9.2.2015

EN

Official Journal of the European Union

C 46/1

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

(2015/C 046/01)

Last publication

OJ C 34, 2.2.2015

Past publications

OJ C 26, 26.1.2015

OJ C 16, 19.1.2015

OJ C 7, 12.1.2015

OJ C 462, 22.12.2014

OJ C 448, 15.12.2014

OJ C 439, 8.12.2014

These texts are available on:

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

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9.2.2015

EN

Official Journal of the European Union

C 46/2

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Judgment of the Court (Fifth Chamber) of 11 December 2014 — European Commission v Kingdom of Spain

(Case C-678/11) (1)

((Failure of a Member State to fulfil obligations - Article 56 TFEU and Article 36 of the EEA Agreement - Services offered in Spain by pension funds and insurance companies established in another Member State - Occupational pension schemes - Obligation to designate a tax representative resident in Spain - Restrictive nature - Justification - Effective fiscal supervision and prevention of tax avoidance - Proportionality))

(2015/C 046/02)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: F. Jimeno Fernández and W. Roels, acting as Agents)

Defendant: Kingdom of Spain (represented by: A. Rubio González, acting as Agent)

Intervener in support of the defendant: French Republic (represented by: G. de Bergues, D. Colas and J.-S. Pilczer, acting as Agents)

Operative part of the judgment

The Court:

1)

Declares that, by having adopted the provisions of Article 46(c) of Royal Legislative Decree 1/2002 approving the consolidated text of the Law governing pension schemes and funds (Real Decreto Legislativo 1/2002, por el que se aprueba el texto refundido de la Ley de Regulación de los Planes y Fondos de Pensiones) of 29 November 2002, and Article 86(1) of Royal Legislative Decree 6/2004 approving the consolidated text of the Law on the organisation and supervision of private insurance (Real Decreto Legislativo 6/2004, por el que se aprueba el texto refundido de la Ley de ordenación y supervisión de los seguros privados) of 29 October 2004, pursuant to which pension funds established in Member States other than the Kingdom of Spain and offering occupational pension schemes in that Member State and insurance companies operating in Spain under the freedom to provide services are required to appoint a tax representative resident in that Member State, the Kingdom of Spain has failed to fulfil its obligations under Article 56 TFEU;

2)	Dismisses the action as to the remainder;

3)	Orders the European Commission, the Kingdom of Spain and the French Republic to bear their own costs.

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(1)  OJ C 73, 10.3.2012.

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9.2.2015

EN

Official Journal of the European Union

C 46/3

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Judgment of the Court (Fifth Chamber) of 11 December 2014 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Azienda sanitaria locale n. 5 ‘Spezzino’, Associazione nazionale pubblica assistenza (ANPAS) — Comitato regionale Liguria, Regione Liguria v San Lorenzo Soc. coop. sociale, Croce Verde Cogema cooperativa sociale Onlus

(Case C-113/13) (1)

((Reference for a preliminary ruling - Ambulance services - National legislation reserving ambulance services for public health establishments to registered voluntary associations fulfilling the legal requirements on a preferential basis - Compatibility with EU law - Public procurement - Articles 49 TFEU and 56 TFEU - Directive 2004/18/EC - Mixed services, covered both by Annex II A and Annex II B to Directive 2004/18 - Article 1(2)(a) and (d) - Concept of ‘public service contracts’ - Pecuniary nature - Consideration consisting in the reimbursement of expenses incurred))

(2015/C 046/03)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants: Azienda sanitaria locale n. 5 ‘Spezzino’, Associazione nazionale pubblica assistenza (ANPAS) — Comitato regionale Liguria, Regione Liguria

Defendants: San Lorenzo Soc. coop. sociale, Croce Verde Cogema cooperativa sociale Onlus

Intervening parties: Croce Rossa Italiana — Comitato regionale Liguria and Others

Operative part of the judgment

Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which provides that the provision of urgent and emergency ambulance services must be entrusted on a preferential basis and awarded directly, without any advertising, to the voluntary associations covered by the agreements, in so far as the legal and contractual framework in which the activity of those associations is carried out actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that legislation is based.

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(1)  OJ C 156, 1.6.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/3

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Judgment of the Court (Fifth Chamber) of 11 December 2014 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — Cruz & Companhia Lda v Instituto de Financiamento da Agricultura e Pescas, IP (IFAP), Caixa Central — Caixa Central de Crédito Agrícola Mútuo, CRL

(Case C-128/13) (1)

((Reference for a preliminary ruling - Agriculture - Regulation (EEC) No 3665/87 - Articles 4(1) and 13 - Regulation (EEC) No 2220/85 - Article 19(1)(a) - Export refunds - Advance payments on refunds - Conditions for the release of the guarantee furnished to ensure the repayment of the advance))

(2015/C 046/04)

Language of the case: Portuguese

Referring court

Tribunal da Relação de Lisboa

Parties to the main proceedings

Applicant: Cruz & Companhia Lda

Defendants: Instituto de Financiamento da Agricultura e Pescas, IP (IFAP), Caixa Central — Caixa Central de Crédito Agrícola Mútuo, CRL

Operative part of the judgment

Article 19(1)(a) of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products, as amended by Commission Regulation (EC) No 3403/93 of 10 December 1993, must be interpreted as meaning that the guarantee furnished by an exporter to ensure the repayment of the advance received by way of export refund must not be considered to be extinguished even where it is established that the exporter submitted the acceptance of the export declaration, proof that the goods left the customs territory of the European Union within a maximum period of 60 days after that acceptance, and the proof of clearance of those products through customs in the importing third country, if the other conditions for the grant of the refund, in particular the condition of sound and fair marketable quality of the products exported, provided for in Article 13 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 1829/94 of 26 July 1994, are not satisfied.

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(1)  OJ C 171, 15.6.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/4

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Judgment of the Court (Grand Chamber) of 2 December 2014 (requests for a preliminary ruling from the Raad van State — Netherlands) — A (C-148/13), B (C-149/13), C (C-150/13) v Staatssecretaris van Veiligheid en Justitie

(Joined Cases C-148/13 to C-150/13) (1)

((References for a preliminary ruling - Area of freedom, security and justice - Directive 2004/83/EC - Minimum standards for granting refugee status or subsidiary protection status - Article 4 - Assessment of facts and circumstances - Methods of assessment - Acceptance of certain types of evidence - Extent of the competent national authority’s powers - Fear of persecution on grounds of sexual orientation - Differences between, on the one hand, the limitations that apply to the verification of statements and documentary or other evidence as regards the declared sexual orientation of an applicant for asylum and, on the other hand, those that apply to the verification of those elements as regards other grounds for persecution - Directive 2005/85/EC - Minimum standards in respect of procedures in Member States for granting and withdrawing refugee status - Article 13 - Requirements for a personal interview - Charter of Fundamental Rights of the European Union - Article 1 - Human dignity - Article 7 - Respect for private and family life))

(2015/C 046/05)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: A (C-148/13), B (C-149/13), C (C-150/13)

Defendant: Staatssecretaris van Veiligheid en Justitie

Intervener: United Nations High Commissioner for Refugees (UNHCR)

Operative part of the judgment

1)

Article 4(3)(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Article 13(3)(a) of Council Directive 2005/85/EC of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as precluding, in the context of the assessment by the competent national authorities, acting under the supervision of the courts, of the facts and circumstances concerning the declared sexual orientation of an applicant for asylum, whose application is based on a fear of persecution on grounds of that sexual orientation, the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals.

2)

Article 4 of Directive 2004/83, read in the light of Article 7 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum.

3)

Article 4 of Directive 2004/83, read in the light of Article 1 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.

4)

Article 4(3) of Directive 2004/83 and Article 13(3)(a) of Directive 2005/85 must be interpreted as precluding, in the context of that assessment, the competent national authorities from finding that the statements of the applicant for asylum lack credibility merely because the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution.

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(1)  OJ C 171, 15.6.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/5

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Judgment of the Court (Grand Chamber) of 2 December 2014 — European Commission v Italian Republic

(Case C-196/13) (1)

((Failure of a Member State to fulfil obligations - Directives 75/442/EEC, 91/689/EEC and 1999/31/EC - Waste management - Judgment of the Court establishing a failure to fulfil obligations - Non-compliance - Article 260(2) TFEU - Financial penalties - Penalty payment - Lump sum payment))

(2015/C 046/06)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: D. Recchia, A. Alcover San Pedro and E. Sanfrutos Cano, acting as Agents)

Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and by G. Fiengo, avvocato dello Stato)

Operative part of the judgment

The Court:

1.	Declares that, by failing to adopt all the measures necessary to ensure compliance with the judgment in Commission v Italy (C-135/05, EU:C:2007:250), the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU;

2.

Orders the Italian Republic to pay the European Commission, into the ‘European Union own resources’ account, from the day on which the present judgment is delivered until the judgment in Commission v Italy (EU:C:2007:250) has been complied with, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 4 2 8 00  000, from which the sum of EUR 4 00  000 is to be deducted in respect of each of the sites containing hazardous waste that has by then been brought into conformity with the judgment in Commission v Italy (EU:C:2007:250) and the sum of EUR 2 00  000 is to be deducted in respect of every other site that has by then been brought into conformity with that judgment. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of an initial amount — being the amount of the penalty payment set for the preceding six-month period — from which the same deductions are to be made in respect of sites, covered by the finding of a failure to fulfil obligations, that have been brought into conformity during the six-month period under consideration;

3.	Orders the Italian Republic to pay the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 40 million;

4.	Orders the Italian Republic to pay the costs.

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(1)  OJ C 207, 20.7.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/6

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Judgment of the Court (Fourth Chamber) of 11 December 2014 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — František Ryneš v Úřad pro ochranu osobních údajů

(Case C-212/13) (1)

((Reference for a preliminary ruling - Directive 95/46/EC - Protection of individuals - Processing of personal data - Concept of ‘in the course of a purely personal or household activity’))

(2015/C 046/07)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: František Ryneš

Defendant: Úřad pro ochranu osobních údajů

Operative part of the judgment

The second indent of Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.

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(1)  OJ C 207, 20.7.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/7

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Judgment of the Court (Fifth Chamber) of 4 December 2014 — European Commission v Kingdom of Sweden

(Case C-243/13) (1)

((Failure of a Member State to fulfil obligations - Environment - Directive 2008/1/EC - Integrated pollution prevention and control - Existing installation - Authorisation procedure - Procedures under way - Judgment of the Court establishing a failure to fulfil obligations - Non-implementation - Article 260(2) TFEU - Pecuniary penalties - Lump sum - Penalty payment))

(2015/C 046/08)

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: S. Petrova and J. Enegren, acting as Agents)

Defendant: Kingdom of Sweden (represented by: E. Karlsson, A. Falk and S. Johannesson, acting as Agents)

Operative part of the judgment

The Court (Fifth Chamber) hereby:

1.	Declares that, by failing to take the measures necessary to comply with the judgment of the Court of Justice in Commission v Sweden (C-607/10, EU:C:2012:192), Sweden has failed to fulfil its obligations under Article 260(1) TFEU;

2.

Declares that, if the failure to fulfil obligations found in point 1 has continued until the date of delivery of this judgment, the Kingdom of Sweden shall be ordered to pay to the European Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 4  000 for each day of delay in taking the measures necessary to comply with the judgment of 23 November 2006 in Commission v Sweden (C-607/10, EU:C:2012:192), from the date of delivery of this judgment until the date on which the first judgment has been complied with;

3.	Orders the Kingdom of Sweden to pay to the European Commission, into the ‘European Union own resources’ account, a lump sum of EUR 2 0 00  000;

4.	Orders the Kingdom of Sweden to pay the costs.

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(1)  OJ C 189, 29.6.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/7

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Judgment of the Court (Fifth Chamber) of 11 December 2014 (request for a preliminary ruling from the Tribunal administratif de Pau — France) — Khaled Boudjlida v Préfet des Pyrénées-Atlantiques

(Case C-249/13) (1)

((Reference for a preliminary ruling - Visas, asylum, immigration and other policies related to free movement of persons - Directive 2008/115/EC - Return of illegally staying third-country nationals - Principle of respect for the rights of the defence - Right of an illegally staying third-country national to be heard before the adoption of a decision liable to affect his interests - Return decision - Right to be heard before the return decision is issued - Extent of that right))

(2015/C 046/09)

Language of the case: French

Referring court

Tribunal administratif de Pau

Parties to the main proceedings

Applicant: Khaled Boudjlida

Defendant: Préfet des Pyrénées-Atlantiques

Operative part of the judgment

The right to be heard in all proceedings, as it applies in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, and, in particular, Article 6 of that directive, must be interpreted as extending to the right of an illegally staying third-country national to express, before the adoption of a return decision concerning him, his point of view on the legality of his stay, on the possible application of Articles 5 and 6(2) to (5) of that directive and on the detailed arrangements for his return.

However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require a competent national authority to warn the third-country national, prior to the interview arranged with a view to that adoption, that it is contemplating adopting a return decision with respect to him, or to disclose to him the information on which it intends to rely as justification for that decision, or to allow him a period of reflection before seeking his observations, provided that the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision.

The right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that an illegally staying third-country national may have recourse, prior to the adoption by the competent national authority of a return decision concerning him, to a legal adviser in order to have the benefit of the latter’s assistance when he is heard by that authority, provided that the exercise of that right does not affect the due progress of the return procedure and does not undermine the effective implementation of Directive 2008/115.

However, the right to be heard in all proceedings, as it applies in the context of Directive 2008/115, and, in particular, Article 6 of that directive, must be interpreted as meaning that it does not require Member States to bear the costs of that assistance by providing free legal aid.

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(1)  OJ C 189, 29.6.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/8

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Judgment of the Court (Grand Chamber) of 9 December 2014 — Peter Schönberger v European Parliament

(Case C-261/13 P) (1)

((Appeal - Petition addressed to the European Parliament - Decision to file the petition - Action for annulment - Concept of a ‘challengeable act’))

(2015/C 046/10)

Language of the case: German

Parties

Appellant: Peter Schönberger (represented by: O. Mader, Rechtsanwalt)

Other party to the proceedings: European Parliament (represented by: U. Rösslein and E. Waldherr, acting as Agents)

Operative part of the judgment

The Court:

1)	Dismisses the appeal;

2)	Orders Mr Peter Schönberger to pay the costs.

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(1)  OJ C 207, 20.7.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/9

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Judgment of the Court (Sixth Chamber) of 4 December 2014 (request for a preliminary ruling from the Landgericht Darmstadt — Germany) — H, acting as liquidator in the insolvency of G.T. GmbH v H.K.

(Case C-295/13) (1)

((Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in civil matters - Jurisdiction of the courts of a Member State in which insolvency proceedings have been opened for an action in respect of insolvency against a defendant domiciled in a non-member State - Action brought against the managing director of a company for reimbursement of payments made after that company has become insolvent or after it has been established that its liabilities exceed its assets))

(2015/C 046/11)

Language of the case: German

Referring court

Landgericht Darmstadt

Parties to the main proceedings

Applicant: H, acting as liquidator in the insolvency of G.T. GmbH

Defendant: H.K.

