30.9.2019

Official Journal of the European Union

C 328/2

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 27 May 2019 — WWF Italia o.n.l.u.s. and Others v Presidenza del Consiglio dei Ministri, Azienda Nazionale Autonoma Strade SpA (ANAS)

(Case C-411/19)

(2019/C 328/02)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicants: WWF Italia o.n.l.u.s., Lega Italiana Protezione Uccelli o.n.l.u.s., Gruppo di Intervento Giuridico o.n.l.u.s., Italia Nostra o.n.l.u.s., Forum Ambientalista, FC and Others

Defendants: Presidenza del Consiglio dei Ministri, Azienda Nazionale Autonoma Strade SpA (ANAS)

Questions referred

Does Article 6 of Directive 1992/43/EEC, (1) in conjunction with Directive [2009/147/EC] (2) where applicable to the present case, preclude national primary legislation and the related secondary implementing legislation … which allow the body ‘with final responsibility’ — competent to adopt the environmental compatibility measure for the preliminary project for works in the event of the reasoned objection of the Italian Ministry for the Environment and Protection of Land and Sea [(‘MATTM’)] — to provide approval, thereby allowing the procedure to continue, relying on the existence of an overriding public interest, whereas the State body responsible for environmental protection has stated that it is impossible to prepare any mitigation requirements and measures for the version of the project under approval, in respect of which a negative opinion regarding environmental impact assessment [(‘EIA’)] had already been expressed?

Do the abovementioned directives preclude a solution such as that adopted which, for the purposes of approving the preliminary project for works subject to the EIA procedure, has the ‘overriding public interest’ referred to take precedence over the environmental interest — even though that overriding interest is based exclusively on the more economical nature of the works, their compliance additionally with landscaping, historical, cultural and socio-economic protection and the need to complete a trans-European road network, in the present case the TEN-[T] network defined as ‘Comprehensive’, as by Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 (3) — despite the fact that there is an existing alternative solution already approved from an environmental perspective?

Is a solution such as that adopted, whereby it was considered possible to postpone to the stage of the definitive project further assessment and studies of the environmental significance of the route not approved in terms of EIA — including the Assessment of Environmental Implications — instead of requiring the proponent of the works to carry out further assessment and studies to mitigate the economic and landscaping effects on the alternative route already approved, on the other hand, from an environmental perspective, compatible with the abovementioned Community legislation?

In such circumstances and if the answer to the first, second and third questions is that there is compatibility [with EU law], do the abovementioned directives preclude a solution such as that adopted, which does not consider binding a negative opinion indicating environmental incompatibility, issued by the competent body in the course of the approval procedure for the preliminary project for the works, postponing to the stage of the definitive project more in-depth assessment of the impact thereof on the territory’s landscaping and environmental aspects, with specific reference to the assessment of environmental implications and the consequent provision of sufficient measures for the compensation and mitigation of impacts?

Do the abovementioned directives preclude a solution such as that adopted, where the proponent of the works is requested at the stage of drafting the definitive project for the works to take into account the requirements, observations and recommendations in relation to landscaping and the environment set out in the course of the interdepartmental conference held with regard to the preliminary project, even if in that regard the body responsible for environmental protection has found that it is impossible to develop any mitigation requirements and measures for the project under approval?

Do the abovementioned directives preclude a solution such as that adopted where the proponent has also been requested to develop the environmental impact study for the works, including the so-called ‘appropriate assessment’, duly drafted in accordance with the legal requirements in force, which would serve as the basis for the assessment of implications in question?

Do the abovementioned directives preclude a solution such as that adopted, where a third party (the Lazio Region) has been identified, different from the body ordinarily responsible (the [Environmental Impact Assessment — Strategic Environmental Assessment] EIA-SEA Committee of the MATTM), to verify the environmental impact study annexed to the definitive project for the works, in order also to identify any subsequent mitigation and compensation measures necessary to protect and safeguard the environmental and landscaping aspects of the territory concerned, leaving to the MATTM’s EIA-SEA Committee, in accordance with and for the purposes of Article 185(4) and (5) of Legislative Decree No 163/06, only the ex post formulation of its own opinion as to whether the definitive project for the construction of the route in question complies with the landscaping and environmental requirements, after the abovementioned verification?

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

(2) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7).

(3) Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ 2013 L 348, p. 1).

30.9.2019

Official Journal of the European Union

C 328/5

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 29 May 2019 — Irideos S.p.A. v Poste Italiane S.p.A.

(Case C-419/19)

(2019/C 328/06)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Irideos S.p.A.

Defendant: Poste Italiane S.p.A.

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)?

Is that company required to conduct competitive tendering procedures only when awarding contracts which relate directly to activities in the special sectors referred to in Directive 2014/25/EU, under which the very nature of a body governed by public law must be regarded as being contained in 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, strictly speaking, connected to such sectors, bearing in mind the principles set out in recital 21 and Article 16 of Directive 2014/23/EU (judgments of the Supreme Court of Cassation, ruling as combined chambers, No 4899 of 2018, cited above and, for the last part, judgment of the Council of State, sitting in plenary session, No 16 of 2011, as cited above)?

