitable for ensuring attainment of the integration objective, is it then possible, without infringing the restriction test and the requirement of proportionality: (i) to apply a practice under which, when the spouse with the residence permit in the Member State (the reference person) first came to Denmark at the age of 12-13 or later, in the assessment of the reference person’s attachment to the Member State significant weight is attached to the following: whether the person either has had a long-term lawful period of residence of around 12 years in the Member State or has had a period of residence and stable employment in the Member State involving a significant degree of contact and communication with colleagues and any customers in the Member State’s language, and which has continued without significant interruptions for at least four to five years, or has had a period of residence and stable employment not involving a significant degree of contact and communication with colleagues and customers in the Member State’s language, which has continued without significant interruptions for at least seven to eight years; (ii) to apply a practice under which it will weigh against fulfilment of the attachment requirement where the reference person has maintained a significant attachment to their home country by making frequent or long-term visits to the home country, whilst short-term holiday or educational stays will not weigh against granting a permit; (iii) to apply a practice under which it will weigh heavily against fulfilment of the attachment requirement where there is a so-called ‘married, divorced and remarried’ situation?
If Question 1 is to be answered in the affirmative:

Is an undertaking which effects the formal service of documents pursuant to provisions of public law a ‘universal service provider’, within the meaning of Article 2.13 of Directive 97/67/EC of 15 December 1997, providing a universal postal service in whole or in part, and is such service exempt from tax under Article 132(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (2)
EN Official Journal of the European Union C 152/14

Reference for a preliminary ruling from the Court of Appeal in Northern Ireland (United Kingdom) made on 9 February 2018 — Ermira Bajratari v Secretary of State for the Home Department

(Case C-93/18)

(2018/C 152/16)

Language of the case: English

Referring court

Court of Appeal in Northern Ireland

Parties to the main proceedings

Applicant: Ermira Bajratari

Defendant: Secretary of State for the Home Department

Questions referred

1. Can income from employment that is unlawful under national law establish, in whole or in part, the availability of sufficient resources under Article 7(1)(b) of the Citizens Directive (1)?

2. If ‘yes’, can Article 7(1) (b) be satisfied where the employment is deemed precarious solely by reason of its unlawful character?

(1) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004, L 158, p. 77).
EN Official Journal of the European Union C 142/21

Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain) lodged on 3 January 2018 — Modesto Jardón Lama v Instituto Nacional de la Seguridad Social, Tesorería General de la Seguridad Social

(Case C-7/18)

(2018/C 142/29)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Galicia

Parties to the main proceedings

Appellant: Modesto Jardón Lama

Respondents: Instituto Nacional de la Seguridad Social, Tesorería General de la Seguridad Social

Question referred

Must Article 48 TFEU be interpreted as meaning that it precludes national legislation which requires as a condition for access to an early retirement pension that the amount of the pension to be received must be higher than the minimum pension which would be due to the person concerned under that same national legislation, the term ‘pension to be received’ being interpreted as the actual pension from the competent Member State (in this case, Spain) alone, without also taking into account the actual pension which that person may receive through another benefit of the same kind from one or more other Member States?
EN Official Journal of the European Union C 152/22

Action brought on 12 March 2018 — European Commission v Republic of Slovenia

(Case C-188/18)

(2018/C 152/27)

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by: P. Ondrůšek, G. von Rintelen, M. Žebre)

Defendant: Republic of Slovenia

Form of order sought

The applicant claims that the Court should:

— declare that, by not having adopted the laws, regulations and administrative provisions necessary to comply with Directive 2014/23/EU of the European Parliament and the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) by 18 April 2016 or, in any event, by not having communicated those provisions to the Commission, the Republic of Slovenia has failed to fulfil its obligations under Article 51 of that directive;

— order the Republic of Slovenia to pay a penalty payment, under Article 260(3) TFEU, in the sum of EUR 8 992,32 per day, as from the day of delivery of the Court’s judgment in the present case;

— order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

In accordance with Article 51 of Directive 2014/23/EU of the European Parliament and the Council of 26 February 2014 on the award of concession contracts, the Republic of Slovenia should have adopted and communicated the laws, regulations and administrative provisions necessary to comply with that directive by 18 April 2016. Since the Republic of Slovenia did not notify the Commission, before the expiry of that deadline, that it has transposed all the provisions of that directive, the Commission decided to refer the case to the Court.

By its action, the Commission asks the Court to order the Republic of Slovenia to pay a penalty of EUR 8 992,32 per day. In calculating that amount, the Commission took into consideration the seriousness and the duration of the infringement of EU law, as well as the deterrent effect in relation to the ability of the Member State concerned, namely the Republic of Slovenia, to pay.

The deadline for the transposition of the Directive expired on 18 April 2016.
2.

If the answer to the question above is negative, does Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, preclude an interpretation that includes in the compulsory insurance cover the damage caused by a fire in a vehicle when the fire cannot be linked to previous motion, in such a way that no connection with a journey can be discerned?
2.

Must Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 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, be interpreted as meaning that an event such as that at issue in the present proceedings, that is to say, the spillage of petrol on a runway which caused that runway to be closed, must be found to be an event inherent in the normal exercise of the activity of an air carrier and, accordingly, cannot be classified as an ‘extraordinary circumstance’ capable of exonerating the air carrier from its obligation to compensate passengers in the case where a flight operated by that carrier is subjected to a significant delay?
1.

Must paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95, (1) read in conjunction with Article 141 of Regulation (EC) No 1234/2007, (2) be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the cif import price reported is correct and could constitute grounds for a supplementary inspection? Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the Community market at a price below the reported cif import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the Community market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies?
1.

Can Article 12(1) of Framework Decision 2006/783/JHA (1) be interpreted as meaning that, when a confiscation order transferred by an issuing State is executed in the Netherlands, a term of imprisonment pending payment as referred to in Article 577c of the Netherlands Code of Criminal Procedure may be applied, having regard to, inter alia, the decision of the Hoge Raad of 20 December 2011 (2) to the effect that a term of imprisonment pending payment must be deemed to be a penalty within the meaning of Article 7(1) of the ECHR?
EN Official Journal of the European Union C 190/11

Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) — lodged on 19 March 2018 — Raúl Vítor Soares de Sousa v Autoridade Tributária e Aduaneira

(Case C-196/18)

(2018/C 190/14)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Raúl Vítor Soares de Sousa

Defendant: Autoridade Tributária e Aduaneira

Question referred

Does EU law, and Article 110 TFEU in particular, preclude a tax provision such as Article 2(1)(a) and (b) of the URT [(Unitary Road Tax)] Code from imposing a higher tax charge on vehicles of the same make, model, fuel type and age on the ground that they were first registered in other Member States?
1.

Is Article 1(1) of Council Directive 2001/23/EC (1) to be interpreted as meaning that a transfer, such as that which took place in the circumstances of the present case, relating to financial instruments and other client assets (specifically, transferable securities), the accounts relating to clients’ intangible debt securities and other financial and ancillary services, as well as the records, must be deemed to be a legal transfer of an undertaking or of part of an undertaking, bearing in mind that, after the first respondent ceased to engage in business as a stock-exchange intermediary, the decision whether provision of such services was to be entrusted to the second defendant was, ultimately, a matter for the clients?