11.9.2017

EN

Official Journal of the European Union

C 300/1

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Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

(2017/C 300/01)

Last publication

OJ C 293, 4.9.2017

Past publications

OJ C 283, 28.8.2017

OJ C 277, 21.8.2017

OJ C 269, 14.8.2017

OJ C 256, 7.8.2017

OJ C 249, 31.7.2017

OJ C 239, 24.7.2017

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

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11.9.2017

EN

Official Journal of the European Union

C 300/2

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Judgment of the Court (Grand Chamber) of 18 July 2017 — European Commission v Patrick Breyer, Republic of Finland, Kingdom of Sweden

(Case C-213/15 P) (1)

((Appeal - Access to documents of the institutions - Article 15(3) TFEU - Regulation (EC) No 1049/2001 - Scope - Application for access to written submissions filed by the Republic of Austria in the case in which judgment was given on 29 July 2010, Commission v Austria (C-189/09, not published, EU:C:2010:455) - Documents in the possession of the European Commission - Protection of court proceedings))

(2017/C 300/02)

Language of the case: German

Parties

Appellant: European Commission (represented by: P. Van Nuffel and H. Krämer, acting as Agents)

Other parties to the proceedings: Patrick Breyer (represented by: M. Starostik, Rechtsanwalt), Republic of Finland (represented by: H. Leppo, acting as Agent), Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, E. Karlsson and L. Swedenborg, acting as Agents)

Interveners in support of the applicant: Kingdom of Spain (represented by: M.J. García-Valdecasas Dorrego and S. Centeno Huerta, acting as Agents), French Republic (represented by: G. de Bergues, D. Colas, R. Coesme and F. Fize, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the Commission to bear its own costs and to pay half of the costs incurred by Mr Breyer;

3.	Orders the Kingdom of Spain, the French Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

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(1)  OJ C 245, 27.7.2015.

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11.9.2017

EN

Official Journal of the European Union

C 300/3

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Judgment of the Court (Grand Chamber) of 18 July 2017 (request for a preliminary ruling from the Kammergericht Berlin — Germany) — Konrad Erzberger v TUI AG

(Case C-566/15) (1)

((Reference for a preliminary ruling - Free movement of workers - Principle of non-discrimination - Election of workers’ representatives to the supervisory board of a company - National legislation restricting the right to vote and to stand as a candidate to employees of establishments located in the national territory))

(2017/C 300/03)

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Applicant: Konrad Erzberger

Defendant: TUI AG

intervening parties: Vereinigung Cockpit e.V., Betriebsrat der Tui AG/Tui Group Services GmbH, Frank Jakobi, Andreas Barczewski, Peter Bremme, Dierk Hirschel, Michael Pönipp, Wilfried H. Rau, Carola Schwirn, Anette Stempel, Ortwin Strubelt, Marcell Witt, Wolfgang Flintermann, Stefan Weinhofer, ver.di -Vereinte Dienstleistungsgewerkschaft

Operative part of the judgment

Article 45 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which the workers employed in the establishments of a group located in the territory of that Member State are deprived of the right to vote and to stand as a candidate in elections of workers’ representatives to the supervisory board of the parent company of that group, which is established in that Member State, and as the case may be, of the right to act or to continue to act as representative on that board, where those workers leave their employment in such an establishment and are employed by a subsidiary belonging to the same group established in another Member State.

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(1)  OJ C 90, 7.3.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/3

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Judgment of the Court (Second Chamber) of 20 July 2017 (request for a preliminary ruling from the Audiencia Provincial de Alicante — Spain) — Ornua Co-operative Limited, formerly The Irish Dairy Board Co-operative Limited v Tindale & Stanton Ltd España, SL

(Case C-93/16) (1)

((Reference for a preliminary ruling - Intellectual property - EU trade mark - Unitary character - Regulation (EC) No 207/2009 - Article 9(1)(b) and (c) - Uniform protection of the right conferred by an EU trade mark against the likelihood of confusion and detriment to reputation - Peaceful coexistence of that mark with a national mark used by a third party in part of the European Union - Absence of peaceful coexistence elsewhere in the European Union - Perception of the average consumer - Differences of perception which may exist in different parts of the European Union))

(2017/C 300/04)

Language of the case: Spanish

Referring court

Audiencia Provincial de Alicante

Parties to the main proceedings

Applicant: Ornua Co-operative Limited, formerly The Irish Dairy Board Co-operative Limited

Defendant: Tindale & Stanton Ltd España, SL

Operative part of the judgment

1.

Article 9(1)(b) Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark and a national mark peacefully coexist does not allow the conclusion that in another part of the European Union, where peaceful coexistence between that EU trade mark and the sign identical to that national mark is absent, there is no likelihood of confusion between that EU trade mark and that sign.

2.

Article 9(1)(b) of Regulation No 207/2009 must be interpreted as meaning that the elements which, according to the European Union trade marks court hearing an infringement action, are relevant for assessing whether the proprietor of an EU trade mark is entitled to prohibit the use of a sign in part of the European Union not covered by that action, may be taken into account by that court to assess whether that proprietor is entitled to prohibit the use of that sign in the part of the European Union which is the subject of the infringement action, provided that the market conditions and the sociocultural circumstances are not significantly different in one of those parts of the European Union and in the other.

3.

Article 9(1)(c) of Regulation No 207/2009 must be interpreted as meaning that the fact that, in part of the European Union, an EU trade mark with a reputation and a sign peacefully coexist does not allow the conclusion that in another part of the European Union, where that peaceful coexistence is absent, there is due cause legitimising the use of that sign.

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(1)  OJ C 156, 2.5.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/4

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Judgment of the Court (First Chamber) of 19 July 2017 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Abercrombie & Fitch Italia Srl v Antonino Bordonaro

(Case C-143/16) (1)

((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(1) - Article 2(2)(a) - Article 6(1) - Age discrimination - On-call employment contract which may be concluded with persons under 25 years of age - Automatic termination of the employment contract when the worker reaches 25 years of age))

(2017/C 300/05)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Abercrombie & Fitch Italia Srl

Defendant: Antonino Bordonaro

Operative part of the judgment

Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1), Article 2(2)(a) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding a provision, such as that at issue in the main proceedings, which authorises an employer to conclude an on-call contract with a worker of under 25 years of age, whatever the nature of the services to be provided, and to dismiss that worker as soon as he reaches the age of 25 years, since that provision pursues a legitimate aim of employment and labour market policy and the means laid down for the attainment of that objective are appropriate and necessary.

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(1)  OJ C 200, 6.6.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/5

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Judgment of the Court (Third Chamber) of 20 July 2017 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Marco Tronchetti Provera SpA and Others v Commissione Nazionale per le Società e la Borsa (Consob)

(Case C-206/16) (1)

((Reference for a preliminary ruling - Company law - Directive 2004/25/EC - Takeover bids - Second subparagraph of Article 5(4) - Possibility of changing the price of the offer in specific circumstances and according to clearly determined circumstances and criteria - National law providing an option for the supervisory authority to increase the price of a takeover bid in the event of collusion between the offeror or the persons acting in concert with it and one or more sellers))

(2017/C 300/06)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Marco Tronchetti Provera SpA, Antares European Fund Limited, Antares European Fund II Limited, Antares European Fund LP, Luca Orsini Baroni, UniCredit SpA, Camfin SpA

Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

Intervenening parties: Camfin SpA, Generali Assicurazioni Generali SpA, Antares European Fund Limited, Antares European Fund II Limited, Antares European Fund LP, Luca Orsini Baroni, Marco Tronchetti Provera & C. SpA, UniCredit SpA

Operative part of the judgment

The second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids must be interpreted as not precluding a national law, such as that at issue in the main proceedings, which enables a national supervisory authority to adjust upwards the price of a takeover bid in the event of collusion without setting out the specific conduct that characterises that notion, provided that the interpretation of that notion can be deduced in a sufficiently clear, precise and foreseeable manner from that law, using methods of interpretation recognised by national law.

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(1)  OJ C 251, 11.7.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/6

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Judgment of the Court (Third Chamber) of 20 July 2017 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Landeskrankenanstalten-Betriebsgesellschaft — KABEG v Mutuelles du Mans assurances — MMA IARD SA

(Case C-340/16) (1)

((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 9(1) - Article 11(2) - Jurisdiction in matters relating to insurance - Direct action by the injured party against the insurer - Action brought by the employer, a public-law institution, statutory assignee of the rights of its employee, against the insurer of the vehicle involved - Subrogation))

(2017/C 300/07)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Landeskrankenanstalten-Betriebsgesellschaft — KABEG

Defendant: Mutuelles du Mans assurances — MMA IARD SA

Operative part of the judgment

Article 9(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read together with Article 11(2) thereof, must be interpreted as meaning that an employer, established in one Member State, which continued to pay the salary of its employee absent as the result of a road traffic accident and to which have passed the employee’s rights with regard to the company insuring the civil liability resulting from the vehicle involved in that accident, which is established in a second Member State, may, in the capacity of ‘injured party’, within the meaning of Article 11(2), sue the insurance company before the courts of the first Member State, where a direct action is permitted.