With regard to contracts considered not to be directly connected with the specific activities covered by the special sectors, is that company, where it meets the requirements for being classified as a body 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 in competitive market conditions, having developed from when it was originally established, as may be inferred from the judgment of 10 April 2008, C-393/06, Ing, Aigner, since Directive 2014/24/EC precludes any other interpretation for contracts concluded by contracting authorities, bearing in mind that recital 21 and Article 16 of Directive 2014/23/EU set out a mere presumption for the purpose of precluding undertakings which operate in normal market conditions from being deemed bodies governed by public law, although it is clear that, on the basis of those provisions read together, priority consideration is given to the stage at which the body was established, where that body is intended to meet ‘needs in the general interest’ (which continue to exist in the present case)?

In any event, in the case of offices in which activities connected to the universal service and activities unrelated to it are both performed, must the concept of ‘a functional link’, in connection with a service which is specifically in the public interest, be interpreted in a non-restrictive manner (as has been held to date in the national case-law, in accordance with judgment No 16 of 2011 of the Council of State, sitting in plenary session), at odds, in that regard, with the principles set out in recital 16 and Articles 6 and 13 of Directive 2014/25/EU, which refer to the concept of the ‘intended purpose’ of one of the activities governed by the Public Procurement Code for the purpose of identifying the applicable rules? It must therefore be clarified whether all the operational activities in a relevant special sector can be ‘intended’ for that sector — including under the less stringent binding conditions specific to excluded sectors, in accordance with the intentions of the contracting authority (including contracts relating to ordinary and extraordinary maintenance, cleaning, furnishing, caretaking and storage services for such offices, or other forms of use of the latter if intended as a service for customers) while only the ‘unrelated’ activities remain effectively privatised, activities which the public or private entity can carry out freely in entirely different areas, exclusively under the rules of the Civil Code and the jurisdiction of the ordinary courts. (It is true that, for present purposes, the banking services carried out by Poste Italiane are an example of this type but the same cannot be said for the supply and use of electronic communication tools, where they are used to cover the scope of activities of the Group, even though they are particularly necessary for the banking activity.) However, it seems necessary to point out the ‘imbalance’ prompted by the current restrictive interpretation, which introduces completely different rules to the management of comparable or adjacent sectors, for the award of works or service contracts: on one hand, the detailed safeguards imposed by the Public Procurement Code for the purpose of identifying the other party to the contract, and on the other hand the complete freedom to negotiate on the part of the contractor, which is free to make agreements solely in accordance with its own economic interests, without any of the transparency guarantees required for the special and excluded sectors.

Finally is the launch of a public procurement procedure under the Public Procurement Code — using forms of publicity determined at both national and EU level — relevant for the purposes of identifying the intended purpose of the contract, where it is linked to the relevant special sector, within the meaning of the broad concept of ‘a functional link’, referred to in the above question No 4, or — in the alternative — can an objection concerning the jurisdiction of the administrative courts, raised by the entity which launched the tendering procedure or by the parties which were successful in the procedure, be regarded as an abuse of rights within the meaning of Article 54 of the Charter of Fundamental Rights, in so far as it is conduct which — while not being capable, as such, of affecting the allocation of jurisdiction (see judgment of the Council of State, sitting in plenary session, No 16 of 2011) — is relevant at least for the purposes of compensation and legal expenditure, since it is detrimental to the legitimate expectations of the participants in that tendering procedure where they are unsuccessful and applicants in legal proceedings?

(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).

30.9.2019

Official Journal of the European Union

C 328/6

Appeal brought on 5 June 2019 by Inpost Paczkomaty sp. z o.o. against the judgment of the General Court delivered on 19 March 2019 in Joined Cases T-282/16 and T-283/16 Inpost Paczkomaty and Inpost v Commission

(Case C-431/19 P)

(2019/C 328/07)

Language of the case: Polish

Parties

Appellant: Inpost Paczkomaty sp. z o.o. (represented by: D. Doktór, radca prawny)

Other parties to the proceedings: European Commission, Republic of Poland

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court;

—	annul the decision;

—	order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

Grounds of appeal and main arguments

First ground of appeal, alleging infringement of Article 106(2) TFEU, in so far as the General Court incorrectly held that the requirements set out in point 19 (Section 2.6) of the [European Union] framework [for State aid in the form of public service compensation (2011)] had been met, infringement of the Treaty principles on public procurement (principles of non-discrimination, equal treatment and transparency) and incorrect interpretation of Article 7(2) of Directive 97/67/EC (‘the Postal Services Directive’).

The methods of financing the provision of universal services applied by the Member States must be consistent with the principles of non-discrimination, transparency and equal treatment (including the choice of the provider of universal postal services by way of competition) arising from the provisions of the TFEU on internal market freedoms, and also with Article 106(2) TFEU, which is not the case in the present dispute.

Second ground of appeal, alleging infringement of Article 106(2) TFEU, in so far as the General Court incorrectly held that the requirements set out in points 14 (Section 2.2) and 60 (Section 2.10) of the [European Union] framework [for State aid in the form of public service compensation (2011)] had been met. Even supposing that the public service obligation conferred on Poczta Polska fulfils the requirements set out in the Postal Services Directive, that does not preclude the obligation to carry out a public consultation or use some other appropriate means to take into account the interests of users and service providers in order to demonstrate that the universal service requirements have been considered.

