30.1.2017   

EN

Official Journal of the European Union

C 30/1

30.1.2017   

EN

Official Journal of the European Union

C 30/2

1.

Sets aside the judgment of the General Court of the European Union of 8 October 2013, Stichting Greenpeace Nederland and PAN Europe v Commission (T-545/11, EU:T:2013:523);

2.

Refers Case T-545/11 back to the General Court of the European Union;

3.

Reserves the costs

30.1.2017   

EN

Official Journal of the European Union

C 30/3

1.

Article 4(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC must be interpreted as meaning that the fact that the applicant for authorisation to place a plant protection product or biocide on the market, did not, during the procedure for obtaining that authorisation, request that information submitted under that procedure be treated as confidential on the basis of Article 14 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, Article 19 of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market or Article 33(4) and Article 63 of 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 does not preclude the competent authority, which has received, following the closure of that procedure, a request for access to the information submitted on the basis of Directive 2003/4 by a third party, from examining the applicant’s objection to that request for access and refusing it, if necessary, pursuant to point (d) of the first subparagraph of Article 4(2) of that directive on the ground that the disclosure of that information would adversely affect the confidentiality of commercial or industrial information.

2.

The second subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as follows:

3.

The second subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as meaning, in the event of a request for access to information on emissions into the environment whose disclosure would adversely affect one of the interests referred to in points (a), (d), and (f) to (h) of the first subparagraph of Article 4(2) of that directive, that only relevant data which may be extracted from the source of information concerning emissions into the environment must be disclosed where it is possible to separate those data from the other information contained in that source, which is for the referring court to assess.

30.1.2017   

EN

Official Journal of the European Union

C 30/4

1.

Declares that, by failing to take appropriate steps to avoid, in the special protection area ‘Campiñas de Sevilla’, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which that area was established, the Kingdom of Spain failed, in respect of the period before 29 July 2008, to fulfil its obligations under Article 4(4) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds and, in respect of the period after that date, has failed to fulfil its obligations under Article 6(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

2.

Dismisses the action as to the remainder;

3.

Orders the European Commission and the Kingdom of Spain to bear their own costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/5

1.

Articles 63 and 65 TFEU must be interpreted as meaning that:

2.

Article 64(1) TFEU must be interpreted as meaning that:

3.

Article 34(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, signed in Brussels on 17 July 1995 and approved on behalf of the European Community and the European Coal and Steel Community by Decision 98/238/EC, ECSC of the Council and of the Commission of 26 January 1998, must be interpreted as meaning that:

4.

Article 31 of the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, signed in Luxembourg on 17 June 2002 and approved on behalf of the European Community by Council Decision 2006/356/EC of 14 February 2006, must be interpreted as meaning that:

5.

As regards the consequences for the case at issue in the main proceedings, of the interpretation of Articles 63 to 65 TFEU and the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, and the Euro-Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part:

30.1.2017   

EN

Official Journal of the European Union

C 30/7

30.1.2017   

EN

Official Journal of the European Union

C 30/8

1.

Declares that, by failing to ensure secondary treatment or equivalent treatment for urban waste water from the agglomerations of Goyave, Bastelica, Morne-à-l’Eau, Aiguilles-Château-Ville Vieille, Borgo-Nord, Isola, Plombières-les-Bains, Saint-Céré, Vincey, Etueffont, Volx and Villeneuve, either for the entire amount of their discharges, in the case of agglomerations having a population equivalent of between 10 000 and 15 000, or for discharges into fresh water and estuaries, in the case of agglomerations having a population equivalent of between 2 000 and 10 000, the French Republic has failed to fulfil its obligations under Article 4(1) and (3) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008;

2.

Dismisses the action as to the remainder;

3.

Orders the French Republic to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/9

—

the fact that the person concerned finds himself or herself in a situation of temporary incapacity for work, as defined in national law, for an indeterminate amount of time, as the result of an accident at work, does not mean, in itself, that the limitation of that person’s capacity can be classified as being ‘long-term’, within the meaning of the definition of ‘disability’ laid down by that directive, read in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009;

—

the evidence which makes it possible to find that such a limitation is ‘long-term’ includes the fact that, at the time of the allegedly discriminatory act, the incapacity of the person concerned does not display a clearly defined prognosis as regards short-term progress or the fact that that incapacity is likely to be significantly prolonged before that person has recovered; and

—

in the context of the verification of that ‘long-term’ nature, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to that person’s condition, established on the basis of current medical and scientific knowledge and data.

30.1.2017   

EN

Official Journal of the European Union

C 30/10

1.

Dismisses the appeals;

2.

Orders Ackermann Saatzucht GmbH & Co. KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P.H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG, ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/11

1.

Article 2 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that a national rule which, in connection with an occupational benefit scheme, makes the right of surviving civil partners of members to receive a survivor’s benefit subject to the condition that the civil partnership was entered into before the member reached the age of 60, where national law did not allow the member to enter into a civil partnership before reaching that age, does not constitute discrimination on grounds of sexual orientation.

2.

Articles 2 and 6(2) of Directive 2000/78 must be interpreted as meaning that a national rule, such as that at issue in the main proceedings, which, in connection with an occupational benefit scheme, makes the right of surviving civil partners of members to receive a survivor’s benefit subject to the condition that the civil partnership was entered into before the member reached the age of 60, where national law did not allow the member to enter into a civil partnership before reaching that age, does not constitute discrimination on grounds of age.

3.

Articles 2 and 6(2) of Directive 2000/78 must be interpreted as meaning that a national rule such as that at issue in the main proceedings is not capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation.

30.1.2017   

EN

Official Journal of the European Union

C 30/12

30.1.2017   

EN

Official Journal of the European Union

C 30/12

1.

Dismisses the appeal;

2.

Orders the European Commission to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/13

1.

Sets aside the judgment of the General Court of the European Union of 24 September 2015, Klement v OHIM — Bullerjan (Form of an oven) (T-211/14, not published, EU:T:2015:688);

2.

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

3.

Reserves the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/13

1.

Point 7(c) of Annex I to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment cannot be interpreted to the effect that it covers a road development project which, whilst it concerns, as in the case before the referring court, a stretch of road that is under 10 km in length, consists in the widening or development of an existing road with four or more lanes.

2.

Point 7(b) of Annex I to Directive 2011/92 must be interpreted as meaning that ‘express roads’ for the purposes of that provision are roads whose technical characteristics are those set out in the definition in point II.3 of Annex II to the European Agreement on Main International Traffic Arteries (AGR), signed in Geneva on 15 November 1975, even if those roads do not form part of the network of main international traffic arteries or are located in urban areas.