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(1)  OJ C 305, 22.8.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/6

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Judgment of the Court (Tenth Chamber) of 20 July 2017 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — UAB ‘Gelvora’ v Valstybinė vartotojų teisių apsaugos tarnyba

(Case C-357/16) (1)

((Reference for a preliminary ruling - Unfair commercial practices - Directive 2005/29/EC - Scope - Debt collection agency - Consumer credit - Assignment of debt - Nature of the legal relationship between the agency and the debtor - Article 2(c) - Concept of ‘product’ - Recovery measures taken in parallel to the intervention of a bailiff))

(2017/C 300/08)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Applicant: UAB ‘Gelvora’

Defendant: Valstybinė vartotojų teisių apsaugos tarnyba

Operative part of the judgment

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that the legal relationship between a debt collection agency and the debtor, who has defaulted under a consumer credit agreement and whose debt has been assigned to that agency, falls within the material scope of the directive. The practices in which that agency engages in order to recover that debt fall within the concept of ‘product’ within the meaning of Article 2(c) of that directive. In that regard, the fact that the existence of the debt was confirmed by a court decision, and that that decision was passed to a bailiff for enforcement, is without consequence.

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(1)  OJ C 335, 12.9.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/7

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Judgment of the Court (Eighth Chamber) of 20 July 2017 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Faro — Portugal) — Luís Manuel Piscarreta Ricardo v Portimão Urbis, E.M., SA, in liquidation, Município de Portimão, Emarp — Empresa Municipal de Águas e Resíduos de Portimão, EM, SA

(Case C-416/16) (1)

((Reference for a preliminary ruling - Directive 2001/23 - Article 1(1)(b) - Article 2(1)(d) - Transfer of undertakings - Safeguarding of employees’ rights - Scope - Concepts of ‘employees’ and ‘transfer of a business’))

(2017/C 300/09)

Language of the case: Portuguese

Referring court

Tribunal Judicial da Comarca de Faro

Parties to the main proceedings

Applicant: Luís Manuel Piscarreta Ricardo

Defendants: Portimão Urbis, E.M., SA, in liquidation, Município de Portimão, Emarp — Empresa Municipal de Águas e Resíduos de Portimão, EM, SA

Operative part of the judgment

1.

Article 1(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted to the effect that, where a municipal undertaking, whose sole shareholder is a municipality, is wound up by a decision of the municipality’s executive body and its activities are transferred in part to the municipality to be carried on directly by it and in part to another municipal undertaking re-formed for that purpose, whose sole shareholder is also that same municipality, that situation falls within the scope of the directive, provided that the identity of the undertaking in question is preserved after the transfer, which is a matter for the referring court to determine.

2.

A person such as the applicant in the main proceedings who, because his employment contract is suspended, is not actually performing his duties, is covered by the concept of ‘employee’ within the meaning of Article 2(1)(d) of Directive 2001/23 in so far as that person is protected as an employee under the national law concerned, which is, however, a matter for the referring court to verify. Subject to that verification, in circumstances such as those at issue in the main proceedings, the rights and obligations arising from that person’s employment contract must be considered to have been transferred to the transferee, in accordance with Article 3(1) of the directive.

3.	The third question raised by the Tribunal Judicial da Comarca de Faro (District Court, Faro, Portugal) is inadmissible.

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(1)  OJ C 383, 17.10.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/8

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Order of the Court (Eighth Chamber) of 6 July 2017 — Olga Stanislavivna Yanukovych, as heir of Viktor Viktorovych Yanukovych v Council of the European Union, European Commission

(Case C-505/16 P) (1)

((Appeal - Article 181 of the Rules of Procedure of the Court - Restrictive measures taken having regard to the situation in Ukraine - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Modification of the form of order sought - Statement submitted in the name and on behalf of the deceased applicant))

(2017/C 300/10)

Language of the case: English

Parties

Appellant: Olga Stanislavivna Yanukovych, as heir of Viktor Viktorovych Yanukovych (represented by: T. Beazley QC)

Other parties to the proceedings: Council of the European Union (represented by: P. Mahnič Bruni and J.-P. Hix, acting as Agents), European Commission (represented initially by S. Bartelt and J. Norris-Usher, and then by E. Paasivirta and J. Norris-Usher, acting as Agents)

Operative part of the order

1.	The appeal is dismissed.

2.	Mrs Olga Stanislavivna Yanukovych shall bear her own costs and pay those incurred by the Council of the European Union.

3.	The European Commission shall bear its own costs.

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(1)  OJ C 441, 28.11.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/9

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Order of the Court (Sixth Chamber) of 19 July 2017 — Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH v European Chemicals Agency

(Case C-663/16 P) (1)

((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Regulation (EU) No 528/2012 - Making available on the market and use of biocidal products - Article 95 - European Chemicals Agency (ECHA) - Publication of a list of active substances - Inclusion of a company as a supplier of an active substance))

(2017/C 300/11)

Language of the case: English

Parties

Appellants: Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH (represented by: M. Grunchard and K. Van Maldegem, avocats, and P. Sellar, Advocate)

Other party to the proceedings: European Chemicals Agency (represented by: M. Heikkilä and C. Buchanan, Agents, and P. Oliver, Barrister)

Operative part of the order

1.	The appeal is dismissed.

2.	Lysoform Dr. Hans Rosemann GmbH and Ecolab Deutschland GmbH shall pay the costs.

3.	Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH, the European Chemicals Agency (ECHA), BASF SE and Oxea GmbH shall each bear their own costs relating to the application for leave to intervene.

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(1)  OJ C 53, 20.2.2017.

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11.9.2017

EN

Official Journal of the European Union

C 300/9

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Order of the Court (Sixth Chamber) of 19 July 2017 — Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH v European Chemicals Agency

(Case C-666/16 P) (1)

((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Regulation (EU) No 528/2012 - Making available on the market and use of biocidal products - Article 95 - European Chemicals Agency (ECHA) - Publication of a list of active substances - Inclusion of a company as a supplier of an active substance))

(2017/C 300/12)

Language of the case: English

Parties

Appellants: Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH (represented by: M. Grunchard and K. Van Maldegem, avocats, and P. Sellar, Advocate)

Other party to the proceedings: European Chemicals Agency (represented by: M. Heikkilä and C. Buchanan, Agents, and P. Oliver, Barrister)

Operative part of the order

1.	The appeal is dismissed.

2.	Lysoform Dr. Hans Rosemann GmbH and Ecolab Deutschland GmbH shall pay the costs.

3.	Lysoform Dr. Hans Rosemann GmbH, Ecolab Deutschland GmbH, the European Chemicals Agency (ECHA), BASF SE and Oxea GmbH shall each bear their own costs relating to the application for leave to intervene.

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(1)  OJ C 53, 20.2.2017.

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11.9.2017

EN

Official Journal of the European Union

C 300/10

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Request for a preliminary ruling from the Sąd Rejonowy w Siemianowicach Śląskich (Poland) lodged on 6 April 2017 — Profi Credit Polska S.A., established in Bielsko-Biała v Mariusz Wawrzosek

(Case C-176/17)

(2017/C 300/13)

Language of the case: Polish

Referring court

Sąd Rejonowy w Siemianowicach Śląskich

Parties to the main proceedings

Applicant: Profi Credit Polska S.A., established in Bielsko-Biała

Defendant: Mariusz Wawrzosek

Question referred

Must the provisions of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) in particular Article 6(1) and Article 7(1) thereof, and the provisions of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, (2) in particular Article 17(1) and Article 22(1) thereof, be construed as precluding the assertion of a claim, established by means of a duly completed bill of exchange, by a seller or supplier (the creditor) against a consumer (the debtor) in the course of an order for payment procedure pursuant to Article 485(2) et seq. of the Polish Code of Civil Procedure (Kodeks postępowania cywilnego), in conjunction with Article 41 of the Law on consumer credit (Ustawa o kredycie konsumenckim) of 12 May 2011, under which the national court may examine the effectiveness of the claim arising from the bill of exchange exclusively from the point of view of compliance with the formal requirements applicable to the bill of exchange, without examining the relationship underlying it?

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(1)  OJ 1993 L 95, p. 29.

(2)  OJ 2008 L 133, p. 66.

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11.9.2017

EN

Official Journal of the European Union

C 300/10

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Appeal brought on 14 April 2017 by Georgios Pandalis against the judgment delivered on 14 February 2017 in Case T-15/16 Georgios Pandalis v European Union Intellectual Property Office

(Case C-194/17 P)

(2017/C 300/14)

Language of the case: Germany

Parties

Appellant: Georgios Pandalis (represented by: A. Franke, lawyer)

Other parties to the proceedings: European Union Intellectual Property Office, LR Health & Beauty Systems GmbH

Form of order sought

The appellant claims that the Court should:

I.	annul the decision of the Court of 14 February 2017 in Case T-15/16 relating to revocation proceedings brought against the EU trade mark No 001273119 ‘Cystus’;

II.	annul the decision of the First Board of Appeal of EUIPO of 30 October 2015 (Case R 2839/2014-1) relating to revocation proceedings brought against the EU trade mark No 001273119 ‘Cystus’;

III.	annul the decision of the Cancellation Division in the cancellation proceedings 8374 C of 12 September 2014, in so far as it revoked the EU trade mark No 001273119 ‘Cystus’ in respect of ‘food supplements not for medical purposes’ in Class 30;

IV.

reject the application for a declaration of invalidity brought by LR Health & Beauty Systems GmbH in the proceedings before the Cancellation Division and the First Board of Appeal of EUIPO against the EU trade mark No 001273119 ‘Cystus’, in so far as it relates to ‘food supplements not for medical purposes’ in Class 30;

V.	order the European Union Intellectual Property Office to pay the costs of the proceedings.

Pleas in law and main arguments

The appellant alleges the following errors in law in the interpretation and application of Article 51(1)(a) and (2) of the EU Trade Mark Regulation (‘EUTMR’) (1):

—	First, failure to set out in the grounds the requirements of the provision which are to be examined in detail (use as a trade mark, whether use of the trade mark is genuine and whether the mark was used in respect of the goods or services protected).