Third ground of appeal, alleging infringement of Article 106(2) TFEU, in so far as the General Court incorrectly held that the requirements set out in point 52 (Section 2.9) of the framework had been met and infringement of Article 7(1), (3) and (5) of Directive 97/67/EC. The General Court was wrong to consider that the compensation fund fulfilled the non-discrimination requirement as regards the uniform contribution rate, which amounts to a maximum of 2 % of the revenue received by the providers of universal services or equivalent services required to contribute, with the result that that rate applies in a uniform way to all market operators, which is discriminatory since the situation of the providers of universal services and that of the providers of equivalent services are not the same. The General Court was also wrong to consider that the compensation fund satisfied the principle of proportionality.

During the consultations on amending the legislation, the provisions of the compensation fund were very different from those ultimately implemented in the postal legislation, which means that it cannot be considered that the establishment of the fund was the subject of consultations. The financing conditions for the universal service do not require examination of whether the net cost incurred constitutes an unfair burden for the appointed universal service provider. The automatic link between the financing of the service and an account loss resulting from providing the universal service cannot be regarded as satisfying the requirements of the Postal Services Directive.

Fourth ground of appeal, alleging infringement of Article 7(1) of the Postal Services Directive, in so far as the General Court accepted the financing of the cost of the universal service by a certain number of exclusive and special rights conferred on Poczta Polska. Under Article 7(1) of the Postal Services Directive, Member States are not to grant or maintain in force exclusive or special rights for the establishment and provision of postal services. The exclusive and special rights conferred on Poczta Polska, contrary to the view of the General Court, are manifestly not included in the list of exceptions laid down in the Postal Services Directive.

30.9.2019

Official Journal of the European Union

C 328/7

Appeal brought on 5 June 2019 by Inpost S.A. against the judgment of the General Court delivered on 19 March 2019 in Joined Cases T-282/16 and T-283/16 Inpost Paczkomaty and Inpost v Commission

(Case C-432/19 P)

(2019/C 328/08)

Language of the case: Polish

Parties

Appellant: Inpost S.A. (represented by: W. Knopkiewicz, radca prawny)

Other parties to the proceedings: European Commission, Republic of Poland

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court;

—	annul the decision;

—	order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

Grounds of appeal and main arguments

30.9.2019

Official Journal of the European Union

C 328/8

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 5 June 2019 — Poste Italiane SpA v Riscossione Sicilia SpA — tax-collection agency for the province of Palermo and the other provinces of Sicily

(Case C-434/19)

(2019/C 328/09)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant and respondent in the cross-appeal: Poste Italiane SpA

Respondent and appellant in the cross-appeal: Riscossione Sicilia SpA — tax-collection agency for the province of Palermo and the other provinces of Sicily

Questions referred

Is a rule such as that provided for in the combined provisions of Article 10(3) of Legislative Decree No 504/1992 and Article 2(18) to (20) of Law No 662/1996, under which reserved services (statutory monopoly) in favour of Poste Italiane s.p.a. are set up and maintained — even following the privatisation of the ‘bancoposta’ postal banking services provided by Poste Italiane s.p.a. — in relation to the management of the postal current account intended for the collection of the local municipal real estate tax (ICI), incompatible with Articles 14 TFEU (formerly Article 7D of the Treaty, then Article 16 EC) and 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and with classification as a service of general economic interest (SGEI), bearing in mind developments in State rules governing tax collection which, since 1997 at least, has allowed taxpayers and local tax authorities freely to use methods of payment and tax collection (including local taxes) through the banking system?

If the answer to the first question is that the establishment of the statutory monopoly must be recognised as meeting the SGEI criteria, is a rule such as that resulting from the combined provisions of Article 10(3) of Legislative Decree No 504/1992, Article 2(18) to (20) of Law No 662/1996 and Article 3(1) of Presidential Decree No 144/2001, which grants Poste Italiane s.p.a. the power unilaterally to determine the level of the fee payable by the agent collecting the ICI that is applied to each management transaction carried out in the postal current account in the name of the agent, incompatible with Articles 106(2) TFEU (formerly Article 90 of the Treaty, then Article 86(2) EC) and 107(1) TFEU (formerly Article 92 of the Treaty, then Article 87 EC), according to the interpretation of such rules provided by the Court of Justice with reference to the requirements for distinguishing a lawful measure — providing compensation for the performance of public service obligations — from unlawful State aid (judgment of the Court of Justice of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C 280/00), bearing in mind that Poste Italiane spa, by board decision No 57/1996, set that fee at ITL 100 for the period from 1 April 1997 to 31 May 2001 and at EUR 0.23 for the period from 1 June 2001?

Is a set of rules such as that put in place by Article 2(18) to (20) of Law No 662/1996, Article 3(1) of Presidential Decree No 144/2001 and Article 10(3) of Legislative Decree No 504/1992, under which the agent is necessarily required to pay the fee as unilaterally determined and/or varied by Poste Italiane s.p.a., incompatible with Article 102, first paragraph, TFEU (formerly Article 86 of the Treaty, then Article 82(1) EC), as interpreted by the Court of Justice (see judgments of 13 December 1991, Case C-18/88, GB-Inno-BM, of 25 June 1998, Case C-203/96, Dusseldorp and Others, and of 17 May 2001, Case C-340/99, TNT TRACO), given that the agent is not otherwise able to withdraw from the postal current account contract without infringing the obligation laid down in Article 10(3) Legislative Decree No 504/1992 and, as a consequence, infringing its ICI-collection obligations to the local tax authority?

