ddrg/super_eurlex huggingface dataset:
Appeal brought on 21 February 2019 by Razan Othman against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-416/16 Othman v Council

(Case C-158/19 P)

(2019/C 172/19)

Language of the case: French

Parties

Appellant: Razan Othman (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-416/16, Othman 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 his 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 his action for annulment to demonstrate that he 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).
First, the General Court erred in law by concluding the Commission has jurisdiction to address a decision under Art. 101(1) TFEU to Unichem since:

The General Court misapplied the legal test for determining a single economic entity; and

The General Court wrongly held that Unichem was directly liable as co-signatory of the settlement agreement.
—

Set aside the Order of 13 December 2018 of the General Court in Case T-890/16 to the extent that it contradicts the General Court’s judgment in Case T-630/15 as to the nature of the Commission Decision as a confirmatory measure regarding the additional construction measures.
If Question 1 is to be answered in the affirmative:

Is Article 9(1) of Decision 2011/278/EU to be interpreted as meaning that the competent authority of the Member State must itself determine the baseline period from 1 January 2005 to 31 December 2008 or from 1 January 2009 to 31 December 2010 or may the Member State confer on the operator the right to choose the baseline period?
Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 6 February 2019 — San Domenico Vetraria SpA v Agenzia delle Entrate

(Case C-94/19)

(2019/C 182/12)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: San Domenico Vetraria SpA

Respondent: Agenzia delle Entrate

Question referred

Must Articles 2 and 6 of Sixth Council Directive 77/388/EEC of 17 May 1977 (1) and the principal of fiscal neutrality be interpreted as precluding national legislation under which the lending or secondment of staff by a parent company in respect of which the subsidiary merely reimburses the related costs is regarded as irrelevant for value added tax purposes?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).
can the perception of the relevant public also be taken into account?

In other words, can it be taken into account that the relevant public is aware that the shape for which registration is sought is necessary in order to obtain the technical result sought?
Appeal brought on 22 February 2019 by the European External Action Service against the judgment of the General Court (Eighth Chamber) delivered on 13 December 2018 in Case T-537/17 De Loecker v EEAS

(Case C-187/19 P)

(2019/C 187/43)

Language of the case: French

Parties

Appellant: European External Action Service (represented by: S. Marquardt, R. Spac, Agents)

Other party to the proceedings: Stéphane De Loecker

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment under appeal;

— Dismiss the originating application as unfounded as regards the application for annulment of the decision of 10 October 2016 to reject the complaint for psychological harassment lodged against the Chief Operating Officer of the EEAS at the time;

— Order the applicant at first instance to pay the costs.

Pleas in law and main arguments

The appeal is directed against paragraphs 57, 58 and 65 of the judgment under appeal. According to the EEAS, the General Court erred in law in holding, in paragraph 65 of its judgment, that the EEAS had not properly complied with the judgment of 16 December 2015, De Loecker v EEAS (F-34/15) and infringed the applicant’s right to be heard in not hearing him in the context of the analysis prior to the opening of an administrative investigation.

In that context, the EEAS submits that the General Court erred in law in the assessment of the facts of the case, in distorting the procedure followed and in disregarding the fact that the EEAS had heard the applicant in giving him the opportunity to submit any evidence additional to his initial complaint, before submitting the file to the Commission’s services for the purposes of the preliminary investigation.

In addition, the judgment De Loecker v EEAS (F-34/15) was misinterpreted as imposing an obligation on the EEA to hear the applicant already at the preliminary procedure stage (paragraphs 55 to 57 of the judgment under appeal).

Lastly, the EEAS submits that the General Court made an error of assessment as regards the procedure, in applying the conclusions of the judgment of 14 February 2017, Kerstens v Commission (T-270/16 P, cited in paragraph 58 of the judgment under appeal) to the present case. The General Court fails to have regard to the fact that, in the present case, it was a question only of a preliminary analysis, not an administrative investigation.
1.

Is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (1) — in particular Article 15 on ‘Right of access by the data subject’ thereof — applicable to the committee of a parliament of a constituent state of a Member State that is responsible for processing the petitions of citizens — namely the Petitions Committee of the Hesse Land Parliament — and is that committee to be regarded in that connection as a public authority within the meaning of Article 4(7) of the Regulation No 2016/679?
Appeal brought on 3 April 2019 by Andrew Clarke against the order of the General Court (Fifth Chamber) delivered on 25 March 2019 in Case T-731/18: Clarke v Commission

(Case C-284/19 P)

(2019/C 213/12)

Language of the case: English

Parties

Appellant: Andrew Clarke (represented by: E. Lock, Solicitor)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

— remit the application back to the General Court for its consideration taking account of the Court of Justice's findings;

— order that by no later than 12 April 2019 (or such other date to which the Article 50 TFEU period may be extended) a) the General Court addresses that application according to a timetable and a manner such that it is able to give its final judgment thereon; b) as an interim measure, the Commission delivers to the United Kingdom a reasoned opinion setting out its position on the infringements of Union law that can be inferred from its letter to the appellant of 25 October 2018;

— order that the parties have liberty to apply to the General Court for further directions as appropriate;

— order the Commission to pay the appellant's costs.