—	Secondly, failure to determine whether the ‘Cystus’ goods fall under the definition of food supplements for the purposes of Article 2(a) of the Food Supplements Directive.

—	Thirdly, failure to classify the ‘Cystus’ goods in respect of which the mark in question was used.

—	Fourthly, distortion of the facts in the determination of whether the ‘Cystus’ goods are food supplements not for medical purposes and the resulting wrong conclusion that the mark was not used with respect to food supplements not for medical purposes.

—	Fifthly, there was no separate analysis of whether the (non-medical) ‘lozenges’ covered by the mark are food supplements.

In addition, the appellant alleges insufficient grounds for the finding that the ‘Cystus’ mark was not genuinely used in respect of food supplements not for medical purposes in accordance with Article 51(1)(a) and (2) EUTMR:

—	First, the grounds of the judgment make it impossible to justify why the facts and evidence adduced by the appellant were not sufficient to convince the Court that the mark was used in respect of food supplements not for medical purposes.

—	Secondly, it is inadmissible to base the finding that the ‘Cystus’ mark was not used in respect of the protected food supplements not for medical purposes on the ground that certain evidence contradicts that classification, without stating the goods in respect of which the mark was used instead.

—	Thirdly, there is no differentiated examination of whether the (non-medical) ‘lozenges’ distributed under the mark are food supplements, and no explanation why the appropriate differentiation was not carried out.

Furthermore, the appellant alleges an error of law in the interpretation and application of Article 51(1)(a) and (2) EUTMR:

—

Firstly, a mistaken examination of Article 51(1)(a) and (2) EUTMR; it was not examined whether the mark in its registered form, or in one of the forms differing from its registered form, which have no impact on their distinctive character (Article 15(1)(a) EUTMR), was not used in respect of food supplements not for medical purposes.

—

Secondly, classification of the mark as descriptive for the purposes of Article 7(1)(c) EUTMR, since the appellant in reality has no possibility of using the mark in a non-descriptive manner as a trade mark in respect of its ‘Cystus’ goods, which are based on the Cistus Incanus plant, although the Court should have found in the context of the examination under Article 51(1)(a) and (2) EUTMR that the mark possessed at least average distinctive character.

In addition, the appellant alleges contradictory and insufficient reasoning relating to the finding that there was no genuine use of EU trade mark No 001273119 ‘Cystus’ in respect of food supplements not for medical purposes, in accordance with Article 51(1)(a) and (2) EUTMR:

—	Firstly, a contradiction in the finding that the spelling of the mark with ‘y’ instead of ‘i’ does not suffice as proof of its use as an EU trade mark and the claim at the same time that, as a result, there were no absolute grounds for refusal under Article 7(1)(c) EUTMR.

—	Secondly, a failure to state reasons in so far as the Court does not justify why the actual use of the mark does not fulfil the requirements of Article 51(1)(a) and (2) EUTMR.

Finally, the appellant alleges that the Court committed an error of law in the interpretation and application of the second sentence of Article 755 EUTMR: the Court erred in law by wrongly assuming that the Board of Appeal had not made any observations relating to the alleged absolute ground for refusal of registration under Article 7(1)(c) EUTMR.

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

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11.9.2017

EN

Official Journal of the European Union

C 300/12

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Appeal brought on 25 April 2017 by Mast-Jägermeister SE against the judgment of the General Court (Eighth Chamber) of 9 February 2017 in Case T-16/16, Mast-Jägermeister SE v European Union Intellectual Property Office

(Case C-217/17 P)

(2017/C 300/15)

Language of the case: German

Parties

Appellant: Mast-Jägermeister SE (represented by: C. Drzymalla, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

Form of order sought

The appellant claims that the Court should:

—	set aside in its entirety the judgment of the General Court of 9 February 2017 in Case T-16/16, by which the action was dismissed and the present appellant ordered to pay the costs;

—	grant the first and third pleas in law made at first instance, should the appeal be declared well founded.

Grounds of appeal and main arguments

The appellant’s appeal is directed against the judgment of the General Court of 9 February 2017 in Case T-16/16, which concerns the requirements governing a representation of a design for the purposes of attribution of a date of filing, namely with regard to the applications for registration of designs No 002683615-0001 and No 002683615-0002 (beakers).

The General Court judgment under appeal infringes the provisions of Article 46(2) and (3) of Regulation No 6/2002, in conjunction with Articles 36 and 38 of that regulation, insofar as, according to the General Court, it follows from the meaning and purpose of those provisions that applications for registration are not to be treated as applications for registration of Community designs if, in the Office’s view, there is uncertainty or ambiguity in respect of the subject matter of the design applied for. It must, however, be concluded from the significance of the date of filing for the design applicant that the representation of the design cannot be subject to stringent requirements and that Article 36(1)(c) merely requires the representation of the design to be physically suitable for reproduction in order for the date of filing to be attributed under Article 38 of Regulation No 6/2002.

Nothing else — contrary to the General Court’s view — follows from Article 4(1)(e) of Regulation No 2245/2002, in conjunction with Article 10(1)(c) and 10(2) thereof. Insofar as it is stated therein that the reproduction of the design must be of a quality allowing all the details for which protection is sought to be distinguished clearly, that provision also means only the representation’s physical suitability for reproduction. This is so particularly in view of the fact that the applicant alone determines the subject matter of the application, that is to say, in respect of what it is applying for protection. Lastly, the final determination of the extent of protection for a design is a matter, in any event, solely and exclusively for a court dealing with infringement proceedings.

Insofar as the registration of the design with a view to its reproduction might lead to legal uncertainty, registration may be denied, but not the attribution of a date of filing, which is of major importance for the applicant by reason of the provisions on the effect of a first filing giving rise to a right of priority under Article 4(A) of the Paris Convention for the Protection of Industrial Property.

In this context, the General Court failed to have regard for the unequivocal wording of the differentiated provisions of Article 46(2) and Article 46(3). An application for registration is to be considered, under Article 46(2) of Regulation No 6/2002, not to be an application for registration of a Community design only if the deficiencies in the application relate to the requirements of Article 36(1) of that regulation. However, Article 36(1) requires, with regard to the representation of the design, only that it must be suitable for reproduction. Any further irregularities, in particular those arising from the application of Regulation No 2245/2002, could, under Article 46(3) of Regulation No 6/2002, lead only to a rejection of the application for registration, after prior attribution of a date of filing. This is evident from the reference in Article 46(3) to Article 45(2)(a), in conjunction with Article 36(5),of Regulation No 6/2002.

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11.9.2017

EN

Official Journal of the European Union

C 300/13

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Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 15 May 2017 — Ramazan Dündar and Others v Air Berlin plc & Co. Luftverkehrs KG

(Case C-253/17)

(2017/C 300/16)

Language of the case: Germany

Referring court

Amtsgericht Hamburg

Parties to the main proceedings

Applicants: Ramazan Dündar, Carolin Wenzel, Antonia Genovese, Jan-Maximilian Mügge

Defendant: Air Berlin plc & Co. Luftverkehrs KG

By order of 20 June 2017, the President of the Court of Justice of the European Union removed the case from the Court’s Register.

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11.9.2017

EN

Official Journal of the European Union

C 300/14

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Request for a preliminary ruling from the Sąd Okręgowy w Szczecinie (Poland) lodged on 7 June 2017 — Feniks Sp. z o.o. v Azteca Products & Services SL

(Case C-337/17)

(2017/C 300/17)

Language of the case: Polish

Referring court

Sąd Okręgowy w Szczecinie

Parties to the main proceedings

Applicant: Feniks Sp. z o.o., established in Szczecin

Defendant: Azteca Products & Services SL, established in Alcora

Questions referred

1.

Does a case brought against a buyer established in one Member State, seeking a declaration that a contract for the sale of immovable property situated in the territory of another Member State, which was concluded and performed in its entirety in the territory of another Member State, is ineffective on the ground of detriment to the seller’s creditors, constitute a ‘matter relating to a contract’ within the meaning of Article 7(1)(a) of Regulation (EU) No 1215/2012 (1) 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?

2.