30.9.2019

Official Journal of the European Union

C 328/9

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 5 June 2019 — Agenzia delle entrate — Riscossione v Poste Italiane SpA

(Case C-435/19)

(2019/C 328/10)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant and respondent in the cross-appeal: Agenzia delle entrate — Riscossione

Respondent and appellant in the cross-appeal: Poste Italiane SpA

Questions referred

30.9.2019

Official Journal of the European Union

C 328/10

Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 11 June 2019 — Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e.V. v Frontline Digital GmbH

(Case C-438/19)

(2019/C 328/11)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicant, appellant and respondent: Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e.V.

Defendant, appellant and respondent: Frontline Digital GmbH

Questions referred

1.	In the case of distance contracts, is there a supply of digital content to the consumer within the meaning of Article 16(m) of Directive 2011/83/EU (1) where the consumer concludes with a trader a contract for participation in an internet-based ‘dating website’?

If Question 1 is to be answered in the affirmative:

Does the commencement of the supply of digital content by the trader to the consumer lead to the loss of the consumer’s right of withdrawal, as provided for in Article 16(m) of the Directive, even in the case where, contrary to Article 8(7) of the Directive, the trader has not sent beforehand to the consumer confirmation of the contract concluded together with the information referred to in that latter provision?

If the consumer’s right of withdrawal continues in existence in that event:

Must the consumer be provided with information to that effect beforehand, in accordance with Article 6(1)(k) of the Directive?

(1) 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 (OJ 2011 L 304, p. 64).

30.9.2019

Official Journal of the European Union

C 328/12

Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) lodged on 12 June 2019 — WT v Subdelegación del Gobierno en Guadalajara

(Case C-448/19)

(2019/C 328/13)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla-La Mancha

Parties to the main proceedings

Applicant: WT

Defendant: Subdelegación del Gobierno en Guadalajara

Question referred

Is an interpretation such as that set out in judgments of the Spanish Supreme Court No 191/2019 of 19 February 2019, appeal in cassation 5607/2017 (ECLI:ES:TS:2019:580), and No 257/2019 of 27 February 2019, appeal in cassation 5809/2017 (ECLI:ES:TS:2019:663), according to which, through an interpretation of Directive 2001/40/EC, (1) it is possible to come to the conclusion that any third-country national holding a long-term residence permit who has committed an offence punishable by a sentence of at least one year in duration can and should be ‘automatically’ removed, that is to say, without needing to give any consideration to his personal, family, social or employment circumstances, compatible with Article 12 of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, (2) and with — inter alia — the judgments of the Court of Justice of the European Union of 7 December 2017 (Case C-636/16) and of 8 December 2011 (Case C-371/08)?

(1) Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ 2001 L 149, p. 34).

(2) OJ 2004 L 16, p. 44.

30.9.2019

Official Journal of the European Union

C 328/13

Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) lodged on 12 June 2019 — YV v Banco Bilbao Vizcaya Argentaria, S.A.

(Case C-452/19)

(2019/C 328/14)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 6 de Ceuta

Parties to the main proceedings

Applicant: YV

Defendant: Banco Bilbao Vizcaya Argentaria, S.A.

Questions referred

Whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) in particular Articles 6(1) and 7(1) of the directive, the following ruling is compliant with EU law in order to ensure protection for consumers and users and compliance with the relevant case-law: the ruling by the Supreme Court in judgments 44 to 49 of 23 January 2019, which establishes the unambiguous criterion that a term in a consumer mortgage loan agreement that has not been negotiated and that stipulates that all the costs of arranging the mortgage are to be borne by the borrower is unfair, and which apportions the various expenses that are involved in the unfair term found to be void between the bank that imposed the term and the borrower, in order to limit repayments of amounts wrongly paid under national legislation.

And whether, under Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in particular Articles 6(1) and 7(1) of the directive, in order to ensure protection for consumers and users and compliance with the relevant case-law, it is compliant with EU law for the Supreme Court to adopt an inclusive interpretation of a term that is void for unfairness if the term can be severed and its effects abolished without affecting the continued existence of the mortgage loan agreement.

Also, whether, as regards Article 394 of the Ley de Enjuiciamiento Civil (Law on Civil Procedure), which establishes the principle that the costs of proceedings are to be borne by the unsuccessful party, it can be held that where an unfair expenses clause is declared void but the effects of voiding the term are limited to apportioning the expenses in question, it is contrary to the EU legal principles of effectiveness and the non-binding nature of unfair terms to conclude that a claim has been upheld in part, and whether such a conclusion could be interpreted as producing an inverse deterrent effect, which thus fails to protect the legitimate interests of consumers and users.

(1) OJ 1993 L 95, p. 29.

30.9.2019

Official Journal of the European Union

C 328/14

Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción de Ceuta (Spain) lodged on 12 June 2019 — BX v Banco Bilbao Vizcaya Argentaria, S.A.

