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

(2018/C 436/01)

Last publication

OJ C 427, 26.11.2018

Past publications

OJ C 408, 12.11.2018

OJ C 399, 5.11.2018

OJ C 392, 29.10.2018

OJ C 381, 22.10.2018

OJ C 373, 15.10.2018

OJ C 364, 8.10.2018

These texts are available on:

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

Judgment of the Court (Grand Chamber) of 2 October 2018 (request for a preliminary ruling from the Audiencia Provincial de Tarragona — Spain) — Proceedings brought by Ministerio Fiscal

(Case C-207/16) (1)

((Reference for a preliminary ruling - Electronic communications - Processing of personal data - Directive 2002/58/EC - Articles 1 and 3 - Scope - Confidentiality of electronic communications - Protection - Article 5 and Article 15(1) - Charter of Fundamental Rights of the European Union - Articles 7 and 8 - Data processed in connection with the provision of electronic communications services - Access of national authorities to the data for the purposes of an investigation - Threshold of seriousness of an offence capable of justifying access to the data))

(2018/C 436/02)

Language of the case: Spanish

Referring court

Audiencia Provincial de Tarragona

Party to the main proceedings

Ministerio Fiscal

Operative part of the judgment

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter of Fundamental Rights, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.

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(1)  OJ C 251, 11.7.2016.

Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Nikolay Kantarev v Balgarska Narodna Banka

(Case C-571/16) (1)

((Reference for a preliminary ruling - Deposit guarantee schemes - Directive 94/19/EC - Article 1(3)(i) - Article 10(1) - Definition of ‘unavailable deposit’ - Liability of a Member State for harm caused to individuals by breaches of EU law - Sufficiently serious breach of EU law - Procedural autonomy of the Member States - Principle of sincere cooperation - Article 4(3) TEU - Principles of equivalence and effectiveness))

(2018/C 436/03)

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: Nikolay Kantarev

Defendant: Balgarska Narodna Banka

Operative part of the judgment

1.

Article 1(3) and Article 10(1) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as precluding, first, national legislation according to which the determination that deposits have become unavailable is concomitant with the insolvency of that credit institution and the withdrawal of that institution’s banking licence and, second, derogation from the time limits provided by those provisions for the purposes of determining that deposits have become unavailable and of reimbursing those deposits on the ground that the credit institution must be placed under special supervision.

2.

Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as meaning that the unavailability of deposits within the meaning of that provision must be determined expressly by the competent national authority and cannot be inferred from other acts of the national authorities — such as the decision of the Balgarska Narodna Banka (Bulgarian Central Bank) to place Korporativna Targovska Banka under special supervision — nor presumed from circumstances such as those in the case in the main proceedings.

3.

Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as meaning that a determination that a bank deposit is unavailable, within the meaning of that provision, cannot be subject to the condition that the account holder must first make an unsuccessful request for payment of funds from the credit institution.

4.

Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, has direct effect and constitutes a rule of law intended to confer rights on individuals allowing depositors to bring an action for damages for the harm sustained by late repayment of deposits. It is for the referring court to ascertain, first, whether the failure to determine that deposits were unavailable within the time limit of five working days laid down in that provision, despite the fact that the conditions which were clearly set out in that provision were satisfied, on the facts of the case in the main proceedings, amounts to a sufficiently serious breach, within the meaning of EU law and, second, whether there is a direct causal link between that breach and the harm sustained by a depositor, such as Mr Nikolay Kantarev.

5.

Article 4(3) TEU and the principles of equivalence and effectiveness must be interpreted as, in the absence of a specific procedure in Bulgaria holding that Member State liable for harm caused by a national authority’s breach of EU law: — not precluding national legislation which provides for two different remedies falling within the jurisdiction of different courts subject to different conditions, provided that the referring court ascertains whether, in respect of national law, a national authority such as the Bulgarian Central Bank must be held liable on the basis of the Zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on Liability of the State and of Municipalities for Damage) or the Zakon za zadalzheniata i dogovorite (Law on Obligations and Contracts) and that each of the two remedies complies with the principles of equivalence and effectiveness; — precluding national legislation which subjects the right of individuals to obtain damages to the additional condition that the national authority in question intended to cause the harm; — not precluding national legislation which subjects the right of individuals to obtain damages to the duty of providing proof of fault provided that, which it is for the referring court to ascertain, the concept of ‘fault’ does not go beyond that of a ‘sufficiently serious breach’; — not precluding national legislation which provides for the payment of a fixed-fee or fee proportional to the value in dispute provided that, which it is for the referring court to ascertain, the payment of a fixed-fee or fee proportional to the value in dispute is not contrary to the principle of effectiveness, in the light of the amount and level of the fee, whether or not that fee might represent an insurmountable obstacle to access to the courts, whether it is mandatory and of the possibilities of exemption; and — not precluding national legislation which subjects the right of individuals to obtain damages to prior annulment of the administrative measure which caused the harm, provided that, which it is for the referring court to ascertain, that requirement may reasonably be required of the injured party.

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(1)  OJ C 38, 6.2.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Nigyar Rauf Kaza Ahmedbekova, Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite

(Case C-652/16) (1)

((Reference for a preliminary ruling - Common policy on asylum and subsidiary protection - Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection - Directive 2011/95/EU - Articles 3, 4, 10 and 23 - Applications for international protection lodged separately by family members - Individual assessment - Taking into account threats in respect of a family member in carrying out the individual assessment of the application for international protection of another family member - More favourable standards capable of being retained or introduced by the Member States for the purpose of extending the refugee or subsidiary protection status of a beneficiary of international protection to family members - Assessment of the reasons for persecution - Involvement of an Azerbaijani national in bringing a complaint against her country before the European Court of Human Rights - Common procedural standards - Directive 2013/32/EU - Article 46 - Right to an effective remedy - Full and ex nunc examination - Reasons for persecution or evidence withheld from the determining authority but invoked in the course of an action against the decision taken by that authority))

(2018/C 436/04)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicants: Nigyar Rauf Kaza Ahmedbekova, Rauf Emin Ogla Ahmedbekov

Defendant: Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite

Operative part of the judgment

1.

Article 4 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that, in carrying out the assessment of an application for international protection on an individual basis, account must be taken of the threat of persecution and of serious harm in respect of a family member of the applicant for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to such a threat.

2.

Directive 2011/95 and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as not precluding applications for international protection lodged separately by members of a single family from being subject to measures intended to address any interaction between applications, but as precluding those applications from being subject to a single assessment. They also preclude the assessment of one of those applications from being suspended until the conclusion of the examination procedure in respect of another of those applications.

3.

Article 3 of Directive 2011/95 must be interpreted as permitting a Member State, when granting international protection to a family member pursuant to the system established by that directive, to provide for an extension of the scope of that protection to other family members, provided that they do not fall within the scope of a ground for exclusion laid down in Article 12 of that directive and that their situation is, due to the need to maintain family unity, consistent with the rationale of international protection.

4.

Article 33(2)(e) of Directive 2013/32 does not cover a situation, such as that at issue in the main proceedings, in which an adult lodges, in her own name and on behalf of her minor child, an application for international protection which is based, inter alia, on a family tie with another person who has lodged a separate application for international protection.

5.

The involvement of an applicant for international protection in bringing a complaint against his country of origin before the European Court of Human Rights cannot in principle be regarded, for the purposes of assessing the reasons for persecution referred to in Article 10 of Directive 2011/95, as proof of that applicant’s membership of a ‘particular social group’, within the meaning of Article 10(1)(d) of that directive, but must be regarded as a reason for persecution for ‘political opinion’, within the meaning of Article 10(1)(e) of the directive, if there are valid grounds for fearing that involvement in bringing that claim would be perceived by that country as an act of political dissent against which it might consider taking retaliatory action.

6.

Article 46(3) of Directive 2013/32 read in conjunction with the reference to the appeal procedure contained in Article 40(1) of that directive, must be interpreted as meaning that a court before which an action has been brought against a decision refusing international protection is, in principle, required to examine, as ‘further representations’ and having asked the determining authority for an assessment of those representations, grounds for granting international protection or evidence which, whilst relating to events or threats which allegedly took place before the adoption of the decision of refusal, or even before the application for international protection was lodged, have been relied on for the first time during those proceedings. That court is not, however, required to do so if it finds that those grounds or evidence were relied on in a late stage of the appeal proceedings or are not presented in a sufficiently specific manner to be duly considered or, in respect of evidence, it finds that that evidence is not significant or insufficiently distinct from evidence which the determining authority was already able to take into account.

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(1)  OJ C 86, 20.3.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 — European Commission v Federal Republic of Germany

(Case C-668/16) (1)

((Failure of a Member State to fulfil obligations - Directive 2006/40/EC - Emissions from air-conditioning systems in motor vehicles - Article 5(4) and (5) - Directive 2007/46/EC - Approval of motor vehicles - Articles 12, 29, 30 and 46 - Vehicles not conforming to technical requirements - Responsibility of the national authorities))

(2018/C 436/05)

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes and D. Kukovec and by C. Becker, acting as Agents,)

Defendant: Federal Republic of Germany (represented by: T. Henze and D. Klebs, acting as Agents)

Operative part of the judgment

The Court:

1.

Declares that, the Federal Republic of Germany has failed to fulfil its obligations: — under Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, and Articles 12 and 30 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), as amended by Commission Regulation (EU) No 371/2010 of 16 April 2010, by failing to take the measures necessary, within the period prescribed in the reasoned opinion, to re-establish conformity to their approved types of 133 713 vehicles of types 246, 176 and 117, sold by Daimler between 1 January and 26 June 2013, when they were fitted not with the refrigerant R1234yf declared for those approved types, but a refrigerant having a global warming potential which was greater than 150, contrary to the limit laid down in Article 5(4) of Directive 2006/40, and — under Directive 2006/40 and the combined provisions of Articles 46, 5 and 18 of Directive 2007/46, by failing to take the measures necessary to apply the penalties referred to in Article 46 of Directive 2007/46 within the period prescribed in the reasoned opinion, in order to ensure that manufacturers comply with Articles 5 and 18 of that directive, relating to the conformity of production and the issue of a certificate of conformity;

2.	Dismisses the action as to the remainder;

3.	Orders the Federal Republic of Germany to bear its own costs and to pay half of the costs incurred by the European Commission;

4.	Orders the European Commission to bear half of its own costs.

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(1)  OJ C 70, 6.3.2017.

Judgment of the Court (Grand Chamber) of 4 October 2018 (request for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Tribunalul Botoşani, Ministerul Justiţiei v Maria Dicu

(Case C-12/17) (1)

((Reference for a preliminary ruling - Social policy - Organisation of working time - Directive 2003/88/EC - Right to paid annual leave - Directive 2010/18/EU - Revised Framework Agreement on parental leave - Parental leave not regarded as a period of actual work))

(2018/C 436/06)

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Applicants: Tribunalul Botoşani, Ministerul Justiţiei

Defendant: Maria Dicu

Intervening parties: Curtea de Apel Suceava, Consiliul Superior al Magistraturii

Operative part of the judgment

Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time is to be interpreted as not precluding a provision of national law, such as the provision at issue in the main proceedings, which, for the purpose of determining a worker’s entitlement to paid annual leave, as guaranteed by that article for a worker in respect of a given reference period, does not treat the amount of time spent by that worker on parental leave during that reference period as a period of actual work.

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(1)  OJ C 104, 3.4.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Bahtiar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite

(Case C-56/17) (1)

((Reference for a preliminary ruling - Area of freedom, security and justice - Borders, asylum and immigration - Regulation (EU) No 604/2013 - Article 3 - Determining the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national - Examination of an application for international protection without an express decision on the determination of the Member State responsible for the examination - Directive 2011/95/EU - Articles 9 and 10 - Reasons for persecution based on religion - Evidence - Iranian legislation on apostasy - Directive 2013/32/EU - Article 46(3) - Effective remedy))

(2018/C 436/07)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: Bahtiar Fathi

Defendant: Predsedatel na Darzhavna agentsia za bezhantsite

Operative part of the judgment

1.

Article 3(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, must, in a situation such as that in the main proceedings, be interpreted as not precluding the authorities of a Member State from conducting an examination on the merits of an application for international protection, within the meaning of Article 2(d) of that regulation, where there is no express decision by those authorities determining, on the basis of the criteria laid down by the regulation, that the responsibility for conducting such an examination lies with that Member State.

2.

Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, must, in a situation such as that in the main proceedings, be interpreted as meaning that, in an action brought by an applicant for international protection against a decision dismissing the applicant’s application for international protection as unfounded, the court or tribunal with jurisdiction of a Member State is not required to examine of its own motion whether the criteria and mechanisms for determining the Member State responsible for examining that application, as provided for by Regulation No 604/2013, were correctly applied.

3.

Article 10(1)(b) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that an applicant for international protection who claims, in support of his application, that he is at risk of persecution for reasons based on religion does not have to, in order to substantiate his claims concerning his religious beliefs, submit statements or produce documents concerning all the aspects of the concept of ‘religion’, referred to in that provision. The onus is, however, on the applicant to substantiate those claims in a credible manner by submitting evidence which permits the competent authority to satisfy itself that those claims are true.

4.

Article 9(1) and (2) of Directive 2011/95 must be interpreted as meaning that the prohibition, on pain of execution or imprisonment, of conduct which is contrary to the State religion of the applicant for international protection’s country of origin may constitute an ‘act of persecution’, within the meaning of that article, if that prohibition may, in practice, be enforced by such penalties by the authorities of that country, which is for the referring court to ascertain.

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(1)  OJ C 112, 10.04.2017.

