31.10.2016

Official Journal of the European Union

C 402/2

Judgment of the Court (Fifth Chamber) of 7 September 2016 — Federal Republic of Germany v European Parliament, Council of the European Union

(Case C-113/14) (1)

((Action for annulment - Choice of legal basis - Article 43(2) TFEU or Article 43(3) TFEU - Common organisation of the markets in agricultural products - Regulation (EU) No 1308/2013 - Article 7 - Regulation (EU) No 1370/2013 - Article 2 - Measures on fixing prices - Reference thresholds - Intervention prices))

(2016/C 402/02)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: T. Henze, A. Lippstreu and A. Wiedmann, acting as Agents)

Interveners in support of the applicant: United Kingdom of Great Britain and Northern Ireland (represented by: M. Holt, C. Brodie and J. Kraehling, acting as Agents, and by A. Bates, Barrister), Czech Republic (represented by: M. Smolek, J. Škeřík, J. Vláčil and D. Hadroušek, acting as Agents)

Defendants: European Parliament (represented by: L.G. Knudsen, R. Kaškina and U. Rösslein, acting as Agents), Council of the European Union (represented by: G. Maganza, J.-P. Hix and S. Barbagallo, acting as Agents)

Intervener in support of the defendants: European Commission (represented by: D. Triantafyllou and G. von Rintelen, acting as Agents)

Operative part of the judgment

The Court:

1.	Annuls Article 7 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007;

2.	Annuls Article 2 of Council Regulation (EU) No 1370/2013 of 16 December 2013 determining measures on fixing certain aids and refunds related to the common organisation of the markets in agricultural products;

Declares that the effects of Article 7 of Regulation No 1308/2013 and of Article 2 of Regulation No 1370/2013 are to be maintained until the entry into force, within a reasonable period of time which cannot exceed five months from the date of delivery of the present judgment, of a new regulation on the correct legal basis, namely Article 43(3) TFEU;

4.	Orders the European Parliament and the Council of the European Union to pay the costs;

5.	Orders the Czech Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

(1) OJ C 129, 28.4.2014.

31.10.2016

Official Journal of the European Union

C 402/3

Judgment of the Court (Fifth Chamber) of 8 September 2016 (request for a preliminary ruling from the Debreceni Közigazgatási és Munkaügyi Bíróság — Hungary) — Schenker Nemzetközi Szállítmányozási és Logisztikai Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága

(Case C-409/14) (1)

((Reference for a preliminary ruling - Common Customs Tariff - Combined Nomenclature - Classification of goods - Interpretation of a subheading of the Combined Nomenclature - Directive 2008/118/EC - Importation of excise goods - Customs suspensive procedure or arrangement - Effects of a customs declaration referring to an incorrect subheading of the Combined Nomenclature - Irregularities during the movement of excise goods))

(2016/C 402/03)

Language of the case: Hungarian

Referring court

Debreceni Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Schenker Nemzetközi Szállítmányozási és Logisztikai Kft.

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

Operative part of the judgment

Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EU) No 861/2010 of 5 October 2010, must be interpreted as meaning that goods such as those at issue in the main proceedings, consisting in smoking tobacco, irrespective of the presence of tobacco waste, since the latter does not prevent the intended use of the product concerned, are not to be included under heading 2401 of the Combined Nomenclature in Annex I to Regulation No 2658/87, as amended by Regulation No 861/2010. However, such goods may be classified under heading 2403 of the Combined Nomenclature, in particular subheading 2403 10 90 thereof, if they are packed in bulk and compacted in plastic-lined bags having a net weight 30 kg per box.

The concept of ‘customs suspensive procedure or arrangement’, laid down in Article 4(6) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, must be interpreted as meaning that the placement of specific goods under a customs suspensive procedure or arrangement cannot be challenged if the chapter of the Common Customs Tariff which covers those goods is correctly mentioned in their accompanying documents, but the specific subheading is incorrectly indicated. In such a case, Article 2(b) and Article 4(8) of Directive 2008/118 must be interpreted as meaning that there has been no importation of those goods, and that they are not excise goods.

In a situation such as that at issue in the main proceedings, the concept of ‘irregularity’, within the meaning of Article 38 of Directive 2008/118, must be interpreted as meaning that it does not cover goods placed under a customs suspensive procedure or arrangement which are accompanied by a document mentioning an incorrect tariff classification.

(1) OJ C 439, 8.12.2014.

31.10.2016

Official Journal of the European Union

C 402/4

Judgment of the Court (Eighth Chamber) of 7 September 2016 (request for a preliminary ruling from the Højesteret — Denmark) — Finn Frogne A/S v Rigspolitiet ved Center for Beredskabskommunikation

(Case C-549/14) (1)

((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Article 2 - Principle of equal treatment - Obligation of transparency - Contract for the supply of a complex communications system - Difficulties in performance of the contract - Disagreement of the parties in regard to areas of responsibility - Settlement - Reduction in the scope of the contract - Transformation of a rental of equipment into a sale of equipment - Material amendment to a contract - Justification by the objective expediency of achieving a settlement agreement))

(2016/C 402/04)

Language of the case: Danish

Referring court

Højesteret

Parties to the main proceedings

Applicant: Finn Frogne A/S

Defendant: Rigspolitiet ved Center for Beredskabskommunikation

Operative part of the judgment

Article 2 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, following the award of a public contract, a material amendment cannot be made to that contract without a new tendering procedure being initiated even in the case where that amendment is, objectively, a type of settlement agreement, with both parties agreeing to mutual waivers, designed to bring an end to a dispute the outcome of which is uncertain, which arose from the difficulties encountered in the performance of that contract. The position would be different only if the contract documents provided for the possibility of adjusting certain conditions, even material ones, after the contract had been awarded and fixed the detailed rules for the application of that possibility.

(1) OJ C 127, 20.4.2015.

31.10.2016

Official Journal of the European Union

C 402/4

Judgment of the Court (Fifth Chamber) of 7 September 2016 — European Commission v Hellenic Republic

(Case C-584/14) (1)

((Failure of a Member State to fulfil obligations - Environment obligations - Directive 2006/12/EC - Directive 91/689/EEC - Directive 1999/31/EC - Waste management - Judgment of the Court establishing a failure to fulfil obligations - Non-implementation - Article 260(2) TFEU - Pecuniary penalties - Periodic penalty payment - Lump sum))

(2016/C 402/05)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: M. Patakia, E. Sanfrutos Cano and D. Loma-Osorio Lerena, acting as Agents)

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

Operative part of the judgment

The Court:

1.	Declares that, by failing to adopt all of the measures necessary to comply with the judgment of 10 September 2009 in Commission v Greece (C-286/08, not published, EU:C:2009:543), the Hellenic Republic has failed to fulfil its obligations under Article 260(1) TFEU;

Orders the Hellenic Republic to pay the European Commission, into the ‘European Union own resources’ account, a penalty payment of EUR 30 000 for each day of delay in adopting the measures necessary to comply with the judgment of 10 September 2009 in Commission v Greece (C-286/08, not published, EU:C:2009:543), from the date of delivery of the present judgment until full compliance with the judgment of 10 September 2009 in Commission v Greece (C-286/08, not published, EU:C:2009:543). That amount is divided into three parts, corresponding to the three heads of claim invoked by the European Commission and is equivalent, with respect to the first head of claim, to 10 % of the total amount of the penalty payment, namely EUR 3 000, with respect to the second head of claim, to 45 % of that amount, namely EUR 13 500, as well as with respect to the third head of claim, which, as regards the proper management of so-called ‘historical’ waste, will be subject to a six-monthly reduction as a pro rata of the volume of that waste the management of which was in compliance. That reduction is limited to 50 % of the amount of the penalty payment corresponding to that head of claim, that is to say, EUR 6 750;

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

4.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 81, 9.3.2015.

31.10.2016

Official Journal of the European Union

C 402/5

Judgment of the Court (Fourth Chamber) of 7 September 2016 — Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH, Pilkington Italia SpA v European Commission

(Case C-101/15 P) (1)

((Appeal - Agreements, decisions and concerted practices - Article 101 TFEU - Article 53 of the Agreement on the European Economic Area of 2 May 1992 - European market for automotive glass - Market-sharing agreements and exchanges of commercially sensitive information - Fines - 2006 Guidelines on the method of setting fines - Point 13 - Value of sales - Regulation (EC) No 1/2003 - Second subparagraph of Article 23(2) - Statutory ceiling of the fine - Exchange rate for the calculation of the ceiling of the fine - Amount of the fine - Unlimited jurisdiction - Mono-product undertakings - Proportionality - Equal treatment))

(2016/C 402/06)

Language of the case: English

Parties

Appellants: Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH, Pilkington Italia SpA (represented by: S. Wisking and K. Fountoukakos-Kyriakakos, Solicitors, and by C. Puech Baron, avocat)

Other party to the proceedings: European Commission (represented by: A. Biolan, M. Kellerbauer and H. Leupold, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Pilkington Group Ltd, Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA to pay the costs.

(1) OJ C 81, 9.3.2015.

31.10.2016

Official Journal of the European Union

C 402/6

Judgment of the Court (Fifth Chamber) of 7 September 2016 (request for a preliminary ruling from the Conseil d’État — France) — Association nationale des opérateurs détaillants en énergie (ANODE) v Premier ministre, Ministre de l’Économie, de l’Industrie et du Numérique, Commission de régulation de l’énergie, ENGIE, formerly GDF Suez

(Case C-121/15) (1)

((Reference for a preliminary ruling - Approximation of laws - Directive 2009/73/EC - Energy - Gas sector - Fixing of prices for supplying natural gas to final customers - Regulated tariffs - Obstacle - Compatibility - Criteria of assessment - Objectives of security of supply and territorial cohesion))

(2016/C 402/07)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Association nationale des opérateurs détaillants en énergie (ANODE)

Defendants: Premier ministre, Ministre de l’Économie, de l’Industrie et du Numérique, Commission de régulation de l’énergie, ENGIE, formerly GDF Suez

Operative part of the judgment

Article 3(1) of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC must be interpreted as meaning that intervention by a Member State consisting in requiring certain suppliers, including the incumbent supplier, to offer to supply natural gas to final consumers at regulated tariffs constitutes by its very nature an obstacle to the achievement of a competitive market in natural gas as provided for in that provision, and that obstacle exists even though the intervention does not preclude competing offers from being made at lower prices than those tariffs by any supplier in the market.

Article 3(2) of Directive 2009/73, read in the light of Articles 14 TFEU and 106 TFEU and Protocol (No 26) on services of general interest, annexed to the EU Treaty, as amended by the Treaty of Lisbon, and the FEU Treaty, must be interpreted as allowing the Member States to assess whether, in the general economic interest, public service obligations relating to the price of supply of natural gas should be imposed on undertakings operating in the gas sector, in order in particular to ensure security of supply and territorial cohesion, provided that, first, all the conditions set out in Article 3(2) of the directive are satisfied, specifically the non-discriminatory nature of such obligations, and, secondly, that the imposition of those obligations complies with the principle of proportionality.

Article 3(2) of Directive 2009/73 must be interpreted as not precluding a method of determination of prices based on taking costs into consideration, provided that the application of the method does not have the consequence that the State intervention goes beyond what is necessary for achieving the objectives of general economic interest pursued.

(1) OJ C 178, 1.6.2015.

31.10.2016

Official Journal of the European Union

C 402/7

Judgment of the Court (Second Chamber) of 8 September 2016 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker

(Case C-160/15) (1)

((Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information society - Harmonisation of certain aspects of copyright and related rights - Article 3(1) - Communication to the public - Definition - Internet - Hyperlinks giving access to protected works, made accessible on another website without the rightholder’s consent - Works not yet published by the rightholder - Posting of such links for a profit))

(2016/C 402/08)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: GS Media BV

Defendants: Sanoma Media Netherlands BV, Playboy Enterprises International Inc., Britt Geertruida Dekker

Operative part of the judgment

Article 3(1) of 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 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.

(1) OJ C 205, 22.6.2015.

31.10.2016

Official Journal of the European Union

C 402/7

Judgment of the Court (Sixth Chamber) of 8 September 2016 (request for a preliminary ruling from the Nacka tingsrätt — Mark- och miljödomstolen — Sweden) — Borealis AB and Others

(Case C-180/15) (1)

((Reference for a preliminary ruling - Scheme for greenhouse gas emission allowance trading within the European Union - Directive 2003/87/EC - Article 10a - Method of allocating free allowances - Calculation of the uniform cross-sectoral correction factor - Decision 2013/448/EU - Article 4 - Annex II - Validity - Determination of the product benchmark for hot metal - Decision 2011/278/EU - Annex I - Validity - Article 3(c) - Article 7 - Article 10(1) to (3) and 8 - Annex IV - Free allowances for the consumption and for the export of heat - Measurable heat exported to private households - Prohibition on double-counting of emissions and of double allocation of allowances))

(2016/C 402/09)

Language of the case: Swedish

Referring court

Nacka tingsrätt — Mark- och miljödomstolen

Parties to the main proceedings

Applicants: Borealis AB, Kubikenborg Aluminum AB, Yara AB, SSAB EMEA AB, Lulekraft AB, Värmevärden i Nynäshamn AB, Cementa AB, Höganäs Sweden AB

Defendant: Naturvårdsverket

Operative part of the judgment

Examination of the first, second and thirteenth questions has revealed no factor of such a kind as to affect the validity of 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.

2.	Examination of the fifth question referred has revealed no factor of such a kind as to affect the validity of Annex I to Decision 2011/278.

Article 4 of, and Annex II to, Commission Decision 2013/448/EU 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 are invalid.

The temporal effects of the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 are limited so that, first, that declaration does not produce effects until 10 months following the date of delivery of the judgment in Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), so as to enable the European Commission to adopt the necessary measures and, second, measures adopted during that period on the basis of the invalidated provisions cannot be called into question.

Article 10a of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, and Article 10(1) to (3) and (8) of Decision 2011/278 must be interpreted as permitting, in order to avoid a double allocation, non-allocation of allowances to a heat benchmark sub-installation when it exports, to private households, heat which it has recovered from a fuel benchmark sub-installation.

6.	Article 10(8) of Decision 2011/278 must be interpreted as precluding free greenhouse gas emission allowances being allocated to an operator for the consumption, in a heat benchmark sub-installation, of heat taken into account in connection with a fuel benchmark sub-installation.

Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as allowing a Member State, when collecting the data covered by those provisions, not to take into account all the emissions related to the heat production exported by a heat benchmark sub-installation to private households in order to avoid double counting.