Operative part of the judgment

1)

Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets.

2)

Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets, where the managing director is domiciled not in another Member State but, as is the situation in the main proceedings, in a contracting party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008.

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(1)  OJ C 226, 3.8.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/10

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Judgment of the Court (Third Chamber) of 3 December 2014 (request for a preliminary ruling from the Rechtbank van eerste aanleg te Mechelen — Belgium) — Criminal proceedings against Edgard Jan De Clercq and Others

(Case C-315/13) (1)

((Reference for a preliminary ruling - Freedom to provide services - Articles 56 TFEU and 57 TFEU - Directive 96/71/EC - Article 3(1) and (10) - Directive 2006/123/EC - Article 19 - National legislation requiring the person to whom posted employees or trainees are deployed to declare those who are unable to submit the acknowledgement of receipt of the declaration which should have been made to the host Member State by their employer established in another Member State - Criminal penalty))

(2015/C 046/12)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Mechelen

Parties in the main proceedings

Edgard Jan De Clercq, Emiel Amede Rosa De Clercq, Nancy Genevieve Wilhelmina Rottiers, Ermelinda Jozef Martha Tampère, Thermotec NV

Operative part of the judgment

Articles 56 TFEU and 57 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which the recipient of services performed by workers posted by a service provider established in another Member State is required to declare to the competent authorities, before those workers begin to work, the data identifying those workers who are unable to submit proof of the declaration which their employer should have made to the competent authorities of that host Member State prior to the commencement of that provision of services, since such legislation is capable of being justified as safeguarding an overriding ground of public interest, such as the protection of workers or the combating of social security fraud, on condition that it is established that that legislation is appropriate for ensuring the attainment of the legitimate objective or objectives pursued and that it does not go beyond what is necessary to achieve them, these being matters for the referring court to determine.

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(1)  OJ C 252, 31.8.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/10

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Judgment of the Court (Grand Chamber) of 2 December 2014 — European Commission v Hellenic Republic

(Case C-378/13) (1)

((Failure of a Member State to fulfil obligations - Directive 75/442/EEC - Waste management - Judgment of the Court establishing a failure to fulfil obligations - Non-compliance - Article 260(2) TFEU - Financial penalties - Lump sum payment and penalty payment))

(2015/C 046/13)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia, E. Sanfrutos Cano and A. Alcover San Pedro, acting as Agents, acting as Agent(s))

Defendant: Hellenic Republic (represented by: E. Skandalou, acting as Agent, assisted by V. Liogkas, technical expert)

Operative part of the judgment

The Court:

1.	Declares that, by failing to adopt all the measures necessary to comply with the judgment in Commission v Greece (C-502/03, EU:C:2005:592), the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU;

2.

Orders the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, from the day on which judgment is delivered in the present case until the judgment in Commission v Greece (EU:C:2005:592) has been complied with, in the event that the failure to fulfil obligations established in paragraph 1 of the operative part of the present judgment persists until that day, a six-monthly penalty payment to be calculated, as regards the first six-month period following delivery of the present judgment, at the end of that period, on the basis of an initial amount set at EUR 1 4 5 20  000, from which the sum of EUR 40  000 is to be deducted in respect of each uncontrolled waste disposal site, covered by the infringement established, that has by then been closed down or cleaned up since 13 May 2014, and the sum of EUR 80  000 is to be deducted in respect of each such site that has by then been both closed down and cleaned up. The penalty payment due in respect of every six-month period thereafter is to be calculated, at the end of each such period, on the basis of the amount of the penalty payment set for the preceding six-month period, from which the same deductions are to be made in respect of the closing down and/or cleaning up of sites, covered by the failure to fulfil obligations established, effected during the six-month period in question;

3.	Orders the Hellenic Republic to pay to the Commission, into the ‘European Union own resources’ account, the lump sum of EUR 10 million;

4.	Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 260, 7.9.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/11

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Judgment of the Court (First Chamber) of 4 December 2014 (reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage — Netherlands) — FNV Kunsten Informatie en Media v Staat der Nederlanden

(Case C-413/13) (1)

((Reference for a preliminary ruling - Competition - Article 101 TFEU - Substantive scope - Collective labour agreement - Provision laying down minimum rates for independent service providers - Definition of ‘undertaking’ - Definition of ‘employee’))

(2015/C 046/14)

Language of the case: Dutch

Referring court

Gerechtshof te 's-Gravenhage

Parties to the main proceedings

Applicant: FNV Kunsten Informatie en Media

Defendant: Staat der Nederlanden

Operative part of the judgment

On a proper construction of EU law, it is only when self-employed service providers who are members of one of the contracting employees’ organisations and perform for an employer, under a works or service contract, the same activity as that employer’s employed workers, are ‘false self-employed’, in other words, service providers in a situation comparable to that of those workers, that a provision of a collective labour agreement, such as that at issue in the main proceedings, which sets minimum fees for those self-employed service providers, does not fall within the scope of Article 101(1) TFEU. It is for the national court to ascertain whether that is so.

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(1)  OJ C 325, 9.11.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/12

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Judgment of the Court (Fifth Chamber) of 11 December 2014 (request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Croce Amica One Italia Srl v Azienda Regionale Emergenza Urgenza (AREU)

(Case C-440/13) (1)

((Reference for a preliminary ruling - Public services contracts - Directive 2004/18/EC - Directive 89/665/EEC - Personal situation of the candidate or tenderer - Provisional award of the contract - Criminal investigations initiated in respect of the legal representative of the successful tenderer - Decision by the contracting authority not to proceed with the definitive award of the contract and to withdraw the invitation to tender - Judicial review))

(2015/C 046/15)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Lombardia

Parties to the main proceedings

Applicant: Croce Amica One Italia Srl

Defendant: Azienda Regionale Emergenza Urgenza (AREU)

Intervener: Consorzio Lombardia Sanità

Operative part of the judgment

1)

Articles 41(1), 43 and 45 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that, where the conditions for the application of the grounds for exclusion set out in Article 45 are not fulfilled, that article does not preclude the adoption by a contracting authority of a decision not to award a contract for which a procurement procedure has been held and not to proceed with the definitive award of the contract to the sole tenderer remaining in contention to whom the contract had been provisionally awarded.

2)

European Union public procurement law, in particular the third subparagraph of Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, 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 the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.

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(1)  OJ C 344, 23.11.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/13

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Judgment of the Court (Tenth Chamber) of 9 October 2014 — Industries chimiques du fluor (ICF) v European Commission

(Case C-467/13 P) (1)

((Appeals - Agreements, decisions and concerted practices - World market in aluminium fluoride - Rights of the defence - Content of the statement of objections - Calculation of the amount of the fine - 2006 guidelines for the calculation of fines - Point 18 - Total value of sales of goods or services in relation to the infringement - Obligation to state reasons - Reasonable time period - Reduction of the amount of the fine))

(2015/C 046/16)

Language of the case: French

Parties

Appellant: Industries chimiques du fluor (ICF) (represented by: P. Wytinck and D. Gillet, avocats)

Other party to the proceedings: European Commission (represented by: É. Gippini Fournier and N. von Lingen, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Industries chimiques du fluor (ICF) to pay the costs.

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(1)  OJ C 336, 16.11.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/13

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Judgment of the Court (Eighth Chamber) of 4 December 2014 — Kingdom of Spain v European Commission

(Case C-513/13 P) (1)

((Appeal - Cohesion Fund - Project concerning the drainage and purification of the urban water of Zaragoza (Spain) - Reduction in the financial assistance - Existence of a time-limit - Failure to comply with the prescribed time-limit - Consequences))

(2015/C 046/17)

Language of the case: Spanish

Parties

Appellant: Kingdom of Spain (represented by: A. Rubio González, Agent)

Other party to the proceedings: European Commission (represented by: G. Valero Jordana and A. Steiblytė, Agents)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union in Case T-358/08 Spain v Commission;

2.	Annuls Commission decision C(2008) 3249 of 25 June 2008, relating to a reduction of the aid granted by virtue of the Cohesion Fund to the Kingdom of Spain for project No 96/11/61/018 — ‘Saneamiento de Zaragoza’;

3.	Orders the Commission to pay the costs incurred by the Kingdom of Spain and declares that the Commission is to bear its own costs both in the proceedings at first instance and in the present appeal.

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(1)  OJ C 336, 16.11.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/14

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Judgment of the Court (Sixth Chamber) of 11 December 2014 — European Commission v Kingdom of Spain

(Case C-576/13) (1)

((Failure of a Member State to fulfil obligations - Article 49 TFEU - Freedom of establishment - Dock-work undertakings - Management of workers for the provision of cargo-handling services - Prohibition on using workers on the employment market))

(2015/C 046/18)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: L. Nicolae and S. Pardo Quintillán, Agents)

Defendant: Kingdom of Spain (represented by: A. Rubio González, Agent)

Operative part of the judgment

The Court:

1.

Declares that, by obliging undertakings of other Member States wishing to exercise the activity of cargo-handling in Spanish ports of general interest, first, to register with the Dockers’ Management Public Limited Liability Company (‘Sociedad Anónima de Gestion de Estibadores Portuarios’) and, as appropriate, to hold shares in that company and, secondly, to employ as a priority workers provided by that company, including a minimum number on permanent contracts, the Kingdom of Spain has failed to fulfil its obligations under Article 49 TFEU;

2.	Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 24, 25.1.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/14

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Judgment of the Court (Eighth Chamber) of 11 December 2014 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Idexx Laboratories Italia Srl v Agenzia delle Entrate

(Case C-590/13) (1)

((Reference for a preliminary ruling - Indirect taxation - VAT - Sixth Directive - Articles 18 and 22 - Right to deduct - Intra-Community acquisitions - Reverse charge procedure - Substantive requirements - Formal requirements - Failure to comply with the formal requirements))

(2015/C 046/19)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Idexx Laboratories Italia Srl

Defendant: Agenzia delle Entrate

Operative part of the judgment

Articles 18(1)(d) and 22 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 91/680/EEC of 16 December 1991, must be interpreted as containing formal requirements relating to the right to deduct, failure to comply with which, in circumstances such as those at issue in the main proceedings, cannot result in the loss of that right.

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(1)  OJ C 24, 25.1.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/15

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Judgment of the Court (Tenth Chamber) of 11 December 2014 — European Commission v Hellenic Republic

(Case C-677/13) (1)

((Failure of a Member State to fulfil obligations - Environment - Directive 1999/31/EC - Articles 6(a), 8, 9(a) to (c), 11(1) and 12 - Directive 2008/98/EC - Articles 13, 23 and 36(1) - Waste management - Placing of waste in landfill - No valid landfill authorisation - Malfunctions in the operation of the landfill site))

(2015/C 046/20)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia and E. Sanfrutos Cano, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, acting as Agent)

Operative part of the judgment

The Court:

1.

Declares, as regards the Kiato landfill site, that: — by failing to take the necessary measures to ensure that waste management at the Kiato landfill site is carried out without endangering human health and without harming the environment and to ensure that the abandonment, dumping or uncontrolled management of waste at said landfill site is prohibited, the Hellenic Republic has failed to fulfil its obligations under Articles 13 and 36(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives; — by tolerating the operation of the said landfill site without a valid permit complying with the conditions and content laid down for the grant of such a permit and, consequently, without the holder of the waste or the operator of the said landfill site being able to prove, before or at the time of delivery of the waste, that the waste can be accepted at the site in accordance with the conditions set out in the permit, the Hellenic Republic has failed to fulfil its obligations under Articles 8, 9(a) to (c) and 11(1)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste and Article 23 of Directive 2008/98; and — in failing to ensure that, during the operational phase of a landfill, the operator implements the control and monitoring programme referred to in Annex III to Directive 1999/31, the Hellenic Republic has failed to fulfil its obligations under Article 12(a) of that directive.

2.	Dismisses the action as to the remainder;

3.	Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 52, 22.2.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/16

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Judgment of the Court (Ninth Chamber) of 11 December 2014 — Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Kessel medintim GmbH, formerly Kessel Marketing & Vertriebs GmbH, Janssen-Cilag GmbH

(Case C-31/14 P) (1)

((Appeal - Community trade mark - Opposition proceedings - Application for registration of the word mark Premeno - Opposition from the proprietor of the earlier national word mark Pramino - Limitation of the goods designated in the Community trade mark application - Regulation (EC) No 207/2009 - Article 43(1)))

(2015/C 046/21)

Language of the case: German

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Walicka, Agent)

Other parties to the proceedings: Kessel medintim GmbH, formerly Kessel Marketing & Vertriebs GmbH (represented by: A. Jacob, Rechtsanwalt), Janssen-Cilag GmbH (represented by: M. Wenz, Rechtsanwältin)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs;

3.	Declares that Janssen-Cilag GmbH is to bear its own costs.

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(1)  OJ C 102, 7.4.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/16

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Appeal brought on 26 May 2014 by FTI Touristik GmbH against the judgment of the General Court (Fourth Chamber) delivered on 21 March 2014 in Case T-81/13 FTI Touristik GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-253/14 P)

(2015/C 046/22)

Language of the case: German

Parties

Appellant: FTI Touristik GmbH (represented by: A. Parr, Rechtsanwältin)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Pleas in law and main arguments

By its order of 11 December 2014, the Court of Justice of the European Union (Sixth Chamber) dismissed the appeal and ordered the appellant to bear its own costs.

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9.2.2015

EN

Official Journal of the European Union

C 46/17

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Appeal brought on 23 May 2014 by ADR Center Srl against the order of the General Court (Fifth Chamber) delivered on 23 March 2014 in Case T-110/14: ADR Center Srl v European Commission

(Case C-259/14 P)

(2015/C 046/23)

Language of the case: English

Parties

Appellant: ADR Center Srl (represented by: L. Tantalo, advocate, G. De Palo, advocate)

Other party to the proceedings: European Commission

By order of 4 December 2014 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.

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9.2.2015

EN

Official Journal of the European Union

C 46/17

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 31 October 2014 — KA Finanz AG v Sparkassen Versicherung AG Vienna Insurance Group

(Case C-483/14)

(2015/C 046/24)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Defendant and appellant: KA Finanz AG

Applicant and respondent: Sparkassen Versicherung AG Vienna Insurance Group

Questions referred

1.

Is Article 1(2)(e) of the 1980 Convention on the law applicable to contractual obligations (‘the Convention’) (1) to be interpreted as meaning that the ‘company law’ excepted area includes. (a) reorganisations such as mergers and divisions, and (b) in connection with reorganisations, the creditor protection provision in Article 15 of the Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies (2)?

2.	Is the conclusion the same if Article 15 of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies (3) is applicable?

3.

If the replies to Questions 1 and 2 are in the affirmative: Does the excepted area in Article 1(2)(d) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘the Rome I Regulation’) (4) — as the successor provision to Article 1(2)(e) of the Convention — lead to the same conclusion, or must it be interpreted differently? If so, how?

4.

