24.7.2017   

EN

Official Journal of the European Union

C 239/1

24.7.2017   

EN

Official Journal of the European Union

C 239/2

1.

Dismisses the appeal;

2.

Orders the Kingdom of Sweden to pay the costs incurred by the European Commission;

3.

Orders the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Kingdom of Spain and the Republic of Finland to bear their own costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/3

—

the provisions of Section A (Investment Protection) of Chapter 9 (Investment) of that agreement, in so far as they relate to non-direct investment between the European Union and the Republic of Singapore;

—

the provisions of Section B (Investor-State Dispute Settlement) of Chapter 9; and

—

the provisions of Chapters 1 (Objectives and General Definitions), 14 (Transparency), 15 (Dispute Settlement between the Parties), 16 (Mediation Mechanism) and 17 (Institutional, General and Final Provisions) of that agreement, in so far as those provisions relate to the provisions of Chapter 9 and to the extent that the latter fall within a competence shared between the European Union and the Member States.

24.7.2017   

EN

Official Journal of the European Union

C 239/3

1.

Freedom of establishment must be interpreted as not precluding tax legislation of a Member State, such as that at issue in the main proceedings, under which both a non-resident company conducting an economic activity in that Member State through a permanent establishment and a resident company, including the resident subsidiary of a non-resident company, are subject to a tax such as the ‘fairness tax’ when they distribute dividends which, as a result of the use of certain tax advantages provided for by the national tax system, are not included in their final taxable profits, provided that the method of determining the taxable amount of that tax does not in fact lead to that non-resident company being treated in a less advantageous manner than a resident company, which is for the referring court to ascertain.

2.

Article 5 of Council Directive 2011/96/EU of 30 November 2011 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as not precluding tax legislation of a Member State, such as that at issue in the main proceedings, providing for a tax such as the ‘fairness tax’, to which non-resident companies conducting an economic activity in that Member State through a permanent establishment and resident companies, including the resident subsidiary of a non-resident company, are subject when they distribute dividends which, as a result of the use of certain tax advantages provided for by the national tax system, are not included in their final taxable profits.

3.

Article 4(1)(a) of Directive 2011/96, read in conjunction with Article 4(3) thereof, must be interpreted as precluding national tax legislation, such as that at issue in the main proceedings, in so far as that legislation, in a situation where profits received by a parent company from its subsidiary are distributed by the parent company after the year in which they were received, has the consequence of subjecting those profits to taxation exceeding the 5 % ceiling provided for in that provision.

24.7.2017   

EN

Official Journal of the European Union

C 239/4

1.

Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.

2.

Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.

24.7.2017   

EN

Official Journal of the European Union

C 239/5

1.

Dismisses the appeal;

2.

Orders Yoshida Metal Industry Co. Ltd to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/6

1.

Sets aside the judgment of the General Court of the European Union of 4 June 2015, Deluxe Laboratories v OHIM (deluxe) (T-222/14, not published, EU:T:2015:364);

2.

Refers the case back to the General Court of the European Union;

3.

Reserves the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/6

24.7.2017   

EN

Official Journal of the European Union

C 239/7

24.7.2017   

EN

Official Journal of the European Union

C 239/8

1.

Article 51(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State implements EU law within the meaning of that provision, and that the Charter of Fundamental Rights of the European Union is therefore applicable, when that Member State makes provision in its legislation for a pecuniary penalty to be imposed on a person who may be the subject of administrative measures (a ‘relevant person’) who refuses to supply information in the context of an exchange between tax authorities based, in particular, on the provisions of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC.

2.

Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a relevant person on whom a pecuniary penalty has been imposed for failure to comply with an administrative decision directing that person to provide information (‘information order’) in the context of an exchange between national tax administrations pursuant to Directive 2011/16 is entitled to challenge the legality of that decision.

3.

Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that the ‘foreseeable relevance’ of the information requested by one Member State from another Member State is a condition which the request for information must satisfy in order for the requested Member State to be required to comply with that request, and thus a condition of the legality of the information order addressed by that Member State to a relevant person and of the penalty imposed on that person for failure to comply with that information order.

4.

Article 1(1) and Article 5 of Directive 2011/16 must be interpreted as meaning that verification by the requested authority to which a request for information has been submitted by the requesting authority pursuant to that directive is not limited to the procedural regularity of that request but must enable the requested authority to satisfy itself that the information sought is not devoid of any foreseeable relevance having regard to the identity of the taxpayer concerned and that of any third party asked to provide the information, and to the requirements of the tax investigation concerned. Those provisions of Directive 2011/16 and Article 47 of the Charter must be interpreted as meaning that, in the context of an action brought by a relevant person against a penalty imposed on that person by the requested authority for non-compliance with an information order issued by that authority in response to a request for information sent by the requesting authority pursuant to Directive 2011/16, the national court not only has jurisdiction to vary the penalty imposed but also has jurisdiction to review the legality of that information order. As regards the condition of legality of that information order, which relates to the foreseeable relevance of the requested information, the courts’ review is limited to verification that the requested information manifestly has no such relevance.

5.

The second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, in the context of a judicial review by a court of the requested Member State, that court must have access to the request for information addressed to the requested Member State by the requesting Member State. The relevant person does not, however, have a right of access to the whole of that request for information, which is to remain a secret document in accordance with Article 16 of Directive 2011/16. In order for that person to be given a full hearing of his case in relation to the lack of any foreseeable relevance of the requested information, it is sufficient, in principle, that he be in possession of the information referred to in Article 20(2) of that directive.

24.7.2017   

EN

Official Journal of the European Union

C 239/9

24.7.2017   

EN

Official Journal of the European Union

C 239/10

24.7.2017   

EN

Official Journal of the European Union

C 239/10

1.

Sets aside the judgment of the General Court of the European Union of 11 November 2015, Dyson v Commission (T-544/13, EU:T:2015:836), in so far as it rejected the first part of the first plea in law and the third plea in law put forward at first instance;

2.

Refers the case back to the General Court of the European Union for it to give judgment on the first part of the first plea in law and the third plea in law put forward at first instance;

3.

Reserves the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/11

1.

The first indent of Article 11(1) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that it covers not only cases of complete non-execution of the contract concluded between the principal and the third party, but also cases of partial non-execution of that contract, such as non-compliance with the volume of transactions or the duration envisaged by that contract.

2.

Article 11(2) and (3) of Directive 86/653 must be interpreted as meaning that the clause of a contract for commercial agency pursuant to which the agent is required to refund, on a pro-rata basis, a part of his commission in the event of partial non-execution of the contract concluded between the principal and the third party does not constitute a ‘derogation to the detriment of the commercial agent’, for the purposes of that Article 11(3), if the part of the commission subject to the refund obligation is proportionate to the extent to which that contract has not been executed and on condition that that non-execution is not due to a reason for which the principal is to blame.

