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

(2019/C 319/01)

Last publication

OJ C 312, 16.9.2019

Past publications

OJ C 305, 9.9.2019

OJ C 295, 2.9.2019

OJ C 288, 26.8.2019

OJ C 280, 19.8.2019

OJ C 270, 12.8.2019

OJ C 263, 5.8.2019

These texts are available on:

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

Judgment of the Court (Second Chamber) of 29 July 2019 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Fashion ID GmbH & Co. KG v Verbraucherzentrale NRW eV

(Case C-40/17) (1)

(Reference for a preliminary ruling - Protection of individuals with regard to the processing of personal data - Directive 95/46/EC - Article 2(d) - Notion of ‘controller’ - Operator of a website who has embedded on that website a social plugin that allows the personal data of a visitor to that website to be transferred to the provider of that plugin - Article 7(f) - Lawfulness of data processing - Taking into account of the interest of the operator of the website or of that of the provider of the social plugin - Articles 2(h) and 7(a) - Consent of the data subject - Article 10 - Informing the data subject - National legislation allowing consumer-protection associations to bring or defend legal proceedings)

(2019/C 319/02)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant: Fashion ID GmbH & Co. KG

Defendant: Verbraucherzentrale NRW eV

Interveners: Facebook Ireland Ltd, Landesbeauftragte für Datenschutz und Informationsfreiheit Nordrhein-Westfalen

Operative part of the judgment

1.

Articles 22 to 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the protection of personal data.

2.

The operator of a website, such as Fashion ID GmbH & Co. KG, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46. That liability is, however, limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means, that is to say, the collection and disclosure by transmission of the data at issue.

3.

In a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is necessary that that operator and that provider each pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them.

4.

Articles 2(h) and 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator only with regard to the operation or set of operations involving the processing of personal data in respect of which that operator determines the purposes and means. In addition, Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform laid down in that provision is incumbent also on that operator, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means.

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(1)  OJ C 112, 10.4.2017.

Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Inter-Environnement Wallonnie ASBL, Bond Beter Leefmilieu Vlaanderen ASBL v Council of Ministers

(Case C-411/17) (1)

(Reference for a preliminary ruling - Environment - Espoo Convention - Aarhus Convention - Conservation of natural habitats and of wild fauna and flora - Directive 92/43/EEC - Article 6(3) - Definition of ‘project’ - Assessment of the effects on the site concerned - Article 6(4) - Meaning of ‘imperative reasons of overriding public interest’ - Conservation of wild birds - Directive 2009/147/EC - Assessment of the effects of certain public and private projects on the environment - Directive 2011/92/EU - Article 1(2)(a) - Definition of ‘project’ - Article 2(1) - Article 4(1) - Environmental impact assessment - Article 2(4) - Exemption from assessment - Phasing out of nuclear energy - National legislation providing, first, for restarting industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the date initially set by the national legislature for deactivating and ceasing production at that power station, and second, for deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station - No environmental impact assessment)

(2019/C 319/03)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Inter-Environnement Wallonnie ASBL, Bond Beter Leefmilieu Vlaanderen ASBL

Defendant: Council of Ministers

Intervener: Electrabel SA

Operative part of the judgment

1.

The first indent of Article 1(2)(a), Article 2(1) and Article 4(1) of Directive 2011/92/EU of the European Parliament and the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that the restarting of industrial production of electricity for a period of almost 10 years at a nuclear power station that had previously been shut down, with the effect of deferring by 10 years the deadline initially set by the national legislature for deactivating and ceasing production at that power station, and deferral, also by 10 years, of the date initially set by the legislature for deactivating and ceasing industrial production of electricity at an active power station, measures which entail work to upgrade the power stations in question such as to alter the physical aspect of the sites, constitute a ‘project’, within the meaning of that directive, and subject to the findings that are for the referring court to make, an environmental impact assessment must, in principle, be carried out with respect to that project prior to the adoption of those measures. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be made subject to such an assessment before the adoption of those measures if its nature and potential impact on the environment are sufficiently identifiable at that stage, a finding which it is for the referring court to make.

2.

Article 2(4) of Directive 2011/92 must be interpreted as meaning that a Member State may exempt a project such as that at issue in the main proceedings from the requirement to conduct an environmental impact assessment in order to ensure the security of its electricity supply only where that Member State can demonstrate that the risk to the security of that supply is reasonably probable and that the project in question is sufficiently urgent to justify not carrying out the assessment, subject to compliance with the obligations in points (a) to (c) of the second subparagraph of Article 2(4) of that directive. However, that possibility granting an exemption is without prejudice to the obligations incumbent on the Member State concerned under Article 7 of that directive.

3.

Article 1(4) of Directive 2011/92 must be interpreted as meaning that national legislation such as that at issue in the main proceedings is not a specific act of national legislation, within the meaning of that provision, that is excluded, by virtue of that provision, from the scope of that directive.

4.

Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that measures such as those at issue in the main proceedings, together with the work of upgrading and of ensuring compliance with current safety standards, constitute a project in respect of which an appropriate assessment of its effects on the protected sites concerned should be conducted. Such an assessment should be conducted in respect of those measures before they are adopted by the legislature. The fact that the implementation of those measures involves subsequent acts, such as the issue, for one of the power stations in question, of a new specific consent for the production of electricity for industrial purposes, is not decisive in that respect. Work that is inextricably linked to those measures must also be subject to such an assessment before the adoption of those measures if its nature and potential impact on the protected sites are sufficiently identifiable at that stage, a finding which it is for the referring court to make.

5.

The first subparagraph of Article 6(4) of Directive 92/43 must be interpreted as meaning that the objective of ensuring security of the electricity supply in a Member State at all times constitutes an imperative reason of overriding public interest, within the meaning of that provision. The second subparagraph of Article 6(4) of that directive must be interpreted as meaning that if a protected site likely to be affected by a project hosts a priority natural habitat type or priority species, a finding which it is for the referring court to make, only a need to nullify a genuine and serious threat of rupture of that Member State’s electricity supply constitutes, in circumstances such as those in the main proceedings, a public security ground, within the meaning of that provision.

6.

EU law must be interpreted as meaning that if domestic law allows it, a national court may, by way of exception, maintain the effects of measures, such as those at issue in the main proceedings, adopted in breach of the obligations laid down by Directive 2011/92 and Directive 92/43, where such maintenance is justified by overriding considerations relating to the need to nullify a genuine and serious threat of rupture of the electricity supply in the Member State concerned, which cannot be remedied by any other means or alternatives, particularly in the context of the internal market. The effects may only be maintained for as long as is strictly necessary to remedy the breach.

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(1)  OJ C 300, 11.9.2017.

Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Funke Medien NRW GmbH v Bundesrepublik Deutschland

(Case C-469/17) (1)

(Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information Society - Harmonisation of certain aspects of copyright and related rights - Article 2(a) - Reproduction right - Article 3(1) - Communication to the public - Article 5(2) and (3) - Exceptions and limitations - Scope - Charter of Fundamental Rights of the European Union)

(2019/C 319/04)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Defendant and appellant: Funke Medien NRW GmbH

Applicant and respondent: Bundesrepublik Deutschland

Operative part of the judgment

1.

Article 2(a) and Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain. Article 5(3)(c), second case, and (d) of Directive 2001/29 must be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations.

2.

Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively.

3.