Are any requirements concerning the treatment of mergers in relation to conflict of laws to be inferred from European primary law such as the freedom of establishment under Article 49 TFEU, the freedom to provide services under Article 56 TFEU and the free movement of capital and payments under Article 63 TFEU, in particular as to whether the national law of the State of the outwardly merging company or the national law of the target company is to be applied?

5.

If Question 4 is answered in the negative: Are any principles concerning treatment in relation to conflict of laws to be inferred from European secondary law such as Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies (5) or Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies or the Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty concerning the division of public limited liability companies (6), in particular as to whether the national law of the State of the outwardly merging company or the national law of the target company is to be applied, or are national conflict-of-law rules free to decide to which substantive national law reference should be made?

6.

Is Article 15 of the Third Council Directive 78/855/ECC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies to be interpreted as meaning that the issuer is entitled, as against holders of securities, other than shares, to which special rights are attached, particularly in the case of subordinated loans, to terminate the legal relationship and to pay off the persons entitled in the case of a cross-border merger?

7.	May the same conclusion be reached by applying Article 15 of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies?

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(1)  80/934/EEC: Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, OJ 1980 L 266, p. 1.

(2)  OJ 1978 L 295, p. 36.

(3)  OJ 2011 L 110, p. 1.

(4)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177, p. 6.

(5)  OJ 2005 L 310, p. 1.

(6)  OJ 1982 L 378, p. 47.

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9.2.2015

EN

Official Journal of the European Union

C 46/18

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Request for a preliminary ruling from the Landgericht München I (Germany) lodged on 3 November 2014 — Tobias Mc Fadden v Sony Music Entertainment Germany GmbH

(Case C-484/14)

(2015/C 046/25)

Language of the case: German

Referring court

Landgericht München I

Parties to the main proceedings

Applicant: Tobias Mc Fadden

Defendant: Sony Music Entertainment Germany GmbH

Questions referred

1

Question 1 Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (1), in conjunction with Article 2(a) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), in conjunction with Article 1 point 2 of Directive 98/34/EC as amended by Directive 98/48/EC (2), to be interpreted as meaning that ‘normally provided for remuneration’ means that the national court must establish whether: a. the person specifically concerned, who claims the status of service provider, normally provides this specific service for remuneration, or b. there are on the market any providers at all who provide this service or similar services for remuneration, or c. the majority of these or similar services are provided for remuneration?

2

Question 2: Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) to be interpreted as meaning that ‘provision of access to a communication network’ means that the only criterion for provision in conformity with the Directive is that access to a communication network (for example, the internet) should be successfully provided?

3

Question 3: Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), in conjunction with Article 2(b) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), to be interpreted as meaning that, for the purposes of ‘provision’ within the meaning of Article 2(b) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), the mere fact that the information society service is made available, that is to say, in this particular instance, that an open WLAN is put in place, is sufficient, or must the service be ‘actively promoted’, for example?

4

Question 4: Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) to be interpreted as meaning that ‘not liable for the information transmitted’ precludes as a matter of principle, or in any event in relation to a first established copyright infringement, any claims for injunctive relief, damages or payment of the costs of the warning notice and court proceedings which the person affected by a copyright infringement pursues against the access provider?

5

Question 5: Is the first half-sentence of Article 12(1) in conjunction with Article 12(3) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) to be interpreted as meaning that the Member States must not to allow the national court, in substantive proceedings against the access provider, to make an order requiring the access provider to refrain in future from enabling third parties to make a particular copyright-protected work available for electronic retrieval from online exchange platforms via a specific internet connection?

6

Question 6: Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) to be interpreted as meaning that, in the circumstances of the main proceedings, the provision contained in Article 14(1)(b) of Directive 2000/31/EC is to be applied mutatis mutandis to a claim for a prohibitory injunction?

7

Question 7: Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) in conjunction with Article 2(b) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) to be interpreted as meaning that the requirements applicable to a service provider are confined to the condition that a service provider is any natural or legal person providing an information society service?

8

Question 8: If Question 7 is answered in the negative, what additional requirements must be imposed on a service provider for the purposes of interpreting Article 2(b) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)?

9

Question 9: (a) Is the first half-sentence of Article 12(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), taking into account the existing protection of intellectual property as a fundamental right forming part of the right to property (Article 17(2) of the Charter of Fundamental Rights of the European Union) and the provisions of the following directives on the protection of intellectual property, in particular copyright: — Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; — Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and taking into account the freedom of information and the fundamental right under EU law of the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union), to be interpreted as meaning that it does not preclude a decision of the national court, in substantive proceedings, whereby the access provider is ordered, with costs, to refrain in future from enabling third parties to make a particular copyright-protected work or parts thereof available for electronic retrieval from online exchange platforms via a specific internet connection and it is left to the access provider to determine what specific measures he will take in order to comply with that order? (b) Does this also apply where the access provider is in fact able to comply with the prohibition imposed by the court only by terminating or password-protecting the internet connection or examining all communications passing through it in order to ascertain whether the particular copyright-protected work is unlawfully transmitted again, and this fact is apparent from the outset rather than coming to light only in the course of enforcement or penalty proceedings?

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(1)  OJ 2000 L 178, p. 1.

(2)  Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 217, p. 18.

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9.2.2015

EN

Official Journal of the European Union

C 46/21

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Request for a preliminary ruling from the Bundesfinanzgericht — Außenstelle Linz (Austria) lodged on 6 November 2014 — Dilly’s Wellnesshotel GmbH

(Case C-493/14)

(2015/C 046/26)

Language of the case: German

Referring court

Bundesfinanzgericht — Außenstelle Linz

Parties to the main proceedings

Appellant: Dilly’s Wellnesshotel GmbH

Respondent authority: Finanzamt Linz

Questions referred

1.

Is EU law infringed if an aid scheme makes use of the special procedure under Regulation (EC) No 800/2008 (‘GBER’) (1) in accordance with Article 25 in order to be exempt from the obligation to notify under Article 108(3) TFEU, but does not comply with various obligations of Chapter I of the GBER and, moreover, does not make any reference to the GBER?

2.

Is EU law infringed if an aid scheme is based on the special procedure of the GBER which is applicable to environmental aid in accordance with Article 25 but the requirements laid down in Chapter II — namely the promotion of environmental protection measures and energy-saving measures under Article 17(1) GBER — are not satisfied?

3.	Does EU law preclude national rules which contain no temporal restriction and also no reference to the period stated in the exemption notice, with the result that the limitation of the energy tax refund to 10 years, required in Article 25(3) GBER, is to be inferred only from the exemption notice?

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(1)  Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation), OJ 2008 L 214, p. 3.

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9.2.2015

EN

Official Journal of the European Union

C 46/21

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Request for a preliminary ruling from the Tribunalul Sibiu (Romania) lodged on 6 November 2014 — The Romanian State v Tamara Văraru and Consiliul Național pentru Combaterea Discriminării

(Case C-496/14)

(2015/C 046/27)

Language of the case: Romanian

Referring court

Tribunalul Sibiu

Parties to the main proceedings

Appellant: The Romanian State, represented by the Administrația Județeană a Finanțelor Publice Sibiu in the name and on behalf of the Ministerul Finanțelor Publice

Respondents: Tamara Văraru and Consiliul Național pentru Combaterea Discriminării

Question referred

Are Article 6 of the Treaty on European Union, Articles 20, 21(1), 24(1), 34(1) and (2) and 52 of the Charter of Fundamental Rights of the European Union and Article 4 of Regulation (EC) No 883/2004 on the coordination of social security systems (1) to be interpreted as precluding national legislation, such as Ordonanță de Urgență a Guvernului No 111/2010, which provides that the second-born, third-born and so on of multiple births, the first-born of multiple births and children born as single births are to be treated differently?

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(1)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) (OJ 2004 L 166, p. 1).

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9.2.2015

EN

Official Journal of the European Union

C 46/22

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Request for a preliminary ruling from the Tribunale ordinario di Torino (Italy) lodged on 10 November 2014 — Ford Motor Company v Wheeltrims srl

(Case C-500/14)

(2015/C 046/28)

Language of the case: Italian

Referring court

Tribunale ordinario di Torino

Parties to the main proceedings

Applicant: Ford Motor Company

Defendant: Wheeltrims srl

Questions referred

1)

Is it compatible with [EU] law to interpret Article 14 of Directive 98/71 (1) and Article 110 of Regulation (EC) No 6/2002 (2) as conferring on producers of replacement parts and accessories the right to use trade marks registered by third parties in order to allow the end purchaser to restore the original appearance of a complex product and, therefore, also when the proprietor of the trade mark applies the distinctive sign in question to a replacement part or accessory intended to be mounted on the complex product in such a way that it is externally visible and thus contributes to the external appearance of the complex product?

2)

Is the repair clause set out in Article 14 of Directive 98/71 and Article 110 of Regulation (EC) No 6/2002 to be interpreted as constituting a subjective right for third-party producers of replacement parts and accessories and, if so, does that subjective right include the right for such third parties to use the trade mark registered by another party in respect of replacement parts and accessories, by way of derogation from the rules laid down in Regulation No 207/2009 (3) and Directive (EEC) 89/104 (4) and, therefore, when the proprietor of the trade mark also applies the distinctive sign in question to a replacement part or accessory intended to be mounted on the complex product in such a way that it is externally visible and thus contributes to the external appearance of the complex product?

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(1)  Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs (OJ 1998 L 289, p. 28).

(2)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).

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

(4)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).

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9.2.2015

EN

Official Journal of the European Union

C 46/23

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Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 10 November 2014 — EL-EM-2001 Ltd. v Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága

(Case C-501/14)

(2015/C 046/29)

Language of the case: Hungarian

Referring court

Szegedi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: EL-EM-2001 Ltd.

Defendant: Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága

Questions referred

1)

Should Article 19(1) of Regulation No 561/2006/EC (1) be interpreted as meaning that, in the event of an infringement, the measure necessary in order to implement a penalty stipulated and applied by the Member State may only be applied to the person who has committed the infringement? To put it in different terms: in the light of Article 18 of Regulation No 561/2006/EC, is it a breach of the obligation upon Member States pursuant to the first sentence of Article 19(1) of Regulation No 561/2006/EC if national legislation provides that a measure which is necessary in order to implement a penalty stipulated and applied by the Member State may be applied to a (natural or legal) person who has not been found by means of an administrative procedure to have committed an infringement?

2)

If the answer to Question I is negative, should Article 19(1) of Regulation No 561/2006/EC be taken to mean that, where a measure is taken against a third (natural or legal) person on account of an infringement by a different person, despite the fact that it has not been established that the third person committed the infringement, the measure constitutes a penalty applied to him irrespective of the name given to it?

3)

If the answer to Question II is affirmative, is the prohibition on subjecting an infringement to more than one assessment, as laid down in Article 19(1) of Regulation No 561/2006/EC, breached by national legislation which makes it possible, in order to implement a penalty applied because of an infringement of rules by the driver of a vehicle, to impose on a different (natural or legal) person something described as a measure which, however, in terms of its content, is a penalty?

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(1)  Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85; OJ 2006 L 102, p. 1.

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9.2.2015

EN

Official Journal of the European Union

C 46/23

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Action brought on 20 November 2014 — European Commission v Czech Republic

(Case C-525/14)

(2015/C 046/30)

Language of the case: Czech

Parties

Applicant: European Commission (represented by: P. Němečková and G. Wilms, acting as Agents)

Defendant: Czech Republic

Form of order sought

—	declare that, by failing to recognise certain Netherlands hallmarks, in particular hallmarks of Waarborg Holland, the Czech Republic has failed to fulfil its obligations under Article 34 of the Treaty on the Functioning of the European Union;

—	order the Czech Republic to pay the costs.

Pleas in law and main arguments

1.	By failing to recognise certain Netherlands hallmarks, the Czech Republic is restricting the free movement of precious metals marked with those hallmarks and of objects produced from those metals.

2.

Even if precious metal is hallmarked by a branch of a Netherlands hallmarking office in a third State, such products should be treated in the same way as goods originating in the European Union, in view of the fact that the precious metals are hallmarked in accordance with the Netherlands rules and are definitively released into free circulation.

3.	The Czech Republic has not shown that the possible restriction of the free movement of goods is appropriate for ensuring achievement of the consumer protection objective pursued and does not go beyond what is necessary for achieving it.

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9.2.2015

EN

Official Journal of the European Union

C 46/24

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Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 27 November 2014 — Ordre des barreaux francophones et germanophone and Others v Conseil des ministres

(Case C-543/14)

(2015/C 046/31)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone and Others,

Vlaams Netwerk van Verenigingen waar armen het woord nemen ASBL and Others,

Jimmy Tessens and Others,

Orde van Vlaamse Balies,

Ordre des avocats du barreau d’Arlon and Others

Defendant: Conseil des ministres

Questions referred

1.

(a) By making services supplied by lawyers subject to VAT without taking account, having regard to the right to the assistance of a lawyer and the principle of equality of arms, of whether or not a client who does not qualify for legal aid is subject to VAT, is Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice? (b) For the same reasons, is Council Directive 2006/112/EC of 28 November 2006 compatible with Article 9(4) and (5) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998, in so far as those provisions establish a right of access to justice without the cost of those procedures being prohibitively expensive through ‘the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice’? (c) May services provided by lawyers under a national legal aid scheme be included in the services referred to in Article 132(1)(g) of Directive 2006/112/EC which are closely linked to welfare and social security work, or may they be exempted under another provision of the directive? If that question is answered in the negative, is Directive 2006/112/EC, interpreted as not permitting a VAT exemption for services supplied by lawyers for clients who qualify for legal aid under a national legal aid scheme, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights?

2.

If the questions mentioned in paragraph 1 are answered in the negative, is Article 98 of Directive 2006/112/EC, in so far as it does not provide for the possibility of applying a reduced rate of VAT to services supplied by lawyers, as the case may be depending on whether or not a client who does not qualify for legal aid is subject to VAT, compatible with Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 14 of the International Covenant on Civil and Political Rights and with Article 6 of the European Convention on Human Rights, in so far as that article recognises that everyone is entitled to a fair hearing and has the possibility of being advised, defended and represented and that there is a right to legal aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice?

3.

If the questions mentioned in paragraph 1 are answered in the negative, is Article 132 of Directive 2006/112/EC compatible with the principle of equality and non-discrimination enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and Article 9 of the Treaty on European Union, in conjunction with Article 47 of the Charter, in so far as it does not provide, among activities in the public interest, for VAT exemption for services of lawyers, when other supplies of services are exempted as activities in the public interest, such as the supply of services by the public postal services, various medical services or services connected with education, sport or culture, and when that difference in treatment between services of lawyers and services exempted by Article 132 of the directive raises sufficient doubts because services of lawyers contribute to respect for certain fundamental rights?

4.

(a) If the questions mentioned in paragraphs 1 and 3 are answered in the negative, can Article 371 of Directive 2006/112/EC be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who are not subject to VAT? (b) Can Article 371 of Directive 2006/112/EC also be interpreted, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, as authorising a Member State of the European Union partially to maintain the exemption for services supplied by lawyers where those services are performed for clients who qualify for legal aid under a national legal aid scheme?

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(1)  OJ 2006 L 347, p. 1.