3.

The second indent of Article 11(1) of Directive 86/653 must be interpreted as meaning that the concept of ‘a reason for which the principal is to blame’ does not relate only to the legal reasons which led directly to the termination of the contract concluded between the principal and the third party, but covers all the legal and factual circumstances for which the principal is to blame, which are the cause of the non-execution of that contract.

24.7.2017   

EN

Official Journal of the European Union

C 239/12

24.7.2017   

EN

Official Journal of the European Union

C 239/12

24.7.2017   

EN

Official Journal of the European Union

C 239/13

1.

The principle of equal treatment of economic operators set out in Article 10 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as precluding, in a public procurement procedure, the contracting authority from inviting a tenderer to submit declarations or documents whose communication was required by the tender specification and which have not been submitted within the time limit given for the submission of tenders. On the other hand, that article does not preclude the contracting authority from inviting a tenderer to clarify a tender or to correct an obvious clerical error in that tender, on condition, however, that such an invitation is sent to all tenderers in the same situation, that all tenderers are treated equally and fairly, and that that clarification or correction may not be equated with the submission of a new tender, which is for the referring court to determine.

2.

Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings in which, in a public procurement procedure two tenders have been submitted and the contracting authority has adopted two simultaneous decisions rejecting the offer of one tenderer and awarding the contract to the other, the unsuccessful tenderer who brings an action against those two decisions must be able to request the exclusion of the tender of the successful tenderer, so that the concept of ‘a particular contract’ within the meaning of Article 1(3) of Directive 92/13, as amended by Directive 2007/66, may, where appropriate, apply to the possible initiation of a new public procurement procedure.

24.7.2017   

EN

Official Journal of the European Union

C 239/14

1.

In circumstances such as those in the main proceedings, the decision of a company of which a Member State is the main shareholder to accept, in order to extinguish a debt, a transfer in lieu of payment of an asset which is the property of another company of which that Member State is the only shareholder and to pay a sum corresponding to the difference between the estimated value of that asset and the amount of that debt is liable to constitute State aid within the meaning of Article 107 TFEU if:

It is for the referring court to ascertain whether those conditions are met.

2.

If a national court classifies as State aid the decision of a company of which a Member State is the majority shareholder to accept a transfer in lieu of payment of an asset owned by another company of which that Member State is the sole shareholder, in order to extinguish a debt, and to refund a sum corresponding to the difference between the estimated value of that asset and the amount of the debt, the authorities of that Member State are required to notify that aid to the Commission before it is put into effect, in accordance with Article 108(3) TFEU.

24.7.2017   

EN

Official Journal of the European Union

C 239/15

1.

Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 must be interpreted as meaning that it does not apply where the total volume of the goods placed under the external Community transit procedure has not been presented to the customs office of destination provided for in that procedure, owing to the total destruction or irretrievable loss of some of the goods, which is proven to a satisfactory standard.

2.

Article 204(1)(a) of Regulation No 2913/92 of 12 October 1992, as amended by Regulation No 648/2005 must be interpreted as meaning that where the total volume of goods placed under the external Community transit procedure has not been produced at the customs office of destination laid down in that procedure owing to the total destruction or irretrievable loss of some of the goods, proven to a satisfactory standard, that situation, which constitutes the non-fulfilment of one of the obligations under that procedure, namely to produce goods intact at the customs office of destination, gives rise, in principle, to a customs debt on importation for the part of the goods which was not produced at that customs office. It is for the national court to determine whether a circumstance such as damage to an unloading device meets, in the present case, the criteria of ‘force majeure’ or an ‘unforeseeable circumstance’, within the meaning of Article 206(1) of Regulation No 2913/92, as amended by Regulation No 648/2005, namely, whether it is an abnormal circumstance for a trader in the business of the transportation of liquid substances and extraneous to that trader, and whether the consequences could not have been avoided even if all due care had been exercised. In the context of that determination, that court must, in particular, take into account compliance, by operators such as the principal and the carrier, with the rules and obligations in force regarding the technical condition of tanks and the safety of transportation of liquid substances such as a solvent.

3.

Article 2(1)(d) and Articles 70 and 71 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that VAT is not due on the totally destroyed or irretrievably lost part of goods placed under the external Community transit procedure.

4.

Article 96(1)(a) in conjunction with Article 204(1)(a) and (3) of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the principal is liable for the payment of the customs debt arising in relation to goods placed under the external Community transit procedure, even if the carrier did not fulfil the obligations to which he was subject under Article 96(2) of that regulation, in particular the requirement to produce those goods intact at the customs office of destination within the prescribed period.

5.

Article 96(1)(a) and (2), Article 204(1)(a) and (3) and Article 213 of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the customs authority of a Member State is not obliged to declare the joint and several liability of the carrier who, together with the principal, must be regarded as liable for payment of the customs debt.

24.7.2017   

EN

Official Journal of the European Union

C 239/16

24.7.2017   

EN

Official Journal of the European Union

C 239/17

1.

Dismisses the appeal;

2.

Orders the Portuguese Republic to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/17

1.

Dismisses the appeal;

2.

Orders the Portuguese Republic to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/18

1.

Dismisses the appeal;

2.

Orders the Portuguese Republic to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/18

24.7.2017   

EN

Official Journal of the European Union

C 239/19

24.7.2017   

EN

Official Journal of the European Union

C 239/19

1.

Do Articles 8 and 9 of Directive 2005/29/EC (2) of the European Parliament and of the Council of 11 May 2005 preclude an interpretation of the corresponding national implementing provisions (namely: Articles 24 and 25 respectively of the Consumer Code) which considers that the conduct of a mobile telephone operator in failing to provide information regarding the pre-loading on to SIM cards of specific telephony services (that is, answering or internet-enabling services) may be classified as ‘undue influence’ and, therefore, as an ‘aggressive commercial practice’ likely ‘significantly’ to curtail the average consumer’s freedom of choice or of action, particularly in circumstances in which no further different material conduct is imputed to that mobile telephone operator?

2.

Can point 29 of Annex I of Directive 2005/29/EC (…) be interpreted as meaning that there is an ‘unsolicited supply’ where a mobile telephone operator asks its customer to pay for telephone answering or internet-enabling services, and does so in a situation with the following features:

3.