Judgment of the Court (Grand Chamber) of 2 October 2018 — French Republic v European Parliament

(Case C-73/17) (1)

((Action for annulment - Institutional law - Protocol on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union - European Parliament - Concept of ‘budget session’ held in Strasbourg (France) - Article 314 TFEU - Exercise of budgetary powers during an additional plenary part-session in Brussels (Belgium)))

(2018/C 436/08)

Language of the case: French

Parties

Applicant: French Republic (represented by: F. Alabrune, D. Colas, B. Fodda and E. de Moustier, acting as Agents)

Defendant: European Parliament (represented by: R. Crowe and U. Rösslein, acting as Agents)

Intervener in support of the applicant: Grand Duchy of Luxembourg (represented by: D. Holderer and C. Schiltz, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the French Republic to pay, in addition to its own costs, those of the European Parliament;

3.	Orders the Grand Duchy of Luxembourg to bear its own costs.

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(1)  OJ C 104, 3.4.2017.

Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Komisia za zashtita na potrebitelite v Evelina Kamenova

(Case C-105/17) (1)

((Reference for a preliminary ruling - Consumer protection - Directive 2005/29/EC - Article 2(b) and (d) - Directive 2011/83/EU - Article 2(2) - Concepts of ‘trader’ and ‘commercial practices’))

(2018/C 436/09)

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicant: Komisia za zashtita na potrebitelite

Defendant: Evelina Kamenova

Other party: Okrazhna prokuratura — Varna

Operative part of the judgment

Article 2(b) and (d) 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’) and Article 2(2) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that a natural person, such as the defendant in the main proceedings, who publishes simultaneously on a website a number of advertisements offering new and second-hand goods for sale can be classified as a ‘trader’, and such an activity can constitute a ‘commercial practice’, only if that person is acting for purposes relating to his trade, business, craft or profession, this being a matter for the national court to determine, in the light of all relevant circumstances of the individual case.

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(1)  OJ C 144, 8.5.2017.

Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Bundeskammer für Arbeiter und Angestellte v ING-DiBa Direktbank Austria Niederlassung der ING-DiBa AG

(Case C-191/17) (1)

((Directive 2007/64/EC - Payment services in the internal market - Concept of ‘payment account’ - Potential inclusion of a savings account enabling its user to make payments and withdrawals by way of a current account opened in his name))

(2018/C 436/10)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Bundeskammer für Arbeiter und Angestellte

Defendant: ING-DiBa Direktbank Austria Niederlassung der ING-DiBa AG

Operative part of the judgment

Article 4(14) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC must be interpreted as meaning that a savings account which allows for sums deposited without notice and from which payment and withdrawal transactions may be made solely by means of a current account does not come within the concept of ‘payment account’.

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(1)  OJ C 239, 24.7.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 (Request for a preliminary ruling from the Consiglio di Stato — Italy) — Legatoria Editoriale Giovanni Olivotto (LEGO) SpA v Gestore dei servizi energetici (GSE) SpA, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico, Ministero delle Politiche Agricole e Forestali

(Case C-242/17) (1)

((Reference for a preliminary ruling - Environment - Promotion of the use of energy from renewable sources - Bioliquids used for a thermal energy plant - Directive 2009/28/EC - Article 17 - Sustainability criteria for bioliquids - Article 18 - National sustainability certification systems - Implementing Decision 2011/438/EU - Voluntary sustainability certification systems for biofuels and bioliquids approved by the European Commission - National legislation requiring intermediary operators to submit sustainability certificates - Article 34 TFEU - Free movement of goods))

(2018/C 436/11)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Legatoria Editoriale Giovanni Olivotto (LEGO) SpA

Respondents: Gestore dei servizi energetici (GSE) SpA, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dello Sviluppo Economico, Ministero delle Politiche Agricole e Forestali

Operative part of the judgment

1.

Article 18(7) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, read in conjunction with Commission Implementing Decision 2011/438/EU of 19 July 2011 on the recognition of the ISCC (International Sustainability and Carbon Certification) system for demonstrating compliance with the sustainability criteria under Directives 2009/28/EC and 2009/30/EC of the European Parliament and of the Council, must be interpreted as meaning that it does not preclude national legislation such as that at issue in the main proceedings which imposes requirements on economic operators which, for the certification of the sustainability of bioliquids, are specific, different and more extensive than those imposed by a voluntary sustainability certification system, such as the ISCC system, recognised by that implementing decision, adopted by the European Commission in accordance with Article 18(4) of that directive, in so far as that system was approved only in respect of biofuels and in so far as those conditions concern only bioliquids.

2.

EU law, in particular Article 34 TFEU and Article 18(1) and (3) of Directive 2009/28, must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which imposes a national sustainability verification system for bioliquids under which all the economic operators involved in the supply chain of the product, even when they are intermediaries which do not take physical possession of the batches of bioliquids, are bound by certain requirements relating to certification, communication and the provision of information imposed by that system.

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(1)  OJ C 283, 28.8.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Sąd Okręgowy w Szczecinie — Poland) — Feniks Sp. z o.o. v Azteca Products & Services SL

(Case C-337/17) (1)

((Reference for a preliminary ruling - Area of freedom, security and justice - Regulation (EU) No 1215/2012 - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Special jurisdiction - Article 7(1)(a) - Concept of ‘matters relating to a contract’ - Actio pauliana))

(2018/C 436/12)

Language of the case: Polish

Referring court

Sąd Okręgowy w Szczecinie

Parties to the main proceedings

Applicant: Feniks Sp. z o.o.

Defendant: Azteca Products & Services SL

Operative part of the judgment

In a situation such as that at issue in the main proceedings, an actio pauliana, whereby the person entitled to a debt arising under a contract requests that an act by which his debtor has transferred an asset to a third party and which is allegedly detrimental to his rights be declared ineffective in relation to the creditor, is covered by the rule of international jurisdiction provided for in 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.

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(1)  OJ C 300, 11.9.2017.

Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Proceedings brought by Società Immobiliare Al Bosco Srl

(Case C-379/17) (1)

((Reference for a preliminary ruling - Judicial co-operation in civil matters - Regulation (EC) No 44/2001 - Recognition and enforcement of decisions in civil and commercial matters - Time limit laid down in the law of the Member State addressed for enforcing a preventive attachment order - Applicability of that time limit to a preventive attachment instrument obtained in another Member State and declared enforceable in the Member State in which enforcement is sought))

(2018/C 436/13)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Società Immobiliare Al Bosco Srl

Operative part of the judgment

Article 38 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which provides for the application of a time limit for the enforcement of a preventive attachment order, from being applied in the case of an order which has been adopted in another Member State and is enforceable in the Member State in which enforcement is sought.

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(1)  OJ C 318, 25.9.2017.

Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság — Hungary) — Dooel Uvoz-Izvoz Skopje Link Logistic N&N v Budapest Rendőrfőkapitánya

(Case C-384/17) (1)

((Reference for a preliminary ruling - Approximation of laws - Road transport - Tax provisions - Directive 1999/62/EC - Charging of heavy goods vehicles for the use of certain infrastructures - Toll - Obligation of the Member States to establish effective, proportionate and dissuasive penalties - Flat-rate fine - Principle of proportionality - Direct applicability of the directive))

(2018/C 436/14)

Language of the case: Hungarian

Referring court

Szombathelyi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Dooel Uvoz-Izvoz Skopje Link Logistic N&N

Defendant: Budapest Rendőrfőkapitánya

Operative part of the judgment

The requirement of proportionality in Article 9a of Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures, as amended by Directive 2011/76/EU of the European Parliament and of the Council of 27 September 2011, cannot be regarded as having direct effect.

The national court must, by virtue of its duty to take all appropriate measures, whether general or particular, to ensure the implementation of that provision, interpret national law in conformity with that provision or, if such an interpretation is not possible, disapply any national provision in so far as its application would, in the circumstances of the case, lead to a result contrary to EU law.

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(1)  OJ C 318, 25.9.2017.

Judgment of the Court (Fifth Chamber) of 4 October 2018 — European Commission v French Republic

(Case C-416/17) (1)

((Failure of a Member State to fulfil obligations - Articles 49 and 63 TFEU and the third paragraph of Article 267 TFEU - Series of charges to tax - Difference in treatment according to the Member State of residence of the sub-subsidiary - Reimbursement of the advance payment of tax unduly paid - Requirements relating to the evidence establishing a right to such reimbursement - Capping of the right to reimbursement - Discrimination - National court adjudicating at last instance - Obligation to make a reference for a preliminary ruling))

(2018/C 436/15)

Language of the case: French

Parties

Applicant: European Commission (represented by: J.-F. Brakeland and W. Roels, acting as Agents,)

Defendant: French Republic (represented by: E. de Moustier, A. Alidière and D. Colas, acting as Agents)

Operative part of the judgment

The Court:

1.

Declares that, by refusing to take into account, in order to calculate the reimbursement of the advance payment made by a resident company in respect of the distribution of dividends paid by a non-resident company via a non-resident subsidiary, the tax incurred by that second company on the profits underlying those dividends, even though the national mechanism for the avoidance of economic double taxation allows, in the case of a purely domestic chain of interests, the tax levied on the dividends distributed by a company at every level of that chain of interests to be offset, the French Republic has failed to fulfil its obligations under Articles 49 and 63 TFEU;

2.

Declares that, since the Conseil d’État (Council of State, France) failed to make a reference to the Court of Justice of the European Union, in accordance with the procedure provided for in the third paragraph of Article 267 TFEU, in order to determine whether it was necessary to refuse to take into account, for the purpose of calculating the reimbursement of the advance payment made by a resident company in respect of the distribution of dividends paid by a non-resident company via a non-resident subsidiary, the tax incurred by that second company on the profits underlying those dividends, even though its interpretation of the provisions of EU law in the judgments of 10 December 2012, Rhodia (FR:CESSR:2012:317074.20121210), and of 10 December 2012, Accor (FR:CESSR:2012:317075.20121210), was not so obvious as to leave no scope for doubt, the French Republic failed to fulfil its obligations under the third paragraph of Article 267 TFEU;

3.	Dismisses the action as to the remainder;

4.	Orders the European Commission and the French Republic to bear their own costs.

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(1)  OJ C 293, 4.9.2017.

Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Tribunalul Cluj — Romania) — IQ v JP

(Case C-478/17) (1)

((Reference for a preliminary ruling - Judicial cooperation in civil matters - Jurisdiction in matters of parental responsibility - Regulation (EC) No 2201/2003 - Article 15 - Transfer to a court better placed to hear the case - Scope - Article 19 - Lis pendens))

(2018/C 436/16)

Language of the case: Romanian

Referring court

Tribunalul Cluj

Parties to the main proceedings

Appellant: IQ

Respondent: JP

Operative part of the judgment

Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as not applying in circumstances, such as those in the main proceedings, in which both courts seised have jurisdiction as to the substance of the matter under Articles 12 and 8, respectively, of that regulation.

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(1)  OJ C 347, 16.10.2017.

Judgment of the Court (Seventh Chamber) of 4 October 2018 — European Commission v Kingdom of Spain

(Case C-599/17) (1)

((Failure of a Member State to fulfil obligations - Implementing Directive (EU) 2015/2392 - Reporting to competent authorities of actual or potential infringements of the market abuse regulation - Failure to communicate or failure to transpose within the prescribed period))

(2018/C 436/17)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: J. Rius and T. Scharf, acting as Agents)

Defendant: Kingdom of Spain (represented by: S. Jiménez García, acting as Agent)

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Commission Implementing Directive (EU) 2015/2392 of 17 December 2015 on Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards reporting to competent authorities of actual or potential infringements of that regulation, and by failing to communicate to the European Commission the text of the provisions adopted to transpose that implementing directive, the Kingdom of Spain has failed to fulfil its obligations under that implementing directive, in particular under the first paragraph of Article 13 thereof;

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

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(1)  OJ C 5, 8.1.2018.

Judgment of the Court (Seventh Chamber) of 4 October 2018 — Claire Staelen v European Ombudsman

(Case C-45/18 P) (1)

((Appeal - Application for revision - Conditions for admissibility))

(2018/C 436/18)

Language of the case: French

Parties

Appellant: Claire Staelen (represented by: V. Olona, avocate)

Other party to the proceedings: European Ombudsman (represented by: L. Papadias and A. Antoniadis, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Ms Claire Staelen to pay the costs.

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(1)  OJ C 104, 19.3.2018

Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 30 May 2018 — SC Beny Alex SRL v Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni

(Case C-353/18)

(2018/C 436/19)

Language of the case: Romanian

Referring court

Consiliul Național de Soluționare a Contestațiilor

Parties to the main proceedings

Applicant-Objector: SC Beny Alex SRL

Contracting entity: Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni

By order of 17 October 2018, the Court (Eighth Chamber) declared the request for a preliminary ruling to be manifestly inadmissible.

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 2 August 2018 — NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford

(Case C-507/18)

(2018/C 436/20)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: NH

Respondent: Associazione Avvocatura per i diritti LGBTI — Rete Lenford

Questions referred

1.

Must Article 9 of Directive 2000/78/EC (1) be interpreted as meaning that an association composed of lawyers specialised in the judicial protection of LGBTI persons, the statutes of which state that its objective is to promote LGBTI culture and respect for the rights of LGBTI persons, automatically, as a legal person having a collective interest and as a non-profit association, has standing to bring proceedings, including in respect of a claim for damages, in circumstances of alleged discrimination against LGBTI persons?

2.

On a proper construction of Articles 2 and 3 of Directive 2000/78/EC, does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm nor wish to use the services of such persons, fall within the scope of the anti-discrimination rules laid down in that directive, even if that statement does not relate to any current or planned recruitment procedure by the interviewee?

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(1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

Request for a preliminary ruling from the Commissione Tributaria Provinciale di Palermo (Italy) lodged on 3 August 2018 — Autoservizi Giordano società cooperativa v Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo

(Case C-513/18)

(2018/C 436/21)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Palermo

Parties to the main proceedings

Applicant: Autoservizi Giordano società cooperativa

Defendant: Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo

Questions referred

1.