3.

The concept of ‘construction’ for the purposes of point 7(b) of Annex I to Directive 2011/92 must be interpreted as referring to the carrying-out of works not previously existing or to the physical alteration of existing installations. In order to determine whether such an alteration may be regarded as equivalent, because of its scale and the manner in which it is carried out, to such construction, the referring court must take account of all the characteristics of the work concerned and not only of its length or of the fact that its initial route is retained.

30.1.2017   

EN

Official Journal of the European Union

C 30/14

30.1.2017   

EN

Official Journal of the European Union

C 30/15

(1)

Declares that, by failing to have established a national electronic register of road transport undertakings which complies fully and which is interconnected with the national electronic registers of the other Member States, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 16(1) and (5) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC.

(2)

Orders the Grand Duchy of Luxembourg to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/15

1.

Is Article 5(3) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council to be interpreted as meaning that avoidability relates only to the occurrence of the extraordinary circumstances or also to the consequences of the extraordinary circumstances, namely cancellation or major delay?

2.

If the Court answers question 1 to the effect that avoidability relates to the delay: if the aircraft on the preceding flight is affected by the extraordinary circumstances, must the operating air carrier attempt to find a replacement aircraft already upon the occurrence of the extraordinary circumstances in the preceding flight, or can it wait until it is certain that the extraordinary circumstances lead to a considerable delay to the following flight?

3.

If the Court answers question 1 to the effect that avoidability relates to the delay: is booking a sub-charter flight unreasonable if the cost is approximately three times higher than the original flight?

30.1.2017   

EN

Official Journal of the European Union

C 30/16

1.

Is Article 5(3) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council to be interpreted as meaning that avoidability relates only to the occurrence of the extraordinary circumstances or also to the consequences of the extraordinary circumstances, namely cancellation or major delay?

2.

If the Court answers question 1 to the effect that avoidability relates to the delay: if the aircraft on the preceding flight is affected by the extraordinary circumstances, must the operating air carrier attempt to find a replacement aircraft already upon the occurrence of the extraordinary circumstances in the preceding flight, or can it wait until it is certain that the extraordinary circumstances lead to a considerable delay to the following flight?

3.

If the Court answers question 1 to the effect that avoidability relates to the delay: is booking a sub-charter flight unreasonable if the cost is approximately three times higher than the original flight?

30.1.2017   

EN

Official Journal of the European Union

C 30/17

1.

Do the provisions of Article 28 et seq. of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (1) as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, (2) permit an agreed transfer price, which is composed of an amount initially invoiced and declared and a flat-rate adjustment made after the end of the accounting period, to form the basis for the customs value, using an allocation key, regardless of whether a subsequent debit charge or credit is made to the declarant at the end of the accounting period?

2.

If so:

May the customs value be reviewed and/or determined using simplified approaches where the effects of subsequent transfer pricing adjustments (both upward and downward) can be recognised?

30.1.2017   

EN

Official Journal of the European Union

C 30/17

1.

Is Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that the concept of ‘matters relating to a contract’ also covers a claim for compensation made under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, (2) brought against an operating air carrier which is not a party to the contract with the passenger concerned?

2.

Insofar as Article 7(1) of Regulation (EU) No 1215/2012 is applicable:

When passengers are transported on two flights without any significant stopover at the connecting airport, is the final destination of the passengers to be regarded as being the place where the services were provided under the second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012, even if the claim advanced in the application for compensation under Article 7 of Regulation (EC) No 261/2004 is based on the disruption of the first leg of the journey and the claim has been brought against the air carrier which operated the first flight, which is not a party to the contract of carriage?

30.1.2017   

EN

Official Journal of the European Union

C 30/18

1.

Is Article 5(1)(a) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that the concept of ‘matters relating to a contract’ also covers a claim for compensation made under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No [295/91] (2) brought against an operating air carrier which is not a party to the contract with the passengers concerned?

2.

Insofar as Article 5(1) of Regulation (EC) No 44/2001 is applicable:

When passengers are transported on two flights without any significant stopover at the connecting airport, is the final destination of the passengers to be regarded as being the place where the services were provided under the second indent of Article 5(1)(b) of Regulation (EC) No 44/2001, even if the claim advanced in the application for compensation under Article 7 of Regulation (EC) No 261/2004 is based on the disruption of the first leg of the journey and the claim has been brought against the air carrier which operated the first flight, which is not a party to the contract of carriage?

30.1.2017   

EN

Official Journal of the European Union

C 30/18

—

the annual accounts are to give a true and fair view of the company's assets, liabilities, financial position and profit or loss (Article 2(3) of the Directive);

—

provisions for liabilities and charges are intended to cover losses or debts the nature of which is clearly defined and which at the date of the balance sheet are either likely to be incurred, or certain to be incurred but uncertain as to amount or as to the date on which they will arise (Article 20(1) of the Directive);

—

the principle of prudence must in all circumstances be observed, and in particular:

—

account must be taken of income and charges relating to the financial year, irrespective of the date of receipt or payment of such income or charges (Article 31(1)(d) of the Directive);

—

the components of asset and liability items are to be valued separately (Article 31(1)(e) of the Directive)?

30.1.2017   

EN

Official Journal of the European Union

C 30/19

30.1.2017   

EN

Official Journal of the European Union

C 30/20

1.

May the power conferred by Article 64(1)(c) of Regulation No 883/2004, (1) having regard to Article 63 and Article 7 of Regulation No 883/2004, the objective and scope of Regulation No 883/2004 and the free movement of persons and workers, be applied in such a way that a request for the extension of the export of an unemployment benefit can in principle be refused unless, in the view of the Uwv [Uitvoeringsinstituut werknemersverzekeringen: Management Board of the Employee Insurance Agency], given the particular circumstances of the case, for example, where there is a concrete and demonstrable prospect of work, it would be unreasonable to refuse the extension of the export?

If not,

2.

How should Member States apply the power conferred by Article 64(1)(c) of Regulation No 883/2004?

30.1.2017   

EN

Official Journal of the European Union

C 30/20

1.

Is Article 1(1) of the EU Succession Regulation (1) to be interpreted as meaning that the scope of the regulation (‘succession’) also covers provisions of national law which, like Paragraph 1371(1) of the German Bürgerliches Gesetzbuch (BGB, Civil Code), govern questions relating to matrimonial property regimes after the death of one spouse by increasing the share of the estate on intestacy of the other spouse?

2.