In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union.

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(1)  OJ C 382, 13.11.2017.

Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Pelham GmbH, Moses Pelham, Martin Haas v Ralf Hütter, Florian Schneider-Esleben

(Case C-476/17) (1)

(Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information Society - Harmonisation of certain aspects of copyright and related rights - Sampling - Article 2(c) - Phonogram producer - Reproduction right - Reproduction ‘in part’ - Article 5(2) and (3) - Exceptions and limitations - Scope - Article 5(3)(d) - Quotations - Directive 2006/115/EC - Article 9(1)(b) - Distribution right - Fundamental rights - Charter of Fundamental Rights of the European Union - Article 13 - Freedom of the arts)

(2019/C 319/05)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellants on a point of law: Pelham GmbH, Moses Pelham, Martin Haas

Respondents in the appeal on a point of law: Ralf Hütter, Florian Schneider-Esleben

Operative part of the judgment

1.

Article 2(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer’s exclusive right under that provision to reproduce and distribute his or her phonogram allows him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear.

2.

Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains sound samples transferred from another phonogram does not constitute a ‘copy’, within the meaning of that provision, of that phonogram, since it does not reproduce all or a substantial part of that phonogram.

3.	A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of Directive 2001/29, to the phonogram producer’s right provided for in Article 2(c) of that directive.

4.	Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, does not extend to a situation in which it is not possible to identify the work concerned by the quotation in question.

5.	Article 2(c) of Directive 2001/29 must be interpreted as constituting a measure of full harmonisation of the corresponding substantive law.

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(1)  OJ C 347, 16.10.2017.

Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Spiegel Online GmbH v Volker Beck

(Case C-516/17) (1)

(Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information Society - Harmonisation of certain aspects of copyright and related rights - Article 5(3) - Exceptions and limitations - Scope - Article 5(3)(c) and (d) - Reporting of current events - Quotations - Use of hyperlinks - Lawfully making available to the public - Charter of Fundamental Rights of the European Union - Article 11 - Freedom of expression and of information)

(2019/C 319/06)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Spiegel Online GmbH

Defendant: Volker Beck

Operative part of the judgment

1.

Article 5(3)(c), second case, and (d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contain.

2.

Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying, beyond the exceptions or limitations provided for in Article 5(2) and (3) of Directive 2001/29, a derogation from the author’s exclusive rights of reproduction and of communication to the public, referred to in Article 2(a) and Article 3(1) of that directive respectively.

3.

In striking the balance which is incumbent on a national court between the exclusive rights of the author referred to in Article 2(a) and in Article 3(1) of Directive 2001/29 on the one hand, and, on the other, the rights of the users of protected subject matter referred to in Article 5(3)(c), second case, and (d) of that directive, the latter of which derogate from the former, a national court must, having regard to all the circumstances of the case before it, rely on an interpretation of those provisions which, whilst consistent with their wording and safeguarding their effectiveness, fully adheres to the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union.

4.

Article 5(3)(c), second case, of Directive 2001/29 must be interpreted as precluding a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events.

5.	Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that the concept of ‘quotations’, referred to in that provision, covers a reference made by means of a hyperlink to a file which can be downloaded independently.

6.

Article 5(3)(d) of Directive 2001/29 must be interpreted as meaning that a work has already been lawfully made available to the public where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.

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(1)  OJ C 392, 20.11.2017.

Judgment of the Court (Grand Chamber) of 29 July 2019 (request for a preliminary ruling from the Pécsi Közigazgatási és Munkaügyi Bíróság — Hungary) — Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal

(Case C-556/17) (1)

(Reference for a preliminary ruling - Common policy on asylum and subsidiary protection - Common procedures for granting international protection - Directive 2013/32/EU - Article 46(3) - Full and ex nunc examination - Article 47 of the Charter of Fundamental Rights of the European Union - Right to an effective remedy - Extent of the powers of the first-instance court or tribunal - No power to vary - Refusal by the competent administrative or quasi-judicial body to comply with a decision of that court or tribunal)

(2019/C 319/07)

Language of the case: Hungarian

Referring court

Pécsi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Alekszij Torubarov

Defendant: Bevándorlási és Menekültügyi Hivatal

Operative part of the judgment

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, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by 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, that applicant must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative or quasi-judicial body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court or tribunal must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

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(1)  OJ C 5, 8.1.2018.

Judgment of the Court (Second Chamber) of 29 July 2019 (request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — Prenatal S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

(Case C-589/17) (1)

(Reference for a preliminary ruling - Import of textile products wrongly declared as originating from Jamaica - Post-clearance recovery of import duties - Application for remission - Regulation (EEC) No 2913/92 - Community Customs Code - Article 220(2)(b) and Article 239 - European Commission’s decision to refuse in a particular case - Validity)

(2019/C 319/08)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties to the main proceedings

Applicant: Prenatal S.A.

Defendant: Tribunal Económico Administrativo Regional de Cataluña (TEARC)

Operative part of the judgment

The consideration of Commission Decision C(2008) 6317 final of 3 November 2008 finding that post-clearance entry in the accounts of import duties is justified and remission of those duties is not justified in a particular case (Case REM 03/07), in the light of Article 220(2)(b) and Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, revealed no factor of such a kind as to affect the validity of that decision.

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(1)  OJ C 22, 22.1.2018.

Judgment of the Court (Fourth Chamber) of 29 July 2019 (request for a preliminary ruling from the Székesfehérvári Törvényszék — Hungary) — Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék

(Case C-620/17) (1)

(Reference for a preliminary ruling - Public procurement - Review procedures - Directive 89/665/EEC - Directive 92/13/EEC - Right to effective judicial protection - Principles of effectiveness and equivalence - Action for review of judicial decisions in breach of EU law - Liability of the Member States in the event of infringement of EU law by national courts or tribunals - Assessment of damage eligible for compensation)

(2019/C 319/09)

Language of the case: Hungarian

Referring court

Székesfehérvári Törvényszék

Parties to the main proceedings

Applicant: Hochtief Solutions AG Magyarországi Fióktelepe

Defendant: Fővárosi Törvényszék

Operative part of the judgment

1.

The liability of a Member State for damage caused by a decision of a national court or tribunal adjudicating at final instance which breaches a rule of EU law is governed by the conditions laid down by the Court, in particular in paragraph 51 of the judgment of 30 September 2003, Köbler (C-224/01, EU:C:2003:513), without excluding the possibility that that State may incur liability under less strict conditions on the basis of national law. That liability is not precluded by the fact that that decision has acquired the force of res judicata. In the context of the enforcement of that liability, it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at final instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. By contrast, EU law precludes a rule of national law which, in such a case, generally excludes the costs incurred by a party as a result of the harmful decision of the national court or tribunal from damage which may be the subject of compensation.

2.

EU law, in particular Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, as well as the principles of equivalence and effectiveness, must be interpreted as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, of a court or tribunal of that Member State which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, if the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final – where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision – that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

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(1)  OJ C 22, 22.1.2018.