Article 7 of Directive 2003/96/EC (1) to be interpreted as including within its scope all undertakings and operators, whether public or private, in the sector for the conveyance of passengers by bus and coach, including by way of the hire of buses and coaches with a driver, and as precluding national legislation implementing the directive in so far as it does not treat operators which hire buses and coaches with a driver as operators using commercial gas oil?

2.

Does the discretion which the Member States are allowed, as referred to in Article 7(2) of Directive 2003/96/EC (‘Member States may differentiate between commercial and non-commercial use of gas oil used as propellant, provided that the Community minimum levels are observed and the rate for commercial gas oil used as propellant does not fall below the national level of taxation in force on 1 January 2003’), render the provision which includes, within the definition of commercial gas oil, that used for ‘the carriage of passengers by occasional service’, not immediately effective and unconditional?

3.	Is the content of Article 7 of the directive sufficiently precise and unconditional for individuals to be able to rely on it directly against the authorities of the Member State in question?

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(1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 6 August 2018 — Autorità Garante della Concorrenza e del Mercato v Regione autonoma della Sardegna

(Case C-515/18)

(2018/C 436/22)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Sardegna

Parties to the main proceedings

Applicant: Autorità Garante della Concorrenza e del Mercato

Defendant: Regione autonoma della Sardegna

Questions referred

1.

Must Article 7(2) of Regulation (EC) No 1370/2007 (1) of 23 October 2007 be interpreted as meaning that the competent authority which intends directly to award a contract must take the necessary steps to publish or communicate to all operators potentially interested in operating the service the information necessary to allow such operators to submit a serious and reasonable offer?

2.

Must Article 7(4) of Regulation (EC) No 1370/2007 of 23 October 2007 be interpreted as meaning that, before directly awarding the contract, the competent authority must carry out a comparative assessment of all bids to operate the service which may have been received following publication of the prior information notice under that Article 7(4)?

---

(1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).

Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 August 2018 — TB v Bevándorlási és Menekültügyi Hivatal

(Case C-519/18)

(2018/C 436/23)

Language of the case: Hungarian

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: TB

Defendant: Bevándorlási és Menekültügyi Hivatal

Questions referred

1.

Must Article 10(2) of Council Directive 2003/86/EC (1) on the right to family reunification be interpreted as meaning that, if a Member State, under that article, authorises the entry of a family member other than those referred to in Article 4, only the requirement under Article 10(2) (that the family member must be ‘dependent on the refugee’) can be applied to that family member?

2.

If the first question is answered in the affirmative, does the status of ‘dependent’ person (‘dependency’) as referred to in Article 4(2)(a) of the Directive imply a factual situation in which the various aspects of dependency must all be present, or is it sufficient that any of those aspects is present, depending on the specific circumstances of each case, for there to be dependency? In that context, is it consistent with the requirement established in Article 10(2) (that the family member must be ‘dependent on the refugee’) that a national provision, excluding any individual assessment, takes account of a single factual element, an indicator of dependency (‘[being] objectively unable to provide for [his or her] own needs on account of [his or her] state of health’), as a factor meaning that the requirement in question is satisfied?

3.

In the event that the first question is answered in the negative and that, therefore, a Member State can apply other requirements in addition to that set out in Article 10(2) (that the family member must be ‘dependent on the refugee’), does this mean that the Member State is entitled, if it sees fit, to establish any requirement, including those laid down in Article 4(2) and (3) in relation to other family members, or can the Member State only apply the requirement contained in Article 4(3) of the Directive? In that case, what factual situation is entailed by the requirement ‘objectively unable to provide for their own needs on account of their state of health’ in Article 4(3) of the Directive? Must it be interpreted as meaning that such family members are unable [to provide] for ‘their own needs’ or that ‘they are unable’ to look after ‘themselves’, or, if applicable, in some other way?

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(1)  Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 6 August 2018 — Pegaso Srl Servizi Fiduciari and Others v Poste Tutela SpA

(Case C-521/18)

(2018/C 436/24)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: Pegaso Srl Servizi Fiduciari, Sistemi di Sicurezza Srl, YW

Defendant: Poste Tutela SpA

Questions referred

1.	Should the company Poste Italiane s.p.a., on the basis of characteristics set out above, be classified as a ‘body governed by public law’ within the meaning of Article 3(1)(d) of Legislative Decree No 50 of 2016 and of the relevant EU directives (2014/23/EU (1), 2014/24/EU (2) and 2014/25/EU (3))?

2.

Should that classification be extended to include the wholly owned subsidiary company Poste Tutela s.p.a — whose merger with Poste Italiane s.p.a is already under way — bearing in mind what is stated in recital 46 of Directive 2014/23/EU concerning controlled legal persons? (see also, in this respect, judgment of the Court of Justice of the European Union (Fourth Chamber) of 5 October 2017, Case [C-567/15]: competitive tendering requirement for companies controlled by public authorities; judgment No 6211 of the Council of State, Chamber VI, of 24 November 2011.)

3.

Are those companies, as contracting entities, required to conduct competitive tendering procedures only when awarding contracts in connection with activities carried out in the special sectors, pursuant to Directive 2014/25/EU — such contracting entities having to be deemed bodies governed by public law under the rules laid down in Part II of the Public Procurement Code — whilst, on the other hand, having unfettered freedom and being subject only to private-sector rules for contracts not connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU?

4.

On the other hand, with regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, are those companies, where they satisfy the requirements for being classified as bodies governed by public law, subject to the general Directive 2014/24/EU (and therefore to the rules governing competitive tendering procedures), even when performing primarily entrepreneurial activities under competitive market conditions, having developed from when they were originally established?

5.

In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, may the concept of functionality, in connection with a service which is specifically in the public interest, be said to be inapplicable as regards contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices?

6.

Finally, were the arguments of Poste Italiane s.p.a. to be endorsed, should the fact that a decision to organise a competitive tendering procedure has been taken without there being any obligation to conduct such a procedure — which is not subject to all the guarantees of transparency and equal treatment, as governed by the Public Procurement Code — and the fact that the decision is duly published without any further notice in that regard in the Official Journal of the Italian Republic and the Official Journal of the European Union, be regarded as incompatible with the established principle that the legitimate expectations of tenderers must be protected?

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(1)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(2)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

(3)  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 21 August 2018 — AS v Deutsches Patent- und Markenamt

(Case C-541/18)

(2018/C 436/25)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: AS

Defendant: Deutsches Patent- und Markenamt

Question referred

Does a sign have distinctive character when there are in practice significant and obvious possibilities for it to be used as an indication of origin in respect of goods or services, even if this is not the most likely form of use of the sign? (1)

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(1)  Interpretation of Article 3(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).

Reference for a preliminary ruling from the Upper Tribunal (United Kingdom) made on 20 August 2018 — HM Revenue & Customs v HD

(Case C-544/18)

(2018/C 436/26)

Language of the case: English

Referring court

Upper Tribunal

Parties to the main proceedings

Applicant: HM Revenue & Customs

Defendant: HD

Question referred

Must Article 49 TFEU be interpreted as meaning that such a person, who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth, retains the status of being self-employed, within the meaning of that Article, provided she returns to economic activity or seeking work within a reasonable period after the birth of her child?

Request for a preliminary ruling from the Saarländisches Oberlandesgericht (Germany) lodged on 23 August 2018 — BGL BNP Paribas SA v TeamBank AG Nürnberg

(Case C-548/18)

(2018/C 436/27)

Language of the case: German

Referring court

Saarländisches Oberlandesgericht

Parties to the main proceedings

Appellant: BGL BNP Paribas SA

Respondent: TeamBank AG Nürnberg

Questions referred

1.	Is Article 14 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation) (1) applicable to the third-party effects of multiple assignments of claims?

2.	If the first question is to be answered in the affirmative, to which law are the third-party effects subject in this case?

3.	If the first question is to be answered in the negative, is that provision applicable mutatis mutandis?

4.	If the third question is to be answered in the affirmative, to which law are the third-party effects subject in this case?

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(1)  OJ 2008 L 177, p. 6.

Action brought on 27 August 2018 — European Commission v Ireland

(Case C-550/18)

(2018/C 436/28)

Language of the case: English

Parties

Applicant: European Commission (represented by: L. Flynn, T. Scharf, G. von Rintelen, Agents)

Defendant: Ireland

The applicant claims that the Court should:

—

declare that, in relation to Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ 2015, L 141, p. 73), Ireland has failed to adopt by 26 June 2017 at the latest all provisions transposing that Directive or, in any event, has failed to notify the Commission of any such measures, such that Ireland has failed to fulfil its obligations under Article 67(1) of that Directive;

—	impose a penalty payment on Ireland pursuant to Article 260(3) TFEU in the amount of EUR 17 190,60, with effect from the date of the judgment of the Court, for failure to fulfil its obligation to notify measures transposing Directive (EU) 2015/849;

—	impose the payment of a lump sum on Ireland pursuant to Article 260(3) TFEU in the amount of daily amount of EUR 4 701,20 per day multiplied by the number of days of continued infringement with the minimum lump sum of EUR 1 685 000; and

—	order Ireland to pay the costs.

Pleas in law and main arguments

By virtue of Article 67(1) of Directive (EU) 2015/849 Member States must bring into force the laws, regulations and administrative provisions necessary to comply with that Directive by 26 June 2017 and must immediately communicate the text of those measures to the Commission. Given the on-going lack of transposition of that Directive, the Commission decided to commence proceedings before the Court of Justice.

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 29 August 2018 — Indaco Service Soc. coop. sociale, Coop. sociale il Melograno v Ufficio Territoriale del Governo Taranto

(Case C-552/18)

(2018/C 436/29)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Indaco Service Soc. coop. sociale, Coop. sociale il Melograno

Respondent: Ufficio Territoriale del Governo Taranto

Question referred

Does EU law, more specifically Article 57(4) of Directive 2014/24/EU (1) on public procurement, in conjunction with recital 101 of the directive and the principles of proportionality and equal treatment, preclude national legislation, such as that at issue, which categorises ‘grave professional misconduct’ as a mandatory ground of exclusion of an economic operator and provides that, where the professional misconduct has led to the early termination of a public contract, the operator may be excluded only if the termination is not contested or is confirmed at the conclusion of judicial proceedings?

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(1)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 31 August 2018 — Eurowings GmbH v JJ and KI

(Case C-557/18)

(2018/C 436/30)

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Defendant and appellant: Eurowings GmbH

Applicants and respondents: JJ, KI

Question referred

Is the total flight distance to be used as a basis for calculating the entitlement to compensation under Article 7 of Regulation (EC) No 261/2004 (1) also in the case where the arrival of a passenger at the final destination is delayed by three hours or more solely as a result of a delay/cancellation of the connecting flight, but the feeder flight was on time, the two flights were operated by different air carriers and the booking confirmation was issued by a tour operator which combined the flights for its customer?

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(1)  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 (OJ 2004 L 46, p. 1).

Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 4 September 2018 — TDK-Lambda Germany GmbH v Hauptzollamt Lörrach

(Case C-559/18)

(2018/C 436/31)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: TDK-Lambda Germany GmbH

Defendant: Hauptzollamt Lörrach

Question referred

Is the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) as amended by Implementing Regulation (EU) No 1218/2012 [of the European Parliament and of the Council] of 12 December 2012 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, (2) to be interpreted as meaning that static converters such as those in the present case are to be classified under subheading 8504 4030 only if they are used principally with telecommunication apparatus, automatic data-processing machines and units thereof, or is it sufficient, for the purpose of satisfying the characteristic ‘of a kind used’, if the converters can also, in view of their objective characteristics, be used with telecommunication apparatus, automatic data-processing machines and units thereof, in addition to other applications?

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(1)  OJ 1987 L 256, p. 1.

(2)  OJ 2012 L 351, p. 36.

Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 September 2018 — LH v Bevándorlási és Menekültügyi Hivatal

(Case C-564/18)

(2018/C 436/32)

Language of the case: Hungarian

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: LH

Defendant: Bevándorlási és Menekültügyi Hivatal

Questions referred

1.

May the provisions on inadmissible applications in Article 33 of Directive 2013/32/EU, (1) on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’), be interpreted as not precluding a Member State’s legislation pursuant to which an application is inadmissible in the context of the asylum procedure when the applicant has arrived in that Member State, Hungary, via a country where he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed?

2.

May Article 47 of the Charter of Fundamental Rights of the European Union and Article 31 of the Procedures Directive — having regard also to the provisions of Articles 6 and 13 of the European Convention on Human Rights — be interpreted as meaning that a Member State’s legislation complies with those provisions when it lays down a mandatory time limit of eight days for the administrative-law proceedings before a court in respect of applications declared inadmissible in asylum procedures?

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(1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

Request for a preliminary ruling from the Commissione Tributaria Regionale per la Lombardia (Italy) lodged on 6 September 2018 — Société Générale S.A. v Agenzia delle Entrate — Direzione Regionale Lombardia Ufficio Contenzioso

(Case C-565/18)

(2018/C 436/33)

Language of the case: Italian

Referring court

Commissione Tributaria Regionale per la Lombardia

Parties to the main proceedings

Appellant: Société Générale S.A.

Respondent: Agenzia delle Entrate — Direzione Regionale Lombardia Ufficio Contenzioso

Question referred

Should Articles 18, 56 and 63 TFEU preclude national legislation from charging a tax on financial transactions — irrespective of the State of residence of the financial market participants and the intermediary — which is payable by the counterparties to the transaction and consists of a fixed amount which rises incrementally in ranges of trading values and which varies according to the type of instrument traded and the value of the contract, and which is due by virtue of the fact that the taxable transactions concern the trading of a derivative based on a security issued by a company resident in the State imposing that tax?