Article 10a(1) and (4) of Directive 2003/87, as amended by Directive 2009/29, and Article 10(3) of Decision 2011/278 must be interpreted as permitting the non-allocation of additional free greenhouse gas emission allowances related to the production of measurable heat by burning waste gases generated by a hot metal benchmark installation, when the amount of greenhouse gas emission allowances determined based on the heat benchmark is lower than the median annual historical emissions related to the production of that heat.

Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as not precluding a Member State, when collecting the data covered by those provisions, from adjusting the figures obtained by the Member State so that the greenhouse gas emissions attributable to the combustion of waste gases by a heat benchmark sub-installation are equivalent to those from the combustion of natural gas, in so far as a product benchmark takes account of emissions linked to the production of waste gases.

10.

Article 3(c), of Decision 2011/278 must be interpreted as meaning that the concept of ‘heat benchmark sub-installation’ includes the activity of exporting the measurable heat from an installation subject to the greenhouse gas emissions trading system to a steam network when the latter network can be qualified as an ‘installation or other entity not covered by the Union scheme’.

(1) OJ C 205, 22.6.2015.

31.10.2016

Official Journal of the European Union

C 402/9

Judgment of the Court (Grand Chamber) of 6 September 2016 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — proceedings relating to the extradition of Aleksei Petruhhin

(Case C-182/15) (1)

((Reference for a preliminary ruling - Citizenship of the Union - Extradition to a third State of a national of a Member State who has exercised his right to freedom of movement - Scope of EU law - Protection of a Member State’s nationals against extradition - No protection for nationals of the other Member States - Restriction of freedom of movement - Justification based on the prevention of impunity - Proportionality - Verification of the guarantees provided for in Article 19 of the Charter of Fundamental Rights of the European Union))

(2016/C 402/10)

Language of the case: Latvian

Referring court

Augstākā tiesa

Parties to the main proceedings

Aleksei Petruhhin

Operative part of the judgment

Article 18 TFEU and Article 21 TFEU must be interpreted as meaning that, when a Member State to which a Union citizen, a national of another Member State, has moved receives an extradition request from a third State with which the first Member State has concluded an extradition agreement, it must inform the Member State of which the citizen in question is a national and, should that Member State so request, surrender that citizen to it, in accordance with the provisions of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, provided that that Member State has jurisdiction, pursuant to its national law, to prosecute that person for offences committed outside its national territory.

2.	Where a Member State receives a request from a third State seeking the extradition of a national of another Member State, that first Member State must verify that the extradition will not prejudice the rights referred to in Article 19 of the Charter of Fundamental Rights of the European Union.

(1) OJ C 205, 22.6.2015.

31.10.2016

Official Journal of the European Union

C 402/9

Judgment of the Court (Second Chamber) of 8 September 2016 (request for a preliminary ruling from the Tribunale di Reggio Calabria — Italy) — Criminal proceedings against Domenico Politanò

(Case C-225/15) (1)

((Reference for a preliminary ruling - Article 49 TFEU - Freedom of establishment - Betting and gambling - Restrictions - Overriding reasons of public interest - Proportionality - Public procurement - Conditions for participating in a call for tenders and assessment of economic and financial standing - Exclusion of the tenderer for not presenting certificates of economic and financial standing issued by two different banks - Directive 2004/18/EC - Article 47 - Applicability))

(2016/C 402/11)

Language of the case: Italian

Referring court

Tribunale di Reggio Calabria

Party in the main proceedings

Domenico Politanò

Operative part of the judgment

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, in particular Article 47, must be interpreted as meaning that national legislation governing the grant of concessions in the field of betting and gambling, such as that at issue in the main proceedings, does not fall within its scope.

Article 49 TFEU must be interpreted as not precluding a national provision, such as that at issue in the main proceedings, which imposes on operators wishing to respond to a call for tenders for the grant of concessions in the field of betting and gambling the obligation of providing evidence of their economic and financial standing by means of statements issued by at least two banks, without also allowing that standing to be proved by other means, where such a provision is capable of satisfying the conditions of proportionality laid down by the case-law of the Court, which is for the referring court to ascertain.

(1) OJ C 262, 10.8.2015.

31.10.2016

Official Journal of the European Union

C 402/10

Judgment of the Court (Eighth Chamber) of 7 September 2016 (request for a preliminary ruling from the Cour de cassation — France) — Vincent Deroo-Blanquart v Sony Europe Limited, successor in law to Sony France SA

(Case C-310/15) (1)

((Reference for a preliminary ruling - Consumer protection - Unfair commercial practices - Directive 2005/29/EC - Articles 5 and 7 - Combined offer - Sale of a computer equipped with pre-installed software - Material information relating to the price - Misleading omission - Consumer unable to obtain the same model of computer not equipped with software))

(2016/C 402/12)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Vincent Deroo-Blanquart

Defendant: Sony Europe Limited, successor in law to Sony France SA

Operative part of the judgment

A commercial practice consisting of the sale of a computer equipped with pre-installed software without any option for the consumer to purchase the same model of computer not equipped with pre-installed software does not in itself constitute an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), unless such a practice is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product, a matter which is for the national court to determine by taking account of the specific circumstances of the case in the main proceedings.

In the context of a combined offer consisting of the sale of a computer equipped with pre-installed software, the failure to indicate the price of each of those items of pre-installed software does not constitute a misleading commercial practice within the meaning of Article 5(4)(a) and Article 7 of Directive 2005/29.

(1) OJ C 294, 7.9.2015.

31.10.2016

Official Journal of the European Union

C 402/11

Judgment of the Court (Sixth Chamber) of 8 September 2016 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — E.ON Kraftwerke GmbH v Bundesrepublik Deutschland

(Case C-461/15) (1)

((Reference for a preliminary ruling - Environment - Greenhouse gas emission allowance trading scheme within the European Union - Directive 2003/87/EC - Harmonised free allocation of emission allowances - Decision 2011/278/EU - Change to the allocation - Article 24(1) - Obligation of the operator of the installation to provide information - Scope))

(2016/C 402/14)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: E.ON Kraftwerke GmbH

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

Article 24(1) of 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 must be interpreted as not precluding a Member State from requiring undertakings which, being subject to the greenhouse gas emission allowance trading obligation within the European Union, receive a free allocation of those allowances to provide information relating to all planned or effective changes to the capacity, activity level and operation of an installation, without limiting that requirement solely to information relating to changes that would affect the allocation.

(1) OJ C 398, 30.11.2015.

31.10.2016

Official Journal of the European Union

C 402/12

Judgment of the Court (Fourth Chamber) of 28 July 2016 (request for a preliminary ruling from the Sąd Rejonowy dla Łodzi — Śródmieścia w Łodzi — Poland) — JZ v Prokuratura Rejonowa Łódź — Śródmieście

(Case C-294/16) (1)

((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - Article 26(1) - European arrest warrant - Effects of the surrender - Deduction of the period of detention served in the executing Member State - Concept of ‘detention’ - Measures involving a restriction of liberty other than imprisonment - Curfew in conjunction with the wearing of an electronic tag - Charter of Fundamental Rights of the European Union - Articles 6 and 49))

(2016/C 402/15)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Łodzi — Śródmieścia w Łodzi

Parties to the main proceedings

Applicant: JZ

Defendant: Prokuratura Rejonowa Łódź — Śródmieście

Operative part of the judgment

Article 26(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that measures such as a nine-hour night-time curfew, in conjunction with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents, are not, in principle, having regard to the type, duration, effects and manner of implementation of all those measures, so restrictive as to give rise to a deprivation of liberty comparable to that arising from imprisonment and thus to be classified as ‘detention’ within the meaning of that provision, which it is nevertheless for the referring court to ascertain.

(1) OJ C 296, 16.8.2016.

31.10.2016

Official Journal of the European Union

C 402/13

Action brought on 1 June 2016 — European Commission v Hellenic Republic

(Case C-328/16)

(2016/C 402/16)

Language of the case: Greek

Parties

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

Defendant: Hellenic Republic

Form of order sought

The applicant claims that the Court should:

—	declare that the Hellenic Republic, by failing to take all measures required for the implementation of the judgment delivered by the Court on 24 June 2004 in Case C-119/02, (1) Commission v Greece, has failed to fulfil its obligations under Article 260(1) TFEU;

—

order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 34 974 for each day of delay in the implementation of the judgment delivered in Case C-119/02 from the date when the judgment in this case is delivered until the date when the judgment that was delivered in Case C-119/02 has been implemented,

—	order the Hellenic Republic to pay a daily lump sum amounting to EUR 3 828 per day from the date of delivery of the judgment in Case C-119/02 until the date when the judgment in this case is delivered or the date when the judgment in Case C-119/02 is implemented, whichever is the earlier,

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

In the judgment of 24 June 2004, in Case C-119/02, Commission v Greece, the Court declared that:

‘… by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Eleusina, the Hellenic Republic has failed to fulfil its obligations under the second subparagraph of Article 3(1) and Article 5(2) of Council Directive 91/271/EEC of 21 May 1991 (2) concerning urban waste-water treatment, as amended by Commission Directive 98/15/EC of 27 February 1998.’

The Hellenic Republic was obliged to take the necessary measures to ensure that the urban waste-water from the area of Thriasio Pedio (which encompasses the towns of Eleusina, Aspropirgos, Magoula and Mandra) is collected and subjected to treatment in accordance with the second paragraph of Article 3(1) and Article 5(2) of Directive 91/271/ΕEC as amended by Directive 98/15/EC before its discharge into the sensitive area of the Gulf of Eleusina. The system for the collection and treatment of waste-water from the area of Thriasio Pedio ought to have been established by 31 December 1998 at the latest. In addition, by that date the urban waste-water ought to have been subjected to treatment more stringent than secondary treatment (‘tertiary treatment’) before its discharge into sensitive areas.

The Hellenic Republic was obliged to ensure the collection and treatment of all the urban waste-water from the area of Thriasio Pedio and its subjection to treatment more stringent than secondary treatment treatment, and also prove that the operation of the waste-water treatment plants was in compliance with the requirements of the directive.

Compliance with the judgment of the Court ought to have been achieved by means of completion of various projects:

—	the creation of an urban waste water treatment centre;

—	the construction of the ‘main’ conduits (for the urban waste water network) or the ‘basic network’,

—	the construction of conduits (for the urban waste water network) or ‘the secondary network’,

—	the connection of the various settlements/industries in the area (the towns of Aspropirgos, Eleusina, Mandra, Magoula) with the urban waste water network, or ‘the tertiary network’.

The competent Greek authorities informed the Commission that the greater part of the entire project should have been completed by the end of 2010. The basic network was in the construction stage, the secondary network had been 45 % completed and the tertiary network was under development. The authorities maintained that the urban waste-water treatment centre would be able to collect the urban waste-water from the entire population of the area before the end of 2010.With regard to the main network, it would cover 100 % of the population of the towns of Aspropirgos, Mandra and Magoula and 2/3 of Eleusina (in total around 90 % with respect to the four towns). The remainder of the population would be covered by 30 April 2011.

6.	The Commission concluded from the above that, as at 18 July 2011, the judgment of the Court had still not been fully implemented.

The Greek authorities, in their reply of 27 November 2012, informed the Commission that the urban waste-water treatment centre had been operational since 27 July 2012 but that the secondary and tertiary network had not yet been completed (postponed until the end of March 2013). With respect to the secondary network, that would almost be completed, with the exception of part of the town of Eleusina (‘Lower Eleusina’) where work had been delayed due to archaeological finds. It is further indicated that currently 24 % of the urban waste water of the Thriasio Pedio agglomeration is collected and subjected to treatment by the urban waste-water treatment centre. The authorities also sent evidence to show (tertiary treatment for the urban waste-water that is collected) that the operation of the plant is lawfully compliant.

The Commission considers that notwithstanding the period of 12 years since the date of delivery of the judgment concerned, the Hellenic Republic has still not yet fully implemented it. The waste-water treatment plants have been completed and brought into operation since 27 July 2012, with the capacity for removal of nitrogen, but the Commission emphasises that only a very low percentage (28 %) of the urban waste-water from the area of Thriasio Pedio is currently subject to collection and treatment.

In addition, the Commission has not obtained from the competent authorities any timetable with reliable data to permit any assessment of when any realistic progress can be expected. The Commission emphasises that the various deadlines which the Greek authorities have over time made known to the Commission have never been observed. Quite apart from the tertiary network, which connects various settlements and industries in the area, the secondary network (the construction of large conduits) has also not been completed, in that the area of Lower Eleusina in the town of Eleusina is excluded.

10.

The Commission states that there is no statistical data to demonstrate that the urban waste-water which has been collected has been subject to treatment more stringent than secondary treatment, with the exception of the reply from the Greek authorities of 27 November 2012. That reply contains data, but that data covers only one period of four months, since the plant had been brought into operation on 27 July 2012. In any event, in order to prove adequate treatment of the collected waste-water the Greek authorities are under an obligation to demonstrate that the operation of the treatment plant has been lawfully compliant for a period of 12 months, recording a percentage of reduction in BOD5 (biochemical oxygen demand) and COD (chemical oxygen demand) which satisfies the requirements of the directive with respect to secondary treatment and, with respect to the tertiary treatment, an adequate percentage of reduction in nitrogen that complies with Table 2 of Annex Ι to the directive. While that data is absent the Commission is not in a position to verify whether the urban waste-water which is now collected is finally subjected to treatment more stringent than secondary treatment, as that is described in Article 4 of the directive.

(1) EU:C:2004:385

(2) OJ 1991, L 135, p. 40

31.10.2016

Official Journal of the European Union

C 402/14

Appeal brought on 7 July 2016 by European Union Intellectual Property Office against the judgment of the General Court (Fourth Chamber) delivered on 27 April 2016 in Case T-556/11: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Union Intellectual Property Office

(Case C-376/16 P)

(2016/C 402/17)

Language of the case: English

Parties

Appellant: European Union Intellectual Property Office (represented by: N. Bambara, Agent, P. Wytinck, B. Hoorelbeke, advocaten)

Other parties to the proceedings: European Dynamics Luxembourg SA, European Dynamics Belgium SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE

Form of order sought

The appellant claims that the Court should:

—

In principal order

—	Annul the Contested Judgment of the General Court in its entirety,

—	reject the Application for annulment of the Contested Decision and the request for damages as brought forward by the Applicant in first instance;

—	In subsidiary order, annul the Contested Judgment of the General Court in its entirety, and refer the case back to the General Court;

—	In secondary subsidiary order, annul the Contested Judgment of the General Court in so far as it orders the EUIPO to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court;

—	Order the Applicants in first instance to pay the entire costs of the proceedings.