Plea in law and main arguments

In support of its appeal, the appellant relies on one plea in law:

The General Court in its order dated 25 March 2019 misconstrued what the appellant sought by his application, it has wrongly determined that he has no standing to make his application and that it has no jurisdiction to make the order sought.

The appellant has not requested that the Commission bring infringement proceedings against the United Kingdom (‘UK’). Annulments are requested of two decisions of the Commission, one of which has been erroneously identified by the General Court. In respect thereof, the case law relied upon by the Court either does not support the proposition for which it is cited or is irrelevant. The appellant is entitled to seek annulment of those decisions in so far as they were addressed to him and/or are of direct and individual concern to him. Furthermore, in the alternative, the appellant is entitled to seek an order under Article 265 of TFEU on the basis that the Commission has failed to act in not delivering a reasoned opinion to the UK pursuant to a mandatory obligation to do so under the first part of Article 258 of TFUE given its implicit acceptance by the second of those decisions in moving to consider its discretion under the second part of Article 258 that the UK was infringing Union law. Thus is on the basis that the reasoned opinion should also be addressed to the appellant and/or would be of direct and individual concern to him. The appellant is further entitled to seek an injunctive order and interim measures as regards his application in terms of Article 265 of TFUE.
Action brought on 1 April 2019 — European Commission v United Kingdom of Great Britain and Northern Ireland

(Case C-276/19)

(2019/C 206/40)

Language of the case: English

Parties

Applicant: European Commission (represented by: A. X. P. Lewis, J. Jokubauskaitė, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

— declare that by introducing new simplification measures that extend the zero-rating and the exception to the normal requirement of keeping Value Added Tax records provided for by the original Terminal Markets Order 1973 without applying to the Commission with a view to seek the Council’s authorisation, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 395 (2) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘VAT Directive’);

— order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments

On 28 December 1977, the United Kingdom notified special measures including the Value Added Tax (Terminal Markets) Order 1973 that permits commodity futures to be traded on certain markets in the United Kingdom free of VAT and of the recording requirements of VAT subject to certain conditions.

The Value Added Tax (Terminal Markets) Order 1973 was amended several times to add to its scope a number of commodities markets that were not listed in the original notification.

The Commission claims that the amendments made to the Value Added Tax (Terminal Markets) Order 1973 enlarge the scope of the original derogation that the United Kingdom had notified in 1977. They should consequently have been notified to the Commission pursuant to Article 395 (1) of the VAT Directive but they were not.

(1) OJ 2006, L 347, p. 1.
2.

Should the case-law of the Court of Justice of the European Union be interpreted, taking into account, in particular, the judgments in Almos, (C-337/13), paragraph 23, Di Maura, (C-246/16), paragraphs 20 to 29, and, by analogy, T-2, (C-396/16), paragraphs 31 to 45, as meaning that, as regards the obligation of the Member States, laid down in Article 90(1) of the VAT Directive, to reduce a posteriori the taxable amount, a distinction must be made between total or partial non-payment of the consideration by the purchaser and the situation in which the sum due to the seller has become definitively unrecoverable, so that, in the first situation, the Member State may make use of the exception provided for in Article 90(2), whereas in the second situation use of that exception is precluded and the Member State must, in any event, permit the taxable amount to be reduced a posteriori?
2)

Are the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and the principle of effectiveness at least with regard to a national legal system which, for the purpose of safeguarding the independence and impartiality of the courts in its constitution, establishes a fundamental right to the allocation of cases to judges according to a fixed allocation of cases determined in advance according to general rules to be interpreted as meaning that a judge who has doubts (i) concerning the legality of an intra-court allocation of cases or (ii) concerning the legality of an intra-court decision implementing an intra-court allocation of cases and directly affecting the activity of that judge (in particular an allocation of cases decision) must, with regard to those doubts, be able to lodge an appeal (in particular at no financial cost to that judge) at a different court with full powers to review the legality of the act considered to be unlawful? If not: Are there any other provisions to be guaranteed by the legislature which ensure that a judge is able to attain legal compliance with the statutory provisions concerning him in respect of the observance of the statutory (in particular intra-court) provisions regarding the allocation of cases?
1.

Can Article 35(4) of Directive 2009/72/EC (1) 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 be interpreted, in particular in the light of recital 33 thereof, as precluding, in a Member State, in the context of the amendment of a national measure transposing that directive, the power to nominate and dismiss the chairman of the Regulatory Authority from being withdrawn from the President of the Republic, who is directly elected by the citizens, and conferred instead on the Government, with the result that the legal situation which existed prior to the transposition of the directive is restored?
2.