If the first question is answered in the negative, are Articles 68(l) and 67(1) of the EU Succession Regulation in any case to be interpreted as meaning that the share of the surviving spouse may be recorded in full in the European Certificate of Succession, even if a portion of it stems from an increase pursuant to a rule governing matrimonial property regimes like Paragraph 1371(1) of the Civil Code?

If this question is to be answered in the negative in principle, can it nevertheless be answered in the affirmative exceptionally for situations where

3.

If the first and second questions are answered in the negative in their entirety, is Article 68(l) of the EU Succession Regulation to be interpreted as meaning that the share of the surviving spouse increased pursuant to a rule governing matrimonial property regimes may be recorded in full in the European Certificate of Succession, but for information purposes only on account of the increase?

30.1.2017   

EN

Official Journal of the European Union

C 30/21

1.

For the purposes of the principle of equivalence between workers with fixed-term contracts and those with contracts of indefinite duration, must ending of the employment contract due to ‘objective circumstances’ under Article 49(1)(c) ET [Estatuto de los Trabajadores: Workers’ Statute] and its ending on ‘objective grounds’ under Article 52 ET be regarded as ‘comparable situations’ and does, therefore, the difference between the compensation payable in either case constitute unequal treatment of between workers with fixed-term contracts and those with contracts of indefinite duration, prohibited by Council Directive 1999/70/EC (1) of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP?

2.

If so, must the social-policy objectives legitimising the creation of the ‘contrato de relevo’ model of contract also be deemed to justify, under clause 4.1 of the abovementioned framework agreement, the difference in treatment relating to the lower amount of compensation for termination of the employment relationship when the employer freely decides that such a ‘contrato de relevo’ should be for a fixed term?

3.

For the purposes of guaranteeing the practical effect of Directive 1999/70 EC, if there should be found to be no reasonable justification under clause 4.1, is the unequal treatment of temporary and permanent employees with regard to compensation for termination of their contracts, laid down in the Spanish legislation referred to above, to be interpreted as constituting discrimination of the kind prohibited by Article 21 of the Charter, and therefore as contrary to the principles of equal treatment and non-discrimination that are part of the general principles of EU law?

30.1.2017   

EN

Official Journal of the European Union

C 30/22

—

Set aside the General Court’s Judgment in Case T-460/13 insofar as it dismisses their application to annul the decision of the European Commission of 19 June 2013 in Case COMP/39226 — Lundbeck (citalopram), which found an infringement by object of Article 101(1) TFEU and Article 53 EEA, insofar as it concerns the Appellants;

—

Annul Article 1(4) of the Decision insofar as it concern the Appellants;

—

Annul Article 2(4) of the Decision insofar as it imposes fines on the Appellants or, in the alternative, reduce the amount of the fine; and

—

Order the Commission to pay the Appellants’ legal and other costs and expenses in relation to this matter and any other measures that this Court considers appropriate.

1.

The General Court misapplied the test for demonstrating an infringement of Article 101(1) ‘by object’ established by the Court of Justice of the European Union (‘CJEU’) in Cartes Bancaires v Commission C-67/13 P, ECLI: EU:C:2014:2204 (‘Cartes Bancaires’). The agreement between the Appellants and H. Lundbeck A/S (‘Lundbeck’) which took effect on 16 June 2002 (the ‘Agreement’2) was not by its very nature harmful to competition. Its purpose was prima facie to settle a patent dispute between the Appellants and Lundbeck. Whether the Agreement was in fact harmful to competition required the Commission to examine its effects.

2.

In finding that there was material ‘potential competition’ in existence between the Appellants and Lundbeck at the time of the Agreement, the General Court manifestly distorted the evidence in the Court’s file. The Commission was required to demonstrate objectively that the Appellants had a real concrete possibility of entering the market in an economically viable manner. The evidence demonstrated that (a) such entry was not a real or concrete possibility, either objectively or in terms of economic viability, prior to the expiry of the Agreement; and (b) in the negotiations leading to the Agreement, the Appellants had no incentive to be truthful regarding their readiness to enter the market and tricked Lundbeck into agreeing both to supply its own product to the Appellants at a discounted price and making a payment to the Appellants. This in fact allowed the Appellants to enter the market immediately which crucially they could not otherwise have done. The General Court failed to take account of the key distinction between the Appellants and the other generic manufacturers who entered into agreements with Lundbeck, which is the Appellants had no realistic and concrete possibility of obtaining an marketing authorization within the timeframe of the Agreement.

3.

In any event, no penalty should have been imposed on the Appellants. At the time of the Agreement, the Commission’s Guidelines did not treat such an agreement as constituting an infringement ‘by object’. It was a novel case in which Lundbeck had prima facie protection from competition in the form of its patents and regulatory barriers where the Appellants in fact improved their ability to compete with Lundbeck on the relevant market, by obtaining discounted supplies of Lundbeck’s product which the Appellants could label as their own. The Appellants' penalty ignored the novelty of the infringement and the Commission's unreasonable delay: notice of the investigation could easily have been provided to the Appellants more than five years prior to the actual notice.

30.1.2017   

EN

Official Journal of the European Union

C 30/23

—

annul the judgment or take such other action as justice may require.

1.

First plea-in-law. The Court has failed to demonstrate that the Settlement Agreements constitute infringements ‘by object’, within the meaning of the Cartes Bancaires judgment. In particular, the Court does not explain how the Settlement Agreements reveal in themselves a sufficient degree of harm to competition without the need to assess their actual and potential effects. Instead, the Court expresses doubt and uncertainty in relation to critical points of the analysis of the Settlement Agreements.

2.

Second plea-in-law. The evidence supporting the Court's findings does not meet the requirement of accurate, reliable, consistent and comprehensive evidence, which this Court has identified as necessary to meet the burden of proving a ‘by object’ infringement.

3.

Third plea-in-law. The Court reverses the burden of proof when it imposes a requirement on Generics (UK) to demonstrate that litigation certainly would have ensued in case of a launch at risk, and that Generics (UK) would certainly have lost in litigation, to support the legality of the Settlement Agreements.

4.

Fourth plea-in-law. The Court failed to exercise a full review of the rejection of the applicability of Article 101(3) TFEU by the Commission.

5.

Fifth plea-in-law. The Court erred in law by applying its powers of judicial review ultra vires in establishing a new infringement of Article 101(1) TFEU that was not formulated in the Decision and substituting its own findings for those of the Commission.

6.