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9.2.2015

EN

Official Journal of the European Union

C 46/25

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Appeal brought on 27 November 2014 by Aguy Clement Georgias, Trinity Engineering (Private) Ltd, Georgiadis Trucking (Private) Ltd against the judgment of the General Court (Eighth Chamber) delivered on 18 September 2014 in Case T-168/12: Georgias e.a. v Council of the European Union, European Commission

(Case C-545/14 P)

(2015/C 046/32)

Language of the case: English

Parties

Appellants: Aguy Clement Georgias, Trinity Engineering (Private) Ltd, Georgiadis Trucking (Private) Ltd (represented by: H. Mercer QC, I. Quirk, Barrister)

Other parties to the proceedings: Council of the European Union, European Commission

Form of order sought

The appellants claim that the Court should:

—	Set aside the decision of the General Court in whole

—	Grant the relief sought by the Appellant in the proceedings before the General Court (save for damages, which are to be assessed by the General Court)

—	Alternatively, remit the case to the General Court

—	In any event, order the Defendants to pay the Appellants’ costs

Pleas in law and main arguments

In support of the appeal, the Appellants rely on four pleas in law:

1.

First plea in law, that the General Court erred in holding that Regulation 314/2004 (1) entitled the Council to add persons to the Annex thereto simply on the ground that they were a member of the Government of Zimbabwe (paras. 57 and 66 of the General Court’s Judgment): — Regulation 314/2004 (‘the Regulation’) is to be interpreted in accordance with Common Position 2004/161/CFSP (2) (‘the Common Position’), which it was intended to implement — The General Court failed to take account of Article 4 of the Common Position which required that the persons named in the Annex were also engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe

2.

Second plea in law, that the General Court erred in its misreading of Article 5(1) of the Common Position, which led to it incorrectly applying the Regulation (para. 57 of the Judgment): — Contrary to the General Court’s decision, Article 5(1) of the Common Position did not provide that persons in the Annex to the Common Position and the Regulation were either a Member of Government or a person engaged in activities that seriously undermine democracy, respect for human rights and the rule of law in Zimbabwe — What in fact the Common Position, and hence the Regulation, required was that persons in the Annex fell into both those descriptions

3.

Third plea in law, that the General Court erred in interpreting the addition of the words ‘as such’ (added on 25 June 2007) to Senator Georgias’ listing in the Annex to the Regulation (and the Common Position) to be a ‘mere clarification’ that the mere status as a member of government was sufficient for inclusion (para. 58 of the Judgment): — The correct construction of the words added to Senator Georgia’s listing, as a matter of law, was an acknowledgment of the need to comply with Article 4 of the Common Position in addition to being a member of Government, since the words which followed ‘as such’ were exactly the requirements of Article 4 — The General Court erred in interpreting the addition of those words as a ‘mere clarification’ that the mere status as a member of government was sufficient for inclusion

4.

Fourth plea in law, that the General Court erred in holding that, in relation to the plea that there had been a breach of the rights of defence, Senator Georgias had not explained what he would have relied on had he been heard (para. 108 of the Judgment): — It was clearly stated in the Application that Senator Georgias wrote to the Council (the letter was produced) and was then taken off the list — Furthermore, the Application made a long a list of points which would plainly have been made to the Council had Senator Georgias been given an opportunity to make them — In those circumstances, the General Court erred in law in holding that Senator Georgias had not explained what he would have relied on had he been heard

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(1)  Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe

OJ L 55, p. 1.

(2)  Council Common Position 2004/161/CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe

OJ L 50, p. 66.

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9.2.2015

EN

Official Journal of the European Union

C 46/27

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Appeal brought on 1 December 2014 by Canon Europa NV against the order of the General Court (Sixth Chamber) delivered on 16 September 2014 in Case T-34/11: Canon Europa NV v European Commission

(Case C-552/14 P)

(2015/C 046/33)

Language of the case: English

Parties

Appellant: Canon Europa NV (represented by: P. De Baere, avocat, P. Muñiz, advogado)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

—	set aside, in whole, the order delivered by the EU General Court in case T-34/11;

—	rule that the appeal is admissible;

—	return the case to the EU General Court for a ruling on the substantive grounds of appeal;

—	order the Defendant to pay the costs of these proceedings and those before the General Court.

Pleas in law and main arguments

The appeal is based on the following two grounds:

First, the General Court erred in law in the interpretation and application of Article 263 TFUE, when it concluded that the Regulation ‘entailed implementing measures’ within the meaning of that provision.

Secondly, the General Court infringed the Appellant’s right to be heard, erred in the legal characterisation of the evidence submitted by the Appellant, and alternatively distorted such evidence.

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9.2.2015

EN

Official Journal of the European Union

C 46/27

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Appeal brought on 1 December 2014 by Kyocera Mita Europe BV against the order of the General Court (Sixth Chamber) delivered on 16 September 2014 in Case T-35/11: Kyocera Mita Europe BV v European Commission

(Case C-553/14 P)

(2015/C 046/34)

Language of the case: English

Parties

Appellant: Kyocera Mita Europe BV (represented by: P. De Baere, avocat, P. Muñiz, advogado)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

—	set aside, in whole, the order delivered by the EU General Court in case T-35/11;

—	rule that the appeal is admissible;

—	return the case to the EU General Court for a ruling on the substantive grounds of appeal;

—	order the Defendant to pay the costs of these proceedings and those before the General Court.

Pleas in law and main arguments

The appeal is based on the following two grounds:

First, the General Court erred in law in the interpretation and application of Article 263 TFUE, when it concluded that the Regulation ‘entailed implementing measures’ within the meaning of that provision.

Secondly, the General Court infringed the Appellant’s right to be heard, erred in the legal characterisation of the evidence submitted by the Appellant, and alternatively distorted such evidence.

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9.2.2015

EN

Official Journal of the European Union

C 46/28

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Action brought on 4 December 2014 — European Commission v Portuguese Republic

(Case C-557/14)

(2015/C 046/35)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: G. Braga da Cruz and E. Manhaeve, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court of Justice should:

—	declare that, in failing to take the necessary measures to comply with the judgment of 7 May 2009 in Case C-530/07 Commission v Portuguese Republic  (1), the defendant Member State has failed to fulfil its obligations under Article 260(1) TFEU;

—

order the Portuguese Republic to pay a penalty payment in the amount of EUR 20  196 per day of delay in failing to comply with the judgment delivered in Case C-530/07, referred to above, from the date of delivery of the judgment in the present case until the date of compliance with the judgment delivered in Case C-530/07;

—	order the Portuguese Republic to pay a lump sum of EUR 2  244 per day from the date the judgment was delivered in Case C-530/07 until the date of delivery of the judgment in the present proceedings, or until the date of compliance with the judgment in Case C-530/07 if such compliance occurs first;

—	order the Portuguese Republic to pay the costs of these proceedings.

Pleas in law and main arguments

I)

Determination of the fine The fine is to be determined on the basis of three criteria:

1.

Severity of the infringement The Commission proposes the application of a coefficient for seriousness of 3 on a scale of 1 to 20. In accordance with the Commission’s Communication on the application of Article 228 EC (‘the 2005 Communication’), the Commission calculates that coefficient taking account of the following: a) The importance of the rules of EU law which have been infringed It is apparent from Articles 1, 2, 3(1) and 4 of Council Directive 91/271/EEC concerning urban waste-water treatment (2) (‘Directive 91/271/EEC’), and Annex I thereto, that the disposal of untreated urban waste water into receiving waters causes pollution which has a significant impact on the quality of such waters and on the associated ecosystems. The collection and treatment of urban waste water from agglomerations with a population equivalent greater than 15  000 is of crucial importance in terms of the preservation and improvement of the quality of receiving waters and of aquatic and terrestrial ecosystems which depend directly on such water masses, and also in terms of ensuring full and correct compliance with other EU law directives. b) The consequences of that infringement for general and specific interests — The protection of the environment and of human health is of general interest. Incomplete compliance with the judgment of the Court of Justice in Case C-530/07 presents a serious risk in terms of pollution of the environment and has an impact on human health. — Incomplete compliance with that judgment also affects the implementation of other EU law directives and has a direct impact on the ability of citizens to enjoy unpolluted receiving waters, which they use for recreational activities, and could have an impact on the tourism sector and on related economic activities. c) Other aggravating and attenuating circumstances — Attenuating circumstances: i) The number of agglomerations with a population equivalent greater than 15  000 and which are not compliant with Article 4 of Directive 91/271/EEC went, as of the date of delivery of the judgment in accordance with Article 258 TFEU, from 15 to 2. ii) In relation to the agglomeration of Vila Real de Santo António, the new treatment plant has been operational since 2009 and only three zones of that agglomeration are still to be linked to the treatment plant; in so far as concerns Matosinhos, the current treatment plant enables the primary treatment of the waste water from that agglomeration. Such water in then disposed of in the sea, via an underwater outfall, more than 2 km off the coast. According to the Portuguese authorities, this does not affect the good quality of the bathing waters. — Aggravating circumstances: i) Full compliance with the judgment cannot be demonstrated before 2018, even though the collection and treatment obligations in question in the present proceedings should have been fully satisfied by 31 December 2000, at the latest. ii) The provisions in question of Directive 91/271/EEC, which are the provisions infringed by the Portuguese Republic, set out clear obligations. iii) The successive time frames presented to the Commission by the Portuguese authorities were not adhered to and in a way which the Commission deems serious. iv) The high number of infringement proceedings brought against the Portuguese Republic, including in relation to judgments already delivered by the Court of Justice in the specific area of urban waste-water treatment, shows repetitive unlawful conduct, and this in a sector in which the repercussions on human health and the environment are particularly serious.

2.	The duration of the infringement In the light of the time which has already passed since the date of delivery of the Court’s judgment, the Commission proposes that the maximum coefficient, namely 3, be applied in relation to the duration of the infringement.

3.

The need to ensure the deterrent effect of the fine As set out in the 2005 Communication, the deterrent effect is taken into consideration by an ‘n’ factor, which is an average based, on the one hand, on the GDP of the Member State at issue and, on the other, on the weighting of votes in the Council. The ‘n’ factor currently applicable to the Portuguese Republic is 3,40.

II)    Calculation of the amount of the fine

a)

Penalty payment per day of delay — In accordance with the 2005 Communication, such penalty payments are calculated on the basis of the following formula: Standard flat-rate amount x coefficient for seriousness x coefficient for duration x ‘n’ factor, which in this case gives the following: 660 x 3 x 3 x 3,40 = EUR 20  196 per day. — To ensure the progressive decrease in the penalty payment per day of delay, the Commission proposes that that the amount of the penalty payment per day of delay — in this case EUR 20  196 — be divided by the population equivalent in relation to which compliance with the judgment in Case C-530/07 has still not been ensured. In accordance with the most recent figures, the population equivalent which is yet to comply with Directive 91/271/EEC is 3 21  950. Consequently, the Commission proposes that the amount of the standard flat-rate amount (EUR 20  196 per day) be divided by 3 21  950. — The resulting sum of that division (20  196: 3 21  950), that is EUR 0,06 per day, is to be deducted from the standard flat-rate amount for each population equivalent which has complied in the meantime with the directive.

b)

Lump sum — The method of calculation of the daily amount used to determine the lump-sum fine is very similar to that for determining the daily rate of penalty payments. That method consists of multiplying a standard flat-rate amount by a coefficient for seriousness and multiplying the result obtained by a fixed factor per country (the ‘n’ factor), which factor indicates both the payment capacity of the Member State at issue and the number of votes allocated to that Member State in the Council. — However, for the lump sum the Commission will use a lower standard flat-rate than that applicable to penalty payments, since the conduct of the infringing Member State becomes more reprehensible once a judgment has been delivered in accordance with Article 260 TFEU, in so far as the infringement still continues in spite of two consecutive judgments of the Court of Justice. The standard flat-rate amount for the lump-sum fine is currently set at EUR 220 per day, and the Commission does not propose the application of a coefficient for duration in this respect. — Accordingly, account being taken of the standard flat-rate amount, the coefficient for severity and the ‘n’ factor, the daily rate for the determination of the lump-sum fine amounts to (220 x 3 x 3,40 =) EUR 2  244.

c)

Examination of the minimum lump sum — It is necessary to examine — bearing in mind the minimum lump sum established for the Member State in question — whether the Commission should propose a daily rate or a lump sum to the Court of Justice. To that effect, it is necessary to compare, on the one hand, the total cumulative value of the daily rate for the lump-sum fine, calculated until the date of the Commission’s decision (namely its decision to bring an action in accordance with Article 260 TFEU) and, on the other hand, the minimum lump sum determined for the Member State in question. — 1987 days have passed since the date of delivery of the Court’s judgment (7 May 2009) and the date of the Commission’s decision to bring an action in accordance with Article 260 TFEU (16 October 2014). Consequently, on the date of the Commission’s decision referred to above the cumulative total of the daily rates for the calculation of the lump-sum fine is (EUR 2  244 x 1987 days =) EUR 4 4 58  828. — The minimum lump sum determined for Portugal is currently EUR 1 8 75  000. — Thus, since the total cumulative sum of the daily rates for the lump-sum fine as at 16 October 2014 exceeds the minimum lump sum determined for Portugal, the Commission proposes that that Member State be required to pay the daily rate of the lump-sum fine, that is to say EUR 2  244 per day starting from the date of delivery of the Court’s judgment in Case C-530/07 and until the date of delivery of the judgment in accordance with Article 260 TFEU, or until the date on which the Portuguese Republic complies with the first of the Court’s judgments, if that date is earlier.

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(1)  EU:C:2009:292.

(2)  OJ 1991 L 135, p. 40.

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9.2.2015

EN

Official Journal of the European Union

C 46/31

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Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco (Spain) lodged on 5 December 2014 — Mimoun Khachab v Delegación de Gobierno en Álava

(Case C-558/14)

(2015/C 046/36)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de la Comunidad Autónoma del País Vasco

Parties to the main proceedings

Applicant: Mimoun Khachab

Defendant: Delegación de Gobierno en Álava

Question referred

Must Article 7(1)(c) of Council Directive 2003/86/EC (1) of 22 September 2003 on the right to family reunification be interpreted as precluding national legislation, such as that at issue in the main proceedings, which allows an application for family reunification to be refused on the grounds that the sponsor does not have stable and regular resources sufficient to maintain himself and the members of his family, according to a prospective assessment by the national authorities of the likelihood of the economic resources in question being retained in the year following the date of submission of the application, taking into account the pattern of those resources in the six months preceding that date?

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(1)  OJ 2003 L 251, p. 12.

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9.2.2015

EN

Official Journal of the European Union

C 46/31

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Appeal brought on 5 December 2014 by Kingdom of Sweden against the judgment delivered on 25 September 2014 in Case T-306/12 Darius Nicolai Spirlea and Mihaela Spirlea v European Commission

(Case C-562/14 P)

(2015/C 046/37)

Language of the case: German

Parties

Appellant: Kingdom of Sweden (represented by: C. Meyer-Seitz)

Other parties to the proceedings: European Commission, Darius Nicolai Spirlea and Mihaela Spirlea, Kingdom of Denmark, Republic of Finland, Czech Republic and Kingdom of Spain

Form of order sought

—	Set aside the judgment of the General Court of the European Union of 25 September 2014 in Case T-306/12,

—	Declare invalid the decision of the European Commission of 21 June 2012 to deny Mr and Mrs Spirlea access to the requested documents, and

—	Order the European Commission to pay the costs of the Kingdom of Sweden.