Does the raison d’être of the ‘general’ Directive 2005/29/EC as the ‘safety net’ for consumer protection, and recital 10 in the preamble and Article 3(4) of that directive as well, preclude national rules which bring within the scope of general Directive 2005/29/EC on improper commercial practices the evaluation of performance of the specific obligations laid down by sectoral Directive 2002/22/EC (3) for consumer protection, thereby excluding action by the authority empowered to penalise violations of the sectoral directive in all cases in which the prerequisites establishing an improper/unfair commercial practice may also be satisfied?

4.

Must the speciality principle established by Article 3(4) of Directive 2005/29/EC be construed as governing relations between legislative systems (general system and sectoral systems), or relations between provisions (general provisions and special provisions) or relations between authorities responsible for regulating and monitoring the relevant sectors?

5.

Can the concept of ‘conflict’ in Article 3(4) of Directive 2005/29/EC be regarded as applicable only in circumstances in which there is a radical contradiction in law between the provisions of the legislation on improper commercial practices and the other provisions derived from EU law that govern specific sectoral aspects of commercial practices, or is it sufficient that the latter provisions lay down rules that differ from the provisions on improper commercial practices in relation to the particular features of the sector, such as to give rise to a conflict of laws (‘Normenkollision’) in a specific case?

6.

Does the term ‘Community rules’ in Article 3(4) of Directive 2005/29/EC relate solely to the provisions contained in European regulations and directives and to the provisions directly transposing them, or does it also encompass the legislative and regulatory provisions implementing principles of EU law?

7.

Do the speciality principle, established in recital 10 in the preamble and Article 3(4) of Directive 2005/29/EC and Articles 20 and 21 of Directive 2002/22/EC, Articles 3 and 4 of Directive 2002/21/EC (4) as well, preclude an interpretation of the corresponding national transposing provisions to the effect that, whenever, in a regulated sector containing sectoral ‘consumer’ rules, in which the sectoral authority is empowered to regulate and impose penalties, conduct that could be covered by the term ‘aggressive practice’ within the meaning of Articles 8 and 9 of Directive 2005/59/EC, or the term ‘in all circumstances considered aggressive’ within the meaning of Annex I of Directive 2005/29/EC, is identified, the general rules on improper practices must always apply, even when there are sectoral rules adopted to protect consumers and based on provisions of EU law, that fully regulate those same ‘aggressive practices’ and practices ‘in all circumstances considered aggressive’ or, at any rate, those same ‘improper practices’?

24.7.2017   

EN

Official Journal of the European Union

C 239/21

1.

Do Articles 8 and 9 of Directive 2005/29/EC (2) of the European Parliament and of the Council of 11 May 2005 preclude an interpretation of the corresponding national implementing provisions (namely: Articles 24 and 25 respectively of the Consumer Code) which considers that the conduct of a mobile telephone operator in failing to provide information regarding the pre-loading on to SIM cards of specific telephony services (that is, answering or internet-enabling services) may be classified as ‘undue influence’ and, therefore, as an ‘aggressive commercial practice’ likely ‘significantly’ to curtail the average consumer’s freedom of choice or of action, particularly in circumstances in which no further different material conduct is imputed to that mobile telephone operator?

2.

Can point 29 of Annex I of Directive 2005/29/EC (…) be interpreted as meaning that there is an ‘unsolicited supply’ where a mobile telephone operator asks its customer to pay for telephone answering or internet-enabling services, and does so in a situation with the following features:

3.

Does the raison d’être of the ‘general’ Directive 2005/29/EC as the ‘safety net’ for consumer protection, and recital 10 in the preamble and Article 3(4) of that directive as well, preclude national rules which bring within the scope of general Directive 2005/29/EC on improper commercial practices the evaluation of performance of the specific obligations laid down by sectoral Directive 2002/22/EC (3) for consumer protection, thereby excluding action by the authority empowered to penalise violations of the sectoral directive in all cases in which the prerequisites establishing an improper/unfair commercial practice may also be satisfied?

4.

Must the speciality principle established by Article 3(4) of Directive 2005/29/EC be construed as governing relations between legislative systems (general system and sectoral systems), or relations between provisions (general provisions and special provisions) or relations between authorities responsible for regulating and monitoring the relevant sectors?

5.

Can the concept of ‘conflict’ in Article 3(4) of Directive 2005/29/EC be regarded as applicable only in circumstances in which there is a radical contradiction in law between the provisions of the legislation on improper commercial practices and the other provisions derived from EU law that govern specific sectoral aspects of commercial practices, or is it sufficient that the latter provisions lay down rules that differ from the provisions on improper commercial practices in relation to the particular features of the sector, such as to give rise to a conflict of laws (‘Normenkollision’) in a specific case?

6.

Does the term ‘Community rules’ in Article 3(4) of Directive 2005/29/EC relate solely to the provisions contained in European regulations and directives and to the provisions directly transposing them, or does it also encompass the legislative and regulatory provisions implementing principles of EU law?

7.

Do the speciality principle, established in recital 10 in the preamble and Article 3(4) of Directive 2005/29/EC and Articles 20 and 21 of Directive 2002/22/EC, Articles 3 and 4 of Directive 2002/21/EC (4) as well, preclude an interpretation of the corresponding national transposing provisions to the effect that, whenever, in a regulated sector containing sectoral ‘consumer’ rules, in which the sectoral authority is empowered to regulate and impose penalties, conduct that could be covered by the term ‘aggressive practice’ within the meaning of Articles 8 and 9 of Directive 2005/59/EC, or the term ‘in all circumstances considered aggressive’ within the meaning of Annex I of Directive 2005/29/EC, is identified, the general rules on improper practices must always apply, even when there are sectoral rules adopted to protect consumers and based on provisions of EU law, that fully regulate those same ‘aggressive practices’ and practices ‘in all circumstances considered aggressive’ or, at any rate, those same ‘improper practices’?

24.7.2017   

EN

Official Journal of the European Union

C 239/22

—

set aside the judgment of the General Court of the European Union (Ninth Chamber) of 19 January 2017 in Case T-701/15, Stock Polska v EUIPO — Lass & Steffen (LUBELSKA), in its entirety;

—

order that the case be referred back to the General Court for judgment;

—

order each of the parties to bear their own costs.

1.

Infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (1) through failure to carry out a global assessment of the existence of a likelihood of confusion based on an overall impression and taking into account the signs’ dominant and distinctive elements, on account of, inter alia, the unjustified restricting of the assessment of the similarity between the sign and the earlier trade mark to a single element of the sign (the word element).