Judgment of the Court (Fifth Chamber) of 29 July 2019 — Bayerische Motoren Werke AG v European Commission, Freistaat Sachsen

(Case C-654/17 P) (1)

(Appeal - State aid - Regional investment aid - Aid for a large investment project - Aid partly incompatible with the internal market - Article 107(3) TFEU - Whether the aid is necessary - Article 108(3) TFEU - Regulation (EC) No 800/2008 - Aid exceeding the individual notification threshold - Notification - Scope of the block exemption - Cross-appeal - Whether an intervention before the General Court of the European Union may proceed - Admissibility)

(2019/C 319/10)

Language of the case: German

Parties

Appellant: Bayerische Motoren Werke AG (represented by: M. Rosenthal, G. Drauz and M. Schütte, Rechtsanwälte)

Other parties to the proceedings: European Commission (represented by: F. Erlbacher, A. Bouchagiar and T. Maxian Rusche, Agents), Freistaat Sachsen (represented by: T. Lübbig, Rechtsanwalt)

Operative part of the judgment

The Court:

1.	Dismisses the main appeal and the cross-appeal;

2.	Orders Bayerische Motoren Werke AG to bear its own costs and to pay those incurred by the European Commission in respect of the main appeal;

3.	Orders Freistaat Sachsen to bear its own costs in respect of the main appeal;

4.	Orders the European Commission to bear its own costs and to pay those of Bayerische Motoren Werke AG and of Freistaat Sachsen in respect of the cross-appeal.

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(1)  OJ C 94, 12.3.2018.

Judgment of the Court (Second Chamber) of 29 July 2019 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Istituto nazionale della previdenza sociale (INPS) v Azienda Napoletana Mobilità SpA

(Case C-659/17) (1)

(Reference for a preliminary ruling - State aid - Employment aid - Exemption from social security contributions in connection with training and work experience contracts - Decision 2000/128/EC - Aid granted by Italy to promote employment - Aid incompatible in part with the internal market - Applicability of Decision 2000/128/EC to an undertaking exclusively providing local public transport services which were directly awarded to it by a municipality - Article 107(1) TFEU - Concept of ‘distortion of competition’ - Concept of ‘effect on trade’ between Member States)

(2019/C 319/11)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Istituto nazionale della previdenza sociale (INPS)

Respondent: Azienda Napoletana Mobilità SpA

Operative part of the judgment

Subject to verifications which are to be made by the referring court, Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment must be interpreted as applying to an undertaking, such as that in the main proceedings, which, on the basis of a direct and exclusive award by a municipality, provided local public transport services and benefited from reductions in social security contributions under national legislation which was declared by that decision to be incompatible, in part, with the prohibition laid down in Article 107(1) TFEU.

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(1)  OJ C 52, 12.2.2018.

Judgment of the Court (First Chamber) of 29 July 2019 (request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht — Netherlands) — Sumanan Vethanayagam, Sobitha Sumanan and Kamalaranee Vethanayagam v Minister van Buitenlandse Zaken

(Case C-680/17) (1)

(Reference for a preliminary ruling - Area of freedom, security and justice - Community code on visas - Regulation (EC) No 810/2009 - Article 5 - Member State competent for examining and deciding on a visa application - Article 8 - Representation arrangement - Article 32(3) - Appeal against a decision refusing a visa - Member State competent to decide on the appeal if there is a representation arrangement - Persons entitled to bring an appeal)

(2019/C 319/12)

Language of the case: Dutch

Referring court

Rechtbank Den Haag, zittingsplaats Utrecht

Parties to the main proceedings

Applicants: Sumanan Vethanayagam, Sobitha Sumanan and Kamalaranee Vethanayagam

Defendant: Minister van Buitenlandse Zaken

Operative part of the judgment

1.

Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, must be interpreted as not allowing the sponsor to bring an appeal in his own name against a decision refusing a visa.

2.

Article 8(4)(d) and Article 32(3) of Regulation No 810/2009, as amended by Regulation No 610/2013, must be interpreted as meaning that, when there is a bilateral representation arrangement providing that the consular authorities of the representing Member State are entitled to take decisions refusing visas, it is for the competent authorities of that Member State to decide on appeals brought against a decision refusing a visa.

3.

A combined interpretation of Article 8(4)(d) and Article 32(3) of Regulation No 810/2009, as amended by Regulation No 610/2013, according to which an appeal against a decision refusing a visa must be conducted against the representing State, is compatible with the fundamental right to effective judicial protection.

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(1)  OJ C 63, 19.2.2018.

Judgment of the Court (First Chamber) of 29 July 2019 (request for a preliminary ruling from the Tribunale di Bari — Italy) — Criminal proceedings against Massimo Gambino, Shpetim Hyka

(Case C-38/18) (1)

(Reference for a preliminary ruling - Judicial cooperation in criminal matters - Directive 2012/29/EU - Minimum standards on the rights, support and protection of victims of crime - Articles 16 and 18 - Victim testimony before a criminal court of first instance - Change in the composition of the bench - Requirement for a victim to repeat his oral evidence at the request of one of the parties to the proceedings - Charter of Fundamental Rights of the European Union - Articles 47 and 48 - Right to a fair trial and rights of the defence - Principle of immediacy - Scope - Victim’s right to protection during criminal proceedings)

(2019/C 319/13)

Language of the case: Italian

Referring court

Tribunale di Bari

Parties in the main criminal proceedings

Massimo Gambino, Shpetim Hyka

Interveners: Procura della Repubblica presso il Tribunale di Bari, Ernesto Lappostato, Banca Carige SpA — Cassa di Risparmio di Genova e Imperia

Operative part of the judgment

Articles 16 and 18 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA must be interpreted as not precluding national legislation under which, where the victim of a crime has already given testimony before the bench of a criminal court of first instance and the composition of that bench is changed subsequently, the testimony of that victim must, in principle, be given before that bench in its new composition where one of the parties to the proceedings refuses to allow such a bench to rely on the written record of that victim’s first testimony.

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(1)  OJ C 142, 23.4.2018.

Judgment of the Court (Tenth Chamber) of 29 July 2019 — Red Bull GmbH v European Union Intellectual Property Office (EUIPO), Marques, Optimum Mark sp. z o.o.

(Case C-124/18 P) (1)

(Appeal - EU trade mark - Regulation (EC) No 207/2009 - Article 4 and Article 7(1)(a) - Absolute ground for refusal - Invalidity proceedings - Combination of two colours per se - No systematic arrangement associating the colours in a predetermined and uniform way)

(2019/C 319/14)

Language of the case: English

Parties

Appellant: Red Bull GmbH (represented by: A. Renck, Rechtsanwalt, and S. Petivlasova, abogada)

Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: A. Folliard-Monguiral and D. Botis, acting as Agents), Marques (represented by: R. Mallinson, Solicitor, and T. Müller, Rechtsanwalt), Optimum Mark sp. z o.o. (represented by: R. Skubisz, J. Dudzik and M. Mazurek, adwokaci, and E. Jaroszyńska-Kozłowska, advocate)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Red Bull GmbH to pay the costs.

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(1)  OJ C 200, 11.6.2018.

Judgment of the Court (Fourth Chamber) of 29 July 2019 — European Commission v Republic of Austria

(Case C-209/18) (1)

(Failure of a Member State to fulfil obligations - Infringement of Directive 2006/123/EC and Articles 49 and 56 TFEU - Restrictions and requirements relating to the location of the registered office, legal form, shareholding and multidisciplinary activities of partnerships and companies of civil engineers, patent agents and veterinary surgeons)

(2019/C 319/15)

Language of the case: German

Parties

Applicant: European Commission (represented by: G. Braun and H. Tserepa-Lacombe, Agents)

Defendant: Republic of Austria (represented by: G. Hesse, Agent)

Intervener in support of the defendant: Federal Republic of Germany (represented initially by T. Henze and D. Klebs and subsequently by D. Klebs, Agents)

Operative part of the judgment

The Court:

1.