Pleas in law and main arguments

The appellant relies on three grounds of appeal.

By the first ground of appeal, it is argued that the General Court misinterpreted the third indent of Article 4(2) of Regulation (EC) No 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘the openness regulation’) by taking the view that the Commission, when it relies on the exception for investigations, may base its decision on a general presumption that access should be denied in an EU pilot procedure insofar as it constitutes a step which precedes the possible initiation of Treaty infringement proceedings, and that the Commission did not err in law in interpreting the above provision of the openness regulation as meaning that it could refuse a request for access to the requested documents in an EU pilot matter without examining the documents specifically and individually.

By the second ground of appeal, it is argued that the General Court misinterpreted the third indent of Article 4(2) of the openness regulation by ruling that the Commission’s assessment that there was no overriding public interest within the meaning of the final part of Article 4(2) of the openness regulation was not vitiated by any error.

By the third ground of appeal, it is argued that the General Court misapplied EU law by taking the view that when considering purpose under the openness regulation the lawfulness of the legal acts at issue in an action for annulment under Article 263 TFEU should also be assessed in relation to the facts and law obtaining at the time when the legal acts were adopted.

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(1)  OJ 2001 L 145, p. 43.

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9.2.2015

EN

Official Journal of the European Union

C 46/32

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Appeal brought on 5 December 2014 by Dansk Automat Brancheforening against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-601/11 Dansk Automat Brancheforening v European Commission

(Case C-563/14 P)

(2015/C 046/38)

Language of the case: Danish

Parties

Appellants: Dansk Automat Brancheforening (represented by: K. Dyekjær, T. Høg and J. Flodgaard, advokater)

Other parties to the proceedings: European Commission, Kingdom of Denmark, Republic of Malta, Betfair Group plc, Betfair International Ltd, European Gaming and Betting Association (EGBA)

Form of order sought

1.	Set aside the General Court’s judgment of 26 September 2014 in Case T-601/11;

2.	Hold that the action in Case T-601/11 is admissible;

3.	Refer the case back to the General Court so that the applicant at first instance (now appellant) may have its pleas in law heard on their merits;

4.	Order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice — In the alternative in relation to form of order 4: order the interveners to pay the costs of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

The main ground of appeal is that the General Court was incorrect in dismissing the case brought by the appellant on the ground that the General Court misinterpreted and/or misapplied of the criteria laid down in Article 263(4) TFEU for standing to bring proceedings against a decision taken by the Commission pursuant to Article 107(3)(c) TFEU.

In particular, the General court misapplied the expression ‘individual concern’ in Article 263(4) TFEU because it failed to interpret it in accordance with the Court of Justice’s case-law and therefore misapplied it. In that connection the General Court: (1) found, incorrectly, that the fact that the measure which has an adverse effect on the individual members of the applicant association also affects other does not preclude those members from being individually concerned; (2) found, incorrectly, that only the relevant members had claimed to be in competition with the recipients of the aid; and (3) thereby failed, incorrectly, to accord weight to the specific calculations which the appellants had submitted showing that the aid would inevitably have an adverse effect on their market position; and (4) in addition to the error referred to in (1), incorrectly failed to see that the measure having an adverse effect is not the same for all operators; (5) incorrectly assumed that the appellants must provide proof of loss of income which has already occurred in order to have standing to bring proceedings; (6) incorrectly dismissed claims of adverse effect on the basis of other, undocumented causes of the adverse effect; and (7) ruled out the possibility of easing the requirements for having standing on the ground that the Commission’s decision to allow the aid under Article 107(3)(c) had not been dealt with administratively on its merits.

Furthermore, the General Court: (8) misapplied the expression ‘regulatory act which does not entail implementing measures’ in finding that the decision contested in those proceedings presupposes implementing measures; and (9) incorrectly ordered the applicants to pay the interveners’ costs.

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9.2.2015

EN

Official Journal of the European Union

C 46/33

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Appeal brought on 8 December 2014 by Romonta GmbH against the judgment of the General Court (Fifth Chamber) delivered on 26 September 2014 in Case T-614/13 Romonta GmbH v European Commission

(Case C-565/14 P)

(2015/C 046/39)

Language of the case: German

Parties

Appellant: Romonta GmbH (represented by: I. Zenke and M.-Y. Vollmer, Rechtsanwältinnen)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—	Set aside the judgment of the General Court of 26 September 2014 in Case T-614/13 and

—

Annul Decision 2013/448/EU of the European Commission of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (1) in so far as Article 1(1) thereof refuses the appellant the grant of an allocation on the ground of hardship pursuant to Paragraph 9(5) of the TEHG (2) in respect of the third emissions allowances trading period of 2013 to 2020;

—	In the alternative, refer the case back to the General Court for a final decision;

—	Order the European Commission to pay the costs of the first-instance proceedings and of the appeal.

Grounds of appeal and main arguments

1.

First ground of appeal: Infringement of EU law on account of misapplication of the principle of proportionality The appellant submits, first, that the judgment of the General Court infringes EU law because that Court erroneously interpreted Decision 2011/278/EU (3) as exhaustive and in addition also erroneously regarded that decision as proportionate. It maintains that an allocation on the basis of hardship would also be possible under Decision 2011/278/EU as the present case is a case of force majeure. Furthermore, it takes the view that, in assessing the legality of Decision 2011/278/EU, the General Court balanced the legal interests against each other erroneously by according environmental protection a higher rank than the appellant’s existence.

2.

Second ground of appeal: Infringement of EU law on account of infringement of the appellant’s fundamental rights The appellant submits that the judgment is also erroneous in so far as the General Court’s decision infringes the appellant’s fundamental rights, in particular Article 15(1) and Article 16 of the Charter of Fundamental Rights of the European Union which protect the right to pursue an occupation and the right to property. It maintains that the General Court erroneously assumes that the essence of those fundamental rights is not affected. The appellant takes the view that this is not, however, the case. It submits that without the allocation on the ground of hardship it will not be able to continue its activities as a producer of lignite wax or continue to use its lignite wax extraction installation.

3.

Third ground of appeal: Infringement of EU law on account of infringement of the principle of subsidiarity The appellant submits, thirdly, that the judgment of the General Court infringes EU law because that Court erroneously assumes that the Federal Republic of Germany does not have any competence to adopt a provision in respect of hardship cases (Paragraph 9(5) of the TEHG). The appellant maintains that in doing so, the General Court, however, overlooks the fact that the European Commission has the competence to establish the allocation rules only in so far as it actually exercises its competence. It takes the view that atypical cases, such as its own, are just not covered by the Commission’s rules. The appellant submits that in that respect the legislative competence remains with the Member States.

4.

Fourth ground of appeal: Infringement of procedural law on account of an insufficient or contradictory statement of reasons The appellant submits that the General Court’s arguments in respect of the consequences of a provision in respect of hardship cases, the shifting effect to be expected due to an allocation on the ground of hardship and the reason for the specific risk of the appellant’s becoming insolvent are insufficient and contradictory and that the General Court thus infringes fundamental procedural law.

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(1)  OJ 2013 L 240, p. 27.

(2)  Gesetz über den Handel mit Berechtigungen zur Emission von Treibhausgasen (Treibhausgas-Emissionshandelsgesetz — TEHG) (Law on the trade in greenhouse gas emission rights (Law on Greenhouse Gas Emissions Trading, the TEHG)).

(3)  Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

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9.2.2015

EN

Official Journal of the European Union

C 46/34

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Request for a preliminary ruling from the Juzgado Mercantil No 3 de Barcelona (Spain) lodged on 9 December 2014 — Ismael Fernández Oliva v Caixabank, S.A.

(Case C-568/14)

(2015/C 046/40)

Language of the case: Spanish

Referring court

Juzgado Mercantil No 3 de Barcelona

Parties to the main proceedings

Applicant: Ismael Fernández Oliva

Defendant: Caixabank, S.A.

Questions referred

1)

Does Article 43 of the Spanish Law on Civil Procedure, which precludes the court proposing to the parties a possible stay of civil proceedings when another court or tribunal has referred a question to the Court of Justice for a preliminary ruling, not constitute a clear limitation of Article 7 of Directive 93/13/EEC (1) with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

2)

Does Article 721.2 of the LEC, which precludes the court adopting or proposing of its own motion the adoption of precautionary measures in individual actions in which it is claimed that a general condition is void because unfair, not constitute a clear limitation of Article 7 of Directive 93/13/EEC with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

3)

Ought not any precautionary measures that might be adopted, either of the court’s own motion or at the request of one or other of the parties, in proceedings in which an individual action is brought, to have effect until final judgment shall have been given either in the individual action or in a collective action that could interfere with the bringing of individual actions, in order to ensure the adequate and effective means provided for in Article 7 of the Directive?

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

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9.2.2015

EN

Official Journal of the European Union

C 46/35

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Request for a preliminary ruling from the Juzgado Mercantil No 3 de Barcelona (Spain) lodged on 9 December 2014 — Jordi Carne Hidalgo and Anna Aracil Gracia v Catalunya Banc, S.A.

(Case C-569/14)

(2015/C 046/41)

Language of the case: Spanish

Referring court

Juzgado Mercantil No 3 de Barcelona

Parties to the main proceedings

Applicants: Jordi Carne Hidalgo and Anna Aracil Gracia

Defendant: Catalunya Banc, S.A.

Questions referred

1)

Does Article 43 of the Spanish Law on Civil Procedure, which precludes the court proposing to the parties a possible stay of civil proceedings when another court or tribunal has referred a question to the Court of Justice for a preliminary ruling, not constitute a clear limitation of Article 7 of Directive 93/13/EEC (1) with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

2)

Does Article 721.2 of the LEC, which precludes the court adopting or proposing of its own motion the adoption of precautionary measures in individual actions in which it is claimed that a general condition is void because unfair, not constitute a clear limitation of Article 7 of Directive 93/13/EEC with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

3)

Ought not any precautionary measures that might be adopted, either of the court’s own motion or at the request of one or other of the parties, in proceedings in which an individual action is brought, to have effect until final judgment shall have been given either in the individual action or in a collective action that could interfere with the bringing of individual actions, in order to ensure the adequate and effective means provided for in Article 7 of the Directive?

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

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9.2.2015

EN

Official Journal of the European Union

C 46/36

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Request for a preliminary ruling from the Juzgado Mercantil No 3 de Barcelona (Spain) lodged on 9 December 2014 — Nuria Robirosa Carrera and César Romera Navales v Banco Popular Español, S.A.

(Case C-570/14)

(2015/C 046/42)

Language of the case: Spanish

Referring court

Juzgado Mercantil No 3 de Barcelona

Parties to the main proceedings

Applicants: Nuria Robirosa Carrera and César Romera Navales

Defendant: Banco Popular Español, S.A.

Questions referred

1)

Does Article 43 of the Spanish Law on Civil Procedure, which precludes the court proposing to the parties a possible stay of civil proceedings when another court or tribunal has referred a question to the Court of Justice for a preliminary ruling, not constitute a clear limitation of Article 7 of Directive 93/13/EEC (1) with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

2)

Does Article 721.2 of the LEC, which precludes the court adopting or proposing of its own motion the adoption of precautionary measures in individual actions in which it is claimed that a general condition is void because unfair, not constitute a clear limitation of Article 7 of Directive 93/13/EEC with regard to the Member States’ duty to ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers?

3)

Ought not any precautionary measures that might be adopted, either of the court’s own motion or at the request of one or other of the parties, in proceedings in which an individual action is brought, to have effect until final judgment shall have been given either in the individual action or in a collective action that could interfere with the bringing of individual actions, in order to ensure the adequate and effective means provided for in Article 7 of the Directive?

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

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9.2.2015

EN

Official Journal of the European Union

C 46/36

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Request for a preliminary ruling from the Conseil d’Etat (Belgium) lodged on 11 December 2014 — Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

(Case C-573/14)

(2015/C 046/43)

Language of the case: French

Referring court

Conseil d’Etat

Parties to the main proceedings

Applicant: Commissaire général aux réfugiés et aux apatrides

Defendant: Mostafa Lounani

Questions referred

1)

Is Article 12(2)(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (1) to be interpreted as necessarily implying that, for the exclusion clause provided for therein to be applied, the asylum seeker must have been convicted of one of the terrorist offences referred to in Article 1(1) of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (2), which was transposed in Belgium by the Law of 19 December 2003 on terrorist offences?

2)

If the first question is answered in the negative, can acts such as those referred to in point 5.9.2 of the judgment under appeal (judgment No 96.933 of the Conseil du contentieux des étrangers), given on 12 February 2013, which were imputed to Mostafa Lounani by the judgment of the Tribunal correctionnel de Bruxelles of 16 February 2006 and resulted in his being convicted of participation in a terrorist organisation, be considered to be acts contrary to the purposes and principles of the United Nations within the meaning of Article 12(2)(c) of Directive 2004/83/EC?

3)

For the purposes of considering the exclusion, on the grounds of his participation in a terrorist organisation, of a person seeking international protection, is the judgment convicting him of being a leading member of a terrorist organisation, which finds that the person seeking international protection has not committed, attempted to commit or threatened to commit a terrorist act, sufficient for a finding of the existence of an act of participation or instigation within the meaning of Article 12(3) of Directive 2004/83/EC imputable to that person, or is it necessary for an individual examination of the facts of the case to be made and participation demonstrated in the commission of a terrorist offence or instigation of a terrorist offence as defined in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism?

4)

For the purposes of considering the exclusion, on the grounds of his participation in a terrorist organisation of a person seeking international protection, possibly as a leading member, must the act of instigation or participation referred to in Article 12(3) of Directive 2004/83/EC relate to the commission of a terrorist offence as defined in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, or may it relate to participation in a terrorist group as referred to in Article 2 of that framework decision?

5)

So far as terrorism is concerned, is the exclusion from international protection provided for in Article 12(2)(c) of Directive 2004/83/EC possible when there has been no commission or instigation of, or participation in, a violent act of a particularly cruel nature as referred to in Article 1 of Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism?

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(1)  OJ 2004 L 304, p. 12.

(2)  OJ 2002 L 164, p. 3.

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9.2.2015

EN

Official Journal of the European Union

C 46/38

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Judgment of the General Court of 12 December 2014 — Hansen & Rosenthal and H & R Wax Company Vertrieb v Commission

(Case T-544/08) (1)

((Competition - Agreements - Paraffin waxes market - Decision finding an infringement of Article 81 EC - Price fixing - Proof of the infringement - 2006 Guidelines for calculating the amount of fines - Rights of the defence - Calculation of the value of sales - Gravity of the infringement - No retroactivity - Equal treatment - Proportionality))

(2015/C 046/44)

Language of the case: German

Parties

Applicants: Hansen & Rosenthal KG (Hamburg, Germany); and H & R Wax Company Vertrieb GmbH (Hamburg) (represented by: J. Schulte, A. Lober and M. Dallmann, lawyers)

Defendant: European Commission (represented by: A. Antoniadis and R. Sauer, Agents)

Re:

Primarily, application for annulment of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), in that it concerns the applicants, and, in the alternative, an application for a reduction of the amount of the fine imposed on them.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH to bear their own costs and those incurred by the European Commission.