Pleas in law and main arguments

The Appeal is based on four main grounds l, notably that: 1) the General Court erred in law in the interpretation and application of the principles of equal opportunities and transparency, and has in any event distorted the facts, 2) the General Court erred in law in the interpretation and application of the test regarding manifest errors of assessment and in some cases distorted the facts, 3) the General Court erred in law in the application of Article 100 (2) of the General Financial Regulation read in conjunction with the second paragraph of Article 296 TFEU, and 4) the General Court erred in law by the award for damages on the basis of the loss of opportunity.

In the First Ground of Appeal, the Appellant alleges that the General Court ruled ultra petita in breach of Article 21 of the Statute of the Court and Articles 76 (1) and 84 (1) of the Rules of Procedure of the General Court, or in the alternative erred in law in ruling that a violation of the principles of equal opportunities and due diligence could lead to an annulment of the Contested Decision, by holding that the Contested Decision should be annulled in so far as EUIPO did not request nor obtain extracts from the judicial records of Siemens SA and Siemens SL demonstrating the absence of any of the exclusion grounds listed in Art. 93 and 94 FR. In the second part of the first ground of appeal, the Appellant also demonstrates that the General Court has distorted the facts by holding that EUIPO did not request nor produce any evidence which was in accordance to Article 134b Implementing rules sufficient to demonstrate the absence of exclusion grounds for Siemens SL, as the case file does contain an extract from the registro mercantil which is an equivalent document to an extract from the judicial record in the sense of Article 134b Implementing rules.

In the Second Ground of Appeal, the Appellant submits that the General Court erred in law by not examining whether the established manifest errors of assessment made by the evaluation committee in the evaluation of European Dynamics’ tender could have had an impact on the final outcome of the contested award decision. The Appellant points out the General Court is required to examine whether the established manifest errors of assessment would lead to a different outcome for the award procedure by examining whether the established manifest errors have an effect on the score awarded for a given criterion in case there are several other reasons (which are not vitiated by a manifest error of assessment) which equally support the scores awarded. In addition, 82 the Appellant demonstrates that on numerous occasions the General Court has either distorted the facts, applied the wrong test to establish manifest errors of assessment by simply substituting its assessment of the facts for that of EUIPO, or erred in law by holding that an insufficient motivation could be considered as an evidence of a manifest error of assessment.

In the Third Ground of Appeal, the Appellant puts forward that the General Court erred in law by requiring that the motivation of the decision should make clear how each (negative) comment impacted on the points awarded for each sub-criterion and subpoint, and as such applied a stricter test regarding the duty to state reasons as the one that follows from the settled case-law of the Court of Justice. For that reason the General Court erred in law in annulling the contested decision on the grounds of a violation of Article 100 (2) General Financial Regulation read in conjunction with Article 296 TFEU.

In the Fourth Ground of Appeal, the Appellant alleges that the General Court erred in law in awarding damages to the first Applicant in first instance as one of the cumulative conditions for incurring non-contractual liability of EU institutions (i.e. the presence of unlawful conduct) has not been demonstrated. In subsidiary order, the Appellant submits that, even if the Appeal of EUIPO would only succeed on its first ground of appeal, the Contested Judgment should still be annulled insofar as it imposes the obligation to pay damages as in that case the existence of a causal link between the remaining unlawful conduct (manifest error of assessment and failure to state reasons) and the alleged harm is not demonstrated. In the alternative the Appellant demonstrated that the General Court erred in law by awarding damages on the basis of the loss of opportunity as such a basis to award damages cannot be considered as a general principle common to the laws of the Member States and thus violated the explicit provision of Article 340 TFEU.

31.10.2016

Official Journal of the European Union

C 402/16

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 July 2016 — Comité Interprofessionnel du Vin de Champagne v Aldi Einkauf GmbH & Co. OHG Süd

(Case C-393/16)

(2016/C 402/18)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Comité Interprofessionnel du Vin de Champagne

Defendant: Aldi Einkauf GmbH & Co. OHG Süd

Intervener: Galana NV

Questions referred

Are Article 118m(2)(a)(ii) of Regulation (EC) No 1234/2007 (1) and Article 103(2)(a)(ii) of Regulation (EU) No 1308/2013 (2) to be interpreted as meaning that their scope also covers a case in which the protected designation of origin is used as part of the designation of a foodstuff which does not correspond to the product specifications but to which an ingredient has been added which does correspond to the product specifications?

If Question 1 is answered in the affirmative:

Are Article 118m(2)(a)(ii) of Regulation (EC) No 1234/2007 and Article 103(2)(a)(ii) of Regulation (EU) No 1308/2013 to be interpreted as meaning that the use of a protected designation of origin as part of the designation of a foodstuff which does not correspond to the product specifications but to which an ingredient has been added which does correspond to the product specifications constitutes exploitation of the reputation of the designation of origin in the case where the designation of the foodstuff corresponds to the customary designations on the market in question and the ingredient is added in a quantity which is sufficient to give the product one of its essential characteristics?

3.	Are Article 118m(2)(b) of Regulation (EC) No 1234/2007 and Article 103(2)(b) of Regulation (EU) No 1308/2013 to be interpreted as meaning that the use of a protected designation of origin in the circumstances set out in Question 2 constitutes misuse, imitation or evocation?

Are Article 118m(2)(c) of Regulation (EC) No 1234/2007 and Article 103(2)(c) of Regulation (EU) No 1308/2013 to be interpreted as meaning that they are applicable only to false or misleading indications which, on the market in question, are liable to create a false impression as to a product’s geographical origin?

(1) Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation); OJ 2007 L 299, p. 1.

(2) Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007; OJ 2013 L 347, p. 671.

31.10.2016

Official Journal of the European Union

C 402/17

Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 1 August 2016 — Hansruedi Raimund v Michaela Aigner

(Case C-425/16)

(2016/C 402/19)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Hansruedi Raimund

Defendant: Michaela Aigner

Questions referred

May an action for infringement of an EU trade mark (Article 96(a) of Regulation (EC) No 207/2009, (1) as amended by Regulation (EU) 2015/2424) be dismissed on the ground of an objection that the trademark application was filed in bad faith (Article 52(1)(b) of Regulation (EC) No 207/2009, as amended by Regulation (EU) 2015/2424) if, despite the defendant having brought a well-founded counterclaim for a declaration of invalidity of the EU trade mark (Article 99(1) of Regulation (EC) No 207/2009, as amended by Regulation (EU) 2015/2424), the court has not yet ruled on that counterclaim?

If the answer is in the negative: May the court dismiss an action for infringement on the ground of an objection that the trademark application was filed in bad faith, if the court at least simultaneously upholds the counterclaim for a declaration of invalidity, or must the court delay the decision on the action for infringement in any event until the decision on the counterclaim is res judicata?

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

31.10.2016

Official Journal of the European Union

C 402/17

Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León (España) lodged on 2 August 2016 — Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) v José Blanco Marqués

(Case C-431/16)

(2016/C 402/20)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla y León

Parties to the main proceedings

Applicants: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

Defendant: José Blanco Marqués

Questions referred

Is a rule of national law, such that contained in Article 6.4 of Royal Decree 1646/1972 of 23 June, which establishes that the 20 % supplement to the regulatory base for pensioners who have a total permanent incapacity to perform their normal occupation and who are over 55 years old ‘shall be suspended during the period in which the worker obtains employment’, to be regarded as a rule to prevent overlapping within the meaning of Article 12, Article 46a, Article 46b and 46d of Regulation No 1408/71 (1) and Articles 5, 53, 54 and 55 of Regulation No 883/2004, (2) in view of the fact that the Spanish Supreme Court has held that the incompatibility established in that role of national law applies not only to employment but also to receipt of a retirement pension?

If the answer to the previous question is in the affirmative, are Article 46a(3)(a) of Regulation No 1408/71 and Article 53(3)(a) of Regulation No 883/2004 to be interpreted as meaning that a rule to prevent the overlapping of the benefit at issue and a pension from another European Union State or Switzerland may be applied only if there is a rule of national law of the rank of statute that expressly provides that Social Security invalidity, old-age or survivors’ benefits, such as that at issue here, are incompatible with benefits or income acquired abroad by the beneficiary? Or may the rule to prevent overlapping be applied to pensions from another European Union State or Switzerland, in accordance with Article 12 of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, even when there is no express legal provision, but when the national case-law has adopted an interpretation which supposes that the benefit at issue is incompatible with a retirement pension under Spanish law?

If the answer to the previous question supports application of the Spanish rule to prevent overlapping (as developed by case-law) to the case at issue, even failing any express law concerning benefits or income acquired abroad, is the 20 % supplement, which, under Spanish Social Security legislation, is received by workers who are recognised as having total permanent incapacity to perform their normal occupation and are over 55 years old, as has been described, to be considered the same as or different from a retirement pension under the Swiss Social Security system? Does the definition of the various branches of Social Security in Article 4 (1) of Regulation No 1408/71 and Article 3(1) of Regulation No 883/2004 have Community scope or must the definition given by the national legislation be followed for every specific benefit? If the definition has Community scope, is the 20 % supplement to the regulatory base of the total permanent incapacity benefit, which is the subject matter of these proceedings, to be regarded as an invalidity benefit or an unemployment benefit, in light of the fact that it supplements the pension for total permanent incapacity to perform the normal occupation owing to the difficulty people more than 55 years old have in finding other employment, so that payment of that supplement is suspended if the beneficiary does work?

If the two benefits are considered to be of the same kind and considering that contribution periods in another State have not been taken into account for the determining of either the amount of the Spanish incapacity pension or its supplement, is the 20 % supplement to the regulatory base of the Spanish total permanent incapacity pension to be regarded as a benefit to which the rules to prevent overlapping are applicable, inasmuch as its amount does not depend on the length of periods of insurance or residence, within the meaning of Article 46b, third indent, of Regulation No 1408/71 and Article 54(2)(a) of Regulation No 883/2004? May the rule to prevent overlapping be applied even though that benefit is not listed in Part D of Annex IV to Regulation No 1408/71 or in Annex IX of Regulation No 883/2004?

If the answer to the previous question is in the affirmative, is the rule in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit could be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland?

If the two benefits are considered to be of different kinds and given that Switzerland appears to apply no rule to prevent overlapping, under Article 46c of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, may the whole reduction be applied to the 20 % supplement to the Spanish total permanent incapacity pension or must the reduction be made on a split or pro-rata basis? In either case, must the limit referred to in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit may be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland, be applied?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2).

(2) 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).

31.10.2016

Official Journal of the European Union

C 402/19

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 17 August 2016 — Finanzamt Bingen-Alzey v Boehringer Ingelheim Pharma GmbH & Co. KG

(Case C-462/16)

(2016/C 402/21)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant on a point of law: Finanzamt Bingen-Alzey

Respondent in the appeal on a point of law: Boehringer Ingelheim Pharma GmbH & Co. KG

Question referred

On the basis of the case-law of the Court of Justice of the European Union (judgment of 24 October 1996 in Elida Gibbs, C-317/94 (1)) and having regard to the principle of equal treatment under EU law, is a pharmaceutical company which supplies medicinal products entitled to a reduction of the taxable amount under Article 90 of Council Directive 2006/112/EC (2) of 28 November 2006 on the common system of value added tax in the case where

—	it supplies those medicinal products to pharmacies via wholesalers,

—	the pharmacies supply those products, subject to tax, to persons with private health insurance,

—	the insurer of the medical expense insurance (the private health insurance company) reimburses the persons insured by it for the costs of purchasing the medicinal products, and

—	the pharmaceutical company is required to pay a ‘discount’ to the private health insurance company pursuant to a statutory provision?

(1) ECLI:EU:C:1996:400, paragraphs 28 and 31.

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

31.10.2016

Official Journal of the European Union

C 402/20

Appeal brought on 18 August 2016 by Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) against the order of the General Court (Fourth Chamber) made on 20 July 2016 in Case T–674/15, Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) v European Commission

(Case C-464/16 P)

(2016/C 402/22)

Language of the case: German

Parties

Appellant: Pénzügyi Ismeretterjesztő és Érdek-képviseleti Egyesület (PITEE) (represented by: D. Lazar, lawyer)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

1.	set aside the decision of the General Court of 20 July 2016 in Case T–674/15 in its entirety;

2.	annul the Commission’s decisions of 9 October 2015 (Ares (2015)4207700) and of 14 August 2015 (Ares (2015)3532556), refusing to provide the appellant with access to documents;

3.	order the Commission to make all of the Hungarian Government’s documents relating to EU Pilot Case 6874/14/JUST (CHAP (2015)00353 and CHAP (2015)00555) fully accessible to the appellant, irrespective of whether they are already available or are to be made available only in the future;

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

Grounds of appeal and main arguments

The main grounds of the appeal brought against the abovementioned decision of the General Court are as follows:

In accordance with the settled case-law of the Court of Justice, a party within the meaning of the Statute of the Court of Justice is not authorised to act on its own before the Court, but must use the services of a third party. (1)

In addition, lawyers occupying management positions on the executive bodies of a legal person should not defend the interests of those persons before the European Union Courts. (2)

The settled case-law of the Court of Justice infringes Article 47 of the Charter of Fundamental Rights of the European Union as well as Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

It is not clear from the case-law of the Court of Justice which legitimate objective the Court is pursuing by its interpretation of the Statute. Furthermore, it is unclear by means of which interpretation the Court has concluded that the legal representative must be an independent third party. In any event, the Statute does not contain this expression.

The Statute of the Court of Justice is to be interpreted as meaning that each party and each legal person are free to choose their legal representative.

(1) Order of 5 December 1996, Lopes v Court of Justice, C–174/96 P, EU:C:1996:473, paragraph 11; order of 21 November 2007, Correia de Matos v Parliament, C–502/06 P, not published, EU:C:2007:696, paragraph 11; order of 29 September 2010, EREF v Commission, C–74/10 P and C–75/10 P, not published, EU:C:2010:557, paragraph 54.

(2) Order of 8 December 1999, Euro-Lex v OHIM (EU-Lex), T–79/99, EU:T:1999:312, paragraph 29; order of 13 January 2005, Suivida v Commission, T–184/04, EU:T:2005:7, paragraph 10; order of 30 November 2012, Activa Preferentes v Council, T–437/12, not published, EU:T:2012:638, paragraph 7.