Sixth plea-in-law. The Court failed to identify clear, precise and consistent evidence to support a finding that Generics (UK) committed the alleged infringement intentionally or negligently as required pursuant to Article 23(2) of Council Regulation (EC) No 1/2003 (1) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

30.1.2017   

EN

Official Journal of the European Union

C 30/24

—

declare that, as provided for in Article 258 of the Treaty on the Functioning of the European Union, by enacting and retaining in force legislation which permits petroleum products to be made available without excise duty being charged by the filling stations of the company Katastimata Aforologiton Eidon A.E. at the border posts located at Kipoi in Evros, at Kakavia and at Evzonoi, all of which are in areas bordering on third countries, specifically Turkey, Albania and the Former Yugoslav Republic of Macedonia respectively, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of Directive 2008/118/EC; (1)

—

order the Hellenic Republic to pay the costs.

1.

According to the reasoned opinion of 1 September 2014 which the Commission sent to the Greek authorities, by its approval of the fact that the filling stations held by the company Katastimata Aforologiton Eidon A.E. at the border posts located at Kipoi in Evros, at Kakavia and at Evzonoi make petroleum products available on which excise duty is not charged, Greece has failed to fulfil its obligations under Directive 2008/118 concerning the general arrangements for excise duty, as Greece does not consider that making those products available constitutes actual release for consumption. The direct supply of vehicles with fuel at those filling stations constitutes release for consumption and is subject to excise duty.

2.

The deviations from the basic rule that duty is due in the Member State where consumption occurs are expressly laid down by the EU legislature. The application, when petroleum products subject to excise duty are made available, of simplified procedures for export to a third country is contrary to Directive 2008/118, since it does not fall within the scope of any of the relevant provisions of the directive.

30.1.2017   

EN

Official Journal of the European Union

C 30/25

—

Set aside the Judgment, in whole or in part

—

Annul the Decision in so far as it applies to the Appellants or, in the alternative, annul the fines imposed on the Appellants pursuant to the Decision or, in the further alternative, substantially reduce the fines imposed on the Appellants pursuant to the Decision;

—

Order the Commission to pay the Appellants’ legal and other costs of these proceedings and of the proceedings before the General Court (‘GC’);

—

If necessary, remand the case to the GC for reconsideration in accordance with the Court’s judgment;

—

Take any other measures that this Court considers appropriate;

30.1.2017   

EN

Official Journal of the European Union

C 30/26

—

set aside the Judgment of the General Court (Ninth Chamber, extended composition) of 15 September 2016 in Case T-346/14 to the extent particularised in the Appeal, namely paragraphs 2 and 4 of the operative part of that Judgment;

—

grant the relief sought by the Appellant in the proceedings before the General Court to the extent particularised below namely:

in so far as those measures concern the Appellant; and

—

order the Council of the European Union to pay the costs of the appeal and the application for annulment in the statement of modification.

1.

First plea in law, alleging that the General Court erred in law in concluding that the listing criterion in Article 1(1) of Council Decision 2014/119/CFSP, as amended by the Second Amending Decision, is compatible with the objectives of the Common Foreign and Security Policy as stated in Article 21 of the Treaty on European Union. The General Court failed to recognise that the alleged acts of misappropriation of state funds must, at the very least, be the subject of an ongoing prosecution or other judicial proceedings in the country concerned, in circumstances where, as in this case, there is credible evidence that the country concerned does not have a consistent and adequate record of respect for fundamental principles of human rights or compliance with the rule of law.

2.

Second plea in law, alleging that the General Court erred in law in (1) failing to conclude that there was credible evidence that Ukraine does not have a consistent and adequate record of human rights compliance or compliance with the rule of law and (2) describing certain Ukrainian authorities upon whose evidence the Council of the European Union relied as being a ‘high judicial authority’. The General Court further erred by not providing any reasons for its views regarding (1) and (2).

3.

Third plea in law, alleging that the General Court erred in law (1) in concluding that the inclusion of the Appellant’s name in the list, on the basis of a letter dated 10 October 2014 from the Ukrainian authorities, complies with the listing criterion and (2) in concluding that there was no manifest error of assessment by the Council regarding the Appellant’s inclusion in the list.

30.1.2017   

EN

Official Journal of the European Union

C 30/27

—

set aside the Judgment of the General Court (Ninth Chamber, extended composition) of 15 September 2016 in Case T-348/14 to the extent particularised in the Appeal, namely paragraphs 2 and 4 of the operative part of that Judgment;

—

grant the relief sought by the Appellant in the proceedings before the General Court to the extent particularised below namely:

in so far as those measures concern the Appellant; and

—

order the Council of the European Union to pay the costs of the appeal and the application for annulment in the statement of modification.

1.

First plea in law, alleging that the General Court erred in law in concluding that the listing criterion in Article 1(1) of Council Decision 2014/119/CFSP, as amended by the Second Amending Decision, is compatible with the objectives of the Common Foreign and Security Policy as stated in Article 21 of the Treaty on European Union. The General Court failed to recognise that the alleged acts of misappropriation of state funds must, at the very least, be the subject of an ongoing prosecution or other judicial proceedings in the country concerned, in circumstances where, as in this case, there is credible evidence that the country concerned does not have a consistent and adequate record of respect for fundamental principles of human rights or compliance with the rule of law.

2.

Second plea in law, alleging that the General Court erred in law in (1) failing to conclude that there was credible evidence that Ukraine does not have a consistent and adequate record of human rights compliance or compliance with the rule of law and (2) describing certain Ukrainian authorities upon whose evidence the Council of the European Union relied as being a ‘high judicial authority’. The General Court further erred by not providing any reasons for its views regarding (1) and (2).

3.

Third plea in law, alleging that the General Court erred in law (1) in concluding that the inclusion of the Appellant’s name in the list, on the basis of a letter dated 30 December 2014 from the Ukrainian authorities, complies with the listing criterion and (2) in concluding that there was no manifest error of assessment by the Council regarding the Appellant’s inclusion in the list.

30.1.2017   

EN

Official Journal of the European Union

C 30/28

—

set aside the Judgment of the General Court of 14 September 2016 in National Iranian Tanker Company v Council of the European Union, (Case T-207/15);

—

determine the case before the General Court and in particular to:

—

order that the Respondent pay the costs of the appeal and of the proceedings before the General Court.

1.

First plea in law, alleging that the General Court erred in finding that Council Decision (CFSP) 2015/236 of 12 February 2015 and Council Implementing Regulation (EU) 2015/230 of 12 February 2015 did not infringe the principles of res judicata, legal certainty, legitimate expectations and finality, or the right to an effective remedy under Article 47 of the EU Charter.