(Case C-455/19)

(2019/C 328/15)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción de Ceuta

Parties to the main proceedings

Applicant: BX

Defendant: Banco Bilbao Vizcaya Argentaria, S.A.

Questions referred

(1) OJ 1993 L 95, p. 29.

30.9.2019

Official Journal of the European Union

C 328/15

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 19 June 2019 — All in One Star Ltd

(Case C-469/19)

(2019/C 328/16)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant and appellant: All in One Star Ltd

Questions referred

Does Article 30 of Directive (EU) 2017/1132 (1) preclude a national provision under which the indication of the amount of share capital or a comparable capital value is required for a branch of a limited liability company with registered office in another Member State to be entered in the commercial register?

(a)

Does Article 30 of Directive (EU) 2017/1132 preclude a national provision under which, when applying for a branch of a limited liability company with registered office in another Member State to be entered in the commercial register, the managing director of the company has to provide an assurance that there is no barrier to his personal appointment under national law in the form of a prohibition, ordered by a court or public authority, on practising his profession or trade, corresponding in whole or in part with the object of the company, or in the form of a final conviction for certain criminal offences and that, in this respect, he has been instructed of his unrestricted duty to provide information to the court by a notary, a representative of a comparable legal advisory profession or a consular officer?

(b)

If Question 2(a) is answered in the negative:

Do Articles 49 and 54 TFEU preclude a national provision under which the managing director of the company has to provide such an assurance when applying for a branch of a limited liability company with registered office in another Member State to be entered in the commercial register?

(1) Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ 2017 L 169, p. 46).

30.9.2019

Official Journal of the European Union

C 328/15

Request for a preliminary ruling from the Verwaltungsgericht Wien (Austria) lodged on 21 June 2019 — IE v Magistrat der Stadt Wien

(Case C-477/19)

(2019/C 328/17)

Language of the case: German

Referring court

Verwaltungsgericht Wien

Parties to the main proceedings

Applicant: IE

Defendant: Magistrat der Stadt Wien

Questions referred

Is the term ‘resting place’ within the meaning of Article 12(1)(d) of the Habitats Directive (1) to be interpreted as also including former resting places that have since been abandoned?

If the answer to that question is in the affirmative:

Is every former resting place that has since been abandoned a ‘resting place’ within the meaning of Article 12(1)(d) of the Habitats Directive?

If the answer to that question is in the negative:

Which factors determine whether a former resting place that has since been abandoned is a ‘resting place’ within the meaning of Article 12(1)(d) of the Habitats Directive?

2.	Which factors determine whether a particular act or omission constitutes interference with a ‘resting place’ within the meaning of Article 12(1)(d) of the Habitats Directive?

3.	Which factors determine whether a particular act or omission constitutes such serious interference with a ‘resting place’, within the meaning of Article 12(1)(d) of the Habitats Directive, that ‘deterioration’, within the meaning of that provision, of that ‘resting place’ is to be assumed?

4.	Which factors determine whether a particular act or omission constitutes such serious interference with a ‘resting place’, within the meaning of Article 12(1)(d) of the Habitats Directive, that ‘destruction’, within the meaning of that provision, of that ‘resting place’ is to be assumed?

Is the term ‘breeding site’, within the meaning of Article 12(1)(d) of the Habitats Directive, to be interpreted as covering, first, only the precise identifiable location where regular mating in the strict sense or limited acts directly connected with reproduction (such as spawning) take place, and, second, in addition, all precisely identifiable locations essential for the development of young, such as nesting sites or certain parts of plants necessary for the larval or pupal stages?

If the answer to that question is in the negative:

How should the term ‘breeding site’ within the meaning of Article 12(1)(d) of the Habitats Directive be understood, and how is a ‘breeding site’ to be differentiated spatially from other locations?

6.	Which factors determine whether a particular act or omission constitutes interference with a ‘breeding site’ within the meaning of Article 12(1)(d) of the Habitats Directive?

7.	Which factors determine whether a particular act or omission constitutes such serious interference with a ‘breeding site’, within the meaning of Article 12(1)(d) of the Habitats Directive, that ‘deterioration’, within the meaning of that provision, of that ‘breeding site’ is to be assumed?

8.	Which factors determine whether a particular act or omission constitutes such serious interference with a ‘breeding site’, within the meaning of Article 12(1)(d) of the Habitats Directive, that ‘destruction’, within the meaning of that provision, of that ‘breeding site’ is to be assumed?

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

30.9.2019

Official Journal of the European Union

C 328/17

Request for a preliminary ruling from the Juzgado de Primera Instancia No 6 de Ceuta (Spain) lodged on 24 June 2019 — JF, KG v Bankia SA

(Case C-482/19)

(2019/C 328/18)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 6 de Ceuta

Parties to the main proceedings

Applicants: JF, KG

Defendant: Bankia SA

Questions referred

(1) OJ 1993 L 95, p. 29.

30.9.2019

Official Journal of the European Union

C 328/18

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 26 June 2019 — OK

(Case C-492/19)

(2019/C 328/19)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: OK

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

If the answer to Question 1 is in the negative:

Must Article 56 TFEU, Directive 96/71 and Directive 2014/67 be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

Are Article 56 TFEU and Article 9 of Directive 2014/67 to be interpreted as precluding national legislation that provides that, for the purposes of the requirement to make available certain documents, it is not sufficient subsequently to submit appropriate and relevant documents within a reasonable period of time?