If the model of the ‘municipality responsible’ in accordance with the cooperation agreement meets the conditions for a transfer of responsibilities: In the event that contracts are awarded after responsibilities have been transferred, is the public entity to which the responsibilities have been transferred the contracting authority and is this public entity entitled, on the basis of the responsibilities transferred to it by the other municipalities, to award contracts for services to one of its related entities without a call for tenders in circumstances where the award of these contracts for services would — without the principle of the ‘municipality responsible’ — have been the responsibility of the municipalities which transferred the responsibility?
Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 19 April 2019 — Ingredion Germany GmbH v Bundesrepublik Deutschland

(Case C-320/19)

(2019/C 246/10)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Ingredion Germany GmbH

Defendant: Bundesrepublik Deutschland

Question referred

Are Article 18(1)(c) and the second subparagraph of Article 18(2) of European Commission Decision 2011/278/EU, (1) in conjunction with Article 3(h) and Article 10a of Directive 2003/87/EC, (2) to be interpreted as meaning that, for new entrants, the capacity utilisation factor relevant for the fuel-related activity level is limited to a value of less than 100 %?

(1) Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

(2) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).
—

declare that, in accordance with Article 258 of the Treaty on the Functioning of the European Union, by not adopting national provisions on the installation of individual measuring devices for the consumption of heating, cooling and hot water in buildings, in accordance with Article 9(3) of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, (1) the Kingdom of Spain has failed to fulfil its obligations under the abovementioned provisions of Directive 2012/27/EU;
Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 15 April 2019 — Consiliul Concurenței v Whiteland Import Export SRL

(Case C-308/19)

(2019/C 263/32)

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

Appellant: Consiliul Concurenței

Respondent: Whiteland Import Export SRL

Question referred

Must Articles 4(3) TEU and 101 TFEU be interpreted as requiring the courts of the Member States to interpret the provisions of national law governing the time-limit on the Competition Authority’s right to impose administrative penalties in accordance with the provisions of Article 25(3) of Regulation (EC) No 1/2003 (1) and as precluding the interpretation of a provision of national law as meaning that an action interrupting the limitation period means only the formal action of initiating the investigation into an anti-competitive practice, without the subsequent actions taken for the purpose of such investigation falling within the same scope of the actions interrupting the limitation period?

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).
Must the term ‘foodstuffs for human consumption’ used in point 1 of Annex III to the 2006 VAT Directive (1) be interpreted as covering, in accordance with Article 2 of Regulation (EC) No 178/2002 (2) of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans?

If this question is answered in the negative, how must that term then be defined?
Action brought on 16 May 2019 — European Commission v Kingdom of Spain

(Case C-384/19)

(2019/C 270/20)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: E. Manhaeve and E. Sanfrutos Cano, Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

— declare that the Kingdom of Spain has failed to fulfil its obligations under Article 7(1) and (5) and Article 15(1) of Directive 2007/60/EC (1) as regards river basin districts ES120 Gran Canaria, ES122 Fuerteventura, ES123 Lanzarote, ES124 Tenerife, ES125 La Palma, ES126 La Gomera and ES127 El Hierro;

— declare that the Kingdom of Spain has failed to fulfil its obligations under Article 10(1) and (2) of Directive 2007/60/EC as regards river basin districts ES120 Gran Canaria, ES122 Fuerteventura and ES125 La Palma;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

It is apparent the information provided by the Spanish authorities that Spain has not established, completed and published, by the 22 December 2015 deadline laid down in the Directive, flood risk management plans in respect of the river basin districts ES120 Gran Canaria, ES122 Fuerteventura, ES123 Lanzarote, ES124 Tenerife, ES125 La Palma, ES126 La Gomera and ES127 El Hierro. In addition, the Commission has not received a copy of those plans, as required by Article 15(1) of the Directive.

Furthermore, in three river basin districts — ES120 Gran Canaria, ES122 Fuerteventura and ES125 La Palma — the public information and consultation phase has not yet taken place or has not in any event been completed. Accordingly, the Commission considers that the Kingdom of Spain has failed to fulfil its obligations under Article 10(1) and (2) of Directive 2007/60/EC as regards those three river basin districts.

(1) Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment and management of flood risks (OJ 2007 L 288, p.27)
Official Journal of the European Union

Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 3 January 2019 — Wilo Salmson France SAS v Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București and Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Nerezidenți

(Case C-10/19)

(2019/C 263/28)

Language of the case: Romanian

Referring court

Tribunalul București

Parties to the main proceedings

Applicant: Wilo Salmson France SAS

Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București and Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Nerezidenți

By Order of 5 June 2019, the Court (Tenth Chamber) declared the request for a preliminary ruling manifestly inadmissible.
Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 10 May 2019 — GE v Société Air France

(Case C-370/19)

(2019/C 280/30)

Language of the case: German

Referring court

Amtsgericht Hamburg

Parties to the main proceedings

Applicant: GE

Defendant: Société Air France

Question referred

Does a trade union organised strike by the staff of an operating air carrier constitute an ‘extraordinary circumstance’ within the meaning of Article 5(3) of Regulation (EC) No 261/2004? (1)

(1) 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 (OJ 2004 L 46, p. 1).
2.

In particular, does EU law not preclude the introduction of a rule in national legislation which provides for the option of taking advantage of ‘bad debt relief’ only on condition that on the date on which the service or goods are supplied and on the day preceding the date on which the tax return adjustment is filed in order to benefit from this relief: — the debtor is not subject to insolvency or liquidation proceedings? — the creditor and debtor are both registered as active VAT taxpayers?