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 September 2018 — Caseificio Cirigliana Srl and Others v Ministero delle Politiche agricole, alimentari e forestali and Others

(Case C-569/18)

(2018/C 436/34)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicants at first instance and appellants in the present proceedings: Caseificio Cirigliana Srl, Mail Srl, Sorì Italia Srl

Defendants at first instance and respondents in the present proceedings: Ministero delle Politiche agricole, alimentari e forestali, Presidenza del Consiglio dei Ministri, Ministero della Salute

Question referred

Should Articles 3, 26, 32, 40 and 41 of the TFEU and Articles 1, 3, 4, 5 and 7 of Regulation 1151/2012/EU (1) on the Protected Designation of Origin, which require Member States to guarantee both free competition in respect of goods within the European Union and protection for quality schemes to support less favoured agricultural areas, be interpreted as precluding a restriction being imposed under national law (Article 4 of Decree Law No 91 of 24 June 2014, as converted into law by Law No 116 of 11 August 2014) on the production of PDO Mozzarella di Bufala Campana, which is to be made in factories dedicated exclusively to such production, in which the holding and storage of milk originating from farms not included in the monitoring system for PDO Mozzarella di Bufala Campana is prohibited?

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(1)  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).

Appeal brought on 13 September 2018 by thyssenkrupp Electrical Steel GmbH, thyssenkrupp Electrical Steel Ugo against the order of the General Court (Sixth Chamber) delivered on 2 July 2018 in Case T-577/17: thyssenkrupp Electrical Steel GmbH, thyssenkrupp Electrical Steel Ugo v European Commission

(Case C-572/18 P)

(2018/C 436/35)

Language of the case: English

Parties

Appellants: thyssenkrupp Electrical Steel GmbH, thyssenkrupp Electrical Steel Ugo (represented by: M. Günes, L. C. Heinisch, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The applicants claim that the Court should:

—	set aside the 2 July 2018 order of the General Court in Case T-577/17 — thyssenkrupp Electrical Steel GmbH and thyssenkrupp Electrical Steel Ugo v Commission;

—	give a ruling declaring the action for annulment to be admissible;

—	refer the case back to the General Court for further proceedings going to the substance of the case;

—	order the Commission to bear the costs of the present appeal proceedings.

Pleas in law and main arguments

The appellants challenge the contested order upon the grounds that it is based upon significant errors in law. The appellants raise five arguments concerning errors in law:

—	First, the General Court erred in holding that the UCC (1) and related delegated and implementing regulations do not confer on the Commission the power to adopt decisions that are binding on the national customs authorities in the examination of the economic conditions.

—	Second, the General Court erred in holding that the role of the Commission during the examination of economic conditions is purely procedural in nature.

—	Third, the General Court erred in treating the judgment of 11 May 2006 in Friesland Coberco Dairy Foods (C-11/05) as binding legal precedent for the interpretation of Article 259(5) UCC IA (2).

—	Fourth, the General Court erred in failing to consider the September 2016 administrative arrangement concerning the application of Article 211(6) UCC & Article 259 UCC IA as evidence of the binding nature of the Commission’s conclusions on the economic conditions.

—	Fifth, the General Court erred in failing to consider that the appellants were directly and individually concerned by the Commission’s conclusion on the economic conditions.

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(1)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (UCC) (OJ 2013, L 269, p. 1).

(2)  Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (UCC IA) (OJ 2015, L 343, p. 558).

Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 20 September 2018 — Federación de Trabajadores Independientes de Comercio (FETICO), Federación Estatal de Servicios, Movilidad y Consumo de la Unión General de Trabajadores (FESMC-UGT), Federación de Servicios de Comisiones Obreras (CC.OO.) v Grupo de Empresas DIA, S.A., Twins Alimentación, S.A.

(Case C-588/18)

(2018/C 436/36)

Language of the case: Spanish

Referring court

Audiencia Nacional

Parties to the main proceedings

Applicants: Federación de Trabajadores Independientes de Comercio (FETICO), Federación Estatal de Servicios, Movilidad y Consumo de la Unión General de Trabajadores (FESMC-UGT), Federación de Servicios de Comisiones Obreras (CC.OO.)

Defendants: Grupo de Empresas DIA, S.A., Twins Alimentación, S.A.

Questions referred

1.

Must Article 5 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (1) concerning certain aspects of the organisation of working time be interpreted as precluding national legislation under which the weekly rest period is permitted to overlap with paid leave of absence intended to meet needs other than rest?

2.

Must Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time be interpreted as precluding national legislation under which annual leave is permitted to overlap with paid leave of absence intended to meet needs other than rest, relaxation and leisure?

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(1)  OJ 2003 L 299, p. 9.

Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 21 September 2018 — Darie B.V. v Staatssecretaris van Infrastructuur en Milieu

(Case C-592/18)

(2018/C 436/37)

Language of the case: Dutch

Referring court

College van Beroep voor het Bedrijfsleven

Parties to the main proceedings

Applicant: Darie B.V.

Defendant: Staatssecretaris van Infrastructuur en Milieu

Questions referred

1.

Should the term ‘biocidal products’ in Article 3 of Regulation 528/2012 (1) be interpreted as also referring to substances which consist of one or more types of bacteria, enzymes or other constituents, given that, due to the specific way in which they act, they have no direct effect on the harmful organism for which they are intended, but on the creation or maintenance of the potential habitat of that harmful organism, and what requirements must then, where appropriate, be imposed on such an effect?

2.	In answering question 1, is it relevant whether the situation in which such a product is used is free of the harmful organism, and, if so, what criterion should be used to assess whether the latter is present?

3.	In answering question 1, does the period within which the effect takes place have any relevance?

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(1)  Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products Text with EEA relevance (OJ 2012 L 167, p. 1).

Appeal brought on 21 September 2018 by ABB Ltd, ABB AB against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-445/14: ABB Ltd, ABB AB v European Commission

(Case C-593/18 P)

(2018/C 436/38)

Language of the case: English

Parties

Appellants: ABB Ltd, ABB AB (represented by: I. Vandenborre, advocaat, S. Dionnet, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	annul the Judgment or take such other action as justice may require, and

—	order the Commission to pay the costs

Pleas in law and main arguments

First plea-in-law. The General Court erred in law in concluding that the Commission met its burden of proof in establishing an infringement on the part of the appellant that included all underground power cables and accessories with voltages between 110 kV and 220 kV. The General Court failed to verify whether the Decision (1) identified the infringement with ‘sufficient precision’ and according to the requisite legal standard. The General Court also failed to properly apply the conditions to find sufficient awareness to conclude participation in the infringement on the part of the appellant.

Second plea-in-law. The General Court failed to apply the principle of equal treatment and the presumption of innocence when it confirmed the Commission's finding that the infringement period for the appellant started on 1 April 2000.

Third plea-in-law. The General Court breached its duty to state sufficient reasons in relation to its assessment of the appellant's plea of unequal treatment, erroneously concluding that the appellant had accepted such distinction during the administrative proceeding, and rendering such acceptance as a material consideration in its assessment.

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(1)  Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10).

Appeal brought on 21 September 2018 by Silec Cable SAS, General Cable Corp. against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-438/14: Silec Cable, General Cable v Commission

(Case C-599/18 P)

(2018/C 436/39)

Language of the case: English

Parties

Appellants: Silec Cable SAS, General Cable Corp. (represented by: I. Sinan, Barrister, C. Renner, Rechtsanwältin)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

—	annul the judgment under appeal;

—	set aside Article 1 of the Decision (1) as it pertains to Silec Cable and General Cable;

—	in the alternative, amend Article 2 of the Decision and reduce the amount of the fine imposed on Silec Cable and General Cable in light of the arguments put forward in support of the present appeal;

—	in the alternative, refer the case back to the General Court;

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

Pleas in law and main arguments

With their first plea, the appellants submit that the General Court erred in law in failing to correctly apply the rules relating to evidence and distorted the evidence before it regarding appellant Silec's participation in the alleged infringement.

The General Court incorrectly used the open and public distancing test to reverse the burden of proof for establishing the appellant Silec's alleged infringement. The appellants submit that the General Court also erred in law in exclusively relying on the subjective perception of other participants in the alleged infringement to prove appellant Silec's participation. The appellants further consider that the General Court distorted the evidence before it, and also violated the obligation of professional secrecy (Article 339 TFEU), when finding that the appellant Silec participated in the alleged infringement.

With their second plea, the appellants contend that the General Court violated the principle of equal treatment when refusing to qualify the appellant Silec's involvement in the alleged infringement as that of a ‘fringe player.’

The appellants submit that the General Court unlawfully took account of Safran/Sagem/Sagem Communications' behaviour when assessing the individual involvement of the appellant Silec for the purpose of assessing the amount of the fine. The appellants submit that the General Court itself moreover provides manifestly contradictory reasoning in this regard. The appellants further contend that the General Court compares the wrong factual situations when concluding that the Commission does not discriminate against the appellant Silec when refusing to qualify it as a fringe player.

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(1)  Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10).

Request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 September 2018 — UTEP 2006. SRL v Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási Osztály

(Case C-600/18)

(2018/C 436/40)

Language of the case: Hungarian

Referring court

Szombathelyi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: UTEP 2006. SRL

Defendant: Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási Osztály

Question referred

Should [Article] 92 TFEU be interpreted as precluding an interpretation of Article 12/A of the a kis- és középvállalkozásokról, fejlődésük támogatásáról szóló 2004. [évi] XXXIV. törvény (Law No XXXIV of 2004 on small and medium-sized enterprises and aid for their development; ‘KKV Law’) and the practice of the authorities followed in this respect, according to which Article 12/A of the KKV Law cannot be applied to enterprises (legal entities) that are not registered in Hungary, but in another Member State, but that are otherwise in line with the concept of small and medium-sized enterprise laid down by that Law?

Appeal brought on 21 September 2018 by Star Television Productions Ltd against the judgment of the General Court (Sixth Chamber) delivered on 13 July 2018 in Case T-797/17 Star Television Productions v EUIPO — Marc Dorcel (STAR)

(Case C-602/18 P)

(2018/C 436/41)

Language of the case: French

Parties

Appellant: Star Television Productions Ltd (represented by: D. Farnsworth, Solicitor)

Other parties to the proceedings: European Union Intellectual Property Office, Marc Dorcel

By order of 18 October 2018, the Court of Justice (Sixth Chamber) dismissed the appeal.

Request for a preliminary ruling from the Tribunal d’instance d’Épinal (France) lodged on 1 October 2018 — Cofidis SA v YU, ZT

(Case C-616/18)

(2018/C 436/42)

Language of the case: French

Referring court

Tribunal d’instance d’Épinal

Parties to the main proceedings

Applicant: Cofidis SA

Defendants: YU, ZT

Question referred

Does the protection guaranteed to consumers by Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (1) preclude a national provision which, in an action brought by a seller or supplier against a consumer on the basis of a credit agreement which they have concluded, prohibits the national court, on expiry of a limitation period of five years from the conclusion of the agreement, from finding and penalising, of its own motion or following an objection raised by the consumer, a failure to comply with the provisions relating to the obligation laid down in Article 8 of the directive to verify the creditworthiness of the consumer, a failure to comply with those of Article 10 et seq. of the directive relating to the information which must be included in a clear and concise manner in credit agreements, and, more generally, a failure to comply with all of the consumer-protection provisions set out in that directive?

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(1)  OJ 2008 L 133, p. 66.

Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 October 2018 — AR v Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

(Case C-622/18)

(2018/C 436/43)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: AR

Defendants: Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

Question referred

Must Article 5(1)(b) and Articles 10 and 12 of Directive 2008/95 EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (1) be interpreted as meaning that a proprietor which has never exploited its trade mark and whose rights over it were revoked on expiry of the period of five years following publication of its registration can obtain compensation for injury caused by infringement, claiming an adverse effect on the essential function of its trade mark, caused by use by a third party, before the effective date of the revocation, of a sign similar to that trade mark to designate goods or services identical or similar to those for which that trade mark was registered?

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(1)  OJ 2008 L 299, p. 25.

Appeal brought on 11 October 2018 by Apple Distribution International against the order of the General Court (Eighth Chamber) delivered on 27 July 2018 in Case T-101/17: Apple Distribution International v European Commission

(Case C-633/18 P)

(2018/C 436/44)

Language of the case: English

Parties

Appellant: Apple Distribution International (represented by: S. Schwiddessen, H. Lutz, Rechtsanwälte, N. Niejahr, Rechtsanwältin, A. Patsa, Advocate)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the contested order in its entirety;

—	declare that Apple is directly and individually concerned by the contested decision;

—	refer the case back to the General Court for a ruling on the merits; and

—	order the Commission to pay its own costs and Apple’s costs in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

Apple submits that the contested order is vitiated by errors of law:

—	First, the General Court distorts and fails to consider relevant evidence in assessing whether Apple's competitive position on the market for the provision of home video entertainment services in Germany is substantially affected by the contested decision (1).

—	Second, the General Court misapplies the legal test for assessing individual concern in finding that Apple does not belong to a closed group of undertakings who were identifiable when the contested decision was adopted by reason of criteria specific to the members of that group.

—

Third, the General Court infringes Article 119 of its Rules of Procedure and Article 36 of the Statute of the Court of Justice by not stating reasons for concluding that: (i) the evidence adduced by Apple to assess the impact that the aid might have on its competitive position on the market for the provision of home video entertainment services in Germany is insufficient; and (ii) the existence of individual concern must be established by reference to the point in time when the contested measure is devised, adopted and implemented at national level.

—	Fourth, the General Court infringes Apple's rights of defence by relying on observations the Commission submitted in response to questions by the General Court, which Apple did not have an opportunity to comment upon.

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(1)  Commission Decision (EU) 2016/2042 of 1 September 2016 on the aid scheme SA.38418 — 2014/C (ex 2014/N) which Germany is planning to implement for the funding of film production and distribution (OJ 2016, L 314, p. 63).