The General Court erred in accepting that it is possible to restrict the assessment of the similarity between two trade marks to an assessment consisting in examining only one of the elements forming the composite trade mark (the word element) and comparing that element with the other trade mark, eliminating the graphical element from that assessment without first establishing that the word element constitutes the dominant element, while the graphical element is meaningless. The General Court established only that the graphical element is weakly distinctive, failing to take into account that the fact that a particular element of a sign is weakly distinctive does not mean that that element may not be the dominant element.

2.

Infringement of Article 8(1)(b) of Regulation No 207/2009 and infringement of the principles of equal treatment, sound administration and legal certainty through failure to take into consideration the fact that EUIPO had neglected to follow its previous decision-making practice as set out in the EUIPO Guidelines and, consequently, through acceptance of a decision running counter to that practice.

The General Court disregarded the fact that EUIPO had departed from its previous decision-making practice as set out in the Guidelines in relation to the application of Article 8(1)(b) of Regulation No 207/2009 and that there were no special circumstances justifying a departure from that practice.

3.

Infringement of Article 8(1)(b) of Regulation No 207/2009 through carrying out an assessment of the existence of a likelihood of confusion by accepting as true so-called facts which do not tally with common knowledge and by disregarding widely-known, relevant facts, which as a result has led to a misrepresentation of the facts and evidence, namely:

4.

Infringement of the obligation to state reasons when applying Article 8(1)(b) of Regulation No 207/2009 through:

24.7.2017   

EN

Official Journal of the European Union

C 239/24

24.7.2017   

EN

Official Journal of the European Union

C 239/24

1.

Must Article 23(3) of the Dublin Regulation (1) be interpreted as meaning that Italy has become responsible for examining the application for international protection lodged by the applicant in that country on 23 October 2014, despite the fact that the Netherlands were the Member State primarily responsible on the basis of the applications for international protection, within the meaning of Article 2(d) of the Dublin Regulation, previously lodged in that country, the last of which was still under examination in the Netherlands at that time, because the Administrative Law Division of the Raad van State had not yet delivered judgment in the appeal brought by the applicant against the ruling [AWB 14/13866] of the Rechtbank [Den Haag, sitting in Middelburg] of 7 July 2014 …?

2.

Does it follows from Article 18(2) of the Dublin Regulation that the application for international protection which was still under examination in the Netherlands when the claim request of 5 March 2015 was submitted should have been suspended by the Netherlands authorities immediately after that claim request had been submitted and should have been halted following the expiry of the period specified in Article 24 through revocation or amendment of the earlier decision of 11 June 2014 rejecting the asylum application of 4 June 2014?

3.

If the answer to Question 2 is in the affirmative, has the responsibility for examining the applicant’s application for international protection not been transferred to Italy but remained with the Netherlands authorities, because the defendant has not revoked or amended the decision of 11 June 2014?

4.

Did the Netherlands authorities, by not mentioning the appeal in the second asylum procedure pending before the Administrative Law Division of the Raad van State in the Netherlands, fall short of the responsibility resting on them pursuant to Article 24(5) of the Dublin Regulation to supply the Italian authorities with such information as would enable those authorities to check whether Italy is the Member State responsible on the basis of the criteria laid down in that regulation?

5.

If the answer to Question 4 is in the affirmative, does that shortcoming lead to the conclusion that the responsibility for examining the applicant’s application for international protection has thereby not been transferred to Italy, but has remained with the Netherlands authorities?

6.

If the responsibility has not remained with the Netherlands, ought the Netherlands authorities then, with regard to the surrender of the applicant by Italy to the Netherlands in the context of the criminal proceedings against him, pursuant to Article 17(1) of the Dublin Regulation, in derogation from Article 3(1) of the Dublin Regulation, to have examined the application for international protection lodged by the applicant in Italy, and, by extension, ought those authorities, in all reasonableness, not to have made use of the power laid down in Article 24(1) of the Dublin Regulation to request the Italian authorities to take back the applicant?

24.7.2017   

EN

Official Journal of the European Union

C 239/25

1.

2.

3.

24.7.2017   

EN

Official Journal of the European Union

C 239/26

(a)

that an adult, who is also a national of a third country, loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, on the ground that, for an uninterrupted period of 10 years, that person had his or her principal residence abroad and outside the European Union, although there are possibilities for interrupting that 10-year period;

(b)

that under certain circumstances a minor loses, by operation of law, the nationality of his or her Member State, and consequently loses citizenship of the Union, as a consequence of the loss of the nationality of his or her parent, as referred to under (a) above?

24.7.2017   

EN

Official Journal of the European Union

C 239/27

24.7.2017   

EN

Official Journal of the European Union

C 239/27

—

quash the judgment of the General Court in case T-162/14;

—

uphold the application at first instance and annul the contested regulation in so far as it concerns appellants;

—

order the respondent to pay the appellants’ costs, and its own costs, both at first instance and on appeal;

—

order any other parties to the appeal to pay their own costs;

—

quash the judgment of the General Court in case T-162/14;

—

refer the case back to the General Court for judgment;

—

reserve the costs at first instance and on appeal for final judgment by the General Court;

—

order any other parties to the appeal to pay their own costs.

1.

The General Court erred in law by requiring appellants to show an interest in raising the first and second pleas; in any event, the General Court erred in its legal characterization of the facts as the appellants have such an interest.

2.

The General Court erred in law by requiring appellants to show an interest in raising the third plea; the General Court erred in its interpretation of Article 2(7)(a) of Regulation 1225/2009 (‘Basic Regulation’). (1)

3.

The General Court erred in law by finding that Regulation 1168/2012 applied to the present anti-dumping investigation (2); the General Court erred in law by finding that the Commission’s failure to make a determination on the appellants’ request for market economy treatment does not vitiate the contested regulation.

4.

The General Court erred in law by permitting the Institutions to set the anti-dumping duty at the level to counter injury caused by factors other than dumped imports; the General Court erred in law by unduly reversing the burden of proof.

24.7.2017   

EN

Official Journal of the European Union

C 239/28

—

quash the judgment of the General Court in case T-163/14;

—

uphold the application at first instance and annul the contested regulation in so far as it concerns appellants;

—

order the respondent to pay the appellants’ costs, and its own costs, both at first instance and on appeal;

—

order any other parties to the appeal to pay their own costs;

—

quash the judgment of the General Court in case T-163/14;

—

refer the case back to the General Court for judgment;

—

reserve the costs at first instance and on appeal for final judgment by the General Court;

—

order any other parties to the appeal to pay their own costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/29

—

annul Council Decision (EU) 2017/477 of 3 March 2017 on the position to be adopted on behalf of the European Union within the Cooperation Council established under the Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part as regards the working arrangements of the Cooperation Council, the Cooperation Committee, specialised subcommittees or any other bodies (1),

—

order Council of the European Union to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/30

1.