Declares that, by maintaining the requirements relating to the location of the seat for partnerships and companies of civil engineers and patent agents, the requirements relating to legal form and shareholding for partnerships and companies of civil engineers, patent agents and veterinary surgeons, and the restriction of multidisciplinary activities for partnerships and companies of civil engineers and patent agents, the Republic of Austria has failed to fulfil its obligations under Article 14(1), Article 15(1), (2)(b) and (c), and (3), and Article 25 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market;

2.	Orders the Republic of Austria to bear its own costs and to pay those incurred by the European Commission;

3.	Orders the Federal Republic of Germany to bear its own costs.

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(1)  OJ C 190, 4.6.2018.

Judgment of the Court (Eighth Chamber) of 29 July 2019 (request for a preliminary ruling from the Tribunalul Bacău — Romania) — Radu Lucian Rusu and Oana Maria Rusu v SC Blue Air — Airline Management Solutions Srl

(Case C-354/18) (1)

(Reference for a preliminary ruling - Regulation (EC) No 261/2004 - Air transport - Denied boarding - Definition of ‘compensation’ and ‘further compensation’ - Type of damage for which compensation is available - Material or non-material damage - Deduction - Further compensation - Assistance - Information provided to passengers)

(2019/C 319/16)

Language of the case: Romanian

Referring court

Tribunalul Bacău

Parties to the main proceedings

Applicants: Radu Lucian Rusu and Oana Maria Rusu

Defendant: SC Blue Air — Airline Management Solutions Srl

Operative part of the judgment

1.

In the first place, Article 7(1)(b) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, must be interpreted as meaning that the sum referred to in that provision is not intended to compensate for damage such as loss of salary, in the second place, that damage may be the subject of the further compensation provided for in Article 12(1) of Regulation No 261/2004, and in the third place, it is for the referring court to determine and assess the various constituent elements of that damage and the extent of the compensation for that damage on the relevant legal basis.

2.

Regulation No 261/2004, in particular the second sentence of Article 12(1) thereof, must be interpreted as allowing the competent national court to deduct the compensation awarded under that regulation from the further compensation, but does not oblige that court to do so, since that regulation does not impose conditions upon the competent national court on the basis of which it could carry out that deduction.

3.

Article 4(3) of Regulation No 261/2004, read in conjunction with Article 8(1) of that regulation, must be interpreted as requiring the operating air carrier to provide the passengers concerned with comprehensive information regarding all the options set out in the latter provision; the passengers in question have no obligation to make an active contribution to gathering the necessary information.

4.	Article 8(1)(b) of Regulation No 261/2004 must be interpreted as meaning that, for the purposes of that provision, the burden of proving that the re-routing was carried out at the earliest opportunity rests with the operating air carrier.

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(1)  OJ C 294, 20.8.2018.

Judgment of the Court (Eighth Chamber) of 29 July 2019 — European Medicines Agency v Shire Pharmaceuticals Ireland Ltd, European Commission

(Case C-359/18 P) (1)

(Appeal - Regulation (EC) No 141/2000 - Orphan medicinal products - Article 5 - Application for designation of a medicinal product as an ‘orphan medicinal product’ - Validation - Existence of a prior marketing authorisation (MA) for the same medicinal product)

(2019/C 319/17)

Language of the case: English

Parties

Appellant: European Medicines Agency (represented by: initially by S. Marino, S. Drosos, T. Jabłoński and A. Spina, Agents, and subsequently by S. Marino, S. Drosos and T. Jabłoński, Agents)

Other parties to the proceedings: Shire Pharmaceuticals Ireland Ltd (represented by: G. Castle, Solicitor, D. Anderson QC and M. Birdling, Barrister and by S. Cowlishaw, Solicitor), European Commission (represented by: K. Petersen and A. Sipos, Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Medicines Agency (EMA) to bear its own costs and to pay the costs incurred by Shire Pharmaceuticals Ireland Ltd;

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

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(1)  OJ C 294, 20.8.2018

Judgment of the Court (Tenth Chamber) of 29 July 2019 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt A v B

(Case C-388/18) (1)

(Reference for a preliminary ruling - Taxation - Harmonisation of fiscal legislation - Directive 2006/112/EC - Common system of value added tax (VAT) - Point 1 of the first sentence of Article 288 and Article 315 - Special scheme for small undertakings - Special arrangements for taxable dealers - Taxable dealer falling under the margin scheme - Annual turnover determining whether the special scheme for small undertakings is applicable - Margin or amounts received)

(2019/C 319/18)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Finanzamt A

Respondent: B

Operative part of the judgment

Point 1 of the first sentence of Article 288 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation or a national administrative practice under which the turnover used as a reference to determine whether the special scheme for small undertakings is applicable to a taxable person falling under the special margin scheme envisaged for taxable dealers is calculated, in accordance with Article 315 of that directive, using only the profit margin made. That turnover must be established on the basis of all amounts, exclusive of value added tax, received or to be received by that taxable dealer, regardless of how those amounts will actually be taxed.

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(1)  OJ C 328, 17.9.2018.

Judgment of the Court (Tenth Chamber) of 29 July 2019 — Shanxi Taigang Stainless Steel Co. Ltd v European Commission, Eurofer, Association européenne de l’acier, ASBL

(Case C-436/18 P) (1)

(Appeal - Dumping - Imposition of a definitive anti-dumping duty on certain products originating in China - Implementing Regulation (EU) 2015/1429 - Regulation (EC) No 1225/2009 - Article 2(7)(a) - Normal value - Determination on the basis of the price in a market economy third country - Selection of the appropriate third country - Market economy third country which is subject to the same investigation - Adjustments)

(2019/C 319/19)

Language of the case: English

Parties

Appellant: Shanxi Taigang Stainless Steel Co. Ltd (represented by: E. Vermulst and J. Cornelis, advocaten)

Other parties to the proceedings: European Commission (represented by: J.-F. Brakeland and A. Demeneix, acting as Agents), Eurofer, Association européenne de l’acier, ASBL (represented by: J. Killick, Barrister, and G. Forwood and C. Van Haute, avocates)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Shanxi Taigang Stainless Steel Co. Ltd to pay the costs.

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(1)  OJ C 341, 24.9.2018.

Judgment of the Court (Sixth Chamber) of 29 July 2019 (request for a preliminary ruling from the Győri Ítélőtábla — Hungary) — Tibor-Trans Fuvarozó és Kereskedelmi Kft. v DAF Trucks NV

(Case C-451/18) (1)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 1215/2012 - Special jurisdiction - Article 7(2) - Tort, delict or quasi-delict - Place where the harmful event occurred - Claim for compensation for damage caused by a cartel found to be contrary to Article 101 TFEU and Article 53 of the Agreement on the European Economic Area)

(2019/C 319/20)

Language of the case: Hungarian

Referring court

Győri Ítélőtábla

Parties to the main proceedings

Applicant: Tibor-Trans Fuvarozó és Kereskedelmi Kft.