Must the above question be answered applying the principle of acte éclairé with reference to the judgment of the Court of Justice in Handte v Traitements mécano-chimiques des surfaces SA, C-26/91, EU:C:1992:268, despite the fact that it concerned the liability for defects in goods of a manufacturer who could not foresee to whom the goods would subsequently be sold, and thus who would be able to bring claims against him, whereas the present action against a buyer ‘seeking a declaration that a contract for the sale of immovable property is ineffective’ on the ground of detriment to the seller’s creditors, requires, in order to be effective, knowledge on the part of the buyer that the legal act (contract of sale) was done with detriment to creditors, and thus the buyer must anticipate that such an action may be brought by a personal creditor of the seller?

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(1)  OJ 2012 L 351, p. 1.

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11.9.2017

EN

Official Journal of the European Union

C 300/14

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Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium) lodged on 8 June 2017 — Fremoluc NV v Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest ABP) and Others, Intervener: Vlaams Gewest

(Case C-343/17)

(2017/C 300/18)

Language of the case: Dutch

Referring court

Nederlandstalige rechtbank van eerste aanleg Brussel

Parties to the main proceedings

Applicant: Fremoluc NV

Defendants: Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest ABP), Vlaams Financieringsfonds voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlaams Financieringsfonds), Vlaamse Maatschappij voor Sociaal Wonen NV (VMSW), Christof De Knop, Valérie De Knop, Melissa De Knop, Joanna De Keersmaecker, Marie-Jeanne Thielemans

Intervener: Vlaams Gewest (Regional Government Fers)

Questions referred

Should Articles 21, 45, 49 and 63 of the Treaty on the Functioning of the European Union and Articles 22 and 24 of Directive 2004/38/EC (1) 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 be interpreted as precluding a scheme under which a government body develops land with a view to offering plots and homes for sale and rental, on favorable terms, with priority being given to persons who have strong social, economic or socio-cultural ties with the area in which that body operates, and sets conditions with regard to income which the vast majority of those persons can fulfil, such as the scheme which results from reading the following in conjunction with each other:

—

the besluit van de provincieraad van Vlaams-Brabant van 25 februari 2014 houdende het provinciaal reglement betreffende de werking en het beheer van het Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Decree of the Provincial Council of Flemish Brabant of 25 February 2014 on the provincial regulations on the operation and management of the Agency for Land and Housing Policy for Flemish Brabant) — ‘Vlabinvest APB’;

—

Article 2/2 of the besluit van de Vlaamse regering van 29 september 2006 betreffende de voorwaarden voor de overdracht van onroerende goederen door de Vlaamse Maatschappij voor Sociaal Wonen en de sociale huisvestingsmaatschappijen ter uitvoering van de Vlaamse Wooncode (Decree of the Flemish Government of 29 September 2006 on the conditions for the transfer of property by the Flemish Social Housing Association and the social housing associations implementing the Flemish Housing Code) (and Article 17, second to sixth paragraphs, of the besluit van de Vlaamse regering van 12 October 2007 tot reglementering van het sociale huurstelsel ter uitvoering van titel VII van de Vlaamse Wooncode (Decree of the Flemish Government of 12 October 2007 for the regulation of the social rental system implementing Title VII of the Flemish Housing Code))?

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(1)  OJ 2004 L 158, p. 77.

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11.9.2017

EN

Official Journal of the European Union

C 300/15

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Appeal brought on 9 June 2017 by Christoph Klein against the judgment of the General Court (Eighth Chamber) delivered on 28 September 2016 in Case T-309/10 RENV, Christoph Klein v European Commission

(Case C-346/17 P)

(2017/C 300/19)

Language of the case: German

Parties

Appellant: Christoph Klein (represented by: H.-J. Ahlt, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought by the appellant

The appellant claims that the Court should:

1.	set aside the judgment of the General Court of 28 September 2016 in Case T-309/10 RENV;

2.	order the respondent to pay to the appellant EUR 1 562 662,30 plus interest from the date on which judgment is delivered, in the amount of eight percentage points above the base interest rate applicable on the date in question;

3.	find that the Commission, on the merits of the case, must compensate the appellant for the damage, as yet to be determined, which he claims to have suffered since 15 September 2006;

4.	order the Commission to pay the costs of the proceedings;

5.	in the alternative: set aside the judgment of the General Court of 28 September 2016 in Case T-309/10 RENV and refer the case back to the General Court.

Grounds of appeal and main arguments

In support of his appeal, the appellant raises the following grounds:

First, the General Court infringed the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union by misinterpreting the binding scope of the judgment of the Court of Justice and erred in law in assuming that the appellant could not claim any compensation with regard to his ‘effecto’ device on the basis of the inadmissibility of the fourth ground of appeal in Case C-120/14 P.

Second, the General Court also infringed the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union by failing to be bound by the decision of the Court of Justice on points of law. In paragraph 95 of its judgment, the Court of Justice held that the original judgment under appeal was to be set aside in so far as, by that judgment, the General Court dismissed the action in that it sought that the Commission be ordered to pay compensation for the damage allegedly suffered by the appellant … . Contrary to this legal assessment, the General Court erred in law in finding that, even on the merits of the case, there was no entitlement to compensation as the substantive requirements had not been satisfied.

Third, the General Court, contrary to Article 84(1) of its Rules of Procedure, rejected the claim that the Commission, due to its inaction in the safeguard clause procedure under Article 8(2) of Directive 93/42, had also infringed Article 41 of the Charter of Fundamental Rights, on the ground that this was an inadmissible new submission. This is an error in law due to the fact that the appellant had indeed already referred, in his application, to the principle of good administration which, in terms of content, corresponds to the principle of sound administration and to Article 41 of the Charter of Fundamental Rights. Accordingly, there is no inadmissible new submission.

Fourth, the General Court proceeded on the basis that the directive does not confer any rights on the appellant personally or on the company atmed AG. The appellant submits that this constitutes an infringement of EU law because both are addressees in a safeguard clause procedure and can rely on the principles of the free movement of goods as central, economically-affected persons.

Fifth, the General Court erred in law in denying the existence of a causal link between the Commission’s unlawful conduct and the damage alleged. The General Court thereby distorted the facts of the case and erred in law in its classification of facts. Furthermore, the General Court thereby once again infringed Article 8(2) of Directive 93/42, failed to undertake a legal assessment and did not provide adequate grounds for its decision.

Sixth, the General Court distorted the facts and evidence by infringing the principles of procedural fairness and the right to a fair hearing, Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights through its failure to have regard for the annexes COM RENV 1 and 2.

Seventh, the General Court infringed the principles of the right to a fair hearing, Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights, as well as Article 64(3)(d) of its Rules of Procedure and Article 24 of the Statute of the Court of Justice of the European Union, in that it failed to accede to the appellant’s request that the Commission be ordered to produce the documents relating to the safeguard clause.

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11.9.2017

EN

Official Journal of the European Union

C 300/17

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Request for a preliminary ruling from the Rechtbank Rotterdam (Netherlands) lodged on 12 June 2017 — A, B, C, D, E, F, G v Staatssecretaris van Economische Zaken

(Case C-347/17)

(2017/C 300/20)

Language of the case: Dutch

Referring court

Rechtbank Rotterdam

Parties to the main proceedings

Applicants: A, B, C, D, E, F, G

Defendant: Staatssecretaris van Economische Zaken

Questions referred

1.

Must the provisions of Annex III, Section II, Chapter IV, point 5 and point 8, to Regulation (EC) No 853/2004 (1) of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139) be interpreted as meaning that a poultry carcass, after evisceration and cleaning, may no longer contain any visible contamination whatsoever?

2.

Do the provisions of Annex III, Section II, Chapter IV, point 5 and point 8, to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139) apply to contamination by faeces, bile and crop contents?

3.

If the first question is answered in the affirmative, must the provisions of Annex III, Section II, Chapter IV, point 8, to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139) then be interpreted as meaning that the cleaning must take place immediately after evisceration, or may the removal of any visible forms of contamination, on the basis of that provision, also take place during chilling, cutting or packaging?

4.

Does Annex I, Section 1, Chapter II, Part D, point 1, to Regulation (EC) No 854/2004 (2) of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ 2004 L 139) allow the competent authority, when carrying out controls, to remove carcasses from the slaughter line, and to check both the outside and the inside and under the fat tissue for visible contamination?

5.

If the first question is answered in the negative, and visible contamination may therefore remain on a poultry carcass, how must the provisions of points 5 and 8 in Annex III, Section II, Chapter IV, to Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139) then be interpreted? How then will the aim of that regulation, namely, guaranteeing a high level of protection of public health, be achieved?

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(1)  OJ 2004 L 139, p. 55.

(2)  OJ 2004 L 139, p. 206.

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11.9.2017

EN

Official Journal of the European Union

C 300/17

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Request for a preliminary ruling from the Rechtbank Noord-Holland (Netherlands) lodged on 19 June 2017 — Vision Research Europe BV v Inspecteur van de Belastingdienst/Douane kantoor Rotterdam Rijnmond

(Case C-372/17)

(2017/C 300/21)

Language of the case: Dutch

Referring court

Rechtbank Noord-Holland

Parties to the main proceedings

Applicant: Vision Research Europe BV

Defendant: Inspecteur van de Belastingdienst/Douane kantoor Rotterdam Rijnmond

Question referred

Is Commission Implementing Regulation (EU) No 113/2014 (1) of 4 February 2014 concerning the classification of certain goods in the Combined Nomenclature valid if the Rechtbank is correct in its provisional view that subheading 8525 80 30 should be interpreted as meaning that the camera, as described in 2 and 12 above, which has a volatile memory whereby the images captured in the camera are lost when subsequent images are captured or when the camera is switched off, can be classified thereunder?