31.10.2016

Official Journal of the European Union

C 402/21

Appeal brought on 20 August 2016 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 9 June 2016 in Case T-276/13: Growth Energy and Renewable Fuels Association v Council of the European Union

(Case C-465/16 P)

(2016/C 402/23)

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: S. Boelaert, Agent, N. Tuominen, Avocat)

Other parties to the proceedings: Growth Energy, Renewable Fuels Association, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of 9 June 2016, notified to the Council on 10 June 2016, in Case T-276/13 Growth Energy and Renewable Fuels Association v Council of the European Union;

—	reject the application at first instance brought by Growth Energy and Renewable Fuels Association for the annulment of the Contested Regulation (1);

—	order Growth Energy and Renewable Fuels Association to pay the Council’s costs both at first instance and on appeal.

Alternatively,

—	refer the case back to the General Court for reconsideration;

—	reserve the costs of the proceedings at first instance and on appeal in case of referral back to the General Court.

Pleas in law and main arguments

By the present appeal, the Council respectfully requests that the Contested Judgment be set aside on the following grounds:

The General Court’s findings on the admissibility of the action, and in particular its conclusions on the Applicants' direct and individual concern are legally erroneous.

First, the General Court takes the view that for finding direct concern, it is sufficient that the four sampled US producers are producers of bioethanol. However, this finding on direct effect cannot be reconciled with established case-law which rejects direct effect on the basis of purely economic consequences.

Second, it is not clear how the mere fact that the US producers have sold their bioethanol to domestic traders/blenders, which was subsequently resold domestically or exported by the domestic traders/blenders in significant quantities to the Union, prior to the imposition of duties, would substantially affect their market position. In order to show a substantial affectation of their market position by virtue of the introduction of the duties, it would have been necessary, at the very least, for the Applicants to establish the impact of the duties on the level of imports into the Union following the imposition of the anti-dumping duties. However, the Applicants did not provide any information in that regard, and the Contested Judgment does not contain any finding on that point either. This is both an error of law in the application of the test for individual concern, as well as a failure to state reasons.

Insofar as the merits are concerned, the General Court committed an error of law in so far as the interpretation of the Basic Regulation (2) is concerned and a further two errors in law in so far as WTO law is concerned.

First, the General Court has wrongly interpreted the Basic Regulation when it considers that Article 9(5) of the Basic Regulation implements both Article 9.2 and Article 6.10 of the AD Agreement. On the one hand, as can be seen from the wording of Article 9(5) of the Basic Regulation, the latter provision does not deal with the question of sampling. On the other hand, Article 6.10 of the AD Agreement is implemented by Article 17 and Article 9(6) of the Basic Regulation, and not by Article 9(5) of the Basic Regulation.

Second, the General Court has wrongly interpreted the term ‘supplier’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement. It follows from the logic and general scheme of Article 9(5) that only a ‘source found to be dumped and causing injury’ can be a supplier. However, as the US producers had no export price, they could not have been charged with dumping. Consequently, the General Court erred in law by qualifying them as ‘suppliers’ in the sense of Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement.

Third, the General Court has wrongly interpreted the term ‘impracticable’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement, by relying on an erroneous interpretation of Article 9(5) of the Basic Regulation in light of Article 6.10 of the AD Agreement, as well as on the Appellate Body report in EC — Fasteners (3). The latter report only deals with Article 9.2 of the AD Agreement and hence its examination of the term ‘impracticable’ only relates to the situation and treatment that Article 9(5) of the Basic Regulation provides for exporters in non-market economies. The Appellate Body therefore did not provide an interpretation of ‘impracticable’ that could be transposed to the current proceedings which do not concern exporters in nonmarket economies.

Finally, the General Court has made substantially incorrect findings of fact when it concluded that the calculation of individual duties was ‘practicable’. A situation in which the producers of bioethanol do not have an export price, but only a domestic price, clearly renders it impracticable and impossible to establish an individual dumping margin, and authorises the Commission to establish one single countrywide dumping margin.

(1) Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of AmericaOJ L 49, p. 10

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European CommunityOJ L 343, p. 51

(3) European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners fromChina — AB-2011-2 — Report of the Appellate Body, WT/DS397/AB/R (‘EC — Fasteners,WT/DS397/AB/R’)

31.10.2016

Official Journal of the European Union

C 402/22

Appeal brought on 20 August 2016 by Council of the European Union against the judgment of the General Court (Fifth Chamber) delivered on 9 June 2016 in Case T-277/13: Marquis Energy LLC v Council of the European Union

(Case C-466/16 P)

(2016/C 402/24)

Language of the case: English

Parties

Appellant: Council of the European Union (represented by: S. Boelaert, Agent, N. Tuominen, Avocat)

Other parties to the proceedings: Marquis Energy LLC, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of 9 June 2016, notified to the Council on 10 June 2016, in Case T-277/13 Marquis Energy v Council of the European Union;

—	reject the application at first instance brought by Marquis Energy for the annulment of the Contested Regulation (1);

—	order Marquis Energy to pay the Council’s costs both at first instance and on appeal.

Alternatively,

—	refer the case back to the General Court for reconsideration;

—	reserve the costs of the proceedings at first instance and on appeal in case of referral back to the General Court.

Pleas in law and main arguments

By the present appeal, the Council respectfully requests that the Contested Judgment be set aside on the following grounds:

The General Court’s findings on the admissibility of the action, and in particular its conclusions on the Applicants' direct and individual concern are legally erroneous.

a.	First, the General Court takes the view that for finding direct concern, it is sufficient that the Applicant is a producer of bioethanol. However, this finding on direct effect cannot be reconciled with established case-law which rejects direct effect on the basis of purely economic consequences.

Second, it is not clear how the mere fact that the Applicant has sold its bioethanol to domestic traders/blenders, which was subsequently resold domestically or exported by the domestic traders/blenders in significant quantities to the Union, prior to the imposition of duties, would substantially affect their market position. In order to show a substantial affectation of its market position by virtue of the introduction of the duties, it would have been necessary, at the very least, for the Applicant to establish the impact of the duties on the level of imports into the Union following the imposition of the anti-dumping duties. However, the Applicant did not provide any information in that regard, and the Contested Judgment does not contain any finding on that point either. This is both an error of law in the application of the test for individual concern, as well as a failure to state reasons.

(1) Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of AmericaOJ L 49, p. 10

(2) Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European CommunityOJ L 343, p. 51

(3) European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China — AB-2011-2 — Report of the Appellate Body, WT/DS397/AB/R (‘EC — Fasteners, WT/DS397/AB/R’)

31.10.2016

Official Journal of the European Union

C 402/25

Judgment of the General Court of 15 September 2016 — Scuola Elementare Maria Montessori v Commission

(Case T-220/13) (1)

((State aid - Municipal real estate tax - Exemption granted to non-commercial entities carrying out specific activities - Consolidated text on income tax - Exemption of the one-off municipal tax - Decision partly finding the absence of State aid and party declaring the aid incompatible with the common market - Action for annulment - Regulatory act not entailing implementing measures - Direct concern - Admissibility - Absolute impossibility of recovery - Article 14(1) of Regulation (EC) No 659/1999 - Obligation to state reasons))

(2016/C 402/25)

Language of the case: Italian

Parties

Applicant: Scuola Elementare Maria Montessori Srl (Rome, Italy) (represented by: initially A. Nucara and E. Gambaro, then E. Gambaro, lawyers)

Defendant: European Commission (represented by: initially V. Di Bucci, G. Conte and D. Grespan, then G. Conte, D. Grespan and F. Tomat, acting as Agents)

Intervener in support of the defendant: Italian Republic (represented by: G. Palmieri and G. De Bellis, acting as Agents)

Re:

Application based on Article 263 TFEU and seeking annulment of Commission Decision of 19 December 2012 on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy (OJ 2013 L 166, p. 24).

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders Scuola Elementare Maria Montessori Srl to pay, in addition to its own costs, those incurred by the European Commission;

3)	Orders the Italian Republic to bear its own costs relating to its intervention.

(1) OJ C 171, 15.6.2013.

31.10.2016

Official Journal of the European Union

C 402/25

Judgment of the General Court of 15 September 2016 — La Ferla v Commission and ECHA

(Case T-392/13) (1)

((REACH - Fee for registration of a substance - Reduction granted to micro, small and medium-sized enterprises - Error in declaration relating to the size of the enterprise - Recommendation 2003/361/EC - Decision imposing an administrative charge - Request for information - Power of the ECHA - Proportionality))

(2016/C 402/26)

Language of the case: Italian

Parties

Applicant: Leone La Ferla SpA (Melilli, Italy) (represented by: G. Passalacqua, J. Occhipinti and G. Calcerano, lawyers)

Defendants: European Commission (represented by: L. Di Paolo and K. Talabér-Ritz, acting as Agents) and European Chemicals Agency (represented by: initially M. Heikkilä, A. Iber, E. Bigi, E. Maurage and J.-P. Trnka, then M. Heikkilä, E. Bigi, E. Maurage and J.-P. Trnka, acting as Agents, and by C. Garcia Molyneux, lawyer)

Re:

In the first place, application based on Article 263 TFEU and seeking annulment of several Commission or ECHA measures, in the second place, application asking for the ECHA to be ordered to repay amounts which had been unduly received, and, in the third place, application based on Article 268 TFEU and seeking to obtain compensation for the harm which the applicant has allegedly suffered.

Operative part of the judgment

The Court:

1.	Declares that the action in so far as it is brought against the European Commission, is dismissed as being inadmissible;

2.	Declares that the action, in so far as it is brought against the European Chemicals Agency (ECHA), is dismissed as being inadmissible in part and unfounded in part;

3.	Orders Leone La Ferla SpA to pay the costs.

(1) OJ C 291, 5.10.2013.

31.10.2016

Official Journal of the European Union

C 402/26

Judgment of the General Court of 8 September 2016 — Lundbeck v Commission

(Case T-472/13) (1)

((Competition - Agreements, decisions and concerted practices - Market for antidepressant medicinal products containing the active pharmaceutical ingredient citalopram - Concept of restriction of competition ‘by object’ - Potential competition - Generic medicinal products - Barriers to market entry resulting from the existence of patents - Agreements concluded between a patent holder and generic undertakings - Article 101(1) and (3) TFEU - Errors of law and of assessment - Obligation to state reasons - Rights of defence - Legal certainty - Fines))

(2016/C 402/27)

Language of the case: English

Parties

Applicants: H. Lundbeck A/S (Valby, Denmark) and Lundbeck Ltd (Milton Keynes, United Kingdom) (represented by: R. Subiotto QC, and T. Kuhn, lawyer)

Defendant: European Commission (represented initially by J. Bourke, F. Castilla Contreras, B. Mongin, T. Vecchi and C. Vollrath, and subsequently by F. Castilla Contreras, B. Mongin, T. Vecchi, C. Vollrath and T. Christoforou, acting as Agents)

Intervener in support of the applicants: European Federation of Pharmaceutical Industries and Associations (EFPIA) (Geneva, Switzerland) (represented by: F. Carlin, Barrister, and M. Healy, Solicitor)

Re:

Application for annulment in part of Commission Decision C(2013) 3803 final of 19 June 2013 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39226 — Lundbeck) and for reduction of the amount of the fine imposed on the applicants by that decision.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders H. Lundbeck A/S and Lundbeck Ltd to bear their own costs and to pay the European Commission’s costs;

3.	Orders the European Federation of Pharmaceutical Industries and Associations (EFPIA) to bear its own costs.

(1) OJ C 325, 9.11.2013.

31.10.2016

Official Journal of the European Union

C 402/27

Judgment of the General Court of 15 September 2016 — Marchi Industriale v ECHA

(Case T-620/13) (1)

((REACH - Fee for registration of a substance - Reduction granted to micro-, small and medium-sized enterprises - Error in declaration relating to the size of the enterprise - Recommendation 2003/361/EC - Decision imposing an administrative charge - Determination of the size of the undertaking - Power of the ECHA - Obligation to state reasons))

(2016/C 402/28)

Language of the case: Italian

Parties

Applicant: Marchi Industriale SpA (Florence, Italy) (represented by: M. Baldassarri and F. Donati, lawyers)

Defendant: European Chemicals Agency (represented initially by M. Heikkilä, A. Iber, E. Bigi, J.-P. Trnka and E. Maurage, and subsequently by M. Heikkilä, E. Bigi, J.-P. Trnka and E. Maurage, Agents, and by C. Garcia Molyneux, lawyer)

Re:

Application, first, under Article 263 TFEU, for annulment of Decision SME(2013) 3747 of the ECHA of 19 September 2013, which states that the applicant does not fulfil the conditions to receive a reduction of the fee for medium-sized enterprises and imposing an administrative charge on it and, second, under Article 263 TFEU for annulment of the invoices issued by the ECHA following adoption of Decision SME(2013) 3747.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Marchi Industriale SpA to pay the costs.

(1) OJ C 24, 25.1.2014.

31.10.2016

Official Journal of the European Union

C 402/27

Judgment of the General Court of 13 September 2016 — ENAC v INEA

(Case T-695/13) (1)

((Financial aid - Projects of common interest in the field of trans-European transport and energy networks - Realisation of a study for the intermodal development of Bergamo-Orio al Serio Airport - Determination of the final amount of the financial aid - Ineligible costs - Error of law - Obligation to state reasons))

(2016/C 402/29)

Language of the case: Italian

Parties

Applicant: Ente nazionale per l’aviazione civile (ENAC) (Rome, Italy) (represented by: G. Palmieri and P. Garofoli, avvocati dello Stato)

Defendant: Innovation and Networks Executive Agency (represented by: I. Ramallo, D. Silhol and Z. Szilvássy, acting as Agents, and by M. Merola, M. C. Santacroce and L. Armati, lawyers)

Intervener in support of the applicant: Società per l’aeroporto civile di Bergamo-Orio al Serio SpA (SACBO SpA) (Grassobbio, Italy) (represented by: M. Muscardini, G. Greco and G. Carullo, lawyers)

Re:

Application based on Article 263 TFEU and seeking annulment of the letters of 18 March and 23 October 2013 of the Trans-European Transport Network Executive Agency (TEN-TEA), now INEA, relating to certain costs incurred on the occasion of the completion of a feasibility study for the intermodal nature of the Bergame-Orio al Serio airport (Italy) following the financial assistance granted by the European Commission to the applicant.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders the Ente nazionale per l’aviazione civile (ENAC, the National civil aviation authority, Italy) to pay the costs.