Defendant: DAF Trucks NV

Operative part of the judgment

Article 7(2) 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, must be interpreted as meaning that, in an action for compensation for damage caused by an infringement of Article 101 TFEU, consisting, inter alia, of collusive arrangements on pricing and gross price increases for trucks, ‘the place where the harmful event occurred’ covers, in a situation such as that at issue in the main proceedings, the place where the market which is affected by that infringement is located, that is to say, the place where the market prices were distorted and in which the victim claims to have suffered that damage, even where the action is directed against a participant in the cartel at issue with whom that victim had not established contractual relations.

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(1)  OJ C 319, 10.9.2018.

Judgment of the Court (Sixth Chamber) of 29 July 2019 — European Commission v Italian Republic

(Case C-481/18) (1)

(Failure of a Member State to fulfil obligations - Directive 2012/39/EU - Technical requirements for the testing of human tissues and cells - Failure to communicate or failure to transpose within the prescribed period)

(2019/C 319/21)

Language of the case: Italian

Parties

Applicant: European Commission (represented by A. Szmytkowska and C. Sjödin, Agents)

Defendant: Italian Republic (represented by G. Palmieri, Agent, and by C. Colelli, avvocato dello Stato)

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 Directive 2012/39/EU of 26 November 2012 amending Directive 2006/17/EC as regards certain technical requirements for the testing of human tissues and cells (OJ 2012 L 327, p. 24), and by failing to notify to the European Commission the provisions adopted to transpose Directive 2012/39, the Italian Republic has failed to fulfil its obligations under Article 2(1) of that directive;

2.	Orders the Italian Republic to pay the costs.

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(1)  OJ C 328, 17.9.2018.

Order of the Court (Eighth Chamber) of 15 July 2019 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — Galeria Parque Nascente-Exploração de Espaços Comerciais SA v Autoridade Tributária e Aduaneira

(Case C-438/18) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States - Directive 90/434/EEC - Articles 4 and 11 - Directive 2009/133/EC - Articles 4 and 15 - ‘Reverse merger’ - Tax system leading to a situation whereby, in the event of a ‘reverse merger’, costs which are incurred by the parent company relating to a loan taken out by that parent company for the purchase of shares of the subsidiary acquiring the parent company and which are deductible for that parent company are considered non-deductible for that subsidiary)

(2019/C 319/22)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Galeria Parque Nascente-Exploração de Espaços Comerciais SA

Defendant: Autoridade Tributária e Aduaneira

Operative part of the judgment

Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States, as amended by Council Directive 2006/98/EC of 20 November 2006, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which leads to a situation whereby costs which were considered tax deductible for the acquired company before the merger of the companies concerned, and which would have been tax deductible if that merger had not taken place, are not considered tax deductible for the acquiring company.

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(1)  OJ C 319, 10.9.2018.

Order of the Court (Eighth Chamber) of 10 July 2019 (request for a preliminary ruling from the Tribunalul Ilfov — Romania) — EP v FO

(Case C-530/18) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Judicial cooperation in civil matters - Jurisdiction in matters of parental responsibility - Regulation (EC) No 2201/2003 - Article 15 - Transfer of a case to a court of another Member State better placed to hear it - Exception to the general rule that the court for the place where the child is habitually resident has jurisdiction - Particular connection with another Member State - Evidence making it possible to determine the better placed court - Existence of different rules of law - Best interests of the child)

(2019/C 319/23)

Language of the case: Romanian

Referring court

Tribunalul Ilfov

Parties to the main proceedings

Applicant at first instance: EP

Respondent at first instance: FO

Operative part of the order

1.

Article 15(1) 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 to the effect that it establishes an exception to the general rule of jurisdiction laid down in Article 8 of Regulation No 2201/2003, according to which the jurisdiction of the courts of the Member States is determined by the place where the child is habitually resident at the time the courts are seised.

2.

Article 15 of Regulation No 2201/2003 must be interpreted to the effect that, if one or more of the five alternative criteria which it lays down exhaustively in order to assess whether the child has a particular connection to another Member State, other than the State of her habitual residence, are satisfied, the court having jurisdiction by virtue of Article 8(1) of that regulation has the option to transfer the case to a court which it considers to be better placed to deal with the dispute before it, but is not obliged to do so. If the court having jurisdiction reaches the conclusion that the relations which link the child concerned to the Member State of her habitual residence are stronger than those which link her to another Member State, that conclusion is sufficient to rule out the application of Article 15 of that regulation.

3.

Article 15 of Regulation No 2201/2003 must be interpreted to the effect that the existence of differences between the rules of law, in particular the rules of procedure, of a Member State having jurisdiction as to the substance of a case and those of another Member State with which the child concerned has a particular connection, such as the examination of cases in camera by specialist judges, does not constitute, in a general and abstract way, a relevant criterion, in light of the best interests of the child, when assessing whether the courts of that Member State are better placed to hear that case. The court having jurisdiction may take those differences into consideration only if they are such as to provide genuine and specific added value with respect to the decision to be taken in relation to that child, as compared with the possibility of the case remaining before that court.

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(1)  OJ C 399, 5.11.2018.

Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 24 de Madrid (Spain) lodged on 11 February 2019 — Sindicato Único de Sanidad e Higiene de la Comunidad de Madrid and Sindicato de Sanidad de Madrid de la CGT v Consejería de Sanidad de la Comunidad de Madrid

(Case C-103/19)

(2019/C 319/24)

Language of the case: Spanish

Referring court

Juzgado de lo Contencioso-Administrativo No 24 de Madrid

Parties to the main proceedings

Applicants: Sindicato Único de Sanidad e Higiene de la Comunidad de Madrid and Sindicato de Sanidad de Madrid de la CGT

Defendant: Consejería de Sanidad de la Comunidad de Madrid

Questions referred

1.

Does the legislation that is the subject of this action, namely Order 406/2017 of 8 May 2017 of the Minister for Health, comply with the Framework Agreement annexed to Directive 1999/70/EC, (1) specifically Clause 5 [of the Framework Agreement] and points 6 and 8 of the [general considerations contained in that agreement], and with the parameters established by the judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, Pérez López, C-16/15, EU:C:2016:679, in a situation where – following successive renewals of fixed-term appointments in the public healthcare sector which were based on provisions of national law that permitted appointments to be renewed in order to cover and safeguard services of a temporary, interim or extraordinary nature, but which were actually being used to cover permanent ongoing needs – the Order changes the status of 9 126 posts, with occasional (eventual) temporary staff becoming interim (interino) temporary staff, and the result of the procedure is the inclusion of the posts in question in public sector vacancies lists and the termination of the temporary worker’s employment relationship?

2.

Is the interpretation of this court correct when it takes the view that the way (as described here) in which Order 406/2017 of 8 May 2017 of the Minister for Health implements Article 9(3) of the Framework Regulations does not comply either with Clause 5 of the Framework Agreement and points 6 and 8 of the [general considerations contained in that agreement], or with the parameters established by the judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, Pérez López, C-16/15, EU:C:2016:679, since, in a situation in which there has been abuse arising from the use of temporary contracts to cover permanent needs and in which a structural defect has been acknowledged, the said Order allows that abuse to go permanently unpunished, which is in breach of the objectives of the directive and perpetuates the disadvantaged position of temporary regulated employees?

3.