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(1)  OJ 2014 L 38, p. 20.

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11.9.2017

EN

Official Journal of the European Union

C 300/18

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Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 26 June 2017 — Staatssecretaris van Veiligheid en Justitie, K. and B.; other parties: H.Y., Staatssecretaris van Veiligheid en Justitie

(Case C-380/17)

(2017/C 300/22)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellants: Staatssecretaris van Veiligheid en Justitie, K. and B.

Other parties: H.Y., Staatssecretaris van Veiligheid en Justitie

Questions referred

1.

Having regard to Article 3(2)(c) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12) and to the judgment of 18 October 2012 in Nolan (Case C-583/10, EU:C:2012:638), does the Court of Justice have jurisdiction to answer questions referred for a preliminary ruling by courts in the Netherlands on the interpretation of provisions of that directive in proceedings concerning the right of residence of a member of the family of a person with subsidiary protection status, if that directive has, under Netherlands law, been declared directly and unconditionally applicable to persons with subsidiary protection status?

2.

Does the system provided for by Council Directive 2003/86/EC … preclude a national rule, such as that at issue in the main proceedings, under which an application for consideration for family reunification on the basis of the more favourable provisions of Chapter V of that directive can be rejected for the sole reason that it was not submitted within the period laid down in the third subparagraph of Article 12(1)? For the purpose of answering this question, does any relevance attach to the fact that it is possible, in the event of the aforementioned period being exceeded, to submit an application for family reunification, whether or not after a rejection, in which an assessment is made as to whether the requirements laid down in Article 7 of Directive 2003/86/EC have been met and in which the interests and circumstances indicated in Articles 5(5) and 17 of that directive are taken into account?

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11.9.2017

EN

Official Journal of the European Union

C 300/19

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Request for a preliminary ruling from the Hof van beroep Antwerpen (Belgium) lodged on 30 June 2017 — Openbaar Ministerie v Freddy Lucien Magdalena Kirschstein, Thierry Frans Adeline Kirschstein

(Case C-393/17)

(2017/C 300/23)

Language of the case: Dutch

Referring court

Hof van beroep Antwerpen

Parties to the main proceedings

Appellant: Openbaar Ministerie

Respondents: Freddy Lucien Magdalena Kirschstein, Thierry Frans Adeline Kirschstein

Questions referred

1.

Must Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market be interpreted as precluding the provision in Article II.75(6) of the Codex of Higher Education of 11 October 2013 which imposes a general prohibition on non-accredited educational institutions using the designation ‘master’ on the diplomas they award, where that prohibition is aimed at safeguarding a matter in the general interest, namely, the need to ensure a high standard of education whereby it must be possible to check whether the predefined quality requirements have effectively been met?

2.

Must Directive 2006/123/EC (2) of the European Parliament and of the Council of 12 December 2006 on services in the internal market be interpreted as precluding the provision in Article II.75(6) of the Codex of Higher Education of 11 October 2013, which imposes a general prohibition on non-accredited educational institutions using the designation ‘master’ on the diplomas they award, where that prohibition is aimed at safeguarding a matter in the general interest, namely the protection of recipients of services?

3.

Does the criminal provision applicable to educational institutions not recognised by the Flemish Government which award ‘masters’’ diplomas pass the proportionality test in Articles 9(1)(c) and 10(2)(c) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market?

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(1)  OJ 2005 L 149, p. 22.

(2)  OJ 2006 L 376, p. 36.

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11.9.2017

EN

Official Journal of the European Union

C 300/19

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Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 3 July 2017 — Profit Europe NV v Belgische Staat

(Case C-397/17)

(2017/C 300/24)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Profit Europe NV

Defendant: Belgische Staat

Questions referred

1.

Must [CN] subheading 7307 19 10 (1) be interpreted as including fittings of spheroidal graphite cast iron which have the characteristics of the fittings at issue in the main proceedings, if it appears from their objective characteristics that their material is essentially different from malleable cast iron because the malleability of spheroidal graphite cast iron does not result from appropriate heat treatment and because the graphite in spheroidal graphite cast iron has a different shape to the graphite in malleable cast iron, namely, that of spheroidal graphite instead of temper carbon?

2.

Must [CN] subheading 7307 11 00 1 be interpreted as including fittings of spheroidal graphite cast iron which have the characteristics of the fittings at issue in the main proceedings, if the objective characteristics of spheroidal graphite cast iron show that it substantially corresponds to the objective characteristics of non-malleable cast iron?

3.

Must the CN Explanatory Note to subheading 7307 19 10, which provides that malleable cast iron includes spheroidal graphite cast iron, be disregarded to the extent to which it provides that malleable cast iron includes spheroidal graphite cast iron, if it is established that spheroidal graphite cast iron is not malleable cast iron?

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(1)  See Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

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11.9.2017

EN

Official Journal of the European Union

C 300/20

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Request for a preliminary ruling from the Rechtbank van eerste aanleg te Brussel (Belgium) lodged on 3 July 2017 — Profit Europe NV v Belgische Staat

(Case C-398/17)

(2017/C 300/25)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Brussel

Parties to the main proceedings

Applicant: Profit Europe NV

Defendant: Belgische Staat

Questions referred

1.

Must [CN] subheading 7307 19 10 (1) be interpreted as including fittings of spheroidal graphite cast iron which have the characteristics of the fittings at issue in the main proceedings, if it appears from their objective characteristics that their material is essentially different from malleable cast iron because the malleability of spheroidal graphite cast iron does not result from appropriate heat treatment and because the graphite in spheroidal graphite cast iron has a different shape to the graphite in malleable cast iron, namely, that of spheroidal graphite instead of temper carbon?

2.

Must [CN] subheading 7307 11 00 1 be interpreted as including fittings of spheroidal graphite cast iron which have the characteristics of the fittings at issue in the main proceedings, if the objective characteristics of spheroidal graphite cast iron show that it substantially corresponds to the objective characteristics of non-malleable cast iron?

3.

Must the CN Explanatory Note to subheading 7307 19 10, which provides that malleable cast iron includes spheroidal graphite cast iron, be disregarded to the extent to which it provides that malleable cast iron includes spheroidal graphite cast iron, if it is established that spheroidal graphite cast iron is not malleable cast iron?

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(1)  See Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

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11.9.2017

EN

Official Journal of the European Union

C 300/21

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Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 7 July 2017 — A

(Case C-410/17)

(2017/C 300/26)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: A

Defendant: Veronsaajien oikeudenvalvontayksikkö

Questions referred

1.

Is Article 2(1)(c), in conjunction with Article 24(1) of Council Directive 2006/112/EC (1) on the common system of value added tax, to be interpreted as meaning that demolition services carried out by a company whose business includes the supply of demolition services, is one single transaction where, under the terms of the contract between the it and the client, the demolition company is required to remove the demolition waste and where the demolition company may, if the demolition waste contains metal scrap, sell it to companies which buy recyclable scrap metal? Or, taking into account Article 2(1)(a), in conjunction with Article 14 (1) of the Directive 2006/112/EC, is such a contract for demolition services to be interpreted as comprising two transactions: first, a supply of services by the demolition company to the client of demolition services and, second, the purchase of the metal scrap metal from the client for resale by the demolition company? In the present case is it important when fixing the price for the demolition services that the demolition company took into account, as a factor moderating the price, that it is also possible to generate revenues by making use of demolition waste? In the present case, is it important that the quantity and value of the recoverable demolition waste have not been agreed upon in the demolition contract, or that it has not been agreed that that information will be notified later to the client for which the demolition work is carried out, or the fact that the quantity and the value of the demolition waste are known only when the demolition company sells it?

2.

Is Article 2(1)(a), in conjunction with Article 14(1) of the VAT Directive 2006/112/EC, in a situation in which a company whose business is the supply of demolition services concludes a contract with the owner of an object to be demolished that the demolition company will buy the object to be demolished and undertakes, subject to a contractual penalty, to demolish and remove the object within a period specified in the contract, to be interpreted as meaning that in such a situation there is a single transaction which includes the sale of objects by the owner of the object to be demolished the demolition company? Or, having regard to Article 2(1)(c), in conjunction with Article 24(1) of the Directive 2006/112/EC, is a contract of this kind to be interpreted as consisting of two transactions, namely the sale of goods by the owner of the object to be demolished to the demolition company and he demolition services supplied by the demolition company to the seller of the goods? In this case what importance is to be attached to the fact that the demolition company, when fixing the price in its purchase offer for the goods, takes into account, as a factor in reducing the price, the costs to be incurred by the dismantling and removal of the goods? Is it important that the seller of the goods is aware that the costs incurred by the demolition company for dismantling and transporting the items are taken into account as a factor reducing the price of those goods, in view of the fact that no agreement on these costs and the estimated or actual amount of these costs should at no time be known to the seller of the goods?

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(1)  OJ 2006 L 347, p. 1.