Are national provisions on extradition to be assessed with respect to the freedom of movement of nationals of another Member State in the same way regardless of whether the extradition request of a third State on the basis of an extradition convention concerns the enforcement of a custodial sentence or a prosecution as in the Petruhhin case? (1) Is it relevant that the person sought to be extradited, as well as being a citizen of the Union, is a national of the State which has made the request for extradition?

2.

Does a national law under which only its own nationals are not extradited outside the EU for the enforcement of a penalty unjustifiably disadvantage nationals of another Member State? Are the mechanisms of EU law by means of which an objective, acceptable as such, may be achieved in a less prejudicial manner applicable also in an enforcement situation? How is a request for extradition to be answered in a situation in which, such mechanisms being applied, the request is notified to another Member State which, however, does not, for example because of legal obstacles, adopt measures concerning its nationals?

24.7.2017   

EN

Official Journal of the European Union

C 239/31

24.7.2017   

EN

Official Journal of the European Union

C 239/31

1.

For the purposes of Article 10(g) of Directive 2014/24, (1) is it sufficient ground, for the classification of a contract as an ‘employment contract’ under that provision, that it constitutes a contract with an employer-employee relationship or is it necessary that that contract have particular characteristics (for example with respect to the nature of the work, the contract terms, the qualifications of candidates, the procedural rules for their selection), so that the selection of each employee should be the result of an individualised judgment and subjective assessment of his or her personal qualities by the employer? Can fixed-term work contracts which are allocated on the basis of objective criteria, such as the length of time the candidate has been unemployed, the candidate’s previous experience or the number of minor children he or she has, as the result of a formal check of supporting documents and a predetermined weighting of the above criteria, such as contracts under Article 63 of Law 4430/2016, be regarded as ‘employment contracts’ within the meaning of Article 10(g) of Directive 2014/24?

2.

For the purposes of the provisions of Directive 2014/24 (Articles 1(4), 18(1) and (2), 19(1), 32 and 57, read together with recital (5) thereof), of the Treaty on the Functioning of the European Union (Articles 49 and 56) and of the Charter of Fundamental Rights (Articles 16 and 52), and the principles of equal treatment, transparency and proportionality, is it permitted for the public authorities to have recourse to other means, including employment contracts, to the exclusion of public contracts, in order to meet the same public interest requirements, and if so, on what conditions, when that recourse is not part of the recurrent organisation of the public service, but — as in the case of Article 63 of Law 4430/2016 — takes place for a defined period of time and to deal with extraordinary circumstances, as well as for reasons that relate to the effectiveness of competition or the legitimacy of the operations of undertakings who are active in the public procurement market? Can reasons of that kind, as well as circumstances such as the weakness of the unhindered performance of public contracts or the realisation of greater financial benefit compared with a public contract, be regarded as overriding reasons in the public interest, which justify the adoption of a measure which leads to a serious restriction, in extent and duration, on business activity in the field of public procurement?

3.

For the purposes of Article 1 of Directive 89/665, (2) as currently in force, does the scope of that provision exclude judicial protection against the decision of a public authority, such as the contested decisions in the main proceedings, with respect to the award of contracts that are treated as not falling within the scope of Directive 2014/24 (for example, as an ‘employment contract’), when an action is brought by an economic operator who would have a legal right to be awarded a comparable public contract and who claims that Directive 2014/24 has been unlawfully not implemented on the view that its non-implementation was permissible?

24.7.2017   

EN

Official Journal of the European Union

C 239/32

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/33

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/34

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/34

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/35

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/36

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/37

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/37

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/38

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/39

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/40

1.

Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

2.

In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

3.

In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations

4.

In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

24.7.2017   

EN

Official Journal of the European Union

C 239/40

—

declare, pursuant to Article 258 TFEU, that, having failed to comply, as regards 68 landfill sites, with the obligation to adopt all necessary measures to close down as soon as possible, under Articles 7(g) and 13 of Council Directive 1999/31/EC of 29 April 1999 on the landfill of waste, sites which have not been granted, in accordance with Article 8, a permit to continue to operate, Romania is in breach of its obligations under Article 14(b) in conjunction with Article 13 of that directive;

—

order Romania to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/41

—

annul paragraphs 39 to 47 of the judgment of the General Court of 22 March 2017 (Case T-231/15), which declare the application for annulment of Council Decision (PESC) 2016/850 of 27 May 2016, amending Decision 2013/255/CFSP concerning restrictive measures against Syria (1) and of Council Implementing Regulation (EU) No 2016/840 of 27 May 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (2), to be inadmissible, and annul provisions 1, 3, 4 and 5 of the operative part of that judgment;

—

consequently, order that Mr George Haswani’s name be removed from the annexes to the above-mentioned acts;

—

disposing of the case, annul Decision 2015/1836 (3) and Implementing Regulation 2015/1828 (4);

—

disposing of the case, order the Council to pay EUR 700 000 in damages to compensate all forms of loss suffered;

—

set aside provisions 4 and 5 of the operative part and paragraphs 91 to 93 of the judgment under appeal in so far as it orders Mr George Haswani to bear two thirds of the costs incurred by the Council as well as the costs related to his own applications;

—

order the Council to pay the entirety of the costs in accordance with subparagraph 4 of Article 184 of the Rules of Procedure of the Court of Justice.

24.7.2017   

EN

Official Journal of the European Union

C 239/43

1.

Annuls Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Council Implementing Regulation (EU) No 349/2012 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China in so far as that regulation applies to Changmao Biochemical Engineering Co. Ltd.;

2.

Orders the Council of the European Union to pay half of the costs incurred by Changmao Biochemical Engineering and to bear its own costs;

3.

Orders Changmao Biochemical Engineering to bear half of its own costs;

4.

Orders the European Commission to bear its own costs;

5.

Orders Distillerie Bonollo SpA, Industria Chimica Valenzana SpA, Distillerie Mazzari SpA, Caviro Distillerie Srl and Comercial Química Sarasa, SL to bear their own costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/44

1.

Dismisses the action

2.

Orders Groupe Léa Nature SA to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by the intervener before the General Court and the Court of Justice.

24.7.2017   

EN

Official Journal of the European Union

C 239/44

1.

Orders the European Union, represented by the Court of Justice of the European Union, to pay compensation of EUR 654 523,43 to Guardian Europe Sàrl for the material damage sustained by that company because of the infringement of the obligation to adjudicate within a reasonable time in the case giving rise to the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494). That compensation is to be adjusted by applying compensatory interest, starting from 27 July 2010 and continuing up to the date of delivery of the present judgment, at the annual rate of inflation determined, for the period in question, by Eurostat (the statistical office of the European Union) in the Member State where that company is established;

2.