Is this court’s interpretation, as set out in this order, of Clause 5 of the Framework Agreement and points 6 and 8 of the [general considerations contained in that agreement], and of the parameters established by the judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, Pérez López, C-16/15, EU:C:2016:679, correct in concluding that Order 406/2017 of 8 May 2017 of the Minister for Health does not comply with the first paragraph of Article 2 of Directive 1999/70, inasmuch as the Spanish State is not ensuring that the outcomes established in the directive are achieved because, following the abuse arising from the use of fixed-term contracts, it fails to offer workers effective and equivalent guarantees of protection so as to punish that abuse appropriately and remove the effects of the breach of EU law, and it allows the abuse to go unpunished, thus permitting a situation in which … Directive [1999/70] is not applied in the health sector?

4.

Given that, under the national legislation, there is in the public sector an absolute prohibition on converting a succession of fixed-term contracts into an employment contract of indefinite duration, or making the individual who has suffered abuse a permanent employee, and given that the national legislation contains no other effective measure to prevent and, where applicable, punish the misuse of successive fixed-term employment contracts, is this court correct in taking the view that Order 406/2017 of 8 May 2017 of the Minister for Health (which belatedly implements Article 9(3) of the Framework [Regulations]) and the subsequent competitive selection procedure cannot be considered to provide an effective means of preventing and, where applicable, punishing the misuse of successive fixed-term employment contracts, given that, as this court believes and reiterates, the application and fulfilment of the objectives established in … Directive [1999/70] are thus avoided?

5.

Order 406/2017 of 8 May 2017 of the Minister for Health applies only to occasional (eventual) staff, and, so far as other temporary staff employed for excessively long periods of time are concerned, the Authority is failing to examine the reasons for this within the timescales established in the national legislation in order to assess, as appropriate, whether a structural post should be created within the workforce. As a result, in practice, employees are left in a permanent state of insecurity, the abuse is left unpunished, and workers are not offered effective or equivalent guarantees of protection so as to punish the abuse appropriately and remove the effects of the breach of EU law. Must it therefore be concluded that the situation described entails a breach of the requirements laid down in the judgment of the Court of Justice (Tenth Chamber) of 14 September 2016, Pérez López, C-16/15, EU:C:2016:679, and is therefore contrary to the relevant EU legislation?

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(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).

Request for a preliminary ruling from the Sąd Rejonowy w Koszalinie (Poland) lodged on 21 February 2019 — V.C. Sp. z. o. o. v P.K.

(Case C-150/19)

(2019/C 319/25)

Language of the case: Polish

Referring court

Sąd Rejonowy w Koszalinie

Parties to the main proceedings

Applicant: V.C. Sp. z. o. o.

Defendant: P.K.

By order of 4 June 2019, the Court of Justice of the European Union has held that Case C-150/19 is to be removed from the register of the Court.

Appeal brought on 22 May2019 by the European Central Bank against the judgment of the General Court (Sixth Chamber) delivered on 13 March 2019 in Case T-730/16: Espírito Santo Financial Group v ECB

(Case C-396/19 P)

(2019/C 319/26)

Language of the case: English

Parties

Appellant: European Central Bank (represented by: F. Malfrère, M. Ioannidis, Agents, H.-G. Kamann, Rechtsanwalt)

Other party to the proceedings: Insolvent Estate of Espírito Santo Financial Group SA

Form of order sought

The appellant claims that the Court should:

—	set aside point no. 1 of the operative part of the judgment of the General Court of 13 March 2019, Insolvent Estate of Espírito Santo Financial Group SA v European Central Bank (T-730/16);

—	dismiss the application also as concerns the ECB’s refusal to disclose the amount of credit in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014;

—	in the alternative, refer the case back to the General Court of the European Union for it to give judgment;

—	order the applicant at first instance and respondent to pay two thirds (2/3), and the ECB to pay one third (1/3) of the costs of the proceedings.

Pleas in law and main arguments

First and only ground of appeal: infringement of Article 10.4 of the Statute of the European System of Central Banks and of the European Central Bank (‘Statute’) and the first indent of Article 4(1)(a) of Decision 2004/258 (1).

The ECB submits that the General Court erroneously interpreted and applied Article 10.4 of the Statute and the first indent of Article 4(1)(a) of Decision 2004/258, by holding in the judgment under appeal, in particular in paragraphs 39, 53-63 as well as 111 and 138, that the Governing Council’s discretion regarding the disclosure of its minutes must be exercised in light of the conditions laid down in Decision 2004/258 (paragraph 60), meaning, in the particular case, that the ECB is obliged to provide a statement of reasons explaining how disclosure of information contained in minutes of Governing Council proceedings recording Governing Council decisions specifically and actually undermine the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies (paragraph 61).

Article 10.4 of the Statute establishes the general principle that information which is part of Governing Council proceedings needs to be kept confidential in order to protect ECB independence and effectiveness. This primary-law rule, which cannot be deviated from by secondary law, also applies to parts of the minutes recording Governing Council decisions. It is restated in the first indent of Article 4(1)(a) of Decision 2004/258, which therefore need always to be interpreted together with Article 10.4 of the Statute. It follows from the general principle of confidentiality of Governing Council proceedings, including decisions, as set by Article 10.4 of the Statute, that the ECB does not need to subject its decision to make the outcome of its deliberations public to the same substantive and procedural standards set out in Decision 2004/258. In particular, it does not need to justify its decision with reference to why disclosure of such Governing Council minutes would specifically and actually undermine the public interest as regards the confidentiality of the Governing Council proceedings.

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(1)  Decision 2004/258 of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004, L 80, p. 42).

Appeal brought on 2 July 2019 by Islamic Republic of Iran Shipping Lines, Hafize Darya Shipping Lines (HDSL), Safiran Payam Darya Shipping Lines (SAPID), Khazar Sea Shipping Lines Co., Rahbaran Omid Darya Ship Management Co., Irinvestship Ltd and IRISL Europe GmbH against the judgment of the General Court (Second Chamber) delivered on 8 May 2019 in Case T-434/15: Islamic Republic of Iran Shipping Lines e.a. v Council

(Case C-506/19 P)

(2019/C 319/27)

Language of the case: English

Parties

Appellants: Islamic Republic of Iran Shipping Lines, Hafize Darya Shipping Lines (HDSL), Safiran Payam Darya Shipping Lines (SAPID), Khazar Sea Shipping Lines Co., Rahbaran Omid Darya Ship Management Co., Irinvestship Ltd and IRISL Europe GmbH (represented by: M. Taher, Solicitor, R. Blakeley, Barrister)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellants claim that the Court should:

—	set aside the judgment of the General Court;

—	hold that the Council committed a sufficiently serious breach of a rule of law intended to confer rights on individuals by way of the Designation of the Appellants;

—	remit the case to the General Court to determine the contingent application for measures of inquiry contained in the application, and then (subsequently) to determine the issues of causation and quantum; and

—	order the Council to pay the appellants’ costs of the appeal and the costs of the proceedings before the General Court so far.

Pleas in law and main arguments

The General Court committed five errors of law on the basis of which the judgment should be set aside:

1.	error in the application of the conclusion that the Council had no discretion;

2.	error in the application of the reasoning in the IRISL Annulment Judgment [2013] to the test for sufficiently serious breach;

3.	no basis in law for the ‘no evidence’/‘inadequate evidence’ distinction, which was inapplicable in any event;

4.	error in law in purporting to rely on evidence not before the Court; and

5.	error in law in applying HTTS as an issue estoppel/res judicata.