Are Article 56 TFEU and Article 9 of Directive 2014/67 to be interpreted as precluding national legislation that provides that foreign service providers are to submit documents that go beyond those specified in Article 9 of Directive 2014/67, are neither relevant nor appropriate and are not clearly defined under national law (such as, for example, pay statements, payslips, pay lists, tax statements, registrations and deregistrations, health insurance, schedules of notification and allocation of surcharges, documents relating to pay grades, certificates)?

(1) OJ 1997 L 18, p. 1.

(2) Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).

30.9.2019

Official Journal of the European Union

C 328/19

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 26 June 2019 — PL

(Case C-493/19)

(2019/C 328/20)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: PL

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

If the answer to Question 1 is in the negative:

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

(1) OJ 1997 L 18, p. 1.

30.9.2019

Official Journal of the European Union

C 328/20

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 26 June 2019 — QM

(Case C-494/19)

(2019/C 328/21)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: QM

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

If the answer to Question 1 is in the negative:

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

(1) OJ 1997 L 18, p. 1.

30.9.2019

Official Journal of the European Union

C 328/21

Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 1 July 2019 — Criminal proceedings against Oriol Junqueras Vies

(Case C-502/19)

(2019/C 328/22)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Oriol Junqueras Vies

Other parties:

Ministerio Fiscal

Abogacía del Estado

Partido Político Vox

Questions referred

Does Article 9 of Protocol No 7 on the Privileges and Immunities of the European Union (1) apply before the commencement of ‘sessions’ to a person accused of serious offences, who has been remanded in custody pursuant to a court order made in respect of acts preceding the commencement of an electoral process in which that person was declared an elected representative of the European Parliament but who, by court order, has been refused a special prison licence which would enable him to comply with the conditions laid down by the national electoral legislation referred to in Article 8 of the Act concerning the election of the members of the European Parliament by direct universal suffrage?

If the answer is in the affirmative, where, because the newly elected member has not complied with the conditions laid down in the electoral legislation (a failure resulting from the limitation of his freedom of movement owing to the fact that he has been remanded in custody in proceedings for serious offences), the body designated in the national electoral legislation has notified the European Parliament that that person has not acquired the status of Member of the Parliament and will not do so until such time as he complies with those conditions, does the broad interpretation of the term ‘sessions’ continue to apply notwithstanding the temporary interruption of his expectation of taking his seat?

If the answer is that the broad interpretation should continue to apply, where the newly elected member was in temporary custody in proceedings for serious offences sufficiently in advance of the commencement of the electoral process, is the judicial authority which ordered that that person be remanded in custody obliged, in the light of the phrase ‘while they are travelling to and from the place of meeting of the European Parliament’ in Article 9 of Protocol No 7, to lift the custody measure absolutely, almost automatically, to enable compliance with the formalities and the requirement of travel to the European Parliament, or should account be taken of a balancing exercise in the specific case between, on the one hand, the rights and interests arising from the interests of justice and due process and, on the other, those relating to the concept of immunity, as regards the need to ensure the functioning and independence of the Parliament and the elected representative’s right to hold public office?

(1) OJ 2012 C 326, p. 266.

30.9.2019

Official Journal of the European Union

C 328/22

Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 9 July 2019 — NMI Technologietransfer GmbH v EuroNorm GmbH

(Case C-516/19)

(2019/C 328/24)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: NMI Technologietransfer GmbH

Defendant: EuroNorm GmbH

Questions referred

Can a limited liability company which carries out an economic activity not be regarded as a small and medium-sized enterprise (‘SME’) pursuant to Article 3(4) of Annex I to Regulation No 651/2014 (1) on the ground that 90 % of its share capital is held by a foundation established under civil law in whose Board of Trustees of 17 members, which is not empowered to manage the foundation, two of the members are representatives of ministries, one is the mayor of a city, one is the rector of a university, three are professors of that university, one is the president of a separate institute of higher education and one is the director of a chamber of commerce and industry?

2.	Are State universities, institutes of higher education and German chambers of commerce and industry public bodies within the meaning of Article 3(4) of Annex I to Regulation No 651/2014?

3.	Are persons who work on the board of trustees of a foundation on a voluntary basis public bodies within the meaning of Article 3(4) of Annex I to Regulation No 651/2014 for the sole reason that they work in a public body as their main profession?

Does the control exercised by public bodies within the meaning of Article 3(4) of Annex I to Regulation No 651/2014 require that the organs of the public bodies are able to instruct the voluntary members of a board of trustees to vote in a specific way on the board of trustees on the basis of a legal relationship?

5.	Does indirect control of voting rights by public bodies require that it be established that the public bodies influence members of a board of trustees in such a way that they exercise their voting rights in the manner specified by the public bodies?

6.	Does indirect control of voting rights by public bodies exist merely if there is a possibility that voluntary members of a board of trustees will take account of interests of their public organisations of origin when carrying out their activity on the board of trustees?

7.	Does the term ‘are […] controlled, jointly’ within the meaning of Article 3(4) of Annex I to Regulation No 651/2014 require that it can be established that the public bodies form a common policy in relation to the voting rights?