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(1)  OJ C 55, 7.3.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/38

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Judgment of the General Court of 12 December 2014 — Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission

(Case T-550/08) (1)

((Competition - Agreements - Paraffin waxes market - Coordination and price increases - Price fixing - 2006 Guidelines for calculating the amount of fines - Rights of the defence - Proof of the infringement - Limitation))

(2015/C 046/45)

Language of the case: German

Parties

Applicant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG (Hamburg, Germany) (represented by: U. Itzen, J. Ziebarth, lawyers, and S. Thomas, professor)

Defendant: European Commission (represented by: A. Antoniadis and R. Sauer, Agents)

Re:

Principally, an application for annulment of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), in that it concerns the applicant, and, in the alternative, an application for reduction of the amount of the fine imposed on the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Tudapetrol Mineralölerzeugnisse Nils Hansen KG to bear its own costs and those incurred by the European Commission, including those incurred in the proceedings for interim measures.

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(1)  OJ C 55, 7.3.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/39

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Judgment of the General Court of 12 December 2014 — H&R ChemParm v Commission

(Case T-551/08) (1)

((Competition - Agreements - Paraffin waxes market - Decision finding an infringement of Article 81 EC - Price fixing - Proof of the infringement - 2006 Guidelines for calculating the amount of fines - Reference period - Calculation of the value of sales - Gravity of the infringement - Cartel during the period of the infringement - Equal treatment - Proportionality))

(2015/C 046/46)

Language of the case: German

Parties

Applicant: H&R ChemParm GmbH (Salzbergen, Germany) (represented by: initially M. Klusmann, lawyer, and S. Thomas, professor, then M. Klusmann)

Defendant: European Commission (represented by: A. Antoniadis and R. Sauer, Agents)

Re:

Primarily, an application for annulment of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), in that it concerns the applicant, and, in the alternative, an application for a reduction of the amount of the fine imposed on it.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders H&R ChemPharm GmbH to bear its own costs and those incurred by the European Commission;

3.	Orders H&R ChemPharm GmbH to refund the General Court the sum of EUR 10  000 under Article 90(a) of its Rules of Procedure.

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(1)  OJ C 55, 7.3.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/40

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Judgment of the General Court of 12 December 2014 — Eni v Commission

(Case T-558/08) (1)

((Competition - Agreements - Paraffin waxes market - Decision finding an infringement of Article 81 EC - Price fixing - Proof of the infringement - 2006 Guidelines for calculating the amount of fines - Equal treatment - Aggravating circumstances - Repeated infringement - Obligation to state reasons - Attenuating circumstances - Substantially reduced participation - Infringement committed by negligence - Rights of the defence - Unlimited jurisdiction))

(2015/C 046/47)

Language of the case: Italian

Parties

Applicant: Eni SpA (Rome, Italy) (represented by: M. Siragusa, D. Durante, G. Rizza, S. Valentino and L. Bellia, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre and V. Di Bucci, Agents)

Re:

Principally, an application for annulment of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), and, in the alternative, an application for annulment or reduction of the amount of the fine imposed on the applicant.

Operative part of the judgment

The Court:

1.	Sets the amount of the fine imposed on Eni SpA in Article 2 of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) at EUR 1 8 2 00  000;

2.	Dismisses the action as to the remainder;

3.	Orders the European Commission to bear half of its own costs and half of the costs incurred by Eni. Eni shall bear half of its own costs and half of those incurred by the European Commission.

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(1)  OJ C 44, 21.2.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/40

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Judgment of the General Court of 12 December 2014 — Repsol Lubricantes y Especialidades and Others v Commission

(Case T-562/08) (1)

((Competition - Agreements - Paraffin waxes market - Decision finding an infringement of Article 81 EC - Price fixing and division of markets - Proof of the existence of the agreement - Duration of the infringement - 2006 Guidelines for calculating the amount of fines - Equal treatment - Presumption of innocence - Whether unlawful conduct attributable - Liability of a parent company for infringements of the competition rules committed by its subsidiaries - Decisive influence exercised by the parent company - Presumption in the case of a 100 % shareholding))

(2015/C 046/48)

Language of the case: Spanish

Parties

Applicants: Repsol Lubricantes y Especialidades, SA, formerly Repsol Lubricantes YPF y Especialidades, SA (Madrid, Spain); Repsol Petróleo, SA (Madrid); and Repsol, SA, formerly Repsol YPF, SA (Madrid) (represented by: J. M. Jiménez-Laiglesia Oñate, J. Jiménez-Laiglesia Oñate and S. Rivero Mena, lawyers)

Defendant: European Commission (represented by: F. Castillo de la Torre, F. Castilla Contreras and C. Urraca Caviedes, Agents)

Re:

Application for annulment of Commission Decision C (2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes) and application for a reduction of the amount of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Repsol Lubricantes y Especialidades, SA, Repsol Petróleo, SA, and Repsol, SA, to bear their own costs and those incurred by the European Commission.

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(1)  OJ C 44, 21.2.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/41

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Judgment of the General Court of 11 December 2014 — Formula One Licensing v OHIM — ESPN Sports Media (F1-LIVE)

(Case T-10/09 RENV) (1)

((Community trade mark - Opposition proceedings - Application for the Community figurative mark F1-LIVE - Earlier Community figurative mark F1 and national and international word marks F1 Formula 1 - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC) No 40/94 (now Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)))

(2015/C 046/49)

Language of the case: English

Parties

Applicant: Formula One Licensing BV (Rotterdam, Netherlands) (represented by: B. Klingberg and K. Sandberg, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: ESPN Sports Media Ltd (London, United Kingdom) (represented by: T. de Haan, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 16 October 2008 (Case R 7/2008-1), concerning opposition proceedings between Racing-Live and Formula One Licensing BV.

Operative part of the judgment

The Court:

1)	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2008 (Case R 7/2008-1).

2)	Orders OHIM and ESPN Sports Media Ltd to pay the costs incurred by Formula One Licensing BV in the proceedings before the General Court and the Court of Justice, and in the proceedings before the Board of Appeal of OHIM.

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(1)  OJ C 55, 7.3.2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/42

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Judgment of the General Court of 11 December 2014 — Austria v Commission

(Case T-251/11) (1)

((State aid - Electricity - Aid for energy-intensive businesses - Austrian Green Electricity Act - Decision declaring the aid incompatible with the internal market - Concept of State aid - State resources - State imputability - Selective nature - General Block Exemption Regulation - Misuse of power - Equal treatment))

(2015/C 046/50)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer, J. Bauer, acting as Agents, assisted by T. Rabl, lawyer)

Defendant: European Commission (represented initially by: V. Kreuschitz and T. Maxian Rusche, then by T. Maxian Rusche and R. Sauer, acting as Agents)

Intervener in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented initially by: S. Behzadi-Spencer and S. Ossowski, then by S. Behzadi-Spencer and L. Christie, acting as Agents)

Re:

Application for annulment of Commission Decision 2011/528/EU of 8 March 2011 on State Aid C-24/09 (ex N 446/08) — State aid for energy-intensive businesses under the Green Electricity Act in Austria (OJ 2011 L 235, p. 42).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Republic of Austria to pay the costs;

3.	Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

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(1)  OJ C 232, 6.8.2011.

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9.2.2015

EN

Official Journal of the European Union

C 46/42

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Judgment of the General Court of 12 December 2014 — Xeda International v Commission

(Case T-269/11) (1)

((Plant protection products - Active substance ethoxyquin - Non-inclusion in Annex I to Directive 91/414/EEC - Withdrawal of authorisations for plant protection products containing that substance - Regulation (EC) No 2229/2004 - Regulation (EC) No 33/2008 - Accelerated assessment procedure - Manifest error of assessment - Rights of the defence - Proportionality - Legitimate expectations))

(2015/C 046/51)

Language of the case: English

Parties

Applicant: Xeda International SA (Saint-Andiol, France) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: European Commission (represented by: D. Bianchi, G. von Rintelen and P. Ondrůšek, acting as Agents)

Re:

Action for annulment of Commission Decision 2011/143/EU of 3 March 2011 concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ 2011 L 59, p. 71).

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Xeda International SA to bear its own costs and to pay the costs incurred by the European Commission, including those relating to the proceedings for interim relief.

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(1)  OJ C 211, 16.7.2011.

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9.2.2015

EN

Official Journal of the European Union

C 46/43

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Judgment of the General Court of 12 December 2014 — Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission

(Case T-487/11) (1)

((State aid - Financial sector - State guarantee accompanying a bank loan - Aid designed to remedy a serious disturbance in the economy of a Member State - Article 107(3)(b) TFEU - Decision declaring the aid incompatible with the internal market - Guidelines on State aid for rescuing and restructuring firms in difficulty - Conformity with the Commission’s notices concerning aid to the financial sector in the context of the financial crisis - Legitimate expectation - Obligation to state reasons))

(2015/C 046/52)

Language of the case: Portuguese

Parties

Applicants: Banco Privado Português, SA (Lisbon, Portugal); and Massa Insolvente do Banco Privado Português, SA (Lisbon) (represented by: C. Fernández Vicién, F. Pereira Coutinho, M. Esperança Pina, T. Mafalda Santos, R. Leandro Vasconcelos and A. Kéri, lawyers)

Defendant: European Commission (represented by: L. Flynn and M. Afonso, acting as Agents)

Re:

Application for annulment of Commission Decision 2011/346/EU of 20 July 2010 on the State aid C 33/09 (ex NN 57/09, CP 191/09) implemented by Portugal in the form of a State guarantee to BPP (OJ 2011 L 159, p. 95).

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Banco Privado Português, SA and Massa Insolvente do Banco Privado Português, SA to bear their own costs as well as those incurred by the European Commission.

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(1)  OJ C 340, 19.11.2011.

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9.2.2015

EN

Official Journal of the European Union

C 46/44

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Judgment of the General Court of 12 December 2014 — Crown Equipment (Suzhou) and Crown Gabelstapler v Council

(Case T-643/11) (1)

((Dumping - Imports of hand pallet trucks and their essential parts originating in China - Review - Article 11(2) of Regulation (EC) No 1225/2009 - Rights of defence - Error of fact - Manifest error of assessment - Obligation to state reasons))

(2015/C 046/53)

Language of the case: English

Parties

Applicants: Crown Equipment (Suzhou) Co. Ltd (Suzhou, China); and Crown Gabelstapler GmbH & Co. KG (Roding, Germany) (represented by: K. Neuhaus, H.-J. Freund and B. Ecker, lawyers)

Defendant: Council of the European Union (represented by: J.-P. Hix, Agent, and initially by G. Berrisch and A. Polcyn, and subsequently by A. Polcyn and D. Gerardin, lawyers)

Intervener in support of the defendant: European Commission (represented by: J.-F. Brakeland, M. França and A. Stobiecka-Kuik, Agents)

Re:

Action for the annulment of Council Implementing Regulation (EU) No 1008/2011 of 10 October 2011 imposing a definitive anti-dumping duty on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China as extended to imports of hand pallet trucks and their essential parts consigned from Thailand, whether declared as originating in Thailand or not, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 (OJ 2011 L 268, p. 1), in so far as that regulation concerns the applicants.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Crown Equipment (Suzhou) Co. Ltd and Crown Gabelstapler GmbH & Co. KG to bear their own costs and to pay four fifths of those incurred by the Council of the European Union;

3)	Orders the Council to bear one fifth of its own costs;

4)	Orders the European Commission to bear its own costs.

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(1)  OJ C 49, 18.2.2012.

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9.2.2015

EN

Official Journal of the European Union

C 46/44

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Judgment of the General Court of 11 December 2014 — CEDC International v OHIM — Underberg (Shape of a blade of grass in a bottle)

(Case T-235/12) (1)

((Community trade mark - Opposition proceedings - Application for three-dimensional Community mark - Shape of a blade of grass in a bottle - Earlier national three-dimensional mark - Genuine use of the earlier mark - Article 75, Article 76(1) and (2) of Regulation (EC) No 207/2009 - Production of evidence for the first time before the Board of Appeal - Discretion granted by Article 76(2) of Regulation No 207/2009 - Obligation to state reasons))

(2015/C 046/54)

Language of the case: German

Parties

Applicant: CEDC International sp. z o.o. (Oborniki Wielkopolskie, Poland) (represented by: M. Siciarek, G. Rząsa and J. Mrozowski, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Underberg AG (Dietlikon, Switzerland) (represented by: V. von Bomhard, A. Renck and J. Fuhrmann, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2012 (Case R 2506/2010-4) concerning opposition proceedings between Przedsiębiorstwo Polmos Białystok (Spółka Akcyjna) and Underberg AG.

Operative part of the judgment

The Court:

1)	Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 March 2012 (Case R 2506/2010-4);

2)	Orders OHIM to bear its own costs and to pay those incurred by CEDC International sp. z o.o.;

3)	Orders Underberg AG to bear its own costs.

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(1)  OJ C 243, 11.8.2012.

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9.2.2015

EN

Official Journal of the European Union

C 46/45

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Judgment of the General Court of 11 December 2014 — Coca-Cola v OHIM — Mitico (Master)

(Case T-480/12) (1)

((Community trade mark - Opposition proceedings - Application for Community figurative mark Master - Earlier Community figurative marks Coca-Cola and earlier national figurative mark C - Relative ground for refusal - Article 8(5) of Regulation (EC) No 207/2009 - Similarity of the signs - Evidence relating to the commercial use of the mark applied for))

(2015/C 046/55)

Language of the case: English

Parties

Applicant: The Coca-Cola Company (Atlanta, Georgia, United States) (represented by: S. Malynicz, Barrister, D. Stone and L. Ritchie, Solicitors, and S. Baran, Barrister)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Modern Industrial & Trading Investment Co. Ltd (Mitico) (Damascus, Syria) (represented by: A.-I. Malami, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 29 August 2012 (Case R 2156/2011-2) concerning opposition proceedings between The Coca-Cola Company and Modern Industrial & Trading Investment Co. Ltd (Mitico).

Operative part of the judgment

The Court:

1)	Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 29 August 2012 (Case R 2156/2011-2);

2)	Orders OHIM to bear its own costs and to pay those incurred by The Coca-Cola Company;

3)	Orders Modern Industrial & Trading Investment Co. Ltd (Mitico) to bear its own costs.