Request for a preliminary ruling from the Areios Pagos (Greece) lodged on 4 July 2019 — AB v Olympiako Athlitiko Kentro Athinon — Spyros Louis

(Case C-511/19)

(2019/C 319/28)

Language of the case: Greek

Referring court

Areios Pagos

Parties to the main proceedings

Applicant: AB

Defendant: Olympiako Athlitiko Kentro Athinon — Spyros Louis

Questions referred

(A)

Does the adoption by the Member State of legislation applicable to government, local authorities and public-law legal entities and to all bodies (private-law legal entities) in the broader public sector in general in their capacity as employer, such as that adopted under Article 34(1)(c), (3)(a) and (4) of Law 4024/2011 placing staff under a private-law contract of employment with the above bodies on reserve for a period not exceeding twenty-four (24) months between 1 January 2012 and 31 December 2013 based solely on the criterion of the closest entitlement to retire on a full old-age pension corresponding to thirty-five (35) years’ insurance, constitute indirect age discrimination within the meaning of Article 2(1) and (2)(b) and Article 3(1)(c) of Directive 2000/78/EC, (1) especially given the fact that, under the insurance legislation in force at the time and disregarding cases that are of no relevance here, staff under a contract of employment needed to be insured with the Social Insurance Institute (IKA) or some other major insurance fund for (at least) 10 500 working days (35 years) and to be (at least) 58 years of age in order to substantiate their right to retire on a full-old age pension, without of course precluding the possibility of the above period of insurance (35 years) being completed at a different age depending on the individual case?

(B)

If the answer to Question (Α) is in the affirmative, can the adoption of a labour reserve system be objectively and logically justified, within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, by the immediate need to ensure organisational, operational and fiscal results and, more specifically, by the immediate need to cut public spending in order to achieve certain quantitative targets by the end of 2011, as referred to in the explanatory memorandum to the law and provided for in particular under the Medium-Term Fiscal Strategy Framework, and thus honour Greece’s undertaking to its partner-lenders to address the very acute and prolonged fiscal and economic crisis gripping the country and, at the same time, to restructure and reduce the swollen public sector?

(C)

If the answer to Question (Β) is in the affirmative: (1) Is the adoption of a measure such as that adopted under Article 34(1)(c) of Law 4024/2011, providing for the salary of staff placed on reserve to be cut drastically to 60 % of the basic salary of which they were in receipt when they were placed on reserve, without at the same time requiring the said staff to work in the relevant public sector, and causing the loss (in fact) of any promotion in terms of pay-scale or employment grade during the period between their being placed on reserve and their dismissal due to retirement on a full old-age pension, an appropriate and necessary means of achieving the above aim, within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, where: (a) such staff retain the facility to find an alternative occupation (in the private sector) or have the opportunity to pursue a freelance profession or business while on reserve, without losing the right to payment of the aforesaid reduced basic salary, unless the salary or income from their new occupation or employment exceeds the salary of which they were in receipt prior to being placed on reserve, in which case the above reduced basic salary is cut by the surplus (see Article 34(1)(f)); and (b) the public-sector employer or, if it is abolished, the Organismos Apascholisis Ergatikou Dynamikou (Hellenic Manpower Employment Organisation, Greece, ‘OAED’) undertakes to pay both the employer’s and the employee’s main, supplementary and health and welfare insurance contributions to the relevant insurance fund based on the salary of which the employee was in receipt prior to being placed on reserve pending the employee’s retirement (see Article 34(1)(d)); and (c) exemptions from labour reserve status are provided for vulnerable social groups which require protection (other spouse placed on reserve, spouse or child with a disability of at least 67 % living with and dependent on the employee, employee with a disability of at least 67 %, parents of large families, single-parent family living with and dependent on the employee) (see Article 34(1)(b); and (d) the aforesaid staff are granted the option of transferring to other vacant posts in public-sector bodies based on objective and merit-based criteria by including them in the selection lists of the Anotato Symvoulio Epilogis Prosopikou (Supreme Council for Civil Personnel Selection, Greece, ‘ASEP’) (see Article 34(1)(a)), although that option was limited in fact owing to drastic cutbacks in staff recruitment by various public-sector bodies due to the need to cut spending; and (e) care is taken to adopt measures concerning the repayment of housing loans obtained from the Tameio Parakatathikon kai Daneion (Deposits and Loans Fund, Greece) by workers placed on reserve and to draft an agreement between the Greek State and the Enosi Ellinikon Trapezon (Hellenic Bank Association, Greece) to facilitate the repayment of loans contracted by such staff from other banks, based on each worker’s total family income and assets (see Article 34(10) and (11); and (f) provision has been made under a more recent law (see Article 1(15) of Law 4038/2012, Government Gazette Series I, Number 14) for pension regulations and the payment order to be issued as a matter of priority for the staff referred to under (b) and (c), that is within no more than four months of their dismissal and submission of the supporting documents required in order to release their pension; and (g) the aforesaid loss of promotion in terms of pay-scale or employment grade by staff under a private-law contract of employment during the period between their being placed on reserve and their dismissal due to retirement on a full old-age pension will not apply in most cases, including the present case, as, due to the length of time the employees have spent in the public sector, they have already reached the top pay scale and/or employment grade provided for under the applicable legislation governing promotions. (2) Is the adoption of a measure such as that adopted under Article 34(1)(e) of Law 4024/2011, eliminating, for employees who are dismissed or who retire from their occupation on qualifying for a full old-age pension, all (or a proportion) of the severance pay provided for under Article 8(b) of Law 3198/1955 equal to 40 % of the severance pay provided for employees with supplementary insurance (which, in the case of public-sector bodies fulfilling a public service obligation or subsidised by the State, such as the respondent private-law legal entity, is capped at the sum of EUR 15 000), by offsetting it against the reduced salary received during the period on reserve, an appropriate and necessary means of achieving the above aim within the meaning of Article 2(2)(b)(i) and Article 6(1)(a) of the Directive, bearing in mind that the aforesaid staff would otherwise have received that reduced severance pay under the aforesaid applicable labour legislation irrespective of whether they resigned or were dismissed by the body in which they were employed?

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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).

Appeal brought on 2 August 2019 by Deutsche Lufthansa AG against the order of the General Court (Fourth Chamber) made on 17 May 2019 in Case T-764/15, Deutsche Lufthansa AG v European Commission

(Case C-594/19 P)

(2019/C 319/29)

Language of the case: German

Parties

Appellant: Deutsche Lufthansa AG (represented by: A. Martin-Ehlers, Rechtsanwalt)

Other parties to the proceedings: European Commission, Land Rheinland-Pfalz

Form of order sought

The appellant claims that the Court of Justice should:

—	set aside the order of the General Court of 17 May 2019 in Case T-764/15;

—	grant the form of order sought at first instance and annul the underlying Commission Decision SA.32833 of 1 October 2014; (1)

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

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

Grounds of appeal and main arguments

By its appeal, the appellant puts forward, in essence, the following grounds of appeal:

—

The appellant already had locus standi in accordance with the judgment in Montessori. (2) That is because the granting of a loan from the liquidity pool in the amount of EUR 45 million in favour of Flughafen Frankfurt-Hahn GmbH constitutes an aid scheme. Furthermore, the funds from that loan demonstrably went to Ryanair.