8.	Does the term ‘are […] controlled’ within the meaning of Article 3(4) of Annex I to Regulation No 651/2014 depend on the actual application of the statutes by the foundation or on a possible understanding of the wording of the statutes?

(1) Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (OJ 2014 L 187, p. 1).

30.9.2019

Official Journal of the European Union

C 328/25

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 10 July 2019 — F-AG v Tax Office Y

(Case C-528/19)

(2019/C 328/27)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant, and Appellant in the appeal on a point of law: F-AG

Defendant, and Respondent in the appeal on a point of law: Tax Office Y

Questions referred

In circumstances such as those of the main proceedings, in which a taxable person carries out construction works on a municipal road on behalf of a city, is that taxable person, which has procured from other taxable persons services relating to the construction of the road that has been transferred to the municipality, entitled to deduct input tax in respect thereof pursuant to Article 17(2)(a) of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes?

If the answer to Question 1 is in the affirmative: In circumstances such as those of the main proceedings, in which a taxable person carries out construction works on a municipal road on behalf of a city, does a supply of goods for consideration exist when the authorisation to operate a quarry is the consideration for the supply of a road?

If the answer to Question 2 is in the negative: In circumstances such as those of the main proceedings, in which a taxable person carries out construction works on a municipal road on behalf of a city, is the free-of-charge transfer of the public road to the municipality treated, in accordance with Article 5(6) of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, as a supply of goods free of charge even though the transfer serves commercial purposes, in order to prevent an untaxed final consumption by the municipality?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

30.9.2019

Official Journal of the European Union

C 328/25

Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 11 July 2019 — NM, acting as insolvency administrator in the insolvency proceedings concerning the assets of NIKI Luftfahrt GmbH v ON

(Case C-530/19)

(2019/C 328/28)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Defendant, respondent and appellant on a point of law: NM, acting as insolvency administrator in the insolvency proceedings concerning the assets of NIKI Luftfahrt GmbH

Applicant, appellant and respondent in the appeal on a point of law: ON

Questions referred

Is an air carrier which, under Article 5(1)(b) of Regulation (EC) No 261/2004 (the Flight Passenger Rights Regulation), (1) is required to offer assistance under Article 9(1)(b) of that regulation liable on the basis of that regulation for damage resulting from an injury incurred by the passenger as a result of the negligent conduct of employees of the hotel provided by the air carrier?

If Question 1 is answered in the negative:

Is the air carrier’s obligation under Article 9(1)(b) of Regulation (EC) No 261/2004 limited to providing the passenger with a hotel and covering the costs of the accommodation, or is the air carrier liable for the accommodation as such?

(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).

30.9.2019

Official Journal of the European Union

C 328/26

Request for a preliminary ruling from the Augstākā tiesa (Latvia) lodged on 12 July 2019 — A v Latvijas Republikas Veselības ministrija

(Case C-535/19)

(2019/C 328/29)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Applicant: A

Other party to the appeal in cassation: Latvijas Republikas Veselības ministrija

Questions referred

1.	Must publicly-funded health care be regarded as being included in ‘sickness benefits’ within the meaning of Article 3(1)(a) of Regulation No 883/2004? (1)

In the event that the first question is answered in the affirmative, are Member States permitted, under Article 4 of Regulation No 883/2004 and Article 24 of Directive 2004/38, (2) to refuse such benefits — which are granted to their nationals and to family members of a Union citizen having worker status who are in the same situation — to Union citizens who do not at that time have worker status, in order to avoid disproportionate requests for social benefits to ensure health care?

In the event that the first question is answered in the negative, are Member States permitted, under Articles 18 and 21 of the Treaty on the Functioning of the European Union and Article 24 of Directive 2004/38, to refuse such benefits — which are granted to their nationals and to family members of a Union citizen having worker status who are in the same situation — to Union citizens who do not at that time have worker status, in order to avoid disproportionate requests for social benefits to ensure health care?

Is it compatible with Article 11(3)(e) of Regulation (EC) No 883/2004 for a citizen of the European Union who exercises his right to freedom of movement to be placed in a situation in which he is denied the right to receive public health care services financed by the State in all the Member States concerned in the case?

Is it compatible with Articles 18, 20(1) and 21 of the Treaty on the Functioning of the European Union for a citizen of the European Union who exercises his right to freedom of movement to be placed in a situation in which he is denied the right to receive public health care services financed by the State in all the Member States concerned in the case?

Should legality of residence, as provided for in Article 7(1)(b) of Directive 2004/38, be understood as giving a person a right of access to the social security system and also as being capable of constituting a reason to exclude him from social security? In particular, in the present case, must the fact that the applicant has comprehensive sickness insurance cover, which constitutes one of the prerequisites for legality of residence under Directive 2004/38, be regarded as capable of justifying the refusal to include him within the health care system financed by the State?

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

(2) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158 p. 77).