Action brought on 11 October 2018 — European Commission v Federal Republic of Germany

(Case C-635/18)

(2018/C 436/45)

Language of the case: German

Parties

Applicant: European Commission (represented by: C. Hermes und A.C. Becker, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The Commission claims that the Court should:

—

declare that, since 2010, the Federal Republic of Germany has breached its obligations under Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50/EC (1) by systematically and continuously exceeding the annual limit value for nitrogen dioxide (NO2) in 26 zones of air quality assessment and management (DEZBXX0001A agglomeration of Berlin, DEZCXX0007A agglomeration of Stuttgart, DEZCXX0043S district of Tübingen, DEZCXX0063S district of Stuttgart, DEZCXX0004A agglomeration of Freiburg, DEZCXX0041S district of Karlsruhe (without agglomerations), DEZCXX0006A agglomeration of Mannheim/Heidelberg, DEZDXX0001A agglomeration of Munich, DEZDXX0003A agglomeration of Nuremberg/Fürth/Erlangen, DEZFXX0005S zone III Central and Northern Hesse, DEZFXX0001A agglomeration I (Rhine-Main), DEZFXX0002A agglomeration II (Kassel), DEZGLX0001A agglomeration of Hamburg, DEZJXX0015A Grevenbroich (Rhineland lignite mining area), DEZJXX0004A Cologne, DEZJXX0009A Düsseldorf, DEZJXX0006A Essen, DEZJXX0017A Duisburg, Oberhausen, Mülheim, DEZJXX0005A Hagen, DEZJXX0008A Dortmund, DEZJXX0002A Wuppertal, DEZJXX0011A Aachen, DEZJXX0016S urban and rural areas in North Rhine-Westphalia, DEZKXX0006S Mainz, DEZKXX0007S Worms/Frankenthal/Ludwigshafen, DEZKXX0004S Koblenz/Neuwied) and the hourly limit value for NO2 in two of those zones (DEZCXX0007A agglomeration of Stuttgart, DEZFXX0001A agglomeration I (Rhine-Main));

—

declare that, since 11 June 2010, the Federal Republic of Germany has failed to fulfil its obligations under the second and third subparagraphs of Article 23(1) of, in conjunction with Section A of Annex XV to, the same directive and in particular the obligation to keep the exceedance period as short as possible in the 26 zones in question;

—	order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

Since 2010, the Federal Republic of Germany has systematically and continuously exceeded the annual and hourly NO2 limit values set out in Annex XI in 26 and 2 areas respectively, and has thereby infringed Article 13(1) of, in conjunction with Annex XI to, Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe.

Contrary to the second and third subparagraphs of Article 23(1) of, in conjunction with Annex XV to, the directive, since 11 June 2010, the Federal Republic of Germany has failed to adopt measures in the air quality plans of the 26 zones in question which would be appropriate to keep the exceedance period as short as possible. The inappropriateness of the measures results from, inter alia, the duration, trend and severity of the exceedances of the limit values and the examination of the air quality plans established for the zones in question.

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(1)  OJ 2008 L 152, p. 1.

Action brought on 17 October 2018 — Hungary v European Parliament

(Case C-650/18)

(2018/C 436/46)

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: M.Z. Fehér, G. Tornyai and Zs. Wagner, acting as Agents)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

—	annul the European Parliament’s resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded;

—	order the European Parliament to pay the costs.

Pleas in law and main arguments

In support of its action, the Hungarian Government relies on four pleas in law:

1.

The Hungarian Government takes the view that, at the vote on the contested resolution, the European Parliament seriously infringed Article 354 TFEU and its own rules of procedure. Out of the votes cast by the Members of the European Parliament, only the votes for and against were counted, excluding abstentions, which is contrary to Article 354 TFEU and Article 178(3) of the Rules of Procedure of the European Parliament. If the abstentions had been counted, the result of the voting would have been different (first plea in law).

2.

Second, the President of the European Parliament did not consult the European Parliament Committee on Constitutional Affairs (AFCO) in relation to the interpretation of the rules of procedure, in spite of the fact that, before the vote, there were justified doubts as to the method of counting the votes. Consequently, it infringed the principle of legal certainty given that, both before and after the vote, uncertainty existed or remained regarding the interpretation of the rules of procedure (second plea in law).

3.

Third, the Hungarian Government submits that, at the vote on the contested resolution, the democratic rights of the Members of the European Parliament, the principle of equal treatment of the Members and the principle of direct democracy were all infringed. The Members could not exercise their rights necessary for carrying out their duties of representing the people in accordance with the principle of democracy, which also includes the possibility of abstention (third plea in law).

4.

Fourth, the Hungarian Government takes the view that the contested resolution infringes the fundamental principle of sincere cooperation between the EU institutions and the Member States in accordance with Article 4(3) TEU, and EU law principles such as the principle of sincere cooperation between EU institutions, the principle of legitimate expectation and the principle of legal certainty, since that resolution contains statements which refer to infringement proceedings which have already been concluded or are still ongoing (fourth plea in law).

Judgment of the General Court of 15 October 2018 — Vereniging Gelijkberechtiging Grondbezitters and Others v Commission

(Case T-79/16) (1)

((State aid - Aid scheme relating to the subsidised acquisition or free granting of nature land - Decision declaring the aid compatible with the internal market at the end of the preliminary examination stage - No formal investigation procedure - Locus standi - Notion of interested party - Admissibility - Infringement of procedural rights - Serious difficulties - Substantial effect on the competitive position of the competing undertakings))

(2018/C 436/47)

Language of the case: Dutch

Parties

Applicants: Vereniging Gelijkberechtiging Grondbezitters (Hoenderloo, Netherlands) and 21 other applicants whose names are listed in Annex I to the judgment (represented by: H. Viaene, D. Gillet and T. Ruys, lawyers)

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

Interveners in support of the defendant: Vereniging tot Behoud van Natuurmonumenten in Nederland (‘s-Graveland, Netherlands) and 12 other interveners whose names are listed in Annex II to the judgment (represented by: P. Kuypers and M. de Wit, lawyers)

Re:

Application based on Article 263 TFEU seeking annulment of Commission Decision C(2015) 5929 final of 2 September 2015 on State Aid SA.27301 (2015/NN) — Netherlands in connection with the subsidised acquisition or free granting of nature land, a summary of which was published in the Official Journal of the European Union (OJ 2006 C 9, p. 1).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision C(2015) 5929 final of 2 September 2015 on State Aid SA.27301 (2015/NN) — Netherlands in connection with the subsidised acquisition or free granting of nature land;

2.	Orders the European Commission to bear its own costs and to pay those incurred by Vereniging Gelijkberechtiging Grondbezitters and the other applicants whose names are listed in Annex I;

3.	Orders Vereniging tot Behoud van Natuurmonumenten in Nederland and the other interveners whose names are listed in Annex II to bear their own costs.

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(1)  OJ C 118, 4.4.2016.

Judgment of the General Court of 18 October 2018 — ArcelorMittal Tubular Products Ostrava and Others v Commission

(Case T-364/16) (1)

((Dumping - Imports of certain seamless pipes and tubes of iron or steel originating in China - Modification of the TARIC additional code for a company - Action for annulment - Challengeable act - Whether directly concerned - Individual concern - Admissibility - Effect of a judgment annulling a decision - Rule of equivalence of form))

(2018/C 436/48)

Language of the case: English

Parties

Applicant: ArcelorMittal Tubular Products Ostrava a.s. (Ostrava-Kunčice, Czech Republic) and the other applicants whose names are annexed to the judgment (represented by: G. Berrisch, lawyer, and B. Byrne, Solicitor)

Defendant: European Commission (represented by: A. Demeneix and J.-F. Brakeland, Agents)

Re:

Application under Article 263 TFEU for the annulment of the Commission Decision of 3 June 2016 to take Hubei Xinyegang Steel Co. Ltd out of the list of companies listed under TARIC additional code A 950 and to list it under TARIC additional code C 129, with respect to all the combined nomenclature (CN) codes referred to in Article 1(1) of Commission Implementing Regulation (EU) 2015/2272 of 7 December 2015 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2015 L 322, p. 21).

Operative part of the judgment

The Court:

1.

Annuls the European Commission Decision of 3 June 2016 to take Hubei Xinyegang Steel Co. Ltd out of the list of companies listed under TARIC additional code A 950 and to list it under TARIC additional code C 129, with respect to all the combined nomenclature (CN) codes referred to in Article 1(1) of Commission Implementing Regulation (EU) 2015/2272 of 7 December 2015 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009;

2.	Orders the Commission to bear its own costs and to pay those incurred by ArcelorMittal Tubular Products Ostrava a.s. and the other applicants whose names are annexed.

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(1)  OJ C 305, 22.8.2016.

Judgment of the General Court of 18 October 2018 — Terna v Commission

(Case T-387/16) (1)

((Financial aid - Projects of common interest in the field of trans-European energy networks - Determination of the final amount of the financial aid - Audit report identifying irregularities - Ineligible costs - Obligation to state reasons - Legitimate expectations - Proportionality))

(2018/C 436/49)

Language of the case: Italian

Parties

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

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

Re:

Application based on Article 263 TFEU seeking annulment of the letters of 6 July 2015, 23 May and 14 June 2016 of the Commission relating to certain costs incurred in the context of two projects in the field of trans-European energy networks (Projects 209-E255/09-ENER/09/TEN-E-S 12.564583 and 2007-E221/07/2007-TREN/07TEN-E-S 07.91403) following the grant of financial aid by the Commission to the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Terna — Rete elettrica nazionale SpA to bear its own costs and to pay the costs incurred by the European Commission.

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(1)  OJ C 326, 5.9.2016.

Judgment of the General Court of 23 October 2018 — McCoy v Committee of the Regions

(Case T-567/16) (1)

((Civil Service - Officials - Social security - Occupational disease - Occupational origin of the disease - Fifth paragraph of Article 78 of the Staff Regulations - Invalidity Committee - Obligation to state reasons - Manifest error of assessment - Liability - Non-material damage))

(2018/C 436/50)

Language of the case: French

Parties

Applicant: Robert McCoy (Brussels, Belgium) (represented by: L. Levi, lawyer)

Defendant: Committee of the Regions (represented by: J. C. Cañoto Argüelles and S. Bachotet, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Application based on Article 270 TFEU and seeking, first, annulment of the decision of the Committee of the Regions of 2 December 2014 confirming the conclusions of the Invalidity Committee of 7 May 2014 by which it rejected the applicant’s request to recognise the occupational origin of the disease from which he is suffering and, secondly, to compensate for the non-material damage of EUR 25 000 which the applicant allegedly suffered.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Bureau of the Committee of the Regions of 2 December 2014 refusing to recognise the occupational origin of the disease resulting in Mr Robert McCoy's invalidity within the meaning of the fifth paragraph of Article 78 of the Staff Regulations.

2.	Orders the Committee of the Regions to pay Mr McCoy the sum of EUR 5 000.

3.	Orders the Committee of the Regions is to pay the costs.

---

(1)  OJ C 7 of 11.1.2016 (case initially registered before the European Union Civil Service Tribunal under Case No F-139/15 and transferred to the General Court of the European Union on 1.9.2016).

Judgment of the General Court of 16 October 2018 — OY v Commission

(Case T-605/16)

((Civil service - Members of the contract staff - Article 3b of the CEOS - Recruitment - Classification in grade - Account taken of professional experience - General Implementing Provisions for Article 79(2) of the CEOS))

(2018/C 436/51)

Language of the case: English

Parties

Applicant: OY (represented by: N. Flandin and S. Rodrigues, lawyers)

Defendant: European Commission (represented by: G. Berscheid, C. Berardis-Kayser and L. Radu Bouyon, acting as Agents)

Re:

Application pursuant to Article 270 TFEU and seeking, first, annulment of the decision of the Commission of 2 October 2015 rejecting the applicant’s request for a review of her classification in function group IV, grade 15, step 1 and, second, in so far as necessary, annulment of the decision of the AECE of 29 March 2016 rejecting the applicant’s complaint.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders OY to pay the costs.

Judgment of the General Court of 18 October 2018 — GEA Group v Commission

(Case T-640/16) (1)

((Competition - Agreements, decisions and concerted practices - Heat stabilisers - Decision establishing an infringement of Article 81 EC - Decision amending the initial decision - Action for annulment - Interest in bringing proceedings - Admissibility - Fines - 10 % ceiling - Group of companies - Equal treatment))

(2018/C 436/52)

Language of the case: English

Parties

Applicant: GEA Group AG (Düsseldorf, Germany) (represented by: I. du Mont and C. Wagner, lawyers)

Defendant: European Commission (represented by: P. Rossi, A. Biolan and V. Bottka, Agents)

Re:

Application pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2016) 3920 final of 29 June 2016 amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat stabilisers).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision C(2016) 3920 final of 29 June 2016 amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat stabilisers);

2.	Orders the European Commission to pay the costs.

---

(1)  OJ C 392, 24.10.2016.

Judgment of the General Court of 15 October 2018 — John Mills v EUIPO — Jerome Alexander Consulting (MINERAL MAGIC)

(Case T-7/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark MINERAL MAGIC - Earlier national word mark MAGIC MINERALS BY JEROME ALEXANDER - Relative ground for refusal - Article 8(3) of Regulation (EC) No 207/2009 (now Article 8(3) of Regulation (EU) 2017/1001)))

(2018/C 436/53)

Language of the case: English

Parties

Applicant: John Mills Ltd (London, United Kingdom) (represented by: S. Malynicz QC)

Defendant: European Union Intellectual Property Office (represented by: A. Lukošiūtė and D. Hanf, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Jerome Alexander Consulting Corp. (Surfside, Florida, United States) (represented by: T. Bamford and C. Rani, Solicitors)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 5 October 2016 (Case R 2087/2015-1), relating to opposition proceedings between Jerome Alexander Consulting and John Mills.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Chamber of the Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 October 2016 (Case R 2087/2015-1);

2.	Orders EUIPO to pay, in addition to its own costs, half of the costs incurred by John Mills Ltd;

3.	Orders Jerome Alexander Consulting Corp. to pay, in addition to its own costs, half of the costs incurred by John Mills.