The compensation referred to in point 1 shall be increased by default interest, starting from the date of delivery of the present judgment until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points;

3.

Dismisses the action as to the remainder;

4.

Orders Guardian Europe to bear the costs incurred by the European Union, represented by the European Commission;

5.

Orders Guardian Europe, on the one hand, and the European Union, represented by the Court of Justice of the European Union, on the other, to bear their own costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/45

1.

Dismisses the action;

2.

Orders Jožica Blaž Jamnik and Brina Blaž to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/46

1.

dismisses the action;

2.

orders AWG Allgemeine Warenvertriebs GmbH to bear its own costs and those of the European Union Intellectual Property Office (EUIPO).

24.7.2017   

EN

Official Journal of the European Union

C 239/46

1.

Dismisses the action;

2.

Orders Kaane American International Tobacco Company FZE to pay the costs.

24.7.2017   

EN

Official Journal of the European Union

C 239/47

—

annul the decision of EUIPO of 10 February 2017 in Case R 1308/2016-4 which in part granted the application for EU trade mark No 12929071 ‘MEMORAME’ and, consequently, reject in its entirety EU trade mark application No 12929071 ‘MEMORAME’;

—

order EUIPO to pay the costs incurred by the applicant in accordance with Article 87(2) and (3) of the Rules [of Procedure of the General Court of 2 May 1991].

—

Infringement of Article 8(1)(b and (5) of Regulation No 207/2009.

—

The applicant submits that the Board of Appeal of EUIPO did not properly take into account the high degree of recognition enjoyed by the earlier mark ‘MEMORA’ in the European Union.

24.7.2017   

EN

Official Journal of the European Union

C 239/47

—

annul with immediate effect item listed under the code 2015-CZ-TM-0330-M, entitled Multimodal Container Terminal Paskov, Phase III and item listed under the code 2015-CZ-TM-0406-W, entitled Intermodal Terminal Melnik, Phases 2 and 3, in the Annex to the Commission Implementing Decision of 5 August 2016 establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF)-Transport sector following the calls for proposals launched on 5 November 2015 based on the Multi-Annual Work Programme;

—

annul or alternatively declare that the grant agreement under the connecting Europe facility (CEF) — transport sector No INEA/CEF/TRAN/M2015/1133813 concluded between Innovation and Networks Executive Agency (INEA) and Advanced World Transport a.s. (AWT) (relating to action 2015-CZ-TM-0330-M titled Multimodal Container Terminal Paskov) is null and void or order INEA to terminate the said grant agreement relating to Paskov;

—

annul or alternatively declare that the grant agreement under the connecting Europe facility (CEF) — transport sector No INEA/CEF/TRAN/M2015/1138714 concluded between Innovation and Networks Executive Agency and České přístavy, a.s. (Czech Ports) (relating to action 2015-CZ-TM-0406-W titled Intermodal Terminal Melnik, Phases 2 and 3) is null and void or order INEA to terminate the said grant agreement relating to Melnik;

—

order INEA and the Commission to pay jointly and severally the applicant’s costs connected with the legal proceedings.

1.

First plea in law, alleging that the contested measure is in breach of fundamental principles of the EU Treaties relating to the protection of free market and competition on the internal market.

2.

Second plea in law, alleging that the contested measure is in breach of Article 93 TFEU and further articles of the TFEU (Articles 3, 26, 93, 107, 119, 170(2), 171(1), Protocol 8 and its Article 1, Protocol 27).

3.

Third plea in law, alleging that the contested measure is in breach of Regulation (EU) No 1316/2013 and of Regulation (EU) No 1315/2013 and ancillary laws.

24.7.2017   

EN

Official Journal of the European Union

C 239/48

—

annul EIGE’s implicit decision of 26 August 2016, rejecting the applicant’s request dated 26 April 2016 for a second renewal of his contract of employment;

—

annul also, in so far as necessary, EIGE’s decision of 20 January 2017, notified to the applicant on 23 January 2017, rejecting the applicant’s complaint lodged on 3 October 2016 against EIGE’s implicit decision;

—

compensate the applicant for the material and moral prejudice suffered;

—

reimburse all the costs incurred in the present appeal.

1.

First plea in law, alleging violation of the duty to state reasons and accordingly of the principle of good administration.

2.

Second plea in law, alleging infringement of Article 8 of the Conditions of Employment of other servants of the EU and of EIGE Decision No 82 of 28 July 2014 on contract renewal/non-renewal procedure applicable to temporary and contract agents (‘Decision 82’).

3.

Third plea in law, alleging procedural irregularities including the violation of the internal procedural rules set out in Decision 82, the breach of the rights of defence, the right to be heard, the principle of good administration and the duty of care.

24.7.2017   

EN

Official Journal of the European Union

C 239/49

—

annul the contested decision of 30 June 2016, rejecting the applicant’s request for assistance, and, so far as necessary, the decision rejecting the complaint;

—

order the defendant to award the applicant an amount of EUR 10 000, or any other amount which the Court will deem appropriate, as compensation for the non-material harm suffered, together with interest at the legal rate until payment in full has been made;

—

order the defendant to pay the costs.

1.

First plea in law, alleging manifest error of assessment

2.

Second plea in law, alleging the breach of Article 24 of the Staff Regulations and the duty to provide assistance

24.7.2017   

EN

Official Journal of the European Union

C 239/50

—

Principally, annul in part the decision of the European Commission of 2 February 2017 concerning the aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île de France region insofar as it declares, in Article 1 thereof, that the aid scheme has been ‘unlawfully’ implemented, although the aid scheme at issue was already in existence;

—

In the alternative, annul in part the decision of the European Commission of 2 February 2017 concerning the aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île de France region insofar as it declares, in Article 1 thereof, that the aid scheme has been ‘unlawfully’ implemented, with respect to the period before 25 November 1998;

—

Order the Commission to pay all the costs.

1.

First and primary plea in law, alleging that the regional aid scheme was not unlawfully implemented, since it was not subject to any obligation of prior notification. The regional aid scheme is, in fact, an existing aid scheme, within the meaning of Article 108(1) TFEU and the provisions of Article 1(b) and Chapter VI of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9; ‘Regulation No 2015/1589’). Under the rules applicable to existing aid schemes, their implementation is not unlawful since the Commission may merely lay down, if necessary, appropriate measures to enable them to develop or be closed in the future.

2.