(1) OJ C 52, 22.2.2014.

31.10.2016

Official Journal of the European Union

C 402/28

Judgment of the General Court of 15 September 2016 — PT Musim Mas v Council

(Case T-80/14) (1)

((Dumping - Imports of biodiesel originating in Indonesia - Definitive collection of provisional anti-dumping duties - Definitive anti-dumping duties - Rights of the defence - Article 2(5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/30)

Language of the case: English

Parties

Applicant: PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) (Medan, Indonesia) (represented by: J. García-Gallardo Gil-Fournier, A. Verdegay Mena, lawyers, and C. Humpe, Solicitor)

Defendant: Council of the European Union (represented initially by S. Boelaert, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Interveners in support of the defendant: European Commission (represented by J.-F. Brakeland, M. França and A. Stobiecka-Kuik, acting as Agents) and European Biodiesel Board (EBB) (Brussels, Belgium) (represented by O. Prost and M.-S. Dibling, lawyers)

Re:

Action pursuant to Article 263 TFUE for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2).

Operative part of the judgment

The Court:

Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas);

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Musim Mas;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 102, 7.4.2014.

31.10.2016

Official Journal of the European Union

C 402/29

Judgment of the General Court of 15 September 2016 — Unitec Bio v Council

(Case T-111/14) (1)

((Dumping - Imports of biodiesel originating in Argentina - Definitive anti-dumping duty - Action for annulment - Direct concern - Individual concern - Admissibility - Article 2(5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/31)

Language of the case: English

Parties

Applicant: Unitec Bio SA (Buenos Aires, Argentina) (represented by: J.-F. Bellis, R. Luff and G. Bathory, lawyers)

Defendant: Council of the European Union (represented initially by S. Boelaert and B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Interveners in support of the defendant: European Commission (represented by M. França and A. Stobiecka-Kuik, acting as Agents) and European Biodiesel Board (EBB) (Brussels, Belgium) (represented by O. Prost and M.-S. Dibling, lawyers)

Re:

Operative part of the judgment

The Court:

1.	Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern Unitec Bio SA;

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Unitec Bio;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 112, 14.4.2014.

31.10.2016

Official Journal of the European Union

C 402/30

Judgment of the General Court of 15 September 2016 — Molinos Río de la Plata and Others v Council

(Cases T-112/14 to T-116/14 and T-119/14) (1)

((Dumping - Imports of biodiesel originating in Argentina - Definitive anti-dumping duty - Action for annulment - Trade association - Direct concern - Individual concern - Admissibility - Article 2(5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/32)

Language of the case: English

Parties

Applicants: Molinos Río de la Plata SA (Buenos Aires, Argentina) (Case T-112/14), Oleaginosa Moreno Hermanos SACIFI y A (Bahia Blanca, Argentina) (Case T-113/14), Vicentin SAIC (Avellaneda, Argentina) (Case T-114/14), Aceitera General Deheza SA (General Deheza, Argentina) (Case T-115/14), Bunge Argentina SA (Buenos Aires) (Case T-116/14), Cámara Argentina de Biocombustibles (Carbio) (Buenos Aires) (Case T-119/14) (represented by: J.-F. Bellis, R. Luff and G. Bathory, lawyers)

Defendant: Council of the European Union (represented initially by S. Boelaert and B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Re:

Actions pursuant to Article 263 TFUE, in Case T-119/14, for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2), and, in Cases T-112/14 and T-116/14, for annulment of that regulation in so far as it imposes an anti-dumping duty on the applicants in those cases.

Operative part of the judgment

The Court:

1.	Joins Cases T-112/14, T-113/14, T-114/14, T-115/14, T-116/14 and T-119/14 for the purposes of the decision closing the proceedings;

Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos SAFICI y A, Vicentin SAIC, Aceitera General Deheza SA and Bunge Argentina SA;

3.	Dismisses the action in Case T-119/14 as to the remainder;

Orders the Council of the European Union to bear its own costs in Cases T-112/14 to T-116/14 and also to pay the costs incurred by Molinos Río de la Plata in Case T-112/14, by Oleaginosa Moreno Hermanos in Case T-113/14, by Vincentin in Case T-114/14, by Aceitera General Deheza in Case T-115/14 and by Bunge Argentina in Case T-116/14;

5.	Orders Cámara Argentina de Biocombustibles (Carbio) and the Council to bear their own costs in Case T-119/14;

6.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 112, 14.4.2014.

31.10.2016

Official Journal of the European Union

C 402/31

Judgment of the General Court of 15 September 2016 — Cargill v Council

(Case T-117/14) (1)

(2016/C 402/33)

Language of the case: English

Parties

Applicant: Cargill SACI (Buenos Aires, Argentina) (represented by: J.-F. Bellis, R. Luff and G. Bathory, lawyers)

Defendant: Council of the European Union (represented initially by S. Boelaert and B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Re:

Operative part of the judgment

The Court:

1.	Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern Cargill SACI;

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Cargill;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 151, 19.5.2014.

31.10.2016

Official Journal of the European Union

C 402/31

Judgment of the General Court of 15 September 2016 — LDC Argentina v Council

(Case T-118/14) (1)

((Dumping - Imports of biodiesel originating in Argentina - Definitive anti-dumping duty - Article 2(5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/34)

Language of the case: English

Parties

Applicant: LDC Argentina SA (Buenos Aires, Argentina) (represented by: J.-F. Bellis, R. Luff and G. Bathory, lawyers)

Defendant: Council of the European Union (represented initially by S. Boelaert and B. Driessen, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Re:

Operative part of the judgment

The Court:

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by LDC Argentina;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 151, 19.5.2014.

31.10.2016

Official Journal of the European Union

C 402/32

Judgment of the General Court of 15 September 2016 — PT Ciliandra Perkasa v Council

(Case T-120/14) (1)

((Dumping - Imports of biodiesel originating in Indonesia - Definitive anti-dumping duty - Article 2(5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/35)

Language of the case: English

Parties

Applicant: PT Ciliandra Perkasa (Jakarta, Indonesia) (represented by: F. Graafsma and J. Cornelis, lawyers)

Defendant: Council of the European Union (represented initially by S. Boelaert, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Re:

Operative part of the judgment

The Court:

1.	Annuls Articles 1 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as it concerns PT Ciliandra Perkasa;

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Ciliandra Perkasa;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 112, 14.4.2014.

31.10.2016

Official Journal of the European Union

C 402/33

Judgment of the General Court of 15 September 2016 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council

(Case T-139/14) (1)

((Dumping - Imports of biodiesel originating in Indonesia - Definitive anti-dumping duties - Article 2(3) and (5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))

(2016/C 402/36)

Language of the case: English

Parties

Applicants: PT Wilmar Bioenergi Indonesia (Medan, Indonesia) and PT Wilmar Nabati Indonesia (Medan) (represented by: P. Vander Schueren, lawyer)

Defendant: Council of the European Union (represented initially by S. Boelaert, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

Re:

Operative part of the judgment

The Court:

Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;

2.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;

3.	Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

(1) OJ C 151, 19.5.2014.

31.10.2016

Official Journal of the European Union

C 402/34

Judgment of the General Court of 15 September 2016 –Klyuyev v Council

(Case T-340/14) (1)

((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Rights of the defence - Obligation to state reasons - Legal basis - Right to effective judicial protection - Failure to comply with the listing criteria - Manifest error of assessment - Right to property - Right to reputation))

(2016/C 402/37)

Language of the case: English

Parties

Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: B. Kennelly and J. Pobjoy, Barristers, and by R. Gherson and T. Garner, Solicitors)

Defendant: Council of the European Union (represented by: Á. De Elera-San Miguel Hurtado and J.-P. Hix, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: D. Gauci and T. Scharf, acting as Agents)

Re:

Application under Article 263 TFEU seeking the annulment of (i) Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1), and (ii) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as the applicant’s name was included or maintained in the list of persons, entities and bodies subject to those restrictive measures, and, in the alternative, a declaration that Article 1(1) of Decision 2014/119 as amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), and Article 3(1) of Regulation No 208/2014, as amended by Council Regulation (EU) 2015/138 of 29 January 2015 (OJ 2015 L 24, p. 1) do not apply to the applicant.

Operative part of the judgment

The Court:

Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in their initial versions, in so far as Mr Andriy Klyuyev was named in the list of persons, entities and bodies subject to those restrictive measures;

2.	Dismisses the action as to the remainder;

3.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Klyuyev, with respect to the claim for annulment stated in the application;

4.	Orders Mr Klyuyev to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the form of order sought;

5.	Orders the European Commission to bear its own costs.

(1) OJ C 261, 11.8.2014.

31.10.2016

Official Journal of the European Union

C 402/35

Judgment of the General Court of 15 September 2016 — Yanukovych v Council

(Case T-346/14) (1)

((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to freezing of funds and economic resources - Inclusion of the applicant’s name - Rights of the defence - Obligation to state reasons - Legal basis - Right to effective judicial protection - Misuse of powers - Failure to comply with the listing criteria - Manifest error of assessment - Right to property))

(2016/C 402/38)

Language of the case: English

Parties

Applicant: Viktor Fedorovych Yanukovych (Kiev, Ukraine) (represented by: T. Beazley QC, P. Saini QC and S. Fatima QC, H. Mussa, J. Hage and K. Howard, Barristers, and C. Kennedy, Solicitor)

Defendant: Council of the European Union (represented initially by E. Finnegan and J.-P. Hix, and subsequently by J.-P. Hix and P. Mahnič Bruni, acting as Agents)

Interveners in support of the defendant: Republic of Poland (represented by: B. Majczyna, acting as Agent) and European Commission (represented by: S. Bartelt and D. Gauci, acting as Agents)

Re:

Application under Article 263 TFEU seeking the annulment of (i) Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1); (ii) Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1), and (iii) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as the applicant’s name was included or maintained in the list of persons, entities and bodies subject to those restrictive measures.

Operative part of the judgment

The Court:

Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in their initial versions, in so far as Mr Viktor Fedorovych Yanukovych was named in the list of persons, entities and bodies subject to those restrictive measures;

2.	Dismisses the action as to the remainder;

3.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Yanukovych, with respect to the claim for annulment stated in the initiating application;

4.	Orders Mr Yanukovych to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the forms of order sought;

5.	Orders the Republic of Poland and the European Commission to bear their own costs.

(1) OJ C 253, 4.8.2014.

31.10.2016

Official Journal of the European Union

C 402/36

Judgment of the General Court of 15 September 2016 –Yanukovych v Council

(Case T-348/14) (1)

((Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the applicant’s name - Obligation to state reasons - Legal basis - Rights of the defence - Right to effective judicial protection - Misuse of power - Failure to comply with the listing criteria - Manifest error of assessment - Right to property))

(2016/C 402/39)

Language of the case: English

Parties

Applicant: Oleksandr Viktorovych Yanukovych (Donetsk, Ukraine) (represented by: T. Beazley QC, P. Saini QC and S. Fatima QC, J. Hage and K. Howard, Barristers, and C. Kennedy, Solicitor)

Defendant: Council of the European Union (represented initially by E. Finnegan and J.-P. Hix, and subsequently by J.-P. Hix and P. Mahnič Bruni, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: D. Gauci and S. Bartelt, acting as Agents)

Re:

Application under Article 263 TFEU seeking the annulment of (i) Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1) as amended, respectively, by Council Implementing Decision 2014/216/CFSP of 14 April 2014, implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33); (ii) Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119 (OJ 2015 L 24, p. 16) and Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1), and (iii) Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 (OJ 2015 L 62, p. 25) and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1), in so far as the applicant’s name was included or maintained in the list of persons, entities and bodies subject to those restrictive measures.

Operative part of the judgment

The Court:

Annuls — until the entry into force of Council Decision (CFSP) 2015/364 of 5 March 2015 amending Decision 2014/119 and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation No 208/2014 — Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119, and Council Regulation (EU) No 208/2014 of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as amended by Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014, in so far as Mr Oleksandr Viktorovych Yanukovych was named in the list of persons, entities and bodies subject to those restrictive measures;

2.	Dismisses the action as to the remainder;

3.	Orders the Council of the European Union to bear its own costs and to pay the costs incurred by Mr Yanukovych, with respect to the claim for annulment stated in the initiating application;

4.	Orders Mr Yanukovych to bear his own costs and to pay the costs incurred by the Council, with respect to the claim for annulment stated in the statement of modification of the form of order sought;

5.	Orders the European Commission to bear its own costs.

(1) OJ C 253, 4.8.2014.

31.10.2016

Official Journal of the European Union

C 402/37

Judgment of the General Court of 15 September 2016 — FIH Holding and FIH Erhvervsbank v Commission

(Case T-386/14) (1)

((State aid - Banking sector - Aid granted to Danish bank FIH in the form of a transfer of its impaired assets to a new subsidiary and the subsequent purchase thereof by the Danish Financial Stability Company - State aid for banks during the crisis - Decision declaring the aid compatible with the internal market - Definition of aid - Private investor test - Private creditor test - Calculation of the amount of the aid - Obligation to state reasons))

(2016/C 402/40)

Language of the case: English

Parties

Applicants: FIH Holding A/S (Copenhagen, Denmark), FIH Erhvervsbank A/S (Copenhagen) (represented by: O. Koktvedgaard, lawyer)

Defendant: European Commission (represented by: L. Flynn and P.-J. Loewenthal, acting as Agents)

Re:

Action on the basis of Article 263 TFEU for annulment of Commission Decision 2014/884/EU of 11 March 2014 on State aid SA.34445 (12/C) implemented by Denmark for the transfer of property-related assets from FIH to the FSC (OJ 2014 L 357, p. 89).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision 2014/884/EU of 11 March 2014 on State aid SA.34445 (12/C) implemented by Denmark for the transfer of property-related assets from FIH to the FSC.

2.	Orders the European Commission to pay the costs.

(1) OJ C 253, 4.8.2014.