2.

Second plea in law, alleging that the General Court erred in finding that the criteria for designation were satisfied as regards the Appellant.

3.

Third plea in law, alleging that the General Court erred in finding that the interference with the Appellant’s fundamental rights was proportionate.

4.

Fourth plea in law, alleging that the General Court erred in rejecting the Appellant’s alternative argument that a broad interpretation of the designation criterion would render it disproportionate.

30.1.2017   

EN

Official Journal of the European Union

C 30/29

—

set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 and/or annul Articles 1, 2 and 3 of Commission decision C(2013) 3803 final of 19 June 2013 in Case AT.39226-Lundbeck insofar as they pertain to Arrow; or

—

in the further alternative, set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 and refer the case back to the General Court; or

—

in the final alternative, set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 insofar as the Judgment upheld the fine imposed on Arrow pursuant to Article 2 of Commission decision C(2013) 3803 final in respect of the UK and Danish Agreements or reduce the amount of such fine; and

—

order the Commission to pay Arrow's costs.

1.

First plea: the General Court shifted the burden of proof to Arrow and relieved the Commission of its obligation to establish the existence of potential competition.

2.

Second plea: the General Court erred by deriving the existence of potential competition from a series of hypotheses contrary to the principle that potential competition necessitates the existence of a real and concrete possibility of entry.

3.

Third plea: the General Court attached undue weight to Lundbeck's intention and wrongly assessed the evidential importance of facts occurring after the Agreements were signed.

4.

Fourth plea: The General Court failed to consider the relevance and impact of the Paroxetine Judgment of the English Court.

5.

Fifth plea: The General Court wrongly derived the existence of potential competition from the fact that Arrow had taken steps to prepare for market entry.

6.

Sixth plea: the General Court erred by applying a presumption of provisional invalidity and non-infringement to Lundbeck's patents.

1.

First plea: the General Court has disregarded the fact that an agreement which is ‘simply capable’ of restricting competition is not an object infringement.

2.

Second plea: the General Court has misdirected itself in categorising the Agreements as being in essence market exclusion agreements.

3.

Third plea: the General Court has wrongly concluded that the Commission could establish the anticompetitive object of the Agreements without having to consider the situation that would have prevailed in the absence of the agreements.

30.1.2017   

EN

Official Journal of the European Union

C 30/31

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-111/14, Unitec Bio SA v Council of the European Union;

—

reject the application at first instance brought by the Applicant for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's costs both at first instance and on appeal.

—

refer the case back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Argentinian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicant is disproportionate to the only ground for annulment considered by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant's first plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/32

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-139/14, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council of the European Union;

—

reject the application at first instance for the annulment of the Contested Regulation; and

—

order the Applicants to pay the Council's respective costs both at first instance and on appeal.

—

refer the cases back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Indonesian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Indonesia as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicants is disproportionate to the only ground for annulment admitted by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicants’ sixth plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicants at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/33

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-121/14, PT Pelita Agung Agrindustri v Council of the European Union;

—

reject the application at first instance for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's respective costs both at first instance and on appeal.

—

refer the cases back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Indonesian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Indonesia as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicant is disproportionate to the only ground for annulment admitted by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant’s second plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/34

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-120/14, PT Ciliandra Perkasa v Council of the European Union;

—

reject the application at first instance for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's respective costs both at first instance and on appeal.

—

refer the cases back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Indonesian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Indonesia as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicant is disproportionate to the only ground for annulment admitted by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant’s third plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/35

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-80/14, PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas) v Council of the European Union;

—

reject the application at first instance for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's respective costs both at first instance and on appeal.

—

refer the cases back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Indonesian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Indonesia as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicant is disproportionate to the only ground for annulment admitted by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant’s second part of the second plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/36

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Cases T-112/14 to T-116/14 and T-119/14, Molinos Río de la Plata SA and Others v Council of the European Union;

—

reject the applications at first instance for the annulment of the Contested Regulation; and

—

order the Applicants to pay the Council's respective costs both at first instance and on appeal.

—

refer the cases back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Argentinian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as it concerns the Applicants is disproportionate to the only ground for annulment considered by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicants’ first plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the applications.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the applications for annulment of the Contested Regulation by the Applicants at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/37

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-117/14, Cargill SACI v Council of the European Union;

—

reject the application at first instance brought by the Applicant for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's costs both at first instance and on appeal.

—

refer the case back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Argentinian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as they concern the Applicant is disproportionate to the only ground for annulment considered by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant's first plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/38

—

set aside the judgment of the General Court of 15 September 2016, notified to the Council on 16 September 2016, in Case T-118/14, LDC Argentina SA v Council of the European Union;

—

reject the application at first instance brought by the Applicant for the annulment of the Contested Regulation; and

—

order the Applicant to pay the Council's costs both at first instance and on appeal.

—

refer the case back to the General Court for reconsideration;

—

reserve costs of the proceedings at first instance and on appeal.

1.

First, the General Court applied the wrong legal test when assessing whether the Council had evidence to decide that domestic raw materials prices contained in the records of the relevant Argentinian exporters were sufficiently distorted to justify disregarding them and having recourse to the methodology provided by Article 2(5) of the Basic Regulation (1), second paragraph. In doing so, the General Court has imposed too high a burden of proof on the Institution.

2.

Second, the General Court’s finding that the evidence adduced by the Institutions was not sufficient to show that there was an appreciable distortion of the prices of the main raw materials in Argentina as a result of the DET system lacks proper reasoning.

3.

Third, the operative part of the Contested Judgment annulling the anti-dumping duties in so far as it concerns the Applicant is disproportionate to the only ground for annulment considered by the General Court and gives undue effects to the finding of illegality.

4.

The Council will demonstrate that the Contested Judgment is vitiated by several errors of law affecting its validity. In addition, the Council submits that the facts underlying the Applicant's first plea are sufficiently established so that the Court of Justice can decide on this plea and dismiss the application.

5.

The Council therefore respectfully requests that the Contested Judgment should be set aside and the application for annulment of the Contested Regulation by the Applicant at first instance, dismissed.

30.1.2017   

EN

Official Journal of the European Union

C 30/39

—

Set aside in whole or in part the Judgment under appeal;

—

Annul in whole or in part the Decision;

—

Cancel or substantially reduce the fine;

—

In the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

—

Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

1)

The General Court applied the wrong legal standard to evaluate whether Alpharma was a potential competitor in the context where its products infringed Lundbeck’s patents. In the absence of evidence demonstrating that Lundbeck’s patents were weak, the patents must be presumed to be valid and entry with infringing product to be illegal.