---

(1)  OJ C 63, 27.2.2017.

Judgment of the General Court of 17 October 2018 — Golden Balls v EUIPO — Les Éditions P. Amaury (GOLDEN BALLS)

(Case T-8/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark GOLDEN BALLS - Earlier EU word mark BALLON D’OR - Relative ground for refusal - Unfair advantage taken of the distinctive character or repute of the earlier mark - Article 8(5) of Regulation (EC) No 40/94 (now Article 8(5) of Regulation (EU) 2017/1001)))

(2018/C 436/54)

Language of the case: French

Parties

Applicant: Golden Balls Ltd (London, United Kingdom) (represented by: M. Edenborough QC, M. Hawkins, Solicitor, and T. Dolde, lawyer)

Defendant: European Union Intellectual Property Office (represented initially by D. Botis, and subsequently by S. Pétrequin and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Les Éditions P. Amaury (Boulogne-Billancourt, France) (represented by: T. de Haan, P. Péters and M. Laborde, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 30 September 2016 (Case R 1962/2015-1), relating to opposition proceedings between Intra-Presse and Ms Inez Samarawira.

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 30 September 2016 (Case R 1962/2015-1) in so far as it upheld the opposition with regard to ‘Slot machines, for use in combination with a screen, scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; photographic, cinematographic and optical apparatus and instruments, recording discs, data processing equipment and computers, computer hardware, mouse-mats, mobile phone accessories, sunglasses’ in Class 9, ‘decorations for Christmas trees’ in Class 28 and ‘theatre production such as shows and theatrical performances, production of musicals, organisation of music events/concerts’ in Class 41;

2.	Dismisses the action as to the remainder;

3.	Orders each party to bear its own costs.

---

(1)  OJ C 63, 27.2.2017.

Judgment of the General Court of 16 October 2018 — Proof IT v EIGE

(Case T-10/17) (1)

((Public service contracts - Tender procedure - Request for services that were split into two lots - Website services - Rejection of the tender submitted by a tenderer - Award criteria - Transparency - Equal treatment - Manifest error of assessment - Non-contractual liability))

(2018/C 436/55)

Language of the case: English

Parties

Applicant: Proof IT SIA (Riga, Latvia) (represented by: J. Jerņeva and D. Pāvila, lawyers)

Defendant: European Institute for Gender Equality (represented by: J. Stuyck, V. Ost and M. Vanderstraeten, lawyers)

Re:

Application, first, under Article 263 TFEU for annulment of EIGE’s decision rejecting the tender submitted by the applicant in the context of Lot 1 relating to invitation to tender EIGE/2016/OPER/03 entitled ‘Framework contract for online services’, and awarding the framework contract to another tenderer, and, second, under Article 268 TFEU seeking compensation for the damage allegedly suffered by the applicant on account of loss of opportunity or loss of the contract itself.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Proof IT SIA to pay the costs.

---

(1)  OJ C 78, 13.3.2017.

Judgment of the General Court of 17 October 2018 — Jahlk v Parliament

(Case T-26/17) (1)

((Privileges and immunities - Member of the European Parliament - Decision to waive parliamentary immunity - Connection with the duties of a Member of the European Parliament - Equal treatment - Legal certainty - Legitimate expectations - Procedure for waiving immunity - Rights of defence - Misuse of powers - Non-contractual liability))

(2018/C 436/56)

Language of the case: French

Parties

Applicant: Jean-François Jalkh (Gretz-Armainvilliers, France) (represented initially by J.-P. Le Moigne, subsequently by M. Ceccaldi, and finally by F. Wagner, lawyers)

Defendant: European Parliament (represented initially by M. Dean and S. Alonso de León, and subsequently by S. Alonso de León, N. Görlitz and S. Seyr, acting as Agents)

Re:

First, application based on Article 263 TFEU seeking annulment of Decision P8_TA(2016)0430 of the Parliament of 22 November 2016 waiving the applicant’s parliamentary immunity and, second, application based on Article 268 TFEU seeking compensation in respect of the harm allegedly suffered by the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Jean-François Jalkh to bear his own costs and to pay those incurred by the European Parliament, including those relating to the application for interim measures.

---

(1)  OJ C 70, 6.3.2017.

Judgment of the General Court of 17 October 2018 — Jalkh v Parliament

(Case T-27/17) (1)

((Privileges and immunities - Member of the European Parliament - Decision to waive parliamentary immunity - Relation with parliamentary duties - Equal treatment - Legal certainty - Legitimate expectation - Procedure for waiving immunity - Rights of the defence - Abuse of power - Non-contractual liability))

(2018/C 436/57)

Language of the case: French

Parties

Applicant: Jean-François Jalkh (Gretz-Armainvilliers, France) (represented by: initially J.-P. Le Moigne, then M. Ceccaldi, and finally F. Wagner, lawyers)

Defendant: Parliament (represented by: initially M. Dean and S. Alonso de León, then S. Alonso de León, N. Gorlitz and S. Syer, acting as Agents)

Re:

First, action brought under Article 263 TFEU seeking the annulment of Decision P8_TA(2016)9429 of the Parliament of 22 November 2016 waiving the applicant’s immunity; and, secondly, action brought under Article 268 TFEU seeking compensation for the harm which the applicant claimed to have suffered.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Jean-François Jalkh to bear his own costs and pay those incurred by the European Parliament, including the costs relating to the application for interim measures.

---

(1)  OJ C 70, 6.3.2017.

Judgment of the General Court of 18 October 2018 — FCA US v EUIPO — Busbridge (VIPER)

(Case T-109/17) (1)

((EU trade mark - Invalidity proceedings - EU word mark VIPER - Earlier national word mark VIPER - Genuine use of the earlier mark - Goods for which the earlier mark has been used - Extent of use of the earlier mark - Article 57(2) and (3) of Regulation (EC) No 207/2009 (now Article 64(2) and (3) of Regulation (EU) 2017/1001)))

(2018/C 436/58)

Language of the case: English

Parties

Applicant: FCA US LLC (City of Auburn Hills, Michigan, United States) (represented by: C. Morcom, QC)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Robert Dennis Busbridge (Hookwood, United Kingdom)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 1 December 2016 (Case R 554/2016-1), relating to invalidity proceedings between R.D. Busbridge and FCA US.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders FCA US LLC to pay the costs.

---

(1)  OJ C 121, 18.4.2017.

Judgment of the General Court of 15 October 2018 — Apple and Pear Australia and Star Fruits Diffusion v EUIPO — Pink Lady America (WILD PINK)

(Case T-164/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark WILD PINK - Earlier EU and national word marks PINK LADY - Earlier EU figurative marks Pink Lady - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)))

(2018/C 436/59)

Language of the case: English

Parties

Applicants: Apple and Pear Australia Ltd (Victoria, Australia) and Star Fruits Diffusion (Le Pontet, France) (represented by: T. de Haan, P. Péters and H. Abraham, lawyers)

Defendant: European Union Intellectual Property Office (represented by: J. Ivanauskas and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Pink Lady America LLC (Yakima, Washington, United States) (represented initially by: R. Manno and S. Travaglio, and subsequently by R. Manno, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 January 2017 (Case R 87/2015-4), relating to opposition proceedings between Apple and Pear Australia and Star Fruits Diffusion, on the one hand, and Pink Lady America, on the other.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 January 2017 (Case R 87/2015-4);

2.	Orders EUIPO to bear its own costs and to pay half the costs incurred by Apple and Pear Australia Ltd and Star Fruits Diffusion, including half the costs necessarily incurred by them for the purposes of the proceedings before the Board of Appeal of EUIPO;

3.	Orders Pink Lady America LLC to bear its own costs and to pay half the costs incurred by Apple and Pear Australia Ltd and Star Fruits Diffusion, including half the costs necessarily incurred by them for the purposes of the proceedings before the Board of Appeal of EUIPO.

---

(1)  OJ C 144, 8.5.2017.

Judgment of the General Court of 16 October 2018 — M & K v EUIPO — Genfoot (KIMIKA)

(Case T-171/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark KIMIKA - Earlier EU word mark KAMIK - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Genuine use - Article 42(2) and (3) of Regulation No 207/2009 (now Article 47(2) and (3) of Regulation 2017/1001)))

(2018/C 436/60)

Language of the case: English

Parties

Applicant: M & K Srl (Prato, Italy) (represented by: initially by F. Caricato, and subsequently by M. Cartella and B. Cartella, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Genfoot, Inc. (Montreal, Quebec, Canada) (represented by: E. Saarmann and P. Baronikians, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 January 2017 (Case R 1206/2016-4), relating to opposition proceedings between Genfoot and M & K.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders M & K Srl to pay the costs.

---

(1)  OJ C 144, 8.5.2017.

Judgment of the General Court of 18 October 2018 — Linak v EUIPO -ChangZhou Kaidi Electrical (Electrically operated lifting column)

(Case T-367/17) (1)

((Community design - Invalidity proceedings - Registered Community design representing an electrically operated lifting column - Earlier Community design - Ground for invalidity - No individual character - Informed user - No different overall impression - Article 6 of Regulation (EC) No 6/2002))

(2018/C 436/61)

Language of the case: English

Parties

Applicant: Linak A/S (Nordborg, Denmark) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

Defendant: European Union Intellectual Property Office (represented initially by: G. Sakalaite-Orlovskiene and A. Folliard-Monguiral, and subsequently by G. Sakalaite-Orlovskiene and J. Ivanauskas, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: ChangZhou Kaidi Electrical Co. Ltd (Changzhou, China)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 21 March 2017 (Case R 1411/2015-3), relating to invalidity proceedings between Linak and ChangZhou Kaidi Electrical.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Linak A/S to pay the costs.

---

(1)  OJ C 249, 31.7.2017.

Judgment of the General Court of 18 October 2018 — Linak v EUIPO — ChangZhou Kaidi Electrical (Electrically operated lifting column)

(Case T-368/17) (1)

((Community design - Invalidity proceedings - Registered Community design representing an electrically operated lifting column - Earlier Community design - Ground for invalidity - No individual character - Informed user - No different overall impression - Article 6 of Regulation (EC) No 6/2002))

(2018/C 436/62)

Language of the case: English

Parties

Applicant: Linak A/S (Nordborg, Denmark) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

Defendant: European Union Intellectual Property Office (represented initially by: G. Sakalaite-Orlovskiene and A. Folliard-Monguiral, and subsequently by G. Sakalaite-Orlovskiene and J. Ivanauskas, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: ChangZhou Kaidi Electrical Co. Ltd (Changzhou, China)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 21 March 2017 (Case R 1412/2015-3), relating to invalidity proceedings between Linak and ChangZhou Kaidi Electrical.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Linak A/S to pay the costs.

---

(1)  OJ C 249, 31.7.2017.

Judgment of the General Court of 15 October 2018 — CompuGroup Medical v EUIPO — Medion (life coins)

(Case T-444/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark life coins - Earlier EU word mark LIFE - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))

(2018/C 436/63)

Language of the case: German

Parties

Applicant: CompuGroup Medical AG (Koblenz, Germany) (represented by: B. Dix, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Medion AG (Essen, Germany) (represented by: G. Hagemeier, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 25 April 2017 (Case R 1569/2016-1) relating to opposition proceedings between Medion and CompuGroup Medical.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders CompuGroup Medical AG to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and Medion AG.

---

(1)  OJ C 283, 28.8.2017.

Judgment of the General Court of 18 October 2018 — Next design+produktion v EUIPO — Nanu-Nana Joachim Hoepp (nuuna)

(Case T-533/17) (1)

((European Union trade mark - Opposition proceedings - Application for EU figurative mark - Earlier EU word marks NANU and NANU-NANA - Relative ground for refusal - Assessment of the likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 [now Article 8(1)(b) of Regulation (EU) 2017/1001] - Complementarity of the goods - Principles of autonomy and independence of the EU trade mark - Principles of compliance with the law and sound administration - Legal certainty))

(2018/C 436/64)

Language of the case: German

Parties

Applicant: Next design+produktion GmbH (Frankfurt-on-Main, Germany) (represented by: M. Hirsch, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Hanne and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Nanu-Nana Joachim Hoepp GmbH & Co. KG (Bremen, Germany) (represented by: T. Boddien, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 24 May 2017 (Case R 1448/2016-1), relating to opposition proceedings between Nanu-Nana Joachim Hoepp and Next design+produktion.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Next design+produktion GmbH to pay the costs.

---

(1)  OJ C 330, 2.10.2017.

Judgment of the General Court of 16 October 2018 — VF International v EUIPO — Virmani (ANOKHI)

(Case T-548/17) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative trade mark ANOKHI - Earlier EU figurative mark kipling - Earlier EU figurative mark representing the silhouette of a monkey - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001 EU) - Damage to reputation - Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(5) of Regulation 2017/1001)))

(2018/C 436/65)

Language of the case: English

Parties

Applicant: VF International Sagl (Stabio, Switzerland) (represented by: T. van Innis, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Ken Virmani (Munich, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 26 May 2017 (Case R 2307/2015-4) relating to opposition proceedings between VF International and Mr Virmani.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 May 2017 (Case R 2307/2015-4);

2.	Orders EUIPO to bear its own costs and to pay those incurred by VF International Sagl.

---

(1)  OJ C 347, 16.10.2017.