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(1)  OJ C 26, 26.1.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/46

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Judgment of the General Court of 11 December 2014 — Heli-Flight v EASA

(Case T-102/13) (1)

((Civil aviation - Application for approval of flight conditions for a Robinson R66 helicopter - Rejection decision of the EASA - Action for annulment - Scope of the Board of Appeal’s review - Scope of the Court’s review - Action for failure to act - Non-contractual liability))

(2015/C 046/56)

Language of the case: German

Parties

Applicant: Heli-Flight GmbH & Co. KG (Reichelsheim, Germany) (represented by: T. Kittner, lawyer)

Defendant: European Aviation Safety Agency (EASA) (represented by: T. Masing and C. Eckart, lawyers)

Re:

First, application for annulment of the decision of the EASA of 13 January 2012 rejecting the applicant’s application for approval of flight conditions submitted for a Robinson R66 helicopter (serial number 0034); secondly, application for a declaration that the EASA failed to act concerning the processing of the applicant’s applications of 11 July 2011 and 10 January 2012 concerning that helicopter and, thirdly, claim that the EASA should make good the damage that the applicant considers it has suffered because of that rejection decision and that alleged failure to act.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Heli-Flight GmbH & Co. KG to pay the costs.

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(1)  OJ C 123, 27.4.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/46

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Judgment of the General Court of 12 December 2014 — Ludwig Schokolade v OHIM — Immergut (TrinkFix)

(Case T-105/13) (1)

((Community trade mark - Opposition proceedings - Application for the Community word mark TrinkFix - Earlier national and Community word marks Drinkfit - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 207/2009 - Genuine use of the earlier mark - Article 42(2) and (3) of Regulation No 207/2009))

(2015/C 046/57)

Language of the case: German

Parties

Applicant: Ludwig Schokolade GmbH & Co. KG (Bergisch Gladbach, Germany) (represented by: S. Fischer and A. Brodkorb, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Pohlmann, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Immergut GmbH & Co. KG (Elsdorf, Germany) (represented by: G. Schoenen, V. Töbelmann and S. Frenz, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 13 December 2012 (affaire R 34/2012-1), concerning opposition proceedings between Immergut GmbH & Co. KG and Ludwig Schokolade GmbH & Co. KG.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Ludwig Schokolade GmbH & Co. KG to pay the costs.

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(1)  OJ C 108, 13.4.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/47

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Judgment of the General Court of 12 December 2014 — Selo Medical v OHIM — biosyn Arzneimittel (SELOGYN)

(Case T-173/13) (1)

((Community trade mark - Opposition proceedings - Application for Community word mark SELOGYN - Earlier national word mark SELESYN - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Refusal to register))

(2015/C 046/58)

Language of the case: German

Parties

Applicant: Selo Medical GmbH (Unternberg, Austria) (represented by: T. Schneider, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: biosyn Arzneimittel GmbH (Fellbach, Germany) (represented by: R. Kunz-Hallstein and H. Kunz-Hallstein, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 21 January 2013 (Case R 2601/2011-4), relating to opposition proceedings between biosyn Arzneimittel GmbH and Selo Medical GmbH.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Selo Medical GmbH to pay the costs.

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(1)  OJ C 141, 18.5.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/48

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Judgment of the General Court of 11 December 2014 — van der Aat and Others v Commission

(Case T-304/13 P) (1)

((Appeal - Civil Service - Officials - Remuneration - Annual adjustment of the remuneration and pensions of officials and other EU staff - Weighting applicable to officials and agents employed in Varese - Articles 64 to 65a of the Staff Regulations - Annex IX to the Staff Regulations - Regulation (EU) No 1239/2010 - Duty to state reasons - Access to documents - Regulation (EC) No 1049/2001 - Manifest error of assessment))

(2015/C 046/59)

Language of the case: French

Parties

Appellants: Chris van der Aat (Besozzo, Italy) and the other officials and EU staff whose names are listed in the annex to the judgment (represented by: S. Orlandi, D. de Abreu Caldas and J.-N. Louis, lawyers)

Other parties to the proceedings: European Commission (represented initially by: J. Currall and D. Martin, and subsequently by J. Curall and A.-C. Simon, acting as Agents); and Council of the European Union (represented by: M. Bauer and J. Herrmann, acting as Agents)

Re:

Appeal brought against the judgment of the Civil Service Tribunal (Third Chamber) of 21 March 2013 in van der Aat and Others v Commission (F-111/11, ECR — SC, EU:F:2013:42), seeking the setting aside of that judgment.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Mr Chris van der Aat and the other officials and EU staff whose names are listed in the annex to the judgment to bear their own costs and those incurred by the Commission in the present proceedings;

3.	Orders the Council of the European Union to bear its own costs in the present proceedings.

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(1)  OJ C 245, 24.8.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/48

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Judgment of the General Court of 12 December 2014 — Comptoir d'Épicure v OHIM — A-Rosa Akademie (da rosa)

(Case T-405/13) (1)

((Community trade mark - Opposition proceedings - Application for international registration designating the European Community - Figurative mark da rosa - Earlier Community word mark aROSA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95))

(2015/C 046/60)

Language of the case: French

Parties

Applicant: Le Comptoir d'Épicure (Paris, France) (represented by: S. Arnaud, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM: A-Rosa Akademie GmbH (Rostock, Germany) (represented by: A. Theis, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of OHIM of 22 May 2013 (Case R 1195/2012-5), concerning opposition proceedings between A-Rosa Akademie Gmbh and Le Comptoir d’Épicure.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Le Comptoir d’Épicure to pay the costs.

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(1)  OJ C 284, 28.9.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/49

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Judgment of the General Court of 11 December 2014 — ‘Millano’ Krzysztof Kotas v OHIM (Shape of a box of chocolates)

(Case T-440/13) (1)

((Community trade mark - Application for three-dimensional Community trade mark - Shape of a box of chocolates - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))

(2015/C 046/61)

Language of the case: Polish

Parties

Applicant: Zakład Wyrobów Cukierniczych ‘Millano’ Krzysztof Kotas (Przeźmierowo, Poland) (represented by: B. Kański, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 22 May 2013 (Case R 755/2012-2) concerning an application for registration of a three-dimensional sign consisting in the shape of a box of chocolates as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Zakład Wyrobów Cukierniczych ‘Millano’ Krzysztof Kotas to bear its own costs and those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

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(1)  OJ C 344, 23.11.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/49

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Judgment of the General Court of 12 December 2014 — AN v Commission

(Case T-512/13 P) (1)

((Appeal - Civil service - Officials - Psychological harassment - Article 22a(3) of the Staff Regulations - Failure to adjudicate - Distortion of facts))

(2015/C 046/62)

Language of the case: French

Parties

Appellant: AN (Brussels, Belgium) (represented by: É. Boigelot and R. Murru, lawyers)

Other party to the proceedings: European Commission (represented by: J. Currall and C. Ehrbar, Agents)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 July 2013, in AN v Commission (F-111/10, ECR — Staff Cases, EU:F:2013:114) and seeking annulment of that judgment.

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the European Union Civil Service Tribunal (Second Chamber), in AN v Commission (F 111/10, ECR — Staff Cases, EU:F:2013:114), in so far as it failed to adjudicate on the plea in law alleging the irregularity of the investigation with the reference CMS 07/041;

2.	Dismisses the appeal as to the remainder;

3.	Rejects the action brought by AN before the Civil Service Tribunal in in Case F-111/10;

4.	Orders AN to bear her own costs and to pay half of the costs incurred by the European Commission relating both to the proceedings before the Civil Service Tribunal and the present proceedings;

5.	Orders the Commission to bear half of its own costs relating both to the proceedings before the Civil Service Tribunal and the present proceedings.

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(1)  OJ C 367, 14.12.2013.

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9.2.2015

EN

Official Journal of the European Union

C 46/50

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Judgment of the General Court of 12 December 2014 — Canal + group v OHIM — Euronews (News+)

(Case T-591/13) (1)

((Community trade mark - Opposition proceedings - Application for the Community word mark News+ - Earlier national word mark ACTU+ - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2015/C 046/63)

Language of the case: French

Parties

Applicant: Canal + group (Issy-les-Moulineaux, France) (represented by: L. Barissat and R. Joseph, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: V. Melgar, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Euronews (Écully, France) (represented by: V. von Bomhard and J. Schmitt, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 9 September 2013 (Case R 1533/2012-4), relating to opposition proceedings between, on the one hand, Canal + group and Canal + France and, on the other hand, Euronews.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Canal + group to pay the costs.

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(1)  OJ C 31, 1.2.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/51

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Judgment of the General Court of 12 December 2014 — Wilo v OHIM (Pioneering for You)

(Case T-601/13) (1)

((Community trade mark - Application for Community word mark Pioneering for You - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))

(2015/C 046/64)

Language of the case: German

Parties

Applicant: Wilo SE (Dortmund, Germany) (represented by: B. Scheniders, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Schifko, Agent)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 11 September 2013 (Case R 555/2013-4) concerning an application for registration of the word sign Pioneering for You as a Community trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Wilo SE to pay the costs.

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(1)  OJ C 24, 25.1.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/51

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Judgment of the General Court of 11 December 2014 — Faita v EESC

(Case T-619/13 P) (1)

((Appeal - Civil service - Officials - Psychological harassment - Lack of assistance and a breach of the duty of care - Error of law - Right of defence))

(2015/C 046/65)

Language of the case: French

Parties

Appellant: Carla Faita (Brussels, Belgium) (represented by: D. de Abreu Caldas, M. de Abreu Caldas and J.-N. Louis, lawyers)

Other party to the proceedings: European Economic and Social Committee (EESC) (represented by: M. Pascua Mateo and L. Camarena Januzec, acting as Agents, assisted by M. Troncoso Ferrer and F. M. Hislaire, lawyers)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 16 September 2013 in Faita v EESC (F-92/11, ECR — SC, EU:F:2013:130), seeking to have that judgment set aside.

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Ms Carla Faita to bear her own costs and to pay the costs incurred by the European Economic and Social Committee (EESC).

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(1)  OJ C 24, 25.1.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/52

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Judgment of the General Court of 11 December 2014 — Monster Energy v OHIM (REHABILITATE)

(Case T-712/13) (1)

((Community trade mark - Application for Community word mark REHABILITATE - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))

(2015/C 046/66)

Language of the case: English

Parties

Applicant: Monster Energy Company (Corona, California, United States) (represented by: P. Brownlow, Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 October 2013 (Case R 609/2013-1), concerning an application for registration of the word sign REHABILITATE as a Community trade mark.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Monster Energy Company to pay the costs.

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(1)  OJ C 61, 1.3.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/52

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Judgment of the General Court of 12 December 2014 — Heidrick & Struggles International v OHIM (THE LEADERSHIP COMPANY)

(Case T-43/14) (1)

((Community trade mark - Application for Community word mark THE LEADERSHIP COMPANY - Absolute grounds for refusal - Descriptiveness - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))

(2015/C 046/67)

Language of the case: English

Parties

Applicant: Heidrick & Struggles International Inc. (Chicago, Illinois, United States) (represented by: A. Norris, Barrister-at-Law)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. Harrington, acting as Agent)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 10 October 2013 (Case R 338/2013-2) concerning an application for registration of the word sign THE LEADERSHIP COMPANY as a Community trade mark.

Operative part of the judgment

1)	The action is dismissed.

2)	Heidrick & Struggles International Inc. is ordered to pay the costs.

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(1)  OJ C 129, 28.4.2014.

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9.2.2015

EN

Official Journal of the European Union

C 46/53

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Action brought on 18 November 2014 — Actega Terra v OHIM — Heidelberger Druckmaschinen (FoodSafe)

(Case T-766/14)

(2015/C 046/68)

Language in which the application was lodged: German

Parties

Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by: C. Onken, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: Heidelberger Druckmaschinen AG (Heidelberg, Germany)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: the applicant

Trade mark at issue: the Community word mark ‘FoodSafe’ — Community trade mark No 9 502 551

Procedure before OHIM: Invalidity proceedings

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 8 September 2014 in Case R 2440/2013-4

Form of order sought

The applicant claims that the Court should:

—	alter the contested decision to the effect that the Cancellation Division’s decision of 14 October 2013, filing number 6912 C, is annulled and the application for a declaration that Community trade mark No 9 502 551 is invalid is rejected;

—	in the alternative, annul the contested decision;

—	order OHIM to pay the costs.

Pleas in law

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

—	Infringement of Article 52(1)(a) of Regulation No 207/2009;

—	Infringement of Article 76(1) of Regulation No 207/2009.

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9.2.2015

EN

Official Journal of the European Union

C 46/53

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Action brought on 17 November 2014 — Boomkwekerij van Rijn-de Bruyn v CPVO — Artevos and Dachverband Kulturpflanzen- und Nutztiervielfalt (Oksana)

(Case T-767/14)

(2015/C 046/69)

Language in which the application was lodged: Dutch

Parties

Applicant: Boomkwekerij van Rijn-de Bruyn BV (Uden, Netherlands) (represented by: P. Jonker, lawyer)

Defendant: Community Plant Variety Office (CPVO)

Other parties to the proceedings before the Board of Appeal: Artevos GmbH (Karlsruhe, Germany) and Dachverband Kulturpflanzen- und Nutztiervielfalt eV (Bielefeld, Germany)

Details of the proceedings before the CPVO

Applicant for Community plant variety right: applicant

Community plant variety right at issue: Oksana — application No 2005/1046

Contested decision: decision of the Board of Appeal of the CPVO of 2 July 2014 in Case A 007/2013

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—

consequently, uphold the applicant’s appeal against decisions R 1232, OBJ 13-086, OBJ 13-087, OBJ 13-088 and OBJ 13-090 of the CPVO, find that the applicant’s variety is (sufficiently) new within the meaning of Article 10 of Regulation No 2100/94 and grant a Community plant variety right for the applicant’s variety;

—	order the CPVO and the other parties to pay the costs.

Plea in law

—	infringement of Articles 10 and 76 of Regulation No 2100/94.

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9.2.2015

EN

Official Journal of the European Union

C 46/54

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Action brought on 14 November 2014 — CGI Luxembourg and Intrasoft International v Parliament

(Case T-769/14)

(2015/C 046/70)

Language of the case: English

Parties

Applicants: CGI Luxembourg SA (Bertrange, Luxembourg) and Intrasoft International SA (Luxembourg, Luxembourg) (represented by: N. Korogiannakis, lawyer)

Defendant: European Parliament

Form of order sought

The applicants claim that the Court should:

—

annul the European Parliament’s decision to select the tender of the applicants as second in the cascade in Lot 3 ‘Development and maintenance of production information system’ of the open Call for Tenders (the ‘CfT’) No PE/ITEC/ITS14 ‘External Provision of IT Services’ and the decision of the European Parliament to award the first cascade contract to the ‘Steel consortium’;

—	order the European Parliament to pay the applicants’ damages suffered for the loss of contract;

—	alternatively, order the European Parliament to pay the applicants’ damages suffered of the loss of opportunity; and

—	order the European Parliament to pay the applicants legal fees and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

1.

First plea in law, alleging the existence of errors in the evaluation formula, contradictory instructions to the tenderers, infringement of the instructions to tenderers, infringement of the Tender specifications, infringement of the principles of Transparency and Good Administration. — The applicants submit that the evaluation formula, as presented in the Technical Specifications contained a number of errors. In addition, the Evaluation Committee used a different formula than the one announced, without informing the tenderers and used values from a table other than the one announced in the answers to the questions of the tenderers.