2)

Despite acknowledging that Alpharma only discovered shortly before the settlement that Lundbeck’s patent would be granted and that its products infringed Lundbeck’s patents, the General Court failed to evaluate whether the Commission had proven that entry by Alpharma remained an economically-viable strategy in light of these additional barriers to entry. Instead, the General Court relied on evidence not cited in the Decision and incorrectly shifted the burden of proof onto the Appellants to disprove the Commission’s allegation that Alpharma was a potential competitor.

3)

The General Court applied the wrong legal standard to assessed whether the Settlement Agreement constituted a restriction of competition ‘by object’, as it failed to evaluate whether the Commission had demonstrated that the Settlement Agreement was sufficiently likely to have negative effects, and failed to take into account the fact that the Commission had no prior experience with this kind of patent settlement.

4)

The General Court failed to assess whether the Commission had proven its allegation that the restriction in the Settlement Agreement exceeded the scope of Lundbeck’s patents.

5)

The General Court applied the wrong legal standard in assessing whether the duration of the Commission’s investigation was excessive and violated the Appellants’ rights of defence.

6)

The General Court erred in upholding the Commission’s decision to address the Decision to Zoetis (now Alpharma LLC), but not to Merck Generics Holding GmbH, despite the Commission’s failure to provide any basis in the Decision for distinguishing between the situations of these two companies.

7)

The General Court erred in law in finding that the state of the law was sufficiently clear at the time of the Settlement Agreement that the Appellants could ascertain unequivocally what their rights and obligations were and take steps accordingly.

8)

The General Court erred in upholding the Decision despite the Commission’s clear failure to take the gravity of the alleged infringement into account in setting the fine as required under Article 23(3) of Regulation 1/2003 (1).

9)

The General Court applied the wrong legal standard in determining the relevant year for the calculation of the 10 % cap on the level of the fine imposed upon A.L. Industrier.

30.1.2017   

EN

Official Journal of the European Union

C 30/40

—

Set aside paragraph 1 of the operative part of the Judgment;

—

annul Articles 1(1), 2(1) of the Decision and Articles 3 and 4 insofar as these are addressed to Merck;

—

in the alternative, annul or reduce the penalty imposed on Merck;

—

set aside paragraph 2 of the operative part of the Judgment and order the Commission to bear their own costs and to pay the costs of Merck, relating to both the proceedings at first instance and to this appeal.

1.

The Appellant’s first ground of appeal is that the General Court erred in law by finding that the patent settlement agreements (‘PSAs’), concluded between Generics (UK) (‘GUK’) and Lundbeck, were restrictions by object under Article 101(1) TFEU:

2.

The Appellant’s second ground of appeal is that the General Court erred in law by concluding that GUK and Lundbeck were potential competitors at the time when the PSAs were concluded:

3.

The Appellant’s third ground of appeal is that the General Court erred in law by upholding the fine imposed by the Commission on the Appellant:

30.1.2017   

EN

Official Journal of the European Union

C 30/42

1.

Dismisses the action as inadmissible in so far as it seeks annulment of Commission Regulation (EC) No 14/2007 of 10 January 2007 amending for the 74th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama Bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001, in so far as it concerns Mr Mohammed Al-Ghabra;

2.

Dismisses the action as unfounded as to the remainder;

3.

Orders Mr Al-Ghabra to bear his own costs and to pay those incurred by the European Commission;

4.

Orders the United Kingdom of Great Britain and Northern Ireland and the Council of the European Union to bear their own costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/43

1.

Dismisses the action;

2.

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

30.1.2017   

EN

Official Journal of the European Union

C 30/43

1.

Annuls Article 2(1)(e) of Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (AT.39780 — Envelopes).;

2.

Orders the European Commission to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/44

1.

Dismisses the action;

2.

Orders PAL-Bullermann GmbH to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/45

1.

Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 July 2015 (Case R 2755/2014-5), relating to opposition proceedings between Mr Ramón Guiral Broto and Gastro & Soul GmbH;

2.

Dismisses the action as to the remainder;

3.

Orders EUIPO and Mr Guiral Broto each to bear their own costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/45

1.

Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 July 2015 (Case R 1888/2014-5), relating to opposition proceedings between Mr Ramón Guiral Broto and Gastro & Soul GmbH;

2.

Dismisses the action as to the remainder;

3.

Orders EUIPO and Mr Guiral Broto each to bear their own costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/46

1.

Dismisses the action;

2.

Orders Puro Italian Style SpA to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

30.1.2017   

EN

Official Journal of the European Union

C 30/46

1.

Dismisses the action;

2.

Orders Scorpio Poland to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/47

1.

Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 November 2015 (Case R 1813/2014-2);

2.

Rejects the opposition filed by Mueloliva, SL to the international registration designating the European Union in respect of the word mark FONTOLIVA applied for by Sovena Portugal — Consumer Goods, SA;

3.

Dismisses the action as to the remainder;

4.

Orders EUIPO to bear its own costs and to pay those incurred by Sovena Portugal — Consumer Goods for the purposes of the proceedings before the Court;

5.

Orders EUIPO and Mueloliva each to pay half of the costs necessarily incurred by Sovena Portugal — Consumer Goods for the purposes of the proceedings before the Board of Appeal of EUIPO.

30.1.2017   

EN

Official Journal of the European Union

C 30/48

1.

Dismisses the action;

2.

Orders APAX Partners LLP to pay the costs, including those necessarily incurred by APAX Partners Midmarket, for the purposes of the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO).

30.1.2017   

EN

Official Journal of the European Union

C 30/48

1.

Dismisses the action;

2.

Orders Grid applications GmbH to pay the costs.

30.1.2017   

EN

Official Journal of the European Union

C 30/49

—

annul the decision of the Single Resolution Board SRB/ES/SRF/2016/06 of 15 April 2016 (‘Decision of the Executive Session of the Board of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/06)’), as well as the decision of the Single Resolution Board SRB/ES/SRF/2016/13 of 20 May 2016 (‘Decision of the Executive Session of the Board of 20 May 2016 on the adjustment of the 2016 ex-ante contributions to the Single Resolution Fund supplementing the Decision of the Executive Session of the Board of 15 April 2016 on the 2016 ex-ante contributions to the Single Resolution Fund (SRB/ES/SRF/2016/13)’), at least in so far as those decisions concern the applicant;

—

order the defendant to pay the costs of the proceedings.