Second plea in law, raised in the alternative, alleging that, even if the aid scheme at issue were not to constitute an existing aid scheme, the Commission was not entitled to carry its investigation back beyond the limitation period of 10 years preceding 25 November 2008, the date on which the Commission sent a request for information to the French authorities. Article 17 of Regulation No 2015/1589 provides that the limitation period is to be interrupted only by action taken by the Commission or by a Member State, acting at the request of the Commission. Thus, the applicants are of the opinion that the Commission was entitled to carry its examination back only until 25 November 1998.

24.7.2017   

EN

Official Journal of the European Union

C 239/51

—

annul the contested decision;

—

order the defendant and the other party to pay the costs incurred by the applicant in the proceedings before the Court and before the Board of Appeal.

—

Infringement of Article 62 and Article 63 of Regulation No 6/2002;

—

Infringement of Article 25(1)(a) and (b) of Regulation No 6/2002;

—

Infringement of Article 3(a) of Regulation No 6/2002;

—

Infringement of Article 4(1) of Regulation No 6/2002;

—

Infringement of Article 5 and Article 6 of Regulation No 6/2002.

24.7.2017   

EN

Official Journal of the European Union

C 239/51

—

annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight) in whole for a violation of the prohibition of arbitrariness and the principle of equal treatment in accordance with its first plea; for lack of jurisdiction over air transport from airports outside the EEA to airports within the EEA in accordance with its second plea (in primary order); or

—

annul Articles 1(2)(d) and 1(3)(d) of the contested decision, in so far as it is found in these provisions that the applicant committed an infringement in relation to air transport from airports outside the EEA to airports within the EEA, in accordance with its second plea (in subsidiary order); and

—

annul Article 1 and Article 1(1)(d), 1(2)(d), 1(3)(d) and 1(4)(d) of the contested decision, in so far as it is found there that the single and continuous infringement included the non-commissioning of surcharges, in accordance with its third plea; and

—

order the Commission to pay the costs of these proceedings if the Court annuls the contested decision in whole or in part.

1.

First plea in law, alleging a violation of the prohibition of arbitrariness and the principle of equal treatment.

2.

Second plea in law, alleging a lack of jurisdiction over air cargo transport from airports outside the EEA to airports in the EEA.

3.

Third plea in law, alleging a failure to state reasons and manifest error of assessment in finding that the non-commissioning of surcharges constitutes a separate element of the infringement.

24.7.2017   

EN

Official Journal of the European Union

C 239/53

—

annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight), in whole or in part;

—

in the alternative, reduce the level of the fine imposed in the applicants;

—

adopt the requested measures of organization of procedure or measures of inquiry, or any other such measures as the Court deems necessary; and

—

order the Commission to pay the costs of these proceedings.

1.

First plea in law, alleging a breach of the applicants’ right of defence and the principle of equality of arms, in refusing the applicants access to relevant evidence, both inculpatory and exculpatory, including evidence which the Commission received after notification of its Statement of Objections.

2.

Second plea in law, alleging a lack of competence with respect to the application of Article 101 TFEU and Article 53 EEA to airfreight services that were inbound into the EEA, as well as routes between Switzerland and the three non EU-EEA States.

3.

Third plea in law, alleging an error in the Commission’s assessment of the evidence and its conclusion that this proves the applicants’ participation in, or knowledge of, the global single and continuous infringement found in the contested decision.

4.

Fourth plea in law, alleging a breach of Article 266 TFEU, Article 17 of the EU Charter of Fundamental Rights and Article 296(2) TFEU in that the contested decision is internally inconsistent, in particular as regards the attribution of liability for the alleged infringement.

5.

Fifth plea in law, alleging that the Commission was wrong to impose any fine on the applicants, as they cannot be liable for the alleged infringement, and in any case the Commission erred in the fine calculation as regards the values of the sales, the gravity factor related to SAS Cargo’s particular situation, the duration, the recidivism uplift and the various mitigating circumstances; as such the fine should be annulled or alternatively significantly reduced.

24.7.2017   

EN

Official Journal of the European Union

C 239/53

—

annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight) in whole for a violation of the prohibition of arbitrariness and the principle of equal treatment in accordance with its first plea; for lack of jurisdiction over air transport from airports outside the EEA to airports within the EEA in accordance with its second plea (in primary order); for a violation of Article 49 of the EU Charter of Fundamental Rights, Article 101 TFEU, Article 53 EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport and the Fining Guidelines (1) in accordance with its fourth plea (in primary order); or

—

annul Articles 1(2)(d) and 1(3)(d) of the contested decision, in so far as it is found in these provisions that the applicant committed an infringement in relation to air transport from airports outside the EEA to airports within the EEA, in accordance with its second plea (in subsidiary order); and

—

annul Article 1 and Article 1(1)(d), 1(2)(d), 1(3)(d) and 1(4)(d) of the contested decision, in so far as it is found there that the single and continuous infringement included the non-commissioning of surcharges, in accordance with its third plea; and

—

in alternative order, if the Court does not annul the contested decision in whole in accordance with its first, second and fourth plea, exercise its full discretion to reduce the fine imposed on the applicant in Article 3(c) and 3(d) of the contested decision in accordance with its first, second, third and fourth plea; and finally,

—

order the Commission to pay the costs of these proceedings if the Court annuls the contested decision in whole or in part, or reduces the fine.

1.

First plea in law, alleging a violation of the prohibition of arbitrariness and the principle of equal treatment.

2.

Second plea in law, alleging a lack of jurisdiction over air cargo transport from airports outside the EEA to airports in the EEA.

3.

Third plea in law, alleging a failure to state reasons and manifest error of assessment in finding that the non-commissioning of surcharges constitutes a separate element of the infringement.

4.

Fourth plea in law, alleging that the fine is in violation of the principle of the legality and the proportionality of fines under Article 49 of the EU Charter of Fundamental Rights, Article 101 TFUE and the Fining Guidelines, and that it is manifestly erroneous.

24.7.2017   

EN

Official Journal of the European Union

C 239/55

—

annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (AT.39258 — Airfreight), in whole or in part as it relates to the applicant;

—

annul or in the alternative reduce substantially the amount of the fine;

—

order the Commission to pay the costs.

1.

First plea in law, alleging a breach of the rights of defence, breach of the right to be heard and breach of essential procedural requirement.

According to the applicant, the European Commission failed to give notice in the statement of objections of the theory of its entire case as expressed for the first time in the contested decision, thus preventing the applicant from defending itself against the charges, these being sufficient grounds for the annulment of the contested decision in its entirety.

2.

Second plea in law, alleging a breach of the rights of defence, a failure to state reasons and a breach of essential procedural requirement.