31.10.2016

Official Journal of the European Union

C 402/37

Judgment of the General Court of 15 September 2016 — European Dynamics Luxembourg and Evropaïki Dynamiki v EIT

(Case T-481/14) (1)

((Public service contracts - Tender procedure - Supply of services for the development of a knowledge and information management platform - Software development services and maintenance of availability and efficiency of computer services - Refusal to rank the applicants in first place - Selection criteria - Award criteria - Obligation to state reasons - Manifest errors of assessment - Access to documents - Non-contractual liability))

(2016/C 402/41)

Language of the case: English

Parties

Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented initially by E. Siouti and M. Sfyri, and subsequently by M. Sfyri and A. Lymperopoulou, lawyers)

Defendant: European Institute of Innovation and Technology (represented initially by M. Kern, B. Győri-Hartwig and P. Juanes Burgos, and subsequently by B. Győri-Hartwig and P. Juanes Burgos, acting as Agents, assisted by P. Wytinck and B. Hoorelbeke, lawyers)

Re:

Application, firstly, on the basis of Article 263 TFEU for annulment of the EIT’s decision of 14 April 2014 ranking the tender submitted by the applicants in the context of an invitation to tender relating to computer and related services in second place, and for annulment of the EIT’s letter of 25 April 2014 by which it refused to communicate the names of the members of the evaluation committee and, secondly, on the basis of Article 168 TFEU, for damages.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

(1) OJ C 351, 6.10.2014.

31.10.2016

Official Journal of the European Union

C 402/38

Judgment of the General Court of 15 September 2016 — European Dynamics Luxembourg and Evropaïki Dynamiki v Commission

(Case T-698/14) (1)

((Public service contracts - Public procurement procedure - External service provision for development, studies and support for information systems (ESP DESIS III) - Ranking of a tenderer in the cascade procedure - Obligation to state reasons - Abnormally low bids - Principle of free competition - Non-contractual liability))

(2016/C 402/42)

Language of the case: Greek

Parties

Applicants: European Dynamics Luxembourg SA (Ettelbrück, Luxembourg) and Evropaïki Dynamiki — Proigmena Sistimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented initially by: V. Christianos, I. Ampazis and M. Sfyri, lawyers, and subsequently by: M. Sfyri, lawyer)

Defendant: European Commission (represented by: S. Delaude and S. Lejeune, acting as Agents, and, initially, E. Petritsi, E. Roussou and K. Adamantopoulos, and, subsequently, E. Roussou and K. Adamantopoulos, lawyers)

Re:

Firstly, application on the basis of Article 263 TFEU seeking the annulment of the Commission’s decisions to rank in third and fourth positions under the cascade mechanism the bids made by the applicants for lots Nos 1 and 3 under open call for tenders No DIGIT/R2/PO/2013/029 — ESP DESIS III concerning ‘External service provision for development, studies and support for information systems’ (OJ 2013/S 19-0380314) and to exclude their bid for lot No 2 under that call for tenders and, secondly, application on the basis of Article 268 TFEU seeking compensation for the loss allegedly suffered by the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders European Dynamics Luxembourg and Evropaïki Dynamiki — Proigmena Sistimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

(1) OJ C 448, 15.12.2014.

31.10.2016

Official Journal of the European Union

C 402/39

Judgment of the General Court of 15 September 2016 — Herbert Smith Freehills v Council

(Case T-710/14) (1)

((Access to documents - Regulation (EC) No 1049/2001 - Documents relating to discussions preceding the adoption of the Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products - Refusal to grant access - Exception relating to the protection of legal advice - Rights of the defence - Overriding public interest))

(2016/C 402/43)

Language of the case: English

Parties

Applicant: Herbert Smith Freehills LLP (London, United Kingdom) (represented by: P. Wytinck, lawyer)

Defendant: Council of the European Union (represented by: E. Rebasti, M. Veiga and J. Herrmann, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: P. Van Nuffel, J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents)

Re:

Application based on Article 263 TFEU and seeking annulment of Decision 18/c/01/14 of the Council of 23 July 2014, refusing access to certain documents relating to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Herbert Smith Freehills LLP to bear its own costs and to pay those incurred by the Council of the European Union;

3.	Orders the European Commission to bear its own costs.

(1) OJ C 409, 17.11.2014.

31.10.2016

Official Journal of the European Union

C 402/39

Judgment of the General Court of 15 September 2016 — Philip Morris v Commission

(Case T-800/14) (1)

((Access to documents - Regulation (EC) No 1049/2001 - Documents drawn up in the context of the preparatory works leading to the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products - Refusal to grant access - Exception relating to the protection of legal advice - Exception relating to the protection of the decision-making process - Rights of the defence - Overriding public interest))

(2016/C 402/44)

Language of the case: English

Parties

Applicant: Philip Morris Ltd (Richmond, United Kingdom) (represented by: K. Nordlander and M. Abenhaïm, lawyers)

Defendant: European Commission (represented by: J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents)

Re:

Application based on Article 263 TFEU and seeking annulment of Commission Decision Ares(2014) 3388066 of 29 September 2014, in so far as it refuses to grant the applicant full access to the requested documents, with the exception of the redacted personal data contained therein.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Philip Morris Ltd to pay the costs.

(1) OJ C 56, 16.2.2015.

31.10.2016

Official Journal of the European Union

C 402/40

Judgment of the General Court of 20 September 2016 –PAN Europe v Commission

(Case T-51/15) (1)

((Access to documents - Regulation (EC) No 1049/2001 - Regulation (EC) No 1367/2006 - Documents relating to endocrine-disrupting chemicals - Partial refusal of access - Exception relating to the decision-making process - Article 4(3) of Regulation No 1049/2001))

(2016/C 402/45)

Language of the case: English

Parties

Applicant: Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission (represented by: A. Buchet, P. Mihaylova and J. Tomkin, acting as Agents)

Intervener in support of the applicant: Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, E. Karlsson and L. Swedenborg, acting as Agents)

Re:

Application under Article 263 TFEU seeking annulment of the Commission’s Decision of 24 November 2014, under the reference Ares (2014) 3900631, in so far as it refuses access to documents relating to endocrine-disrupting chemicals.

Operative part of the judgment

The Court:

Annuls the decision of the European Commission of 24 November 2014, under the reference Ares (2014) 3900631, in so far as it refuses access to the documents designated under numbers 9, 13, 14, 15, 16, 17, 17a, 20, 22, 24, 25, 29, 30, 31, 37, 38, 39, 41, 42 and 43, on the basis of the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;

2.	Dismisses the action as to the remainder;

3.	Orders the Commission, in addition to bearing its own costs, to pay those incurred by Pesticide Action Network Europe (PAN Europe);

4.	Declares that the Kingdom of Sweden is to pay its own costs.

(1) OJ C 118, 13.4.2015.

31.10.2016

Official Journal of the European Union

C 402/41

Judgment of the General Court of 15 September 2016 — AEDEC v Commission

(Case T-91/15) (1)

((Technological research and development - ‘Horizon 2020’ framework programme for research and innovation - Calls for proposals in respect of work programmes 2014-2015 - Commission decision declaring the proposal submitted by the applicant ineligible - Obligation to state reasons - Rights of the defence - Proportionality - Openness - Manifest error of assessment))

(2016/C 402/46)

Language of the case: Spanish

Parties

Applicant: Asociación Española para el Desarrollo de la Epidemiología Clínica (AEDEC) (Madrid, Spain) (represented by: R. López López, lawyer)

Defendant: European Commission (represented by: N. Ruiz García and M. Siekierzyńska, acting as Agents)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of the decision of 4 September 2014 in which the Commission rejected the request for financing submitted by the applicant on behalf of the consortium Latin Plan.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Asociación Española para el Desarrollo de la Epidemiología Clínica (AEDEC) to pay the costs.

(1) OJ C 127, 20.4.2015.

31.10.2016

Official Journal of the European Union

C 402/41

Judgment of the General Court of 15 September 2016 — Arrom Conseil v EUIPO — Nina Ricci (Roméo has a Gun by Romano Ricci)

(Case T-359/15) (1)

((EU trade mark - Opposition proceedings - Application for registration of the EU figurative mark Roméo has a Gun by Romano Ricci - Earlier EU word marks NINA RICCI and RICCI - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctive character or reputation of the earlier marks - Damage to reputation - Article 8(5) of Regulation No 207/2009))

(2016/C 402/47)

Language of the case: English

Parties

Applicant: Arrom Conseil (Paris, France) (represented by: C. Herissay Ducamp and J. Blanchard, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Nina Ricci SARL (Paris, France) (represented by: E. Armijo Chávarri, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 13 April 2015 (Case R 1021/2014-1) relating to opposition proceedings between Nina Ricci SARL and Arrom Conseil.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Arrom Conseil to bear its own costs and pay the costs incurred by the European Union Intellectual Property Office and Nina Ricci SARL.

(1) OJ C 294, 7.9.2015.

31.10.2016

Official Journal of the European Union

C 402/42

Judgment of the General Court of 20 September 2016 — Alsharghawi v Council

(Case T-485/15) (1)

((Common foreign and security policy - Restrictive measures taken in view of the situation in Libya - Freezing of funds - List of persons subject to restrictions on entry into and transit through EU territory - Functions of the former head of cabinet of Muammar Qadhafi - Choice of legal basis - Obligation to state reasons - Rights of the defence - Presumption of innocence - Proportionality - Freedom of movement - Right to property - Obligation to justify the merits of the measure))

(2016/C 402/48)

Language of the case: French

Parties

Applicant: Bashir Saleh Bashir Alsharghawi (Johannesburg, South Africa) (represented by: É. Moutet, lawyer)

Defendant: Council of the European Union (represented by: A. Vitro and V. Piessevaux, acting as Agents)

Re:

Application on the basis of Article 263 TFEU seeking the annulment in part, firstly, of Council Decision 2015/1333/CFSP of 31 July 2015 concerning restrictive measures in view of the situation in Libya, and repealing Decision 2011/137/CFSP (OJ 2015 L 206, p. 34) and, secondly, Council Implementing Regulation (EU) 2015/1323 of 31 July 2015 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya (OJ 2015 L 206, p. 4).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Bashir Saleh Bashir Alsharghawi to bear his own costs and to pay the costs incurred by the Council of the European Union.

(1) OJ C 337, 12.10.2015.

31.10.2016

Official Journal of the European Union

C 402/42

Judgment of the General Court of 20 September 2016 — Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT)

(Case T-565/15) (1)

((EU trade mark - Opposition proceedings - Application for the EU word mark MERLIN’S KINDERWELT - Earlier national word mark KINDER - Relative ground for refusal - No similarity between the signs - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 402/49)

Language of the case: English

Parties

Applicant: Excalibur City s.r.o. (Znojmo, Czech Republic) (represented by: E. Engin-Deniz, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Simandlova and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Ferrero SpA (Alba, Italy) (represented by: L. Ghedina and F. Jacobacci, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1538/2014-1), relating to opposition proceedings between Ferrero and Excalibur City.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 July 2015 (Case R 1538/2014-1);

2.	Orders EUIPO to bear its own costs and to pay those incurred by Excalibur City s.r.o.;

3.	Orders Ferrero SpA to bear its own costs.

(1) OJ C 398, 30.11.2015.

31.10.2016

Official Journal of the European Union

C 402/43

Judgment of the General Court of 20 September 2016 — Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT)

(Case T-566/15) (1)

((EU trade mark - Opposition proceedings - Application for registration of an EU figurative mark MERLIN’S KINDERWELT - Earlier national word mark KINDER - Relative ground for refusal - No similarity between the signs - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 402/50)

Language of the case: English

Parties

Applicant: Excalibur City s.r.o. (Znojmo, Czech Republic) (represented by: E. Engin-Deniz, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Simandlova and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Ferrero SpA (Alba, Italy) (represented by: L. Ghedina and F. Jacobacci, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 16 July 2015 (Case R 1617/2014-1), relating to opposition proceedings between Ferrero and Excalibur City.

Operative part of the judgment

The Court:

Alters the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 July 2015 (Case R 1617/2014-1) in such a way as to hold that the appeal brought by Excalibur City s.r.o. before the Board of Appeal is well founded and, consequently, that the opposition must be rejected;

2.	Orders EUIPO to bear its own costs and to pay those incurred by Excalibur City;

3.	Orders Ferrero SpA to bear its own costs.

(1) OJ C 398, 30.11.2015.

31.10.2016

Official Journal of the European Union

C 402/44

Judgment of the General Court of 15 September 2016 — JT International v EUIPO — Habanos (PUSH)

(Case T-633/15) (1)

((EU trade mark - Opposition proceedings - Application for the EU word mark PUSH - Earlier Benelux and national word and figurative marks PUNCH - Relative ground for refusal - Likelihood of confusion - Identity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 402/51)

Language of the case: English

Parties

Applicant: JT International SA (Geneva, Switzerland) (represented by: S. Malynicz QC and K.E. Gilbert and J. Gilbert, Solicitors)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Corporación Habanos, SA (Havana, Cuba) (represented by: M. Escudero Pérez, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 10 August 2015 (Case R 3046/2014-5), relating to opposition proceedings between Corporación Habanos and JT International

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders JT International SA to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Corporación Habanos, SA.

(1) OJ C 27, 25.1.2016.

31.10.2016

Official Journal of the European Union

C 402/44

Order of the General Court of 13 September 2016 — EDF Luminus v Parliament

(Case T-384/15) (1)

((Arbitration clause - Electricity supply contract CNT (2009) No 137 - Payment by the Parliament of the regional contribution made by the applicant to the Brussels-Capital Region and calculated on the basis of the power made available to the Parliament - No contractual obligation - No obligation under national law))

(2016/C 402/52)

Language of the case: French

Parties

Applicant: EDF Luminus (Brussels, Belgium) (represented by: D. Verhoeven and O. Vanden Berghe, lawyers)

Defendant: European Parliament (represented by: L. Darie and P. Biström, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: F. Clotuche-Duvieusart and I. Martínez del Peral, acting as Agents)

Re:

Action on the basis of Article 272 TFEU seeking an order for the Parliament to pay to the applicant the sum of EUR 439 672,95, plus interest, being the amount of the regional contribution paid by the applicant to the Brussels-Capital Region and calculated on the basis of the power made available to the Parliament.

Operative part of the order

1.	The action is dismissed.

2.	The Parliament’s claim for a declaratory judgment is dismissed.

3.	EDF Luminus shall bear its own costs and those incurred by the Parliament.

4.	The European Commission shall bear its own costs

(1) OJ C 337, 12.10.2015.