—

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

—

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

30.1.2017   

EN

Official Journal of the European Union

C 30/49

—

annul the decision of 10 August 2016 by which the selection board in Open Competition EPSO/AST-SC/03/15 excluded the applicant from that competition;

—

order the Commission to pay all of the costs in any event.

1.

First plea in law, alleging a number of manifest errors of assessment on the part of the selection board when evaluating the applicant’s professional experience.

2.

Second plea in law, raised in the alternative, alleging insufficient reasoning of the contested decision on the basis of the failure to inform the applicant of the selection criteria established by the selection board.

30.1.2017   

EN

Official Journal of the European Union

C 30/50

—

Consider its action for annulment to have been brought in due form and to be admissible, in accordance with Article 263 TFEU and for the purposes of Article 264 TFEU.

—

Annul Decision C(2016) 5054 of 9 August 2016, in accordance with Article 263 TFEU, in so far as it considers that the measure described in the complaint does not constitute State aid within the meaning of Article 107(1) TFEU.

—

Annul Decision C(2016) 5054 of 9 August 2016, in accordance with Article 263 TFEU, in so far as it considers that, even if the measure described in the complaint does constitute State aid, it is compatible with the internal market within the meaning of Article 107(3)(c) TFEU.

—

Order the European Commission to pay the costs of the proceedings and the costs incurred by the applicant.

1.

First plea in law, alleging failure to state reasons. The applicant considers that the decision is vitiated by a failure to state reasons because in that decision it states that even if the measure constituted aid within the meaning of Article 107(1) TFEU, it would be compatible with the internal market in accordance with Article 107(3)(c) TFEU, although no reasons are given for that conclusion.

2.

Second plea in law, alleging manifest error of assessment. The applicant considers that the decision is vitiated by an error of assessment as regards the effects of the aid measure on competition and on trade between Member States since the reasons which lead the Commission to assert that the effect of the aid measure in question on trade between Member States is purely hypothetical or presumed and that, if such an effect actually exists, it is only marginal, are not robust and in practice guarantee the proliferation of similar ad hoc aid measures, not only in the Tomar region but throughout the country, with the inherent consequences in terms of deterring national investment and investment from other Member States.

3.

Third plea in law, alleging infringement of Article 107(1) TFEU, in so far as the Commission (i) failed to examine with the necessary care and objectivity whether the aid in question was liable to affect trade between Member States; (ii) did not take account of the fact that there is no threshold or percentage below which it can be considered a priori that trade between Member States is not affected; (iii) did not take account of the fact that the effect on trade between Member States does not depend on the local or regional nature of the services provided or the importance of the area of activity concerned; (iv) did not sufficiently emphasise that where State aid strengthens an undertaking’s position vis-à-vis other competing undertakings, it should be considered that the undertakings competing with the recipient undertaking will enjoy less favourable conditions for financing new investments in the State concerned.

30.1.2017   

EN

Official Journal of the European Union

C 30/51

—

annul the Commission’s decision of 1 September 2016 declaring an amendment to the German act on measures for the promotion of German cinema in its seventh version compatible with the internal market (1); and

—

order the Commission to pay the costs of these proceedings.

1.

First plea in law, alleging a violation of the Audiovisual Media Services Directive (2).

2.

Second plea in law, alleging a violation of Article 110 TFEU.

3.

Third plea in law, alleging a violation of Article 56 TFEU.

4.

Fourth plea in law, alleging a violation of Article 49 TFEU.

5.

Fifth plea in law, alleging a violation of Article 107 TFEU.

6.

Sixth plea in law, alleging a violation of essential procedural requirements.

30.1.2017   

EN

Official Journal of the European Union

C 30/52

—

annul the Commission’s decision of 11 January 2016 on the excess profit exemption state aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by the Kingdom of Belgium (1);

—

in the alternative, annul Articles 2-4 of the Decision;

—

in any event, annul Articles 2-4 of that Decision in so far as these Articles (a) require recovery from entities other than the entities that have been issued an ‘excess profit ruling’ as defined in the Decision and (b) require the recovery of an amount equal to the beneficiary’s tax savings, without allowing Belgium to take into account an actual upwards adjustment by another tax administration; and

—

order the Commission to pay the costs of the proceedings.

1.

First plea in law, alleging manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the decision alleges the existence of an aid scheme.

2.

Second plea in law, alleging violation of Article 107 TFEU and of the duty to state reasons and manifest error of assessment in so far as the decision qualifies the purported scheme as granting a selective advantage.

3.

Third plea in law, alleging violation of Article 107 TFEU and of the duty to state reasons and manifest error of assessment in so far as the decision asserts that the purported scheme gives rise to an advantage.

4.

Fourth plea in law, in the alternative alleging violation of Article 107 TFEU, infringement of legitimate expectations and of the proportionality principle, manifest error of assessment, excess of power and failure to provide adequate reasons in so far as the decision orders Belgium to recover aid.

30.1.2017   

EN

Official Journal of the European Union

C 30/53

—

annul the decision of the European Commission of 19 September 2016 by which it rejected the applicant’s tender and awarded contract No OIB.02/PO/2016/012/703 to the RIDEAUPRESS ITLINE group;

—

uphold the claim for damages made by the applicant and, accordingly, order the European Commission to pay to the applicant the principal sum of EUR 387 500 as compensation for the damage sustained as a result of losing the contract, to be increased by default interest and judicially-determined interest calculated at the statutory rate until full payment is made;

—

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

1.

First plea in law, alleging infringement of the obligation to state reasons, the right of the applicant to good administration and the principle of transparency in so far as, despite repeated and insistent requests from the applicant, the Commission failed to inform it of the technical specifications of the successful tenderer’s products or of the results of the report analysing the bids and samples sent by it to the Commission.

2.

Second plea in law, alleging infringement of the principle of transparency and the principle of equal treatment of tenderers by the Commission both when drafting the tender specifications and when evaluating the bids submitted by tenderers. In particular, the applicant claims that:

30.1.2017   

EN

Official Journal of the European Union

C 30/54

—

annul the decision of the Commission of 19 September 2016 in the case relating to State Aid SA.44351 (2016/C) (ex 2016/NN) — Poland — Polish tax on the retail sector, notified under document C(2016) 5596, and

—

order the European Commission to pay the costs.

1.

First plea in law, alleging an incorrect classification of the Polish retail sales tax as State aid within the meaning of Article 107(1) TFEU as the result of a manifestly incorrect assessment of the condition of selectivity.

2.

Second plea in law, alleging infringement of Article 13(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union and of the principle of proportionality by the ordering of immediate suspension of the application of the progressive rates of the Polish retail sales tax.