Judgment of the General Court of 16 October 2018 — Asics v EUIPO — Van Lieshout Textielagenturen (Representation of four crossing lines)

(Case T-581/17) (1)

((EU trade mark - Opposition proceedings - Application for registration of the EU figurative mark representing four crossed lines - Obligation to state reasons - Article 75 and Article 76(1) of Regulation No 207/2009 (now Article 94 and Article 95(1) of Regulation 2017/1001) - No similarity between the signs - Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001) - Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)))

(2018/C 436/66)

Language of the case: English

Parties

Applicant: Asics Corporation (Kobe, Japan) (represented by: M. Polo Carreño and H. Granado Carpenter, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Van Lieshout Textielagenturen BV (Haaren, Netherlands) (represented by: P. Claassen and B. Woltering, lawyers)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 27 June 2017 (Case R 2129/2016-4), relating to opposition proceedings between Asics Corporation and Van Lieshout Textielagenturen.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Asics Corporation to pay the costs.

---

(1)  OJ C 374, 6.11.2017.

Judgment of the General Court of 16 October 2018 — DNV GL v EUIPO (Sustainablel)

(Case T-644/17) (1)

((European Union trade mark - Application for European Union word mark Sustainablel - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/2001)))

(2018/C 436/67)

Language of the case: English

Parties

Applicant: DNV GL AS (Høvik, Norway) (represented by: J. Albers and N. Köster, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 12 July 2017 (Case R 2/2017-2), relating to an application for registration of the word mark Sustainablel as a European Union trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders DNV GL AS to pay the costs.

---

(1)  OJ C 374, 6.11.2017.

Judgment of the General Court of 23 October 2018 — Mamas and Papas v EUIPO — Wall-Budden (Cot bumpers)

(Case T-672/17) (1)

((Community design - Invalidity proceedings - Registered Community design representing a cot bumper - Examination by the Board of Appeal of its own motion of the facts constituting disclosure - Principle of functional continuity - Insufficient evidence to establish disclosure))

(2018/C 436/68)

Language of the case: English

Parties

Applicant: Mamas and Papas Ltd (Huddersfield, United Kingdom) (represented by: J. Reid, Barrister, and by B. Whitehead, Solicitor)

Defendant: European Union Intellectual Property Office (represented by: V. Ruzek, D. Walicka and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Jane Wall-Budden (Byfleet, United Kingdom)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 25 July 2017 (Case R 208/2016-3), relating to invalidity proceedings between Mamas and Papas and Jane Wall-Budden.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mamas and Papas Ltd to bear the costs.

---

(1)  OJ C 402, 27.11.2017.

Judgment of the General Court of 17 October 2018 — Szabados v EUIPO — Sociedad Española de Neumología y Cirugía Torácica (Separ) (MicroSepar)

(Case T-788/17) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark MicroSepar - Earlier EU figurative mark SeparSolidaria - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))

(2018/C 436/69)

Language of the case: German

Parties

Applicant: Andreas Szabados (Grünwald, Germany) (represented by: S. Wobst, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Hanf and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Sociedad Española de Neumología y Cirugía Torácica (Separ) (Barcelona, Spain)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 21 September 2017 (Case R 2420/2016-1), relating to opposition proceedings between M. Andreas Szabados and Sociedad Española de Neumología y Cirugía Torácica.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Andreas Szabados to pay the costs.

---

(1)  OJ C 32, 29.1.2018.

Judgment of the General Court of 17 October 2018 — Weber-Stephen Products v EUIPO (iGrill)

(Case T-822/17) (1)

((EU trade mark - Application for the EU word mark iGrill - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001)))

(2018/C 436/70)

Language of the case: English

Parties

Applicant: Weber-Stephen Products LLC (Palatine, Illinois, United States) (represented by: R. Niebel and A. Jauch, lawyers)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, Agent)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 27 September 2017 (Case R 579/2017-2), relating to an application for registration of the word sign iGrill as an EU trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Weber-Stephen Products LLC to pay the costs.

---

(1)  OJ C 63, 19.2.2018.

Order of the General Court of 2 October 2018 — Karl Storz v EUIPO (3D)

(Case T-413/17 INTP) (1)

((Procedure - Interpretation of a judgment - EU trade mark - Withdrawal of the application for registration - No need to adjudicate))

(2018/C 436/71)

Language of the case: English

Parties

Applicant: Karl Storz GmbH & Co. KG (Tuttlingen, Germany) (represented by: S. Gruber and N. Siebertz, lawyers)

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

Re:

Application for interpretation of the judgment of 19 June 2018, Karl Storz v EUIPO (3D) (T-413/17, not published, EU:T:2018:356).

Operative part of the order

1.	There is no longer any need to adjudicate on the application for interpretation.

2.	Each party shall bear its own costs.

---

(1)  OJ C 277, 21.8.2017.

Order of the General Court of 4 October 2018 — Makhlouf v Council

(Case T-506/17) (1)

((Action for annulment - Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law))

(2018/C 436/72)

Language of the case: French

Parties

Applicant: Rami Makhlouf (Damascus, Syria) (represented by: E. Ruchat, lawyer)

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

Re:

Action based on Article 263 TFEU and seeking annulment Council Decision (CFSP) 2017/917 of 29 May 2017, amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2017 L 139, p. 62), and its subsequent implementing acts, insofar as they concern the applicant.

Operative part of the order

1.	The action is dismissed.

2.	Rami Makhlouf is ordered to bear his own costs and to pay those incurred by the Council of the European Union.

---

(1)  OJ C 347, 16.10.2017.

Order of the General Court of 3 October 2018 — Pracsis and Conceptexpo Project v Commission and EACEA

(Case T-33/18) (1)

((Action for annulment and for damages - Public service contracts - Administrative appeal before the Commission - Purely confirmatory act - Deadline for bringing an appeal - Act not open to challenge - Inadmissibility))

(2018/C 436/73)

Language of the case: French

Parties

Applicants: Pracsis SPRL (Brussels, Belgium) and Conceptexpo Project (Wavre, Belgium) (represented by: J.-N. Louis, lawyer)

Defendants: European Commission (represented by: D. Martin, A Katsimerou and I. Rubene, acting as Agents), Education, Audiovisual and Culture Executive Agency (EACEA) (initially represented by: H. Monet and A. Kisylyczko, then by: H. Monet and N. Durand, acting as Agents)

Re:

First, application based on Article 263 TFEU seeking annulment of the Commission’s decision of 13 November 2017 dismissing the administrative appeal brought against the decisions of EACEA of 17 July and 11 August 2017 and, ‘in so far as is necessary’, the annulment of those decisions of EACEA and its ‘decision’ to sign a contract with the tenderer ranked in first position, inasmuch as those decisions rank the tender of the applicants’ consortium in second position according to the cascade mechanism in the call for tenders EACEA/2017/01, regarding event organisation services and promotional campaigns in the audiovisual field and, second, application based on Article 268 TFEU seeking compensation for the damage which the applicants allegedly suffered due to those decisions.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	Pracsis SPRL and Conceptexpo Project are ordered to bear their own costs and those incurred by the European Commission and by the Education, Audiovisual and Culture Executive Agency (EACEA).

---

(1)  OJ C 112, 26.3.2018.

Action brought on 19 September 2018 — Hexal/EMA

(Case T-549/18)

(2018/C 436/74)

Language of the case: English

Parties

Applicant: Hexal AG (Holzkirchen, Germany) (represented by: M. Martens, N. Carbonnelle, lawyers and S. Faircliffe, Solicitor)

Defendant: European Medicines Agency (EMA)

Form of order sought

The applicants claim that the Court should:

—	declare that the plea of illegality raised by the applicant against the conclusion of the CHMP that Sanofi’s Teriflunomide has NAS status, as quoted in the Commission decision of 26 August 2013 granting marketing authorization for ‘AUBAGIO® — Teriflunomide’, is admissible and well founded;

—	annul the decision of EMA of 5 July 2018 not to validate the Hexal’s MA application for a generic version of the medicinal product Aubagio®;

—	order the EMA to pay the costs.

Pleas in law and main arguments

The contested decision refuses to validate Hexal’s marketing authorisation application for Teriflunomide Hexal, given that Aubagio®, a previously authorised medicine still benefits from regulatory data protection, according to the Commission implementing decision of 26 August 2013, against which the applicant raises an exception of illegality under Article 277 TFEU. In support of the action, the applicant relies on two pleas in law:

1.

Under a first plea in law against the challenged decision of the European Medicine’s Agency, Hexal submits that, the exception of illegality being well-founded, the statement of reasons of the contested decision is not legally admissible because the EMA erred in fact and law and failed to fulfil its duty to state reasons and to perform a careful and thorough assessment, as provided under Article 296 TFEU;

2.

Under a second plea in law, the legality of the challenged decision is also contested given that the ‘new active substance’ status should have been examined again upon the filing of Hexal’s generic market authorisation application, which was not the case. Thus, the EMA has allegedly failed to perform its duties appropriately, in particular its duty to perform an effective and careful assessment and to state reasons, pursuant to Article 296 TFUE, which in turn renders the contested decision illegal.

Action brought on 21 September 2018 — Bernis and Others v ECB

(Case T-564/18)

(2018/C 436/75)

Language of the case: English

Parties

Applicants: Ernests Bernis (Jurmala, Latvia), Oļegs Fiļs (Jurmala), OF Holding SIA (Riga, Latvia) and Cassandra Holding Company SIA (Jurmala) (represented by: O. Behrends, M. Kirchner and L. Feddern, lawyers)

Defendant: European Central Bank (ECB)

Form of order sought

The applicants claim that the Court should:

—	annul decision ECB-SSM-2018-LVABL-2 WOANCA-2018-0007 of 11 July 2018 withdrawing the banking licence of ABLV Bank, AS;

—	order the defendant to pay all costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging that the ECB incorrectly assumed that the conditions for a licence withdrawal were met.

2.	Second plea in law, alleging that the ECB failed to take into account the discretionary nature of the decision.

3.	Third plea in law, alleging that the ECB violated the principle of proportionality.

4.	Fourth plea in law, alleging that the ECB committed a misuse of power.

5.	Fifth plea in law, alleging that the ECB’s decision was not appropriately reasoned.

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

7.	Seventh plea in law, alleging a violation of the nemo auditur principle.

Action brought on 21 September 2018 — VE v ESMA

(Case T-567/18)

(2018/C 436/76)

Language of the case: English

Parties

Applicant: VE (represented by: N. Flandin and L. Levi, lawyers)

Defendant: European Securities and Markets Authority (ESMA)

Form of order sought

The applicant claim that the Court should:

—	annul the decision of ESMA of 11 June 2018 rejecting the complaint lodged by the applicant challenging the decision of ESMA of 14 November 2017 which terminates the applicant’s employment at ESMA;

—	together with, and in so far as necessary, annul the decision of ESMA of 14 November 2017;

—	order the compensation of the moral prejudice suffered by the applicant;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law:

1.	First plea in law, alleging that there has been no notification to the applicant of the decision to terminate his employment contract in the appropriate notice period, as defined by his contract.

2.	Second plea in law, alleging a breach of the right to be heard.

3.	Third plea in law, alleging a breach of the duty to state reasons, according to Article 41(2) of the Charter of Fundamental Rights of the European Union, providing the obligation of the administration to give reasons for its decisions.

4.	Fourth plea in law, alleging a wrongful legal ground for the decision to reject the applicant’s demands as well as the termination decision, since both are based on the 2016 appraisal report which is vitiated by manifest errors of appreciation.

5.	Fifth plea in law, alleging a breach of the principle of proportionality.

6.	Sixth plea in law, alleging a breach of the duty of care falling on the defendant, with regard to the applicant’s health problems and his general working conditions.

Action brought on 25 September 2018 — W. Kordes’ Söhne Rosenschulen v EUIPO (Kordes’ Rose Monique)

(Case T-569/18)

(2018/C 436/77)

Language in which the application was lodged: German

Parties

Applicant: W. Kordes’ Söhne Rosenschulen GmbH & Co KG (Klein Offenseth-Sparrieshoop, Germany) (represented by: G. Würtenberger, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for EU word mark Kordes’ Rose Monique — Application for registration No 15 856 743

Contested decision: Decision of the First Board of Appeal of EUIPO of 12 July 2018 in Case R 1929/2017-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Pleas in law

—	Infringement of Article 7(1)(m) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 95 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 25 September 2018 — Crédit agricole v ECB

(Case T-576/18)

(2018/C 436/78)

Language of the case: French

Parties

Applicant: Crédit agricole SA (Montrouge, France) (represented by: A. Champsaur and A. Delors, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—	annul, on the basis of Articles 256 and 263 TFEU, Decision ECB-SSM-2018-FRCAG-76 adopted by the ECB on 16 July 2018;

—	order the ECB to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the decision of the European Central Bank (ECB) of 16 July 2018, imposing on the applicant an administrative penalty for continued breach of the common equity requirements provided for in Article 26(3) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1) (‘the contested decision’), is ultra vires. In that regard, the applicant argues as follows: — principally, it claims that the ECB erred in law in its interpretation of Article 26(3) of Regulation (EU) No 575/2013, which does not require establishments to obtain prior authorisation from the ECB in order to classify ordinary shares as Tier 1 capital; — in the alternative, should the Court consider that classification of ordinary shares as Tier 1 capital without prior authorisation from the ECB constitutes a breach of Article 26(3) of Regulation (EU) No 575/2013, the applicant claims not to have committed any intentional or negligent breach in applying that provision and that the contested decision infringes the principle of legal certainty; — in the further alternative, should the Court consider that a breach can be established and the applicant penalised, the applicant claims that, in the light of the lack of seriousness of the alleged breach and the cooperation of the applicant, the contested decision infringes the principle of proportionality.

2.	Second plea in law, alleging infringement by the ECB of the applicant’s fundamental procedural rights in so far as it based the contested decision on complaints against which the applicant was unable to present its objections.

Action brought on 25 September 2018 — Crédit agricole Corporate and Investment Bank v ECB

(Case T-577/18)

(2018/C 436/79)

Language of the case: French

Parties

Applicant: Crédit agricole Corporate and Investment Bank (Montrouge, France) (represented by: A. Champsaur and A. Delors, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—	annul, on the basis of Articles 256 and 263 TFEU, Decision ECB-SSM-2018-FRCAG-76 adopted by the ECB on 16 July 2018;

—	order the ECB to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law which are, in essence, identical to those relied on in Case T-576/18, Crédit agricole v ECB.