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11.9.2017

EN

Official Journal of the European Union

C 300/22

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Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium) lodged on 7 July 2017 — Inter-Environnement Wallonie asbl, Bond Beter Leefmilieu Vlaanderen vzw v Conseil des ministres

(Case C-411/17)

(2017/C 300/27)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Inter-Environnement Wallonie asbl, Bond Beter Leefmilieu Vlaanderen vzw

Defendant: Conseil des ministres

Intervener: Electrabel SA

Questions referred

1.

Must Article 2(1) to (3), (6) and (7), Article 3(8), Article 5 and Article 6(1) of the Espoo Convention ‘on Environmental Impact Assessment in a Transboundary Context’, and point 2 of Appendix I to that convention, be interpreted in accordance with the explanations provided in the information document on the Application of the Convention to nuclear-energy related activities and the Good practice recommendations on the application of the Convention to nuclear-energy related activities?

2.

May Article 1(ix) of the Espoo Convention, which defines the ‘competent authority’, be interpreted as excluding from the scope of that Convention legislative acts such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, having regard in particular to the various assessments and hearings carried out in connection with the adoption of that law?

3.

(a) Must Articles 2 to 6 of the Espoo Convention be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015 amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations? (b) Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015? (c) May the security of the country’s electricity supply constitute an overriding reason of public interest permitting a derogation from the application of Articles 2 to 6 of the Espoo Convention or suspension of the application of those provisions?

4.

Must Article 2(2) of the Aarhus Convention on ‘access to information, public participation in decision-making and access to justice in environmental matters’ be interpreted as excluding from the scope of that convention legislative acts such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, irrespective of whether the various assessments and hearings carried out in connection with the adoption of that law are taken into account?

5.

(a) Having regard in particular to the ‘Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters’ with respect to multi-stage decision-making, must Articles 2 and 6 of the Aarhus Convention, in conjunction with Annex I.I to that Convention, be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations? (b) Does the answer to the question in point (a) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015? (c) May the security of the country’s electricity supply constitute an overriding ground of public interest permitting a derogation from the application of Articles 2 and 6 of the Aarhus Convention or suspension of the application of those provisions?

6.

(a) Must Article 1(2) of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, in conjunction with point 13(a) of Annex II to that directive, read, where appropriate, in the light of the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations? (b) If the answer to the question in point (a) is in the affirmative, must Articles 2 to 8 and 11 of Directive 2011/92/EU and Annexes I, II and III to that directive be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations? (c) Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015? (d) If the answer to the question set out in point (a) is in the affirmative, must Article 2(4) of Directive 2011/92/EU be interpreted as permitting an exemption for the postponement of the deactivation of a nuclear power station from the application of Articles 2 to 8 and 11 of Directive 2011/92/EU for overriding reasons of public interest linked with the security of the country’s electricity supply?

7.

Must the concept of ‘specific act of national legislation’ within the meaning of Article 1(4) of Directive 2011/92/EU be interpreted as excluding from the scope of that directive a legislative act such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, having regard to the various assessments and hearings carried out in connection with the adoption of that law, which might attain the objectives of that directive?

8.

(a) Must Article 6 of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Articles 3 and 4 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, read, where appropriate, in the light of Directive 2011/92/EU and the Espoo and Aarhus Conventions, be interpreted as applying to the postponement of the date of deactivation and of the end of the industrial production of electricity of a nuclear power station, entailing, as in this instance, significant investments and security upgrades for the Doel 1 and 2 nuclear power stations? (b) If the answer to the question in point (a) is in the affirmative, must Article 6(3) of the Directive 92/43/EEC be interpreted as applying prior to the adoption of a legislative act such as the Law of 28 June 2015‘amending the Law of 31 January 2003 on the phasing out of nuclear energy for the purposes of the industrial production of electricity in order to ensure the security of the energy supply’, Article 2 of which postpones the date of deactivation and of the end of the industrial production of electricity of the Doel 1 and Doel 2 nuclear power stations? (c) Does the answer to the questions in points (a) and (b) differ depending on whether it relates to the Doel 1 or the Doel 2 power station, having regard to the need, in the case of the former power station, to adopt administrative acts implementing the abovementioned Law of 28 June 2015? (d) If the answer to the question in point (a) is in the affirmative, must Article 6(4) of Directive 92/43/EEC be interpreted as allowing grounds linked with the security of the country’s electricity supply to be considered an imperative reason of overriding public interest, having regard in particular to the various assessments and hearings carried out in the context of the adoption of the abovementioned Law of 28 June 2015, which might be capable of attaining the objectives of that directive?

9.

If, on the basis of the answers to the preceding questions, the national court should conclude that the contested law fails to fulfil one of the obligations arising under the abovementioned conventions or directives, and the security of the country’s electricity supply cannot constitute an imperative reason of overriding public interest permitting a derogation from those obligations, might the national court maintain the effects of the Law of 28 June 2015 in order to avoid legal uncertainty and to allow the environmental impact assessment and public participation obligations arising under those conventions or directives to be fulfilled?

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11.9.2017

EN

Official Journal of the European Union

C 300/24

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Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 10 July 2017 — Arex CZ a.s. v Odvolací finanční ředitelství

(Case C-414/17)

(2017/C 300/28)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Appellant (applicant at first instance): Arex CZ a.s.

Other party (defendant at first instance): Odvolací finanční ředitelství

Questions referred

1.	Must any taxable person be regarded as a taxable person within the meaning of Article 138(2)(b) of Council Directive 2006/112/EC (1) on the common system of value added tax (‘the VAT Directive’)? If not, to which taxable persons does that provision apply?

2.

If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive applies to a situation such as that in the main proceedings (that is, the acquirer of the products is a taxable person registered for tax), must that provision be interpreted as meaning that, where the dispatch or transport of those products takes place in accordance with the relevant provisions of Council Directive 2008/118/EC (2) concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (3) (‘the Excise Duty Directive’), a supply connected with a procedure under the Excise Duty Directive must be regarded as a supply entitled to exemption under that provision, even though the conditions for exemption under Article 138(1) of the VAT Directive are not otherwise satisfied, having regard to the assignment of the transport of goods to another transaction?

3.

If the Court of Justice’s answer is that Article 138(2)(b) of the VAT Directive does not apply to a situation such as that in the main proceedings, is the fact that the goods are transported under an excise duty suspension arrangement decisive for deciding the question of which of several successive supplies the transport is to be ascribed to for the purposes of the right to exemption from VAT under Article 138(1) of the VAT Directive?

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(1)  OJ 2006 L 347, p. 1.

(2)  OJ 2009 L 9, p. 12.

(3)  OJ 1992 L 76, p. 1.

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11.9.2017

EN

Official Journal of the European Union

C 300/25

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Action brought on 12 July 2017 — European Commission v French Republic

(Case C-420/17)

(2017/C 300/29)

Language of the case: French

Parties

Applicant: European Commission (represented by: O. Beynet and C. Hermes, acting as Agents)

Defendant: French Republic

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to take all the necessary measures to establish a general system of protection for the ortolan bunting in Landes, the French Republic has failed to fulfil its obligations under Article 5 of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds;

—	order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that France has never taken the necessary coherent and coordinated protective measures to establish a system of protection for the ortolan bunting, and has thus failed to fulfil its obligations under Directive 2009/147/EC. (1)

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(1)  OJ L 20, 26.1.2010, p. 7.

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11.9.2017

EN

Official Journal of the European Union

C 300/26

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Request for a preliminary ruling from the Juzgado de lo Social n.o 2 de Terrassa (Spain) lodged on 14 July 2017 — Elena Barba Giménez v Francisca Carrión Lozano

(Case C-426/17)

(2017/C 300/30)

Language of the case: Spanish

Referring court

Juzgado de lo Social n.o 2 de Terrassa

Parties to the main proceedings

Applicant: Elena Barba Giménez

Defendant: Francisca Carrión Lozano

Questions referred

1.

Is Directive 93/13, in conjunction with Directive 2005/29 and with Article 47 of the Charter, to be interpreted as precluding national legislation, such as Article 35 of Law 1/2000 on Civil Procedure, under which the bodies conducting procedures to settle claims for fees (jura de cuentas) may not ascertain of their own motion, before issuing the enforceable instrument, whether the contract concluded between the lawyer and a consumer contains unfair terms or whether there have been unfair commercial practices?

2.

Is a legal aid lawyer a ‘trader’ or ‘seller or supplier’ for the purposes of Article 2(c) of Directive 93/13 (1) and Article 2(b) of Directive 2005/29? (2) Are Article 6(1)(d) and Article 7(2) of Directive 2005/29/EC applicable to situations in which a professional’s fees are regulated by a legal provision?

3.

If the answer to the previous question is in the affirmative, does Directive 2005/29/EC preclude a rule such as that in Article 36 of Law 1/1996 on legal aid, that makes it obligatory for the statutory fee regime to be applied, even when the professional fails to give information or gives misleading information concerning the calculation of the price for his services?

4.

Must Article 101 TFEU be interpreted as precluding a rule such as that laid down in Article 36 of Law 1/1996, which, if the application is upheld, makes the remuneration of lawyers who provide legal aid services subject to a scale of fees previously approved by those lawyers, from which the authorities of the Member State may not depart?