3.

Third plea in law, alleging that the statement of reasons in the contested decision is defective and insufficient.

30.1.2017   

EN

Official Journal of the European Union

C 30/55

—

annul the decision of the European Commission of 21 September 2016;

—

declare and hold that the aid paid to the Côte-Basque-Adour Conurbation Authority (CABAB) by the European Regional Development Fund (ERDF), the French State, the Aquitaine Regional Council and the Pyrénées Atlantiques Departmental Council is unlawful and incompatible with the common market;

—

order the French State, the Aquitaine Regional Council, the Pyrénées Atlantiques Departmental Council, as decentralised state bodies, and the ERDF to recover the aid unlawfully paid, together with interest at the statutory rate as from the date on which that aid was made available;

—

order the European Commission to bear all the costs of the proceedings, including lawyers’ fees of EUR 5 000.

1.

First plea in law, alleging the substantive unlawfulness of the decision of the European Commission.

2.

Second plea in law, alleging a failure to notify the financing allocated to the ‘Technocité’ project, granted by the ERDF, the French Republic, the Aquitaine Regional Council and the Pyrénées Atlantiques Departmental Council to the CABAB.

3.

Third plea in law, alleging the incompatibility of the financing with the internal market.

4.

Fourth plea in law, alleging the non-performance of conditions to which the grant of the financing was subject.

30.1.2017   

EN

Official Journal of the European Union

C 30/56

—

Annul ECHA Decision No SME (2016) 5150 of 15 November 2016 declaring that FERTISAC SL did not fulfil the requirements for the fee reduction provided for medium-sized enterprises and requiring it to pay an administrative fee.

—

Annul ECHA invoice No 10060160 of 15 November 2016, issued on the basis of ECHA Decision No SME (2016) 5150, in the amount corresponding to the difference between the fee paid by FERTISAC SL and the fee payable for a large enterprise.

—

Annul ECHA invoice No 10060161 of 15 November 2016 which determines the administrative fee in accordance with ECHA Decision No SME (2016) 5150.

—

Order the European Chemicals Agency (ECHA) to pay the costs.

1.

First plea in law, alleging an error in the classification of FERTISAC SL as a large enterprise.

There are two threshold criteria to be met for an undertaking to be classified as an SME. It is not just a question of meeting only one of those criteria (as follows from the decision of the ECHA, inasmuch as it applied only one of those criteria: the annual turnover), clearly overlooking the first requirement, namely, the number of persons, which is clearly differentiated by the conjunction ‘and’. However, at no time has FERTISAC SL exceeded the threshold of employing more than 250 persons.

2.

Second plea in law, alleging misinterpretation by the defendant of Recommendation 2003/361.

30.1.2017   

EN

Official Journal of the European Union

C 30/57

—

Annul European Commission Decision of 4 July 2016 on the State aid SA.29769 (2013/C) (ex 2013/NN) implemented by Spain for certain football clubs.

—

In the alternative, annul Articles 4 and 5 of that decision.

—

Order the Commission to pay costs.

1.

First plea in law, alleging that the contested decision infringes Article 49 TFEU, read in conjunction with Articles 107 and 108 TFEU, and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in so far as all the reasoning in the contested decision is based on a national rule which restricts freedom of establishment.

2.

Second plea in law, alleging that the contested decision infringes Article 107(1) TFEU, in so far as the Commission (i) does not analyse the applicable deductions by reference to the rate for each [type of organisation]; (ii) does not act impartially, looking for evidence both for and against, and therefore, (iii) concludes incorrectly that there was an advantage within the meaning of Article 107(1) TFEU.

3.

Third plea in law, alleging that the contested decision infringes (i) the principle of the protection of legitimate expectations by ordering the recovery of the alleged aid, taking into account that, in the light of the action of the Spanish administration and the duration of the proceedings, FC Barcelona could entertain a legitimate expectation as to the legality of the tax system to which it was subject, and (ii) the fundamental requirement of legal certainty.

4.

Fourth plea in law, alleging that the contested decision infringes Article 107(1) TFEU, in so far as the Commission does not take into account that the aid was justified by the internal logic of the tax system.

5.

Fifth plea in law, alleging that the contested decision infringes Article 108(1) TFEU and Articles 21 and 23 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9), in so far as it orders the recovery of an existing aid and does not comply with the procedure for that type of aid.

30.1.2017   

EN

Official Journal of the European Union

C 30/58

—

order the European Union and/or the European System of Central Banks (ESCB) to compensate for the amounts described in the application corresponding to the damage that the applicants suffered from their illegal participation in the restructuring of the Greek government debt, due to the activation of the retrofit Collective Action Clauses;

—

alternatively, order the Union and/or the European Central Bank (ECB) to compensate the applicants for the amounts described in the application corresponding to the damage suffered from the illegal exclusion of Greece’s official sector creditors from the restructuring of the Greek government debt;

—

in any case, order the ECB to compensate the applicants for the damages described in the application for each applicant emanating from the illegal exclusion of the ESCB from the restructuring of the Greek government debt;

—

order the ECB and/or the Union to bear the costs of the proceedings.

1.

First plea in law, alleging that the Union’s and/or the ECB’s and the ESCB’s actions were taken ultra vires and contrary to Articles 120-126, 127 and 352(1) TFEU.

2.

Second plea in law, alleging that the ECB’s and the ESCB’s actions regarding in particular the ESCB’s exclusion from the restructuring violate Article 123 TFEU.

3.

Third plea in law, alleging that the Union’s and/or the ECB’s and the ESCB’s actions violate the applicants’ right to property protected under Article 17 of the Charter of Fundamental Rights.

4.

Fourth plea in law, alleging that the Union’s and/or the ECB’s and the ESCB’s actions violate free movement of capital protected under Article 63 TFEU.

5.

Fifth plea in law, alleging that the Union’s and/or the ECB’s and the ESCB’s actions violate the applicants’ right to equal treatment protected under Article 20 of the Charter of Fundamental Rights.

30.1.2017   

EN

Official Journal of the European Union

C 30/58

—

annul the contested decision;

—

alter the contested decision by declaring the mark at issue invalid in respect of all the goods and services not cancelled by the contested decision, with the exception of packaging and storage of goods (Class 39), arrangement of travel (Class 39) and fire extinguishers (Class 9);

—

order EUIPO and Repower AG to pay the costs.

—

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

—

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

—

Infringement of Article 75 of Regulation No 207/2009 in relation with Article 296 TFEU.