According to the applicant, the European Commission violated the applicant’s rights of defence by failing to (i) provide any or any adequate reasoning to support the finding of a single and continuous infringement on all routes; (ii) define the nature and scope of the alleged infringement(s) with the particularity required by law; (iii) correct the inherent contradiction between a single and continuous infringement and four separate infringements that led to the annulment of Commission Decision C (2010) 7694 final of 9 November 2010, these being sufficient grounds for the annulment of the Decision in its entirety.

3.

Third plea in law, alleging a manifest error of assessment and a manifest error of law relating to the non-ability of non-EU/EEA carriers to operate on intra-European routes.

The applicant puts forward that the European Commission (i) wrongly found in Articles 1(1) and 1(4) of the contested decision that the applicant had participated in an infringement or infringements on routes within the EEA and between airports within the EU and airports in Switzerland on which it had no legal ability to provide airfreight services; (ii) overlooked or misunderstood the international and EU legal regimes governing aviation traffic rights; (iii) wrongly applied the relevant case law in finding that there were no ‘insurmountable barriers’ to the applicant offering services on intra-European routes and thus wrongly identifying the applicant as a potential competitor on those routes. According to the applicant, each and all comprise manifest errors of assessment and manifest errors of law, and individually or collectively provide sufficient grounds for the annulment in its entirety of the contested decision in its entirety, or, in the alternative of Articles 1(1) and 1(4) of that decision.

4.

Fourth plea in law, alleging a manifest error of law and fact in relation to jurisdiction.

The applicant puts forward that the contested decision is vitiated by manifest errors of law and fact relating to (i) the wrongful reliance on entirely lawful acts on third country routes to prove or constitute an infringement on intra-European routes which infringement is impossible of commission (grounds for annulment of the contested decision in its entirety); (ii) wrongful assertion of jurisdiction over supposed collusion on ‘inbound’ traffic on third country routes (ground for annulment of the contested decision in its entirety or in the alternative of Articles 1(2) and 1(3)).

5.

Fifth plea in law, alleging a manifest error of assessment in relation to the evidence relied on against the applicant.

According to the applicant, the European Commission: (i) failed properly to apply the law relating to single and continuous infringement as regards evidence; (ii) failed to establish a reliable evidential basis and to prove the facts against the applicant to the requisite legal standard; and (iii) wrongly refused to accept the applicant’s withdrawal of its misconceived leniency application and failed to consider the effect of that withdrawal on the evidence relied on against the applicant, these being sufficient grounds for the annulment of the contested decision in its entirety.

6.

Sixth plea in law, in accordance with the First, Second, Third, Fourth and Fifth Pleas in Law, the applicant requests the Court to cancel the fine imposed by Article 3 or in the alternative substantially reduce the fine pursuant to its unlimited jurisdiction under Article 261 TFEU, Article 31 of Regulation 1/2003 and established case law.

24.7.2017   

EN

Official Journal of the European Union

C 239/56

—

annul the contested decision;

—

order EUIPO to pay the costs.

—

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

24.7.2017   

EN

Official Journal of the European Union

C 239/57

—

in the event that the Court upholds the First, Second, Third or Fourth pleas, annul in their entirety Articles 1(1) to 1(4) of Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (AT.39258 — Airfreight), insofar as they relate to Cargolux;

—

in the event that the Court upholds the Fifth plea,

—

in the event that the Court upholds the Sixth plea, to annul Articles 1(2) and 1(3) of the contested decision insofar as they purport to find Cargolux to have participated in any infringement relating to inbound routes (i.e. from third country airports to airports inside the EU or in Iceland and Norway);

—

cancel the fine imposed on Cargolux in Article 3 and, if the Court does not cancel the fine in its entirety, substantially reduce it pursuant to its unlimited jurisdiction;

—

make the necessary consequential orders in respect of Article 4 insofar as it concerns Cargolux;

—

order the Commission to pay Cargolux’ costs.

1.

First plea in law, alleging a manifest error of assessment in that the Commission acted ultra vires by relying on evidence for routes and during periods over which it had no jurisdiction.

2.

Second plea in law, alleging a breach of essential procedural requirement, a breach of rights of defence and a manifest error of assessment in that the Commission has breached essential procedural requirements and the applicant’s rights of defence by not issuing a new statement of objections prior to re-adoption.

3.

Third plea in law, alleging an error of law and a manifest error of assessment in that the Commission failed to carry out the necessary assessment of the legal and economic context in order to validly find a by object infringement.

4.

Fourth plea in law, alleging a breach of essential procedural requirement, a failure to give reasons, a breach of rights of defence and a manifest error of assessment of law and fact in that the Commission failed to identify with sufficient particularity the scope and parameters of the supposed infringement of Article 101 TFEU and the other relevant provisions.

5.

Fifth plea in law, alleging a manifest error of assessment in that the Commission failed to establish a reliable evidential basis for its conclusions or to prove the facts on which it bases its findings to the required legal standard.

6.

Sixth plea in law, alleging an error of law in that the Commission wrongly asserted jurisdiction over supposed anti-competitive coordination in relation to flights from third country airports to airports inside the EEA and erred in law since such activities are outside the territorial scope of Article 101 TFEU and Article 53 of the EEA Agreement.

7.

Seventh plea in law, in relation to the request for review of the fine pursuant to the unlimited jurisdiction of the Court, alleging a manifest error of assessment and a breach of the principle of proportionality.

24.7.2017   

EN

Official Journal of the European Union

C 239/59

—

annul the defendant’s decision of 21 March 2017 (Ares(2017)1515573) by which a partial amount of the funding for the assistance project Food Security Promotion for very food insecure farming households in Zimbabwe (ECHO/ZWE/BUD/2009/02002) totalling EUR 643 627,72 was to be recovered as well as the payment request based thereupon of 7 April 2017 (No 3241705513) by which the defendant demanded the payment of the first instalment totalling EUR 321 813,86; and

—

order the defendant to pay the cost of the proceedings.

1.

First plea in law: The approach complained about by the defendant is not an infringement of substantive law

2.

Second plea in law: No other grounds for the recovery

3.

Third plea in law (in the alternative): Failure to exercise discretion and disproportionality

24.7.2017   

EN

Official Journal of the European Union

C 239/60

—

reject the contested decision;

—

grant the EUTM application No 13 521 125 ‘SEVENOAK’ for all the goods included in the application;

—

order EUIPO to bear the costs of the proceedings.

—

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

24.7.2017   

EN

Official Journal of the European Union

C 239/60

—

annul Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case AT.39258 — Airfreight) in its entirety as far as the applicant is concerned;