—

If the so-called Mory case-law (3) is applied, then the first alternative solution should be applied. The Commission disregarded essential elements of fact and additional benefits. Owing to the infringement of the appellant’s procedural rights, the Commission cannot be deemed to have conducted a proper investigation procedure. In this case too, the appellant was individually concerned and therefore had locus standi.

—

Alternatively, the action is also admissible if the second alternative solution of the so-called Mory case-law is applied, according to which the appellant would have to prove that its market position was substantially affected by the aid. In this case the burden of proof is reversed, or at least lessened in favour of the appellant, since the Commission arbitrarily concealed the relevant facts that were known to it. Only in the alternative, the appellant submits that it has in fact also proved that it was substantially affected. The General Court’s legal assessment, which found otherwise, goes beyond the Court of Justice’s case-law and is based on a legally erroneous understanding of the relevant market. In that regard, the General Court distorts and curtails the appellant’s statement of the facts, alters the content of the decision at issue and infringes the rules governing the burden of proof.

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(1)  Commission Decision (EU) 2016/788 of 1 October 2014 on the State aid SA.32833 (11/C) (ex 11/NN) implemented by Germany concerning the financing arrangements for Frankfurt Hahn airport put into place in 2009 to 2011 (OJ 2016 L 134, p. 1).

(2)  Judgment of the Court of Justice of 6 November 2018, Scuola Elementare Maria Montessori Srl and Others (C-622/16 P to C-624/16 P, EU:C:2018:873).

(3)  Judgment of the Court of Justice of 17 September 2015, Mory SA and Others v European Commission (C-33/14 P, EU:C:2015:609).

Action brought on 19 July 2019 — VDV eTicket Service v Commission and INEA

(Case T-516/19)

(2019/C 319/30)

Language of the case: German

Parties

Applicant: VDV eTicket Service GmbH & Co. KG (Cologne, Germany) (represented by: A. Bartosch, lawyer)

Defendants: European Commission and Innovation and Networks Executive Agency (INEA)

Form of order sought

The applicant claims that the Court should:

—	declare pursuant to Article 272 TFEU that the failure to acknowledge costs in the amount of EUR 407 443,04 via the letter at issue is unlawful;

—	in the alternative, annul the contested decision pursuant to the fourth subparagraph of Article 263 TFEU;

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

Pleas in law and main arguments

The action is brought against the decision of the Innovation and Networks Executive Agency (INEA) ARES(2019)3151305 of 13 May 2019, in so far as it declares that the applicant’s costs in the amount of EUR 407 443,04 in the context of the Horizon 2020 Framework Programme — Project: 636126 — European Travellers Club are not recoverable.

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

1.

First plea: abuse of rights, as the defendants necessarily should have known of the incorrect allocation of costs — The defendants committed an abuse of rights on the ground that, first, they did not acknowledge certain subcontracting costs incurred by the applicant and, secondly, they should however have known from a number of documents that the applicant’s subcontracting costs were considerably higher than stated in Annex 2 to the grant agreement in question.

2.	Second plea: infringement of the principle of protection of legitimate expectations — The defendants also infringed the principle of protection of legitimate expectations for the same reasons as those set out in the first plea.

Action brought on 5 August 2019 — Global Steel Wire and Others v Commission

(Case T-545/19)

(2019/C 319/31)

Language of the case: Spanish

Parties

Applicants: Global Steel Wire, SA (Cerdanyola del Vallés, Spain), Moreda-Riviere Trefilerías, SA (Gijón, Spain), Global Special Steel Products, SA (Corrales de Buelna, Spain) (represented by: F. González Díaz, J. Blanco Carol and B. Martos Stevenson, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

—	declare the present action admissible;

—	annul the European Commission’s decision of 24 May 2019; and

—	order the European Commission to pay the costs.

Pleas in law and main arguments

The present action, which dates back to a request for inability to pay submitted in February 2000 in the context of proceedings in Case COMP/38.344 — Prestressing steel, is brought against the European Commission’s decision rejecting the request of 20 December 2018 to defer payment in the light of the applicants’ financial situation.

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

1.	First plea in law, alleging infringement of the rights of the defence, in that the contested decision was adopted without the applicants being given the opportunity to set out their point of view in that regard.

2.	Second plea in law, alleging failure to state reasons for the rejection of the request submitted by the applicants.

3.	Third plea in law, alleging that the Commission erred in fact and in law when assessing the applicants’ financial situation and their ability to pay the fine.

4.	Fourth plea in law, alleging that the Commission adopted the contested decision in breach of the general principle of collegiality, thereby vitiating that decision by a lack of competence.

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

Action brought on 9 August 2019 — Spain v Commission

(Case T-554/19)

(2019/C 319/32)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. García-Valdecasas Dorrego, acting as Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the competition notice; and

—	order the European Commission to pay the costs.

Pleas in law and main arguments

The present action is directed against the notice of open competition — EPSO/AD/374/19 — Administrators (AD 7) in the following fields: 1. Competition law; 2. Financial law; 3. Economic and Monetary Union Law; 4. Financial rules applicable to the EU budget; 5. Protection of euro coins against counterfeiting. (1)

In support of its action, the applicant raises four pleas in law.

1.

Infringement of Articles 1 and 2 of Regulation No 1/58, (2) Article 22 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and Article 1d of the Staff Regulations, as a result of the restriction of communication between EPSO and the candidate solely to English, French, German or Italian, and of the restriction of the languages that may be used when filling in the talent screener section of the application form.

2.

Infringement of Articles 1 and 6 of Regulation No 1/58, Article 22 of the Charter, and Article 1d(1) and (6), Article 27 and Article 28(f) of the Staff Regulations, as a result of the improper restriction of the selection of the second language to four languages only (French, English, German and Italian), excluding the other official languages of the European Union.

3.	The selection of English, French, German and Italian constitutes an arbitrary selection giving rise to discrimination on the ground of language, contrary to Article 1d(1) and (6), Article 27 and Article 28(f) of the Staff Regulations.

4.

The fact that the competition notice fails expressly to specify that language 1 must be the language in which candidates have a minimum C1 level gives rise to double discrimination, on the ground of nationality and on the ground of the language ‘spoken’, thereby infringing Article 1d(1) and (6), Article 27 and Article 28(f) of the Staff Regulations.

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(1)  OJ 2019 C 191 A, p. 1.

(2)  Regulation No 1 determining the languages to be used by the European Economic Community (OJ 1958, 17, p. 385).

Action brought on 13 August 2019 — Luz Saúde v EUIPO — Clínica La Luz (HOSPITAL DA LUZ LEARNING HEALTH TRAINING, RESEARCH & INNOVATION CENTER)

(Case T-558/19)

(2019/C 319/33)

Language in which the application was lodged: Portuguese

Parties

Applicant: Luz Saúde, SA (Lisbon, Portugal) (represented by: G. Moreira Rato, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Clínica La Luz, SL (Madrid, Spain)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant before the General Court

Trade mark at issue: European Union figurative mark HOSPITAL DA LUZ LEARNING HEALTH TRAINING, RESEARCH & INNOVATION CENTER — Application for registration No 16 433 823

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 1 July 2019 in Case R 2239/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Plea in law

Infringement of Article 8(1)(b) of Regulation (EU) 2017/2001 of the European Parliament and of the Council.