31.10.2016

Official Journal of the European Union

C 402/46

Order of the General Court of 13 September 2016 — Terna v Commission

(Case T-544/15) (1)

((Action for annulment - Union list of projects of common interest - EU financial aid in two projects in the area of trans-European energy networks - Reduction of the financial aid initially granted following an audit - Preparatory measure - Measure not open to challenge - Inadmissibility))

(2016/C 402/54)

Language of the case: Italian

Parties

Applicant: Terna — Rete elettrica nazionale SpA (Rome, Italy) (represented by: A. Police, L. Di Via, F. Covone and D. Carria, lawyers)

Defendant: European Commission (represented by: O. Beynet, L. Di Paolo and A. Tokár, acting as Agents)

Re:

Application based on Article 263 TFEU and seeking annulment of the decision which contained the Commission’s letter, of 6 July 2015, reducing the financial aid initially granted in the context of two projects (projects 2009-E255/09-ENER/09/TEN-E-S12.564583 and 2007-E 221/07/2007-TREN/07TEN-E-S07.91403) in the area of trans-European energy networks.

Operative part of the order

1.	The action is dismissed.

2.	Terna — Rete elettrica nazionale SpA shall pay the costs.

(1) OJ C 363, 3.11.2015.

31.10.2016

Official Journal of the European Union

C 402/46

Order of the General Court of 14 September 2016 — POA v Commission

(Case T-584/15) (1)

((Action for annulment - Application for registration of a protected designation of origin (‘Halloumi’ or ‘Hellim’) - Decision to publish in the Official Journal, C series, an application for registration of a protected designation of origin pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 - Preparatory measure - Measure not open to challenge - Inadmissibility))

(2016/C 402/55)

Language of the case: English

Parties

Applicant: Pagkyprios organismos ageladotrofon Dimosia Ltd (POA) (Latsia, Cyprus) (represented by: N. Korogiannakis, lawyer)

Defendant: European Commission (represented by: A. Lewis and J. Guillem Carrau, acting as Agents)

Re:

Application under Article 263 TFEU for annulment of the Commission’s decision to publish in the Official Journal of the European Union (OJ 2015 C 246, p. 9) application for registration No CY/PDO/0005/01243, introduced by the Republic of Cyprus, inasmuch as it found that that application met the conditions laid down by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), as referred to in Article 50(1) of that regulation.

Operative part of the order

1.	The action is dismissed.

2.	Pagkyprios organismos ageladotrofon Dimosia Ltd (POA) shall bear its own costs and pay those incurred by the European Commission, including the costs relating to the proceedings for interim measures.

(1) OJ C 406, 7.12.2015.

31.10.2016

Official Journal of the European Union

C 402/47

Action brought on 12 July 2016 — Gaki v Europol

(Case T-366/16)

(2016/C 402/56)

Language of the case: German

Parties

Applicant: Anastasia-Soultana Gaki (Düsseldorf, Germany) (represented by: G. Keisers, lawyer)

Defendant: European Police Office (Europol)

Form of order sought

The applicant claims that the Court should:

—

what are the circumstances of the alleged act which the applicant is supposed to have committed according to the terms of the European Arrest Warrant which Greece issued and pursuant to which she has, with the support of Europol, been unlawfully wanted for arrest in the European Union since 2011? The applicant claims a reasoned statement of position;

—	order the unlawful and incorrect storage of data against her in the Europol information system by the Joint Supervisory Body of Europol (‘the JSB’) to be blocked;

—	order the JSB, by exercising its right to access and consult data entered into the SIS II, to review whether, according to the terms of the European Arrest Warrant (‘EAW’), the interference with the applicant’s freedom is permitted;

—

require Europol to ask the Greek State Prosecutor at the Court of Appeal of Athens which State Prosecutor ordered the prolongation of the EAW and hence the arbitrary deprivation of the applicant’s liberty from 23 May 2016, and which of the two national warrants (the EAW is a copy of both) is operative. He must also answer how it is possible that the applicant’s address in Germany appears in the EAW, yet both national warrants (the EAW is a copy of both) were issued against the applicant because the applicant’s address was allegedly unknown to the Greek judicial authorities;

—	the JSB must provide a reasoned answer as to what action Europol undertook after Europol became aware that a criminal complaint had been laid with the Principal Public Prosecutor for Düsseldorf against the Greek State Prosecutor at the Court of Appeal who had issued the EAW against the applicant;

—	award her damages in the amount of EUR 3 000 000.

Pleas in law and main arguments

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

1.	First plea in law: infringement of Article 41 of Decision 2007/533/JHA (1) in conjunction with Article 30(7) and Article 31 and 52 of Decision 2009/371/JHA. (2)

2.	Second plea in law: infringement of the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union in conjunction with Articles 1, 9 and 23 of Act No 29/2009 of the JSB.

(1) Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2007 L 205, p. 63).

(2) Council Decision of 6 April 2009 establishing the European Police Office (Europol) (OJ 2009 L 121, p. 37).

31.10.2016

Official Journal of the European Union

C 402/48

Action brought on 25 August 2016 — Adama Agriculture and Adama France v Commission

(Case T-476/16)

(2016/C 402/57)

Language of the case: English

Parties

Applicants: Adama Agriculture BV (Amsterdam, Netherlands) and Adama France (Sèvres, France) (represented by: C. Mereu and M. Grunchard, lawyers)

Defendants: European Commission

Form of order sought

The applicants claim that the Court should:

—	declare the application admissible and well-founded;

—

annul the contested decision (1) and rule that (i) the approval of the active substance isoproturon (IPU) should be renewed or, in the alternative, (ii) remand the assessment of the renewal of the approval of IPU to the defendant and suspend any and all relevant deadlines under the PPPR and its implementing regulations so as to allow the operation of a proper timeframe for adopting a new decision on the renewal of IPU; and

—	order the defendant to pay all the costs and expenses of these proceedings.

Pleas in law and main arguments

In support of the action, the applicants submit that the contested decision was adopted by the defendant in violation of the rights and principles guaranteed by the EU. They contend that the contested decision is unlawful because it infringes the Treaty on the Functioning of the EU (‘'TFEU’') and EU secondary legislation on the following five grounds:

First plea in law, alleging manifest errors of appraisal: Pursuant to recitals 8, 9 and 10 of the contested decision, IPU was banned on the basis of its (i) risk resulting from exposure to a metabolite in groundwater, (ii) risk for birds, mammals and aquatic organisms and (iii) the proposed classification of IPU as a substance toxic for reproduction category 2. All concerns however on which the contested decision is based are procedurally and/or substantively flawed and fail to take into account information which was submitted by the applicants.

Second plea in law, alleging infringement of CLP Regulation (EC) No 1272/2008 (2) procedure — ultra vires act: By proposing the classification of IPU as toxic for reproduction and by relying on that proposal for justifying the non-renewal of the approval of IPU, the defendant has infringed both the CLP Regulation and Regulation (EC) No 1107/2009 (3) concerning the placing of plant protection products on the market (‘'PPPR’'), and as such has acted ultra vires.

Third plea in law, alleging infringement of the right of defence and the principle of sound administration: the behaviour of the RMS, EFSA and the Commission have individually and collectively violated the right to be heard and right of the defence of the applicants by depriving them of a fair hearing and due process. In particular, despite repeated and proactive attempts to contact the RMS and EFSA, the applicants did not receive timely feedback. Additionally, submissions made by the applicants have not been taken into account.

Fourth plea in law, alleging infringement of the principle of non-discrimination and equal treatment: while the Commission has adopted a strict approach on IPU (based on manifest errors of assessment and procedures), it did not do so in similar situations/previous decisions related to substances with similar concerns, which amounts to an infringement of the principle of equal treatment and non-discrimination.

Fifth plea in law, alleging infringement of the principle of proportionality: By not choosing less stricter measures which would have achieved the same objectives (e.g. approval subject to conditions to be assessed at Member State level or subject to submission of confirmatory data at the EU level in accordance with Article 6 of the PPPR), and instead by banning IPU, the Commission has infringed the principle of proportionality.

(1) Commission Implementing Regulation (EU) 2016/872 of 1 June 2016 concerning the non-renewal of approval of the active substance isoproturon, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2016, L 145, p. 7)

(2) Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008, L 353, p. 1)

(3) Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009, L 309, p. 1)

31.10.2016

Official Journal of the European Union

C 402/49

Action brought on 26 August 2016 — Epsilon International v Commission

(Case T-477/16)

(2016/C 402/58)

Language of the case: English

Parties

Applicant: Epsilon International SA (Marousi, Greece) (represented by: D. Bogaert and A. Guillerme, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

On the basis of article 272 TFEU:

—	declare that the amounts paid by the European Commission to the Epsilon under the Grant Agreements BRISEIDE, i-SCOPE and SMART-ISLANDS constitute eligible costs and that Epsilon did not commit errors of a systematic nature in the performance of these agreements;

—	declare that the Commission’s request for reimbursement of the amounts paid under the BRISEIDE agreement is wholly unfounded and that they should not be repaid to the European Commission;

—	declare that the European Commission’s decisions to suspend payments regarding Grant agreements i-LOCATE, eENV-Plus, GeoSmartCity and c-SPACE are unfounded;

—

order the Commission to reimburse the amounts paid by Epsilon to carry out additional financial audits to contradict the erroneous findings of the auditors mandated by the Commission and to compensate the moral prejudice suffered by Epsilon, assesses provisionally on an ex aequo et bono basis at EUR 10 000.

2)	On the grounds of article 263 TFEU, annul the European Commission’s decision of June 17th 2016 (ref. Ares (2016)2835215) to register Epsilon in the Early Detection and Exclusion System Database (EDES).

Pleas in law and main arguments

In support of the action based on the grounds of article 272 TFUE, Epsilon considers that the findings raised by the auditors and endorsed by the European Commission which relate to the personnel costs declared for the performance of the BRISEIDE, SMART-ISLANDS and i-SCOPE projects are erroneous. More specifically, Epsilon argues that no irregularity were committed regarding the time recording system, the productive hours and hourly rate calculations, the lack of invoice for the owners’ work and the fact that the agreements concluded with the in-house consultants had not been registered to the Tax Office. In any case, any minor errors regarding the performance of these contracts cannot be regarded as an error of a systematic nature.

Moreover, Epsilon contests the Commission’s decision to suspend the payments for the performance of the EU funded projects i-LOCATE, eENV-Plus, GeoSmartCity and c-SPACE and considers that they are not legally founded.

Finally, Epsilon requests a financial compensation for the material and non-material suffered by Epsilon due to the Commission’s decisions.

In support of the action based on the grounds of article 263 TFUE, Epsilon requests the General Court to annul the Commission’s decision to register Epsilon in the Early Detection and Exclusion System database (EDES), due to the alleged potentially systematic nature of the errors committed in the performance of the abovementioned projects. The applicant considers that this decision breaches the principle of proportionality and the rights of the defence.

31.10.2016

Official Journal of the European Union

C 402/50

Action brought on 30 August 2016 — Lidl Stiftung v EUIPO — Amedei (For you)

(Case T-480/16)

(2016/C 402/59)

Language in which the application was lodged: English

Parties

Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: A. Berger, M. Wolter, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Amedei Srl (Pontedera, Italy)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark containing the word elements ‘For you’ — Application for registration No 12 267 571

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 April 2016 in Case R 851/2015-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision and reject Opposition No B 2 342 452 filed against the EUTM application No 12 267 571;

—	order EUIPO to pay the costs of the proceedings;

—	order the intervener to pay the costs of the proceedings before the EUIPO.

Plea in law

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

31.10.2016

Official Journal of the European Union

C 402/51

Action brought on 30 August 2016 — The Logistical Approach v EUIPO — Idea Groupe (Idealogistic)

(Case T-620/16)

(2016/C 402/60)

Language in which the application was lodged: French

Parties

Applicant: The Logistical Approach BV (Uden, the Netherlands) (represented by: R. Milchior, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Idea Groupe (Montoir de Bretagne, France)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark containing the word element ‘Idealogistic’– Application for registration No 12 318 234

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20/06/2016 in Case R 1435/2015-4

Form of order sought

The applicant claims that the Court should:

—	principally, annul the contested decision;

—

alternatively, amend the contested decision in that it wrongly confirmed the decision of the Opposition Division rejecting the registration of the mark 012318234 for the services ‘Consultancy in the field of logistics, including route selection, storage facilities and selection of means of transport’;

—	order EUIPO to pay the costs.

Pleas in law

—	Infringement of Article 76 of Regulation No 207/2009;

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

31.10.2016

Official Journal of the European Union

C 402/51

Action brought on 2 September 2016 — Przedsiębiorstwo Energetyki Cieplnej v ECHA

(Case T-625/16)

(2016/C 402/61)

Language of the case: Polish

Parties

Applicant: Przedsiębiorstwo Energetyki Cieplnej sp. z o. o. (Grajewo, Poland) (represented by: T. Dobrzyński, lawyer)

Defendant: European Chemicals Agency

Form of order sought

The applicant claims that the Court should:

—	annul ECHA Decision No SME (2016) 2851 of 23 June 2016, which found that the applicant did not meet the conditions for a reduction in the fees for medium-sized undertakings and by which an administrative charge was imposed on it;

—	annul ECHA Invoice No 10058238 of 23 June 2016 relating to the difference between the fee paid by the applicant and the fee for a large undertaking due pursuant to ECHA Decision No SME (2016) 2851;

—	annul ECHA Invoice No 10058239 of 23 June 2016, which set the level of the administrative charge pursuant to ECHA Decision No SME (2016) 2851;

—	annul Decision No 14/2015 of the ECHA Management Board of 4 June 2015 (MB/43/2014) ME (2016) 2851;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action the applicant puts forward five pleas in law.

First plea in law: infringement of the principle of conferral of powers

—

The amount of the administrative charge provided for in Decision MB/43/2014 of the ECHA Management Board, which forms the basis for the adoption of the contested decision and the invoices, is, measured against the functions that the administrative charge is required to fulfil, disproportionately high and is thereby tantamount to a penalty. This is at variance with the principle, laid down in Article 5 EU, of conferral of powers, in conjunction with recital 11 of Commission Regulation (EC) No 340/2008.

Second plea in law: infringement of the principle of legal certainty and of the right to proper administration

—

The applicant based its declaration concerning the size of the undertaking on information derived from, inter alia, the ECHA and on national information. The size of the undertaking had to be determined in accordance with the Law on the freedom of economic activity of 2 July 2004. Under that legislation undertakings are not defined according to their shareholding structure. The ECHA failed to provide sufficient information on the registration rules and charged the fees without it being possible for the error to be corrected.

Third plea in law: infringement of the principle of proportionality

—

According to the provisions of Regulation (EC) No 1907/2006 and of Commission Regulation (EC) No 340/2008, the administrative charges have to be adapted to the actual control costs of ECHA. The practice of ECHA by which undertakings which have incorrectly indicated their size have imposed on them the costs for the controls of all undertakings has to be regarded as impermissible.