5.	Does that rule satisfy the requirements of necessity and proportionality to which Article 15(3) of Directive 2006/123/EC refers?

6.

Must Article 47 of the Charter of Fundamental Rights of the European Union be interpreted as precluding a rule such as that in Article 36 of Law 1/1996, which obliges the … [beneficiaries] of the right to legal aid, if their action succeeds and no order for costs is made, to pay the lawyer the fees determined in accordance with scales approved by a professional body amounting to more than 50 % of the annual amount of a social security benefit?

---

(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

(2)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

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11.9.2017

EN

Official Journal of the European Union

C 300/27

---

Order of the President of the Ninth Chamber of the Court of 19 June 2017 — European Commission v Czech Republic

(Case C-606/15) (1)

(2017/C 300/31)

Language of the case: Czech

The President of the Ninth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 27, 25.1.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/27

---

Order of the President of the Court of 27 June 2017 — European Commission v Republic of Poland

(Case C-683/15) (1)

(2017/C 300/32)

Language of the case: Polish

The President of the Court has ordered that the case be removed from the register.

---

(1)  OJ C 78, 29.2.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/27

---

Order of the President of the Court of 30 June 2017 (request for a preliminary ruling from the Landgericht Frankfurt am Main — Germany) — Richard Rodriguez Serin v HOP!-Regional

(Case C-539/16) (1)

(2017/C 300/33)

Language of the case: German

The President of the Court has ordered that the case be removed from the register.

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(1)  OJ C 30, 30.1.2017.

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11.9.2017

EN

Official Journal of the European Union

C 300/28

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Order of the President of the Court of 5 July 2017 (request for a preliminary ruling from the Cour d’appel de Mons — Belgium) — Belgian State v Biologie Dr Antoine SPRL

(Case C-548/16) (1)

(2017/C 300/34)

Language of the case: French

The President of the Court has ordered that the case be removed from the register.

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(1)  OJ C 30, 30.1.2017.

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11.9.2017

EN

Official Journal of the European Union

C 300/29

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Judgment of the General Court of 13 July 2017 — Aristoteleio Panepistimio Thessalonikis v ERCEA

(Case T-348/16 OP) (1)

((Arbitration clause - Application to have a judgment set aside - Stay of execution of a judgment by default - Interlocutory judgment))

(2017/C 300/35)

Language of the case: Greek

Parties

Applicant in the main proceedings: Aristoteleio Panepistimio Thessalonikis (Thessaloniki, Greece) (represented by: V. Christianos, lawyer)

Defendant in the main proceedings: European Research Council Executive Agency (ERCEA) (represented by: M. Pesquera Alonso and F. Sgritta, acting as Agents, and E. Kourakis, lawyer)

Re:

Application to have the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T-348/16, not published, EU:T:2017:268) set aside.

Operative part of the judgment

Execution of the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T-348/16), is stayed pending the outcome of the application made by the European Research Council Executive Agency (ERCEA) to have that judgment set aside.

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(1)  OJ C 296, 16.8.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/29

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Judgment of the General Court of 13 July 2017 — myToys.de v EUIPO — Laboratorios Indas (myBaby)

(Case T-519/15) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark myBaby - Earlier EU word, and EU figurative and national word marks MAYBABY, May BaBy and MAY BABY - Ancillary appeal - Article 8(3) of Regulation (EC) No 216/96 - Merely confirmatory decision - Inadmissibility))

(2017/C 300/36)

Language of the case: English

Parties

Applicant: myToys.de GmbH (Berlin, Germany) (represented by: C. Hauss-Löhde and M. Mette, lawyers)

Defendant: European Union Intellectual Property Office (represented by: H. Kunz, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Laboratorios Indas, SA (Pozuelo de Alarcon, Spain) (represented by: M. de Justo Bailey, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 17 June 2015 (Case R 1002/2014-2), relating to opposition proceedings between Laboratorios Indas and myToys.de.

Operative part of the judgment

The Court:

1.	The action is dismissed;

2.	myToys.de GmbH shall bear its own costs and pay those incurred by Laboratorios Indas, SA;

3.	European Union Intellectual Property Office (EUIPO) shall bear its own costs.

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(1)  OJ C 363, 3.11.2015.

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11.9.2017

EN

Official Journal of the European Union

C 300/30

---

Order of the President of the General Court of 13 July 2017 — Aristoteleio Panepistimio Thessalonikis v ERCEA

(Case T-348/16 OP-R)

((Interim measures - Arbitration clause - Judgment by default - Application for a stay of execution of the judgment - Lack of jurisdiction))

(2017/C 300/37)

Language of the case: Greek

Parties

Applicant in the main proceedings: Aristoteleio Panepistimio Thessalonikis (Thessalonica, Greece) (represented by: V. Christianos, lawyer)

Defendant in the main proceedings: European Research Council Executive Agency (ERCEA) (represented by: M. Pesquera Alonso and F. Sgritta, acting as Agents, and by E. Kourakis, lawyer)

Re:

Application under Article 123(4) and Article 156 of the Rules of Procedure of the General Court seeking a stay of execution of the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T-348/16, not published, EU:T:2017:268).

Operative part of the order

1.	The application is dismissed.

2.	The costs are reserved.

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11.9.2017

EN

Official Journal of the European Union

C 300/31

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Order of the General Court of 19 July 2017 — HI v Commission

(Case T-464/16 P) (1)

((Appeal - Civil service – - Project funded by the European Union - Conflict of interest - Disciplinary action - Downgrading - Dismissal of the action at first instance - Appeal in part manifestly inadmissible and in part manifestly unfounded))

(2017/C 300/38)

Language of the case: French

Parties

Appellant: HI (represented by: M. Velardo, lawyer)

Other party to the proceedings: European Commission (represented by: C. Ehrbar and F. Simonetti, acting as Agents)

Re:

Appeal against the judgment of the Civil Service Tribunal of the European Union (Single Judge) of 10 June 2016, HI v Commission (F-133/15, EU:F:2016:127), seeking to have that judgment set aside.

Operative part of the order

1.	The appeal is dismissed.

2.	HI shall bear its own costs and pay those incurred by the European Commission in the context of the present proceedings.

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(1)  OJ C 371, 10.10.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/31

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Action brought on 11 July 2017 — Nexans France and Nexans v. Commission

(Case T-423/17)

(2017/C 300/39)

Language of the case: English

Parties

Applicants: Nexans France (Courbevoie, France) and Nexans (Courbevoie) (represented by: M. Powell and A. Rogers, Solicitors, and G. Forwood, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

annul Commission Decision C(2017) 3051 final of 2 May 2017 on a request for confidential treatment submitted by Nexans France and Nexans pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (Case AT.39610 — Power Cables) in so far as it rejects the Applicants’ confidentiality claims as regards the material that they claim in Case T-449/14 was obtained illegally (so-called ‘Category I Claims’), and

—	order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1.	First plea in law, alleging that the Commission failed to state sufficient reasons, contrary to Article 296 TFEU, Article 41(2)(c) of the Charter of Fundamental Rights, as well as Article 8(2) of Decision 2011/695/EU.

2.

Second plea in law, alleging that the Commission erred in assessing the applicants’ claim under Article 8(2) of Decision 2011/695: firstly, in finding that some of the contested material was already known beyond a limited number of persons; secondly, in failing to take due account of the principle of effective judicial protection; and thirdly, in finding that the applicants’ interests are not worthy of protection

3.

Third plea in law, alleging that the Commission breached the principle of the presumption of innocence, in view of the fact that the legality of the method by which the contested material was obtained is contested in the pending action Case T-449/14. Publication of the contested material would deprive any annulment in that case of its full effect.

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11.9.2017

EN

Official Journal of the European Union

C 300/32

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Action brought on 12 July 2017 — Dehousse v Court of Justice of the European Union

(Case T-433/17)

(2017/C 300/40)

Language of the case: French

Parties

Applicant: Franklin Dehousse (Brussels, Belgium) (represented by: L. Levi and S. Rodrigues, lawyers)

Defendant: Court of Justice of the European Union

Form of order sought

The applicant claims that the Court should:

—	declare the present action both admissible and well founded;

and, consequently,

—

annul the decision of 18 May 2017 whereby the defendant rejected the confirmatory application for access to documents submitted by the applicant on 12 April 2017, and the decision of 22 May 2017 whereby the defendant partially rejected the confirmatory application for access to documents submitted by the applicant on 16 March 2017;

—	acknowledge the defendant’s liability under Article 340 TFEU;

—	order the defendant to pay compensation for the non-material damage suffered by the applicant, assessed ex aequo et bono at ten thousand (10 000) euros, and, in the alternative, one symbolic euro;

—	order the defendant to pay the costs in their entirety.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law in relation to his claim for annulment and a single plea in law in relation to his claim for damages.

1.

First plea in law, alleging infringement of the Decision of the Court of Justice of the European Union of 11 October 2016 concerning public access to documents held by the Court of Justice of the European Union in the exercise of its administrative functions (OJ 2016 C 445, p. 3), Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union, in relation to public access to documents of the institutions and the duty of transparency. In particular, the applicant submits that the contested decisions must be annulled in so far as they refuse to provide certain documents, and provide others either in an incomplete manner or with numerous redactions.