2.

Second plea in law, alleging an infringement of Article 110 of the Financial Regulation and 149 of the Delegated Regulation — The formula used does not lead to the award of the contract to the tender offering the best value for money. — The applicants submit that the table, from which the Evaluation Committee extracted the values in order to apply the evaluation formula, does not correspond to the way the contract is expected to be executed. As a result the elements taken into consideration do not correspond to the real needs of the European Parliament, which will necessarily lead to the award of the cascade contracts to tenderers that do not offer the best value for money for the needs thereof.

3.

Third plea in law, alleging vagueness and ambiguity of the Tender Specification. — The applicants submit that the European Parliament introduces through its letters an interpretation of the Technical Specifications which is contradictory with other sections of the same specifications, the answers of its own services to the questions of the tenderers and the objectives of the contract awarded. As a result, the Technical Specifications can lead the tenderers to errors impeding them from elaborating their best pricing strategy and therefore submitting their best offer.

4.

Fourth plea in law, alleging an infringement of the obligation to state reasons — of the right to an effective remedy and of an essential procedural requirement. — The applicants submit that the information communicated to them through the letters of the European Parliament after the announcement of the award of the contract in the disputed Call for Tenders does not constitute adequate motivation, since it is largely insufficient in order to permit to the applicants to apply the evaluation formula and verify the correct evaluation thereof. The European Parliament did not disclose fully the information taken into consideration in order to apply the evaluation formula, although the financial offer of the first cascade contractor was the deciding factor for the ranking of the applicants as second successful tenderer, since the applicants’ offer was ranked largely first in the quality assessment of the tenders and only after the consideration of the price, the rank changed.

5.

Fifth plea in law, alleging an infringement of the Tender Specifications and of Article 107 (1) (a) of the Financial Regulation. — The applicants submit that according to publicly available information, two companies participating in ‘exclusion’ lots including the first cascade contractor of Lot 3 have merged and therefore they cannot be awarded the above contracts. The above contractors dispose of an evident conflict of interest if they were indeed invited to execute the contract.

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9.2.2015

EN

Official Journal of the European Union

C 46/55

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Action brought on 24 November 2014 — Red Lemon v OHIM — Lidl Stiftung (ABTRONICX2)

(Case T-776/14)

(2015/C 046/71)

Language in which the application was lodged: German

Parties

Applicant: Red Lemon Inc. (Hong Kong, China) (represented by: T. Wieland and S. Müller, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

Details of the proceedings before OHIM

Applicant for the trade mark at issue: the applicant

Trade mark at issue: the Community figurative mark including the word element ‘ABTRONICX2’ — Application No 8 534 943

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 4 September 2014 in Case R 2078/2013-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision and reject the opposition;

—	order OHIM to pay the costs.

Plea in law

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

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9.2.2015

EN

Official Journal of the European Union

C 46/56

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Appeal brought on 28 November 2014 by European Central Bank against the judgment of the Civil Service Tribunal of 18 September 2014 in Case F-26/12 Cerafogli v ECB

(Case T-787/14 P)

(2015/C 046/72)

Language of the case: English

Parties

Appellant: European Central Bank (represented by: E. Carlini and M. López Torres, agents, assisted by B. Wägenbaur, lawyer)

Other party to the proceedings: Maria Concetta Cerafogli (Rome, Italy)

Form of order sought by the appellant

The appellant claims that the Court should:

—	annul the judgment of 18 September 2014, in Case F-26/12, Cerafogli v ECB;

—	rule according to the appellant’s pleas sought at first instance; and

—	to award each party its own costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging an erroneous extrapolation of the Grolsch case-law to staff cases thereby misinterpreting the scope of the principle of effective judicial protection in the light of Article 47 of the Charter and the inadequacy of the grounds.

2.	Second plea in law, alleging a failure to take account of the rights of defence of the institution, disregarding the purpose of the pre-litigation procedure, and a failure to take account of relevant facts and misinterpretation of the principle of legal certainty.

3.	Third plea in law, alleging erroneous conclusions drawn from the nature of a plea of illegality, the misinterpretation of Article 277 TFEU and of the principle of legal certainty.

4.	Fourth plea in law, alleging a misinterpretation of the principle of effective judicial protection, a failure to take account of the facts of the present case, and an infringement of the principle of proportionality.

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9.2.2015

EN

Official Journal of the European Union

C 46/57

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Appeal brought on 5 December 2014 by Eric Vanhalewyn against the judgment of the Civil Service Tribunal of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS

(Case T-792/14 P)

(2015/C 046/73)

Language of the case: French

Parties

Appellant: Eric Vanhalewyn (Grand Baie, Mauritius) (represented by S. Orlandi and T. Martin, lawyers)

Other party to the proceedings: European External Action Service (EEAS)

Form of order sought by the appellant

The appellant claims that the Court should:

—	set aside the judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS;

—	give judgment itself: — annulling the contested decision; — ordering the EEAS to pay the costs of both proceedings.

Pleas in law and main arguments

It results from the appeal that the appellant applies to have set aside the judgment of the Civil Service Tribunal (Third Chamber) of 25 September 2014 in Case F-101/13, Osorio and Others v EEAS.

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

1.

First plea in law, alleging an error of law, since the Civil Service Tribunal (‘the CST’) held, first, that the failure, by the EEAS, to adopt the general provisions (‘GP’) of Article 10 of Annex X to the Staff Regulations of Officials of the European Union (‘the regulations’) was justified by the fact that the EEAS was still, as regards the application of that provision, in an adjustment period and, secondly, that the failure to fulfil the obligation to adopt the GP can be successfully invoked by the appellant only where he shows that the EEAS applied that provision arbitrarily.

2.	Second plea in law, alleging that the CST erred in law by holding that the EEAS had correctly reasoned the contested decision although the reasons which led the EEAS to diverge from the negative opinion of the Staff Committee were not set out.

3.

Third plea in law, alleging that the CST erred in law since it held that the EEAS could, in the absence of GP, take into account other parameters than those provided for by the regulations in order to assess the severity of the difficulty of the conditions of life in the places of employment of officials outside the European Union.

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9.2.2015

EN

Official Journal of the European Union

C 46/58

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Action brought on 6 December 2014 — Skype v OHIM — Sky International (SKYPE)

(Case T-797/14)

(2015/C 046/74)

Language in which the application was lodged: English

Parties

Applicant: Skype (Dublin, Ireland) (represented by: A. Carboni and M. Browne, solicitors)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: Sky International AG (Zug, Suisse)

Details of the proceedings before OHIM

Applicant of the trade mark at issue: Applicant

Trade mark at issue: Community word mark ‘SKYPE’ — Application for registration No 9 7 24  394

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 29 September 2014 in Case R 1075/2013-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision and remit the application to OHIM to allow it to proceed;

—	order OHIM and any intervening parties to pay their own costs and applicant’s costs and those of the appeal before the Fourth Board of Appeal in Case R 1075/2013-4 and of Opposition B 1 870 834 before the Opposition Division.

Plea in law

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

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9.2.2015

EN

Official Journal of the European Union

C 46/58

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Action brought on 4 December 2014 — Laboratorios ERN v OHIM — michelle menard (Lenah.C)

(Case T-802/14)

(2015/C 046/75)

Language in which the application was lodged: English

Parties

Applicant: Laboratorios ERN, SA (Barcelona, Spain) (represented by: S. Correa, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: michelle menard GmbH — Berlin cosmetics (Berlin, Germany)

Details of the proceedings before OHIM

Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: Community word mark ‘Lenah.C’ — Application for registration No 10 426 617

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 24 September 2014 in Case R 2260/2013-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order OHIM and, if applicable, the other party to the proceedings before the Board of Appeal to pay the costs (jointly and severally).

Plea in law

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

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9.2.2015

EN

Official Journal of the European Union

C 46/59

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Action brought on 3 December 2014 — August Storck v OHIM (Representation of a square-shaped packaging in white and blue)

(Case T-806/14)

(2015/C 046/76)

Language of the case: English

Parties

Applicant: August Storck KG (Berlin, Germany) (represented by: P. Goldenbaum, I. Rohr, T. Melchert and A. Richter, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Details of the proceedings before OHIM

Trade mark at issue: International registration designating the European Union in respect of the figurative mark (Representation of a packaging in the shape of a square) — International registration No 1 169 244 designating the European Union

Contested decision: Decision of the Fifth Board of Appeal of OHIM of 8 September 2014 in Case R 644/2014-5

Form of order sought

The applicant claims that the Court should:

—	Annul the contested decision;

—	Order OHIM to pay its own costs and those of the applicant.

Plea in law

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

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9.2.2015

EN

Official Journal of the European Union

C 46/59

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Action brought on 12 December 2014 — Italy v Commission

(Case T-809/14)

(2015/C 046/77)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, and G. Palmieri, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul Note HR.A 2 of 2 October 2014 sent by the European Commission’s Director-General for Human Resources to the Director-General for the European Union of the Italian Republic’s Ministry for Foreign Affairs;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the note mentioned above, which follows the vacancy notice for the post of Director of the Translation Centre for the Bodies of the European Union (Luxembourg) (COM/2014/10356) — previously contested in Case T-636/14 — and which takes a position on the supposed difference between the notice in question and the form on the Commission’s website through which applications may be submitted, which limits the languages in which such submissions may be made to English, French and German.

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

1.

First plea in law, alleging infringement of Article 18 TFEU and the fourth paragraph of Article 24 TFEU, Article 22 of the Charter of Fundamental Rights of the European Union, Articles 1 and 2 of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community, and Article 1d(1) and (6) of the Staff Regulations, in so far as the notice, by its reference to the Commission’s website, which set out the binding provision mentioned above, made it compulsory for applicants to submit their CV and supporting letter in English, French or German, rather than allowing them to submit those documents in any one of the languages of the European Union. According to the applicant, in order to compensate for those defects, the Commission should have edited the website and extended the deadline for submitting applications.

2.

Second plea in law, alleging a failure to observe the principles of legitimate expectations and sincere cooperation (Article 4(3) TEU), in so far as the Commission had formally assured the Italian Government several times during the process for adopting the notice that the language discrimination mentioned above would be removed, but instead acted in the opposite manner when drafting that notice and preparing the rules for the functioning of the website to which the notice refers those wishing to submit applications.

3.	Third plea in law, alleging a failure to state reasons, in so far as the decision should have been adopted by the Commission through the President or the competent Commissioner, and not by the Director-General for Human Resources.

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9.2.2015

EN

Official Journal of the European Union

C 46/60

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Action brought on 12 December 2014 — BPC Lux 2 a.o. v Commission

(Case T-812/14)

(2015/C 046/78)

Language of the case: English

Parties

Applicants: BPC Lux 2 Sàrl (Senningerberg, Luxembourg), BPC UKI LP (George Town, Cayman Islands), Bennett Offshore Restructuring Fund, Inc. (George Town, Cayman Islands), Bennett Restructuring Fund LP (Wilmington, United States), Queen Street Fund Ltd (George Town, Cayman Islands), BTG Pactual Global Emerging Markets and Macro Master Fund LP (George Town, Cayman Islands), BTG Pactual Absolute Return II Master Fund LP (George Town, Cayman Islands), CSS LLC (Chicago, United States), Beltway Strategic Opportunities Fund LP (George Town, Cayman Islands), EJF Debt Opportunities Master Fund LP (George Town, Cayman Islands), EJF DO Fund (Cayman) LP (George Town, Cayman Islands), TP Lux HoldCo (Luxembourg, Luxembourg), VR Global Partners LP (George Town, Cayman Islands), Absalon II Ltd (Dublin, Ireland), CenturyLink, Inc. Defined Benefit Master Trust (Denver, United States), City of New York Group Trust (New York, United States), Dignity Health (San Francisco, United States), GoldenTree Asset Management Lux Sàrl (Luxembourg, Luxembourg), GoldenTree High Yield Value Fund Offshore 110 Two Ltd (Dublin, Ireland), San Bernardino County Employees Retirement Association (San Bernardino, United States) (represented by: J. Webber and M. Steenson, Solicitors and P. Fajardo, lawyer)

Defendants: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul the decision adopted by the Commission on 3 August 2014 not to raise objections to a measure notified by Portugal for the restructuring of Banco Espirito Santo S.A. (BES), in the procedure SA.39250; and

—	order the Commission to pay the costs of the applicants.

Pleas in law and main arguments

In support of the action, the applicants rely on two pleas in law.

1.

First plea in law, alleging that the Commission committed errors of law, fact and procedure in manifestly failing to correctly assess the counterfactual, in particular regarding the availability of private capital to participate in the restructuring of BES. — The Commission breached numerous requirements of the Banking Communication by failing to assess at all, or alternatively failing to provide reasoning, in respect of whether: a) aid was limited to the minimum necessary, b) private capital had been exploited to the maximum extent, c) an exception to the requirement that subordinated debt holders contribute in full on basis of impact on financial stability and disproportionality applied, and d) the no creditor worse off principle had been respected. — The Commission failed to investigate the counterfactual and therefore made an incorrect factual assumption that the only alternative to the notified measures was liquidation of BES. The Commission failed to consider the evidence that new private capital was available and could have reduced the State aid required by the notified measure. — The Commission was under a duty to initiate the formal investigation procedure under Article 108(2) TFEU. In failing to do so, the Commission breached the applicants’ procedural rights under that provision.

2.

Second plea in law, alleging that the Commission breached the applicants’ procedural rights in failing to open the formal investigation procedure. — The notification, considered objectively, raised serious difficulties of assessment with respect to both facts and law. — The Commission’s preliminary assessment, lasting a single Sunday, cannot have been complete and sufficient given the significance and difficulty of the subject matter of the investigation. — The Commission had reasons to believe that the information before it may be unreliable or at a minimum required verification before reliance could be placed upon it. — The Commission failed to consider paragraphs 50 to 53 of the Banking Communication, which establishes a two stage rescue and restructuring process for urgent situations such as that of BES. — The Commission had a duty to open a formal investigation. The Commission's failure to do so deprived the applicants, as interested parties, of any ability to participate in the procedure, in breach of their legitimate procedural rights under Article 108(2) TFEU.

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9.2.2015

EN

Official Journal of the European Union

C 46/61

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Action brought on 12 December 2014 — Geilenkothen Fabrik für Schutzkleidung v OHIM (Cottonfeel)

(Case T-822/14)

(2015/C 046/79)

Language of the case: German

Parties

Applicant: Geilenkothen Fabrik für Schutzkleidung GmbH (Gerolstein-Müllenborn, Germany) (represented by: M. Straub, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Details of the proceedings before OHIM

Trade mark at issue: Community word mark ‘Cottonfeel’ — Application No 1 1 9 35  236

Contested decision: Decision of the First Board of Appeal of OHIM of 2 October 2014 in Case R 2579/2013-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order OHIM to pay the costs, including the costs incurred in the course of the appeal proceedings.

Pleas in law

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

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

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