Fourth plea in law: infringement of the principle of equality

—

By imposing administrative charges and setting the level of those charges on the basis of the size of the undertaking, ECHA has infringed the principle of equality. That principle is infringed if an undertaking which is classifiable as large solely because a public body holds part of its share capital incurs the same administrative charge as an undertaking which is classifiable as large on the basis of its annual turnover and the number of its staff.

Fifth plea in law: invalidity of the invoices issued on the basis of the contested decision

—

On the basis of the declaration of annulment of ECHA Decision No SME (2016) 2851, the invoices forming the basis of ECHA’s payment requests must be declared invalid. The fees charged are also not owed because, at the time when ECHA Decision No SME (2016) 2851 was adopted and the invoices were issued, the applicant was not under any obligation to register in the REACH system.

31.10.2016

Official Journal of the European Union

C 402/53

Action brought on 1 September 2016 — Shoe Branding Europe v EUIPO — adidas (Device of two parallel stripes on a shoe)

(Case T-629/16)

(2016/C 402/62)

Language in which the application was lodged: English

Parties

Applicant: Shoe Branding Europe BVBA (Oudenaarde, Belgium) (represented by: J. Løje, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: adidas (Herzogenaurach, Germany)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant

Trade mark at issue: position mark (Device of two parallel stripes on a shoe) — EU trade mark No 8 398 141

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 8 June 2016 in Case R 597/2016-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Plea in law

—	Infringement of Article 8(5) of Regulation No 207/2009;

—	Distortion of facts.

31.10.2016

Official Journal of the European Union

C 402/53

Action brought on 5 September 2016 — Dehtochema Bitumat v European Chemicals Agency

(Case T-630/16)

(2016/C 402/63)

Language of the case: Czech

Parties

Applicant: Dehtochema Bitumat, s.r.o. (Bělá pod Bezdězem, Czech Republic) (represented by: P. Holý, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should:

—

annul and declare to be invalid the decision of the European Chemicals Agency of 7 July 2016, according to which the applicant is to continue to be considered a large enterprise and as a result of which the applicant is not entitled to the fee reduction for a medium-sized enterprise, and allow the implementation of that decision to be deferred.

Pleas in law and main arguments

According to the applicant, the defendant by the abovementioned decision and its actions misused its power and infringed the principles of legality and legal certainty.

The applicant claims that in verifying the status of a small or medium-sized enterprise (SME), the defendant incorrectly assessed the independence of the applicant’s enterprise and incorrectly included in the calculation a number of employees and an amount of the applicant’s enterprise’s annual turnover plus allegedly linked or partner enterprises, which are not linked with the applicant’s enterprise or its partner enterprises under Commission Regulation (EC) No 340/2008 or Commission Recommendation 2003/361/EC.

The applicant submits that its declaration as to the incorrect size of the enterprise, which it made at the defendant’s request dated 2 June 2016, was essentially made with confidence in the defendant’s assessment and with the promise of a lower fee.

The applicant points out that its registration had been suspended and it had expressly informed the defendant that it has not produced the relevant products (substances subject to registration) since 2011.

The applicant claims that it follows from Article 13(4) of Commission Regulation (EC) No 340/2008 that the right to a fee reduction on registration arises where it is possible to demonstrate such an entitlement and that it is thus appropriate, contrary to what is contended by the defendant, to allow the applicant to establish that entitlement.

31.10.2016

Official Journal of the European Union

C 402/54

Action brought on 9 September 2016 — ClientEarth v Commission

(Case T-644/16)

(2016/C 402/64)

Language of the case: English

Parties

Applicant: ClientEarth (London, United Kingdom) (represented by: O. Brouwer, lawyer, and N. Frey, Solicitor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the defendant’s decision to refuse access to the requested documents pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission documents, (1) as communicated to the applicant on 1 July 2016 in a letter with the reference C(2016) 4286 final;

—	order the Commission to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

Pleas in law and main arguments

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

First plea in law, alleging errors of law and manifest error of assessment resulting in a misapplication of the international relations exception (third indent of Article 4(1)(a) Regulation No 1049/2001) and failure to state reasons:

—

The Commission has not established the applicability of the international relations exception. It has notably not established how disclosure of purely legal documents that contain reflections on EU law is in itself capable of revealing strategic objectives pursued by the European Union during negotiations or weakens the Commission’s negotiating position. The Commission is bound by the rule of law and cannot negotiate international agreements that violate EU law. The Applicant further submits that Article 4(1)(a) of Regulation No 1049/2001 (and other exceptions) cannot be invoked ‘in perpetuum’, i.e. as long as the Commission conducts anywhere negotiations regarding other international agreements. The Commission has moreover failed to state reasons as to how disclosure of the requested documents could specifically and actually undermine the public interest as regards international relations.

Second plea in law, alleging errors of law and manifest error of assessment resulting in a misapplication of the protection of legal advice exception (second indent of Article 4(2) Regulation No 1049/2001) and failure to state reasons:

—	The Commission has failed to establish whether there is a reasonably foreseeable and not purely hypothetical risk that disclosure of the requested documents would undermine its interest in receiving frank, objective and comprehensive legal advice.

Third plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exception (first subparagraph of Article 4(3) Regulation No 1049/2001) and failure to state reasons:

—	The Commission has failed to explain how access to the requested documents could specifically and actually undermine the decision-making process.

Fourth plea in law, alleging error of law and manifest error of assessment resulting in the misapplication of the overriding public interest test and failure to state reasons:

—

There is an overriding public interest, because disclosure would make it possible to have a debate on access to justice, notably access to (and the role of) domestic courts, and the need to preserve the unity and autonomy of EU law. These topics are of direct interest to EU citizens and NGOs like the applicant.

Fifth plea in law, alleging breach of Article 4(6) Regulation No 1049/2001 (Partial access) and request of a measure of inquiry

—	The applicant submits that the Commission did not, or in any event not to the requisite legal standard, examine and grant partial access to the requested documents.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

31.10.2016

Official Journal of the European Union

C 402/55

Action brought on 7 September 2016 — Vorarlberger Landes- und Hypothekenbank v SRB

(Case T-645/16)

(2016/C 402/65)

Language of the case: German

Parties

Applicant: Vorarlberger Landes- und Hypothekenbank AG (Bregenz, Austria) (represented by: G. Eisenberger, lawyer)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Single Resolution Board, apparently of 15 April 2016, at least in so far as that decision concerns the applicant;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

1.	First plea in law: flagrant breach of essential procedural requirements by reason of a lack of (full) disclosure of the contested decision.

2.	Second plea in law: flagrant breach of essential procedural requirements by reason of an inadequate statement of reasons for the contested decision.

31.10.2016

Official Journal of the European Union

C 402/56

Action brought on 13 September 2016 — Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO — Zaharieva (BOBO cornet)

(Case T-648/16)

(2016/C 402/66)

Language in which the application was lodged: English

Parties

Applicant: Şölen Çikolata Gıda Sanayi ve Ticaret AŞ (Şehitkamil Gaziantep, Turkey) (represented by: T. Tsenova, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Elka Zaharieva (Plovdiv, Bulgaria)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: Figurative mark containing the word elements ‘BOBO cornet’– Application for registration No 12 299 343

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20 July 2016 in Case R 906/2015-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO and the other party to the proceedings before the Board of Appeal to pay the costs.

Pleas in law

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

—	Infringement of Articles 75 and 76(1) of Regulation No 207/2009.

31.10.2016

Official Journal of the European Union

C 402/57

Action brought on 12 September 2016 — Bernaldo de Quirós v Commission

(Case T-649/16)

(2016/C 402/67)

Language of the case: French

Parties

Applicant: Belén Bernaldo de Quirós (Brussels, Belgium) (represented by: T. Bontinck and A. Guillerme, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul the decision of the Appointing Authority, in the person of the Director General of DG ‘Education and Culture’ of the European Commission, of 30 November 2015, on the change of assignment of Ms Bernaldo de Quirós from the post of Head of Unit EAC.C.4 ‘Traineeships Office’ to the post of Adviser on Modernisation of Education DG EAC.B;

—	order the European Commission to pay all of the costs.

Pleas in law and main arguments

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

First plea in law, alleging a manifest error of assessment and misuse of powers.

—

The applicant takes the view that the contested decision is vitiated by a manifest error of assessment concerning the interests of the service and concerning equivalence of posts. She seeks to argue that her reassignment to the post of adviser on modernisation of education was motivated not by the interests of the service but by her hierarchical superiors’ desire to isolate her professionally and to impose on her an anticipated disciplinary penalty. The decision is thus vitiated by a misuse of powers in so far as such an assignment is, moreover, contrary to the interests of the service, in view of the applicant’s areas of competence and the need to fill vacant Head of Unit posts within DG EAC.

—

She also takes the view that the reassignment did not observe the principle of equivalence of posts. The new tasks assigned to the applicant are, by their nature, their importance and their scope, below those conferred on an Adviser in Grade AD 13. Furthermore, the post does not correspond to a genuine need of the service, as required by Article 2 of Decision C(2008) 5029/2.

Second plea in law, alleging infringement of the right to be heard and breach of the administration’s duty of care.

—

The applicant claims that the decision to reassign her was not adopted under conditions ensuring her right to be heard, since she was not placed in a position effectively to make known her views on the draft reassignment decision. In addition, she alleges a breach of the administration’s duty of care, since the Appointing Authority took no account whatsoever of the applicant’s interests and did not seek to achieve objectively a proper balance between the interests of the service and those of the applicant, inter alia by considering an assignment to a vacant Head of Unit post.

Third plea in law, alleging infringement of Decision C(2008) 5029/2 of the European Commission of 9 August 2008 concerning the functions of Adviser.

—	The applicant claims an infringement of Decision C(2008) 5029/2, in its consolidated version of 7 July 2016, since DG EAC exceeded the allocated quota of advisers and failed to prove that the post of adviser on modernisation of education to which the applicant was reassigned is in fact lawful.

31.10.2016

Official Journal of the European Union

C 402/59

Action brought on 16 September 2016 — LG Electronics v EUIPO (Second Display)

(Case T-659/16)

(2016/C 402/70)

Language of the case: English

Parties

Applicant: LG Electronics, Inc. (Seoul, South Korea) (represented by: T. de Haan and P. Péters, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘Second Display’ — Application for registration No 14 362 248

Contested decision: Decision of the First Board of Appeal of EUIPO of 10 June 2016 in Case R 106/2016-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs, including those incurred by the applicant before the Office’s First Board of Appeal.

Plea in law

—	Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 read in conjunction with Article 75 of Regulation No 207/2009.

31.10.2016

Official Journal of the European Union

C 402/59

Action brought on 19 September 2016 — Credito Fondiario v CRU

(Case T-661/16)

(2016/C 402/71)

Language of the case: Italian

Parties

Applicant Credito Fondiario SpA (Rome, Italy) (represented by: F. Sciaudone, F. Iacovone, S. Frazzani and A. Neri, lawyers)

Defendant: Comitato di risoluzione unico

Form of order sought

The applicant claims that the Court should:

—	annul the first and second decision of the Single Resolution Board;

—	declare Article 5(1)(f) of Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principles of equal treatment, proportionality and legal certainty recognised by the Charter of Fundamental Rights of the European Union;

—	declare Annex I to Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principles of equal treatment, proportionality and legal certainty recognised by the Charter of Fundamental Rights of the European Union;

—	declare Delegated Regulation (EU) No 2015/63, on which the contested decisions are based, incompatible with the principle of freedom to conduct a business recognised by the Charter of Fundamental Rights of the European Union;

—	order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

The present action concerns decisions of the executive session of the Single Resolution Board SRB/ES/SRF/2016/06 of 15 April 2016 (first decision) and SRB/ES/SRF/2016/13 of 20 May 2016 (second decision) which determine, in so far as concerns the applicant, the ex ante contribution provided for by Delegated Regulation (EU) 2015/63 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

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

First plea in law: failure to notify the first and second decision

—

The Banca d’Italia did not notify the applicant of the two decisions adopted by the Board, as required by Article 5 of Council Implementing Regulation (EU) No 2015/81 of 19 December 2014 specifying uniform conditions of application of Regulation (EU) No 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the Single Resolution Fund (OJ 2015 L 15, p. 1), but merely communicated the amount of the payment thereby undermining the applicant’s right to bring proceedings in time. The Board did not take due care as regards the notification.

Second plea in law: infringement of the second paragraph of Article 296 TFEU for failure to state reasons and infringement of the rule audi alteram partem in respect of decisions relating to ex ante contributions

—	The contested decisions do not explain how the ex ante contribution was in fact calculated, thereby prejudicing the effective application of the review of the legality and validity of the decision by the applicant.

Third plea in law: incorrect application of Article 5(1)(f) of Delegated Regulation (EU) No 2015/63.

—	The ex ante contribution required of Credito Fondiario is disproportionate to the institution’s risk profile, and is the result of an incorrect assessment of the institution’s liabilities.

Fourth plea in law: infringement of Article 4(1) and Article 6 of Delegated Regulation (EU) No 2015/63. Incorrect assessment of the risk profile of Credito Fondiario.

—

On 31 December 2014, Credito Fondiario had a low risk profile, on the basis of parameters laid down in Article 4(1) and Article 6 of Delegated Regulation (EU) No 2015/63. The contribution calculated by the Board is that of an institution with a high risk profile and is the result of the Board’s failure to take into consideration the criteria for defining and reducing risk laid down in those articles.

Fifth plea in law: infringement of Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Equal treatment

—	Article 5(1)(f) of Delegated Regulation (EU) No 2015/63 and Annex I thereto infringe the principle of equal treatment, in that they provide for discriminatory treatment in the sector concerned.

Sixth plea in law: infringement of the principle of proportionality and legal certainty.

—	Because the decisions do not take into account the applicant’s lower risk profile, they impose an ex ante contribution corresponding to an institution with a high risk profile, thereby infringing the principles of proportionality and legal certainty.

Seventh plea in law: infringement of Article 16 of the Charter of Fundamental Rights of the European Union — Freedom to conduct a business

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By imposing stricter requirements than those laid down by European banking legislation and Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1), Delegated Regulation (EU) No 2015/63, as regards the institution’s risk assessment, infringes the principles of equal treatment, legal certainty and freedom to conduct a business by introducing discretionary elements into the calculation of the ex ante contribution.

		ISSN 1977-091X
Official Journal of the European Union		C 402

English edition	Information and Notices	Volume 59 31 October 2016

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2016/C 402/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1