2.	Second plea in law, alleging infringement of Article 296 TFEU and Article 41 of the Charter, in that the contested decisions are vitiated by a failure to provide a statement of reasons or by an insufficient statement of reasons.

3.	Third plea in law, alleging infringement of the principle of proportionality.

Concerning the non-contractual liability of the European Union, the applicant submits that the defendant institution engaged in misconduct giving rise to liability. That misconduct caused the applicant serious non-material damage in respect of which he is seeking compensation.

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11.9.2017

EN

Official Journal of the European Union

C 300/33

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Action brought on 12 July 2017 — ClientEarth and Others v Commission

(Case T-436/17)

(2017/C 300/41)

Language of the case: English

Parties

Applicants: ClientEarth (London, United Kingdom), European Environmental Bureau (EEB) (Brussels, Belgium), The International Chemical Secretariat (Gothenburg, Sweden), International POPs Elimination Network (IPEN) (Gothenburg) (represented by: A. Jones, Barrister)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	declare the application admissible and well founded;

—

annul Commission’s decision C(2017) 2914 final, dated 2 May 2017, refusing to review the Commission decision C(2016)5644 granting an authorization for some uses of lead sulfochromate yellow and lead chromate molybdate sulphate red under regulation (EC) no 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ 2006, L 396, p. 1);

—	annul Commission decision C(2016)5644;

—	order the Commission to pay the applicant’s costs, and

—	order any other measure deemed appropriate.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.	First plea in law, alleging that decision C(2017) 2914 final is vitiated by manifest errors of law and assessment regarding the alleged conformity of the application for authorisation of DCC Maastricht BV within the meaning of Articles 62 and 60(7) of the REACH regulation.

2.	Second plea in law, alleging that decision C(2017) 2914 final is vitiated by manifest errors of law and assessment under Article 60(4) of the REACH regulation regarding the socio-economic assessment.

3.	Third plea in law, alleging that decision C(2017) 2914 final is vitiated by manifest errors of assessment under Articles 60(4) and 60(5) of the REACH regulation regarding the analysis of alternatives.

4.

Fourth plea in law, alleging that decision C(2017) 2914 final is vitiated by manifest errors of law and assessment regarding the application of general principles of EU law, including the duty to state reasons and the precautionary principle, in the context of the authorisation process under the REACH regulation.

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11.9.2017

EN

Official Journal of the European Union

C 300/34

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Action brought on 14 July 2017 — Oy Karl Fazer v EUIPO — Kraft Foods Belgium Intellectual Property (MIGNON)

(Case T-437/17)

(2017/C 300/42)

Language in which the application was lodged: English

Parties

Applicant: Oy Karl Fazer Ab (Vantaa, Finland) (represented by: L. Laaksonen, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Kraft Foods Belgium Intellectual Property (Halle, Belgium)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘MIGNON’ — Application for registration No 10 995 892

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 24 April 2017 in Case R 1859/2016-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	allow the trademark to be registered for all applied goods.

Plea in law

—	Infringement of Article 8 (1) (b) of Regulation No 207/2009.

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11.9.2017

EN

Official Journal of the European Union

C 300/35

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Action brought on 18 July 2017 — Sevenfriday v EUIPO — Seven (SEVENFRIDAY)

(Case T-448/17)

(2017/C 300/43)

Language in which the application was lodged: English

Parties

Applicant: Sevenfriday AG (Zürich, Switzerland) (represented by: M. Mostardini, F. Mellucci, S. Pallavicini and G. Bellomo, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Seven SpA (Leinì, Italy)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘SEVENFRIDAY’ — Application for registration No 12 915 021

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 2 May 2017 in Case R 2291/2016-2

Form of order sought

The applicant claims that the Court should:

annul the contested decision insofar that it rejected the appeal lodged by Sevenfriday AG against the decision B2400482 of 7 October 2016 and consequently allow the application No 1105144 to proceed to registration as EU trade mark.

Plea in law

—	Infringement of Article 8(1)(b) Regulation No 207/2009

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11.9.2017

EN

Official Journal of the European Union

C 300/35

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Action brought on 18 July 2017 — Sevenfriday v EUIPO — Seven (SEVENFRIDAY)

(Case T-449/17)

(2017/C 300/44)

Language in which the application was lodged: English

Parties

Applicant: Sevenfriday AG (Zürich, Switzerland) (represented by: M. Mostardini, F. Mellucci, S. Pallavicini and G. Bellomo, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Seven SpA (Leinì, Italy)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘SEVENFRIDAY’ — Application for registration No 13 500 533

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 2 May 2017 in Case R 2292/2016-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision insofar that it rejected the appeal lodged by Sevenfriday AB against the decision B252649 of 10 October 2016 and consequently allow the application No 16500533 to proceed to registration as EU trade mark;

—	subordinately, annul the contested decision and revoke at least insofar goods in class 9 are concerned.

Plea in law

—	Infringement of Article 8(1)(b) Regulation No 207/2009.

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11.9.2017

EN

Official Journal of the European Union

C 300/36

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Action brought on 14 July 2017 — Bateni v Council

(Case T-455/17)

(2017/C 300/45)

Language of the case: German

Parties

Applicant: Naser Bateni (Hamburg, Germany) (represented by: M. Schlingmann and M. Bever, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

1.

order the European Union, represented by the Council, to pay to the applicant damages in the amount of EUR 250 000 for the non-material damage suffered by the applicant as a result of: — inclusion in Table III of Annex II to Council Decision 2010/413/CFSP by Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71) and inclusion in Table III of Annex VIII to Regulation (EU) No 961/2010 by Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 concerning restrictive measures against Iran (OJ 2011 L 319, p. 11); — inclusion in Table III of Annex IX to Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1); — inclusion in Table III of the Annex to Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 306, p. 18) and in Table III of the Annex to Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 306, p. 3);

2.	order the European Union, represented by the Council, to pay default interest calculated at the rate applied by the European Central Bank to its main refinancing operations, plus two percentage points, from 24 March 2017 until payment in full of the sum set out in 1.;

3.	order the European Union, represented by the Council, to pay the costs of the proceedings, in particular those of the applicant.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law.

1.

First plea in law: by adopting the restrictive measures against the applicant, the Council seriously infringed provisions of law protecting the applicant. The applicant thereby suffered significant non-material damage, for which he must receive compensation. — The applicant brought successful actions for annulment against his inclusion in the sanctions lists. The General Court annulled those legal acts by final judgments of 6 September 2013 in Cases T-42/12 and T-181/12 and of 16 September 2015 in Case T-45/14, insofar as they concerned the applicant. The General Court thereby found that the Council had in each case failed to establish any grounds that could have justified the applicant’s inclusion in the sanctions lists and therefore committed manifest errors of assessment and failed to comply with its duty of diligence. — According to the case-law of the General Court (Safa Nicu Sepahan Co. v Council, Case T-384/11, judgment of 25 November 2014), which the Court of Justice has since confirmed (Case C-45/15 P, judgment of 30 May 2017), this constitutes a serious infringement both of the substantive, protective provisions of the respective enabling bases and also of the fundamental rights of the person concerned, in particular the right to effective legal protection. — Annulment alone of the legal acts in question does not constitute sufficient compensation. The far-reaching social, professional and private consequences of the unlawful listings of the applicant over the years can be offset only through the payment of compensation.

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11.9.2017

EN

Official Journal of the European Union

C 300/37

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Action brought on 19 July 2017 — Medisana v EUIPO (happy life)

(Case T-457/17)

(2017/C 300/46)

Language of the case: German

Parties

Applicant: Medisana AG (Neuss, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘happy life’ — Application for registration No 15 164 023

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 May 2017 in Case R 1965/2016-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Plea in law

—	Infringement of Article 7(1)(b) and 7(2) of Regulation No 207/2009.

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11.9.2017

EN

Official Journal of the European Union

C 300/38

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Action brought on 20 July 2017 — Bopp v EUIPO (Representation of an equiangular octagon)

(Case T-460/17)

(2017/C 300/47)

Language of the case: German

Parties

Applicant: Carsten Bopp (Glashütten, Germany) (represented by: F. Pröckl, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Sign (Representation of an equiangular octagon) — Application for registration No 11 005 196

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 8 May 2017 in Case R 1954/2016-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Pleas in law

—	Infringement of Article 7(1)(b) of Regulation No 207/2009;

—	Infringement of Article 75 of Regulation No 207/2009.

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11.9.2017

EN

Official Journal of the European Union

C 300/38

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Order of the General Court of 18 July 2017 — Gauff v EUIPO — H.P. Gauff Ingenieure (Gauff)

(Case T-748/15) (1)

(2017/C 300/48)

Language of the case: German

The President of the Fourth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 78, 29.2.2016.

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11.9.2017

EN

Official Journal of the European Union

C 300/39

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Order of the General Court of 7 July 2017 — Bank of New York Mellon v EUIPO — Nixen Partners (NEXEN)

(Case T-278/17) (1)

(2017/C 300/49)

Language of the case: English

The President of the Fifth Chamber has ordered that the case be removed from the register.

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(1)  OJ C 213, 3.7.2017.

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