Action brought on 25 September 2018 — CA Consumer Finance v ECB

(Case T-578/18)

(2018/C 436/80)

Language of the case: French

Parties

Applicant: CA Consumer Finance (Massy, France) (represented by: A. Champsaur and A. Delors, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—	annul, on the basis of Articles 256 and 263 TFEU, Decision ECB-SSM-2018-FRCAG-76 adopted by the ECB on 16 July 2018;

—	order the ECB to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law which are, in essence, identical to those relied on in Case T-576/18, Crédit agricole v ECB.

Action brought on 27 September 2018 — Ukrselhosprom PCF and Versobank v ECB

(Case T-584/18)

(2018/C 436/81)

Language of the case: English

Parties

Applicants: Ukrselhosprom PCF LLC (Solone, Ukraine) and Versobank AS (Talinn, Estonia) (represented by: O. Behrends, L. Feddern and M. Kirchner, lawyers)

Defendant: European Central Bank

Form of order sought

The applicants claim that the Court should:

—	annul decision ECB/SSM/2018–EE-2 WHD-2017-0012 of 17 July 2018 withdrawing the banking licence of Versobank AS;

—	annul, accordingly, the cost order ECB-SSM-2018-EE-3 of 14 August 2018 regarding the internal administrative review;

—	order the defendant to pay all costs.

Pleas in law and main arguments

In support of the action, the applicants rely on twenty-four pleas in law.

1.	First plea in law, alleging that the ECB lacks the competence for a decision with respect to the liquidation of Versobank AS.

2.	Second plea in law, alleging that the ECB failed to make its own assessment as regards the underlying anti-money laundering (AML)/combating the financing of terrorism (CFT) issues.

3.	Third plea in law, alleging that the ECB failed to investigate and to appraise carefully and impartially all relevant aspects of the case.

4.	Fourth plea in law, alleging illegitimate reliance on an alleged submission of incorrect information with respect to the Latvian activities of Versobank.

5.	Fifth plea in law, alleging failure by the ECB to take into account the positive role of the highly competent and reputable management team.

6.	Sixth plea in law, alleging failure by the ECB to define the relevant regulatory requirements with which Versobank allegedly failed to comply.

7.	Seventh plea in law, alleging failure to take into account that a substantial part of the business did not involve a significant AML-risk.

8.	Eighth plea in law, alleging failure to give sufficient weight to the considerable reduction of customers in higher risk categories.

9.	Ninth plea in law, alleging an erroneous assumption that any further remedial action would not be realistic.

10.	Tenth plea in law, alleging erroneous considerations as regards a potential new management board.

11.	Eleventh plea in law, alleging erroneous considerations as regards a potential suspension of voting rights.

12.	Twelfth plea in law, alleging erroneous reliance on an alleged non-compliance with a precept.

13.	Thirteenth plea in law, alleging erroneous considerations as regards the possibility of a further precept.

14.	Fourteenth plea in law, alleging an illegitimate denial of the opportunity of self-liquidation.

15.	Fifteenth plea in law, alleging illegitimate denial of the opportunity of a sale.

16.	Sixteenth plea in law, alleging violation of the principle of equal treatment and discrimination.

17.	Seventeenth plea in law, alleging violation of the principle of proportionality.

18.	Eighteenth plea in law, alleging breach of the principles of legitimate expectations and legal certainty.

19.	Nineteenth plea in law, alleging violation of Article 19 of and recital 75 in the preamble to Regulation No 1024/2013 (1) and misuse of power.

20.	Twentieth plea in law, alleging violation of right to be heard of Versobank and of the shareholders because of an unduly short comment period.

21.	Twenty-first plea in law, alleging further violations of Versobank’s rights of defence and rights to be heard.

22.	Twenty-second plea in law, alleging failure to provide an adequately reasoned decision.

23.	Twenty-third plea in law, alleging violation of Versobank’s rights of access to the file.

24.	Twenty-fourth plea in law, alleging violation of the shareholders’ rights in connection with the review carried out by the Administrative Board of Review pursuant to Article 24 of Regulation No 1024/2013.

---

(1)  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

Action brought on 27 September 2018 — Şanli v Council

(Case T-585/18)

(2018/C 436/82)

Language of the case: Dutch

Parties

Applicant: Dalokay Şanli (Rotterdam, Netherlands) (represented by: D. Gürses, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—	annul the decision of the Council of 31 July 2018;

—	remove the applicant from the list referred to in Regulation (EC) No 2580/2001, and

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

Pleas in law and main arguments

1.	First plea in law, alleging breach of essential formal requirements and infringement of the Treaties.

2.	Second plea in law, alleging that there has been no evidence submitted in the proceedings proving that the applicant has carried out terrorist act.

3.	Third plea in law, alleging that the applicant was unable to defend himself adequately in the procedure that led to the contested decision.

4.	Fourth plea in law, alleging that the decision is inadequately reasoned.

5.	Fifth plea in law, alleging that the decision was adopted in infringement of the principles of subsidiarity and of proportionality.

6.	Sixth plea in law, alleging that Regulation No 2580/2001 is not applicable given that the PKK is not a terrorist organisation.

7.	Seventh plea in law, alleging that the adopted decision is contrary to the principle of proportionality.

Action brought on 28 September 2018 — Berliner Stadtwerke v EUIPO (berlinGas)

(Case T-595/18)

(2018/C 436/83)

Language in which the application was lodged: German

Parties

Applicant: Berliner Stadtwerke GmbH (Berlin, Germany) (represented by: O. Spieker, A. Schönfleisch and N. Willich, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU figurative mark berlinGas — Application for registration No 15 252 661

Contested decision: Decision of the First Board of Appeal of EUIPO of 20 July 2018 in Case R 2180/2016-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Pleas in law

—	Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 5 October 2018 — Ayuntamiento de Enguera v Commission

(Case T-602/18)

(2018/C 436/84)

Language of the case: Spanish

Parties

Applicant: Ayuntamiento de Enguera (Enguera, Spain) (represented by: J. Palau Navarro, J. Ortiz Ballester and V. Soriano i Piqueras, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	Annul the decision of 26 July 2018 of the Head of Unit, ‘ENV.D.4 — Life Programme’, of Directorate ‘ENV.D Natural Capital’ of the Directorate-General Environment of the European Commission, under the subject matter ‘LIFE 10 ENV/ES/000458 — ECOGLAUGA ÉRGON — Confirmation of recovery order’.

Pleas in law and main arguments

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

1.	First plea in law, alleging infringement of Article 296 TFEU, on account of the failure to state reasons in the contested decision.

2.	Second plea in law, alleging the inaccuracy of the reasons stated, if it is found that there is implicit reasoning.

3.

Third plea in law, alleging infringement of the right to good administration, provided for in Article 41 of the Charter of Fundamental Rights of the European Union, in so far as: — The right of every person to be heard, before any individual measure which would affect him or her adversely is taken, has been disregarded. In the present case, neither were the applicant’s written submissions taken into account in any way, nor was it invited to submit arguments prior to the adoption of the final decision; — The applicant’s requests to access the file in its entirety have been ignored; — Although the applicant has at all times corresponded with the defendant in Spanish, the Commission has issued all of its communications and decisions in English.

4.

Fourth plea in law, alleging infringement of the prohibition of arbitrariness on the part of public authorities, inasmuch as the contested decision fails to apply the appropriate scientific norms or criteria, but instead applies a mere subjective criterion reducing or cancelling, without justification, all financial participation by the European Union in an approved project.

5.

Fifth plea in law, alleging breach of the principle of legitimate expectations, inasmuch as the Commission, in adopting its decision, departed from its previous decisions, in which it fully confirmed its agreement with the activities developed by the applicant, with the result that the applicant was subject to a sudden and incomprehensible decision could not have been anticipated on the basis of the Commission’s previous behaviour.

Action brought on 9 September 2018 — ZE v Parliament

(Case T-603/18)

(2018/C 436/85)

Language of the case: Greek

Parties

Applicant: ZE (represented by: P. Giatagantzidis, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Secretary General of the European Parliament of 25 September 2018 ordering that he be suspended from his duties until 31 October 2018, and any other connected measure.

—	Order the defendant to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging breach of his right to be heard before the contested decision was taken against him;

2.	Second plea in law, alleging that the contested decision was adopted on the basis of information collected by a method which infringes the right to good administration enshrined in Art 41 of the Charter of Fundamental Rights of the European Union;

3.	Third plea in law, alleging infringement of the principle of impartiality by the Secretary General, in so far he ordered the opening of an administrative investigation against the applicant and also adopted the contested decision;

4.	Fourth plea in law, alleging a manifest breach of his right to privacy due to being prohibited from having access to his workplace and to his personal files;

5.	Fifth plea in law, alleging infringement of the presumption of innocence and of the confidential nature of proceedings, having regard to statements made to the press by senior officials of the European Parliament.

Action brought on 9 October 2018 — Essity Hygiene and Health/EUIPO (Representation of a leaf)

(Case T-607/18)

(2018/C 436/86)

Language of the case: Swedish

Parties

Applicant: Essity Hygiene and Health AB (Gothenburg, Sweden) (represented by: U. Wennermark, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for registration of an EU figurative mark of a representation of a leaf — Application for registration No 16 709 305

Contested decision: Decision of the First Board of Appeal of EUIPO of 6 July 2018 in Case R 21962017-1

Form of order sought

The applicant claims principally that the Court should:

1.

annul the contested decision in its entirety, and (a) confirm that the mark applied for has the required distinctiveness as an EU trade mark in respect of all the goods refused in Classes 3 and 16 (b) annul the contested decision as regards the goods in Class 21 refused by the Board of Appeal (c) refer the case back before the Board of Appeal for examination as regards ‘wiping cloths for cleaning; rags for cleaning’;

2.	order EUIPO to pay the applicant’s costs of the action before both the General Court and EUIPO.

In the alternative, the applicant claims that the Court should:

1.	annul the contested decision as regards the goods in Class 21 refused by the Board of Appeal

2.	refer the case back before the Board of Appeal as regards ‘wiping cloths for cleaning; rags for cleaning’

3.	order EUIPO to pay the applicant’s costs before the General Court.

In the further alternative, the applicant claims that the Court should:

1.	annul the contested decision as regards the goods in Class 21 refused by the Board of Appeal

2.	refer the case back before the Board of Appeal as regards ‘wiping cloths for cleaning; rags for cleaning’

3.	order EUIPO to pay that part of the applicant’s costs which the Court considers appropriate.

Plea in law

—	Infringement of Article 7(1)(b) of Regulation (EU) No 2017/1001.

Action brought on 12 October 2018 — ZH/ECHA

(Case T-617/18)

(2018/C 436/87)

Language of the case: English

Parties

Applicant: ZH (represented by: L. Levi and N. Flandin, lawyers)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant claims that the Court should:

—	annul the applicant’s 2016 appraisal report;

—	annul also, in so far as necessary, the decision of ECHA of 2 July 2018, notified to the applicant on 3 July 2018, which rejects the applicant’s complaint against the 2016 appraisal report;

—	order the compensation of the moral prejudice suffered by the applicant;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging a violation of Article 2.2 of the ECHA Decision of 18 June 2015 laying down general provisions for implementing Article 15(2) of the Conditions of employment of other servants of the European Union (‘CEOS’) and implementing the first paragraph of Article 44 of the Staff Regulations of the European Union.

2.

Second plea in law, alleging a violation of the procedural framework to conduct appraisal reports as laid down by the ECHA decision and in particular by Article 7, as well as a violation of Article 43 of the Staff Regulations, applicable by analogy to temporary staff by virtue of article 15 of the CEOS.

3.	Third plea in law, alleging manifest errors of appreciation by the reporting officer, with regard to the negative criticism of the applicant.

4.	Fourth plea in law, alleging a breach of the duty to state reasons.

Action brought on 15 October 2018 — TUIfly v Commission

(Case T-619/18)

(2018/C 436/88)

Language of the case: German

Parties

Applicant: TUIfly GmbH (Langenhagen, Germany) (represented by: L. Giesberts and M. Gayger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the defendant’s Decision C(2018) 5432 final of 3 August 2018 on the applicant’s confirmatory application for access to documents under Regulation (EC) No 1049/2001 — GESTDEM 2018/2506 and order the defendant to grant the applicant access to the documents in the proceedings relating to State aid SA.24221(2011/C) (ex 2011/NN) implemented by Austria for the Klagenfurt airport, Ryanair and other airlines using the airport (OJ 2018 L 107, p. 1);

—	join the present case to the applicant’s case pending before the General Court with case number T-447/18 against the defendant for the purposes of the written and oral procedure;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The claim is based on a single plea in law, alleging infringement of Article 41 of the Charter of Fundamental Rights of the European Union, the principle of sound administration and the applicant’s rights of defence, as the Commission did not grant the applicant access to the investigation documents and failed to place it in a position in which it could properly defend itself.

Order of the General Court of 8 October 2018 — alfavet Tierarzneimittel v EUIPO — Millet Innovation (Epibac)

(Case T-613/13) (1)

(2018/C 436/89)

Language of the case: German

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

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(1)  OJ C 39, 8.2.2014.

Order of the General Court of 3 October 2018 — Spliethoff’s Bevrachtingskantoor v INEA

(Case T-871/16) (1)

(2018/C 436/90)

Language of the case: English

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

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(1)  OJ C 104, 30.4.2017.

Order of the General Court of 11 October 2018 — Cabell v EUIPO — Zorro Productions (ZORRO)

(Case T-96/18) (1)

(2018/C 436/91)

Language of the case: English

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

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(1)  OJ C 134, 16.4.2018.