30.9.2019

Official Journal of the European Union

C 328/28

Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 16 July 2019 — Jebsen & Jessen (GmbH & Co.) KG v Hauptzollamt Hamburg

(Case C-543/19)

(2019/C 328/31)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Jebsen & Jessen (GmbH & Co.) KG

Defendant: Hauptzollamt Hamburg

Questions referred

Under the conditions of the dispute in the main proceedings, is the exemption from the anti-dumping duty introduced by Article 1 of Commission Implementing Regulation (EU) 2015/82 (1) pursuant to Article 2(1) of that regulation precluded if an undertaking invoice pursuant to Article 2(1)(b) of that regulation does not specify Implementing Decision (EU) 2015/87 (2) referred to in point 9 of the annex to that regulation, but specifies rather Decision 2008/899/EC? (3)

If Question 1 is answered in the affirmative: May an undertaking invoice that meets the requirements of the annex to Implementing Regulation (EU) 2015/82 be submitted in the context of a procedure for establishing whether anti-dumping duties are reimbursable in order to obtain exemption from the anti-dumping duty imposed in Article 1 of that regulation pursuant to Article 2(1) thereof?

(1) Commission Implementing Regulation (EU) 2015/82 of 21 January 2015 imposing a definitive anti-dumping duty on imports of citric acid originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 and of partial interim reviews pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2015 L 15, p. 8).

(2) Commission Implementing Decision (EU) 2015/87 of 21 January 2015 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of citric acid originating in the People’s Republic of China (OJ 2015 L 15, p. 75).

(3) Commission Decision of 2 December 2008 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of citric acid originating in the People's Republic of China (OJ 2008 L 323, p. 62).

30.9.2019

Official Journal of the European Union

C 328/29

Appeal brought on 2 July 2019 by the European Commission against the judgment delivered by the General Court of the European Union (Ninth Chamber, Extended Composition) on 16 May 2019 in Cases T-836/16 and T-624/17 Republic of Poland v European Commission

(Case C-562/19 P)

(2019/C 328/33)

Language of the case: Polish

Parties

Appellant: European Commission (represented by: K. Herrmann and P.-J. Loewenthal, acting as Agents)

Other parties to the proceedings: Republic of Poland, Hungary

Form of order sought

The appellant claims that the Court should:

—	set aside the entirety of the judgment delivered by the General Court (Ninth Chamber, Extended Composition) in Joined Cases T-836/16 and T-624/17, Republic of Poland v Commission EU:T:2019:338; and

—

dismiss the action brought by the Republic of Poland against the European Commission in Case T-836/16, seeking annulment of Commission Decision C(2016) 5596 final of 19 September 2016 on the State aid SA.44351 (2016/C) (ex 2016/NN) initiating the formal investigation procedure and containing an injunction suspending the Polish tax on the retail sector; dismiss the action brought by the Republic of Poland in Case T-624/17, seeking annulment of Commission Decision (EU) 2018/160 of 30 June 2017 on the State aid SA.44351 (2016/C) (ex 2016/NN) implemented by Poland for the tax on the retail sector; order the Republic of Poland to pay the costs of the proceedings at first instance and of the present proceedings;

—

in the alternative, if the two actions are not dismissed in their entirety, refer the cases back to the General Court of the European Union for a new ruling on the pleas which were not examined at first instance and reserve the costs of the proceedings at first instance and of the present proceedings pending a final ruling in the case.

Grounds of appeal and main arguments

In support of its appeal, the Commission relies on two grounds of appeal.

By its first ground of appeal, the Commission claims that the General Court infringed Article 107(1) TFEU, in considering that the Polish tax on the retail sector is not selective. The error of law committed by the General Court is based on the following grounds:

—

First, in paragraphs 63 to 68 of the judgment under appeal, the General Court was wrong to state that the Commission had erred in excluding the progressive rates of the Polish tax on the retail sector from the definition of the reference framework. Contrary to the General Court’s statement, the approach adopted by the Commission in the decision closing the procedure is consistent with the case-law of the Court of Justice. The General Court therefore erred in law in determining the reference framework.

—

Secondly, in paragraphs 69 to 78 of the judgment under appeal, the General Court was wrong to hold that the Commission had not correctly defined the aim of the tax on the retail sector, in the light of which the comparability of the undertakings was to be assessed. The Court of Justice has consistently held that only the tax objective of the measure, defined as the subject matter or chargeable event of the tax in question, is relevant for the purposes of assessing the comparability of undertakings. Other indissociably linked objectives, such as the capacity to pay, are only relevant for the purpose of assessment of objective justification for unequal treatment of comparable undertakings. Consequently, the fact that the General Courts finds that the Polish tax on the retail sector has an alleged redistributive purpose when assessing the comparability of the undertakings constitutes an error of law.

—

Thirdly, in paragraphs 79 to 93 of the judgment under appeal, the General Court was wrong to consider that the Commission had erred in stating that the progressive rates of the tax on the retail sector were not justified by a redistributive purpose. The General Court’s finding that the Polish retail tax is not discriminatory and serves redistributive purposes is based on the incorrect assumption that undertakings with high revenue (turnover) are more profitable than undertakings with lower revenue (turnover). The General Court therefore erred in law in considering that the redistributive purpose, which is not inextricably linked to the tax on the retail sector, can justify unequal treatment of undertakings. In addition, by relying on that incorrect presumption, the General Court wrongly transferred the burden of proof in respect of justifying the progressive tax rates by the alleged redistributive purpose, the Commission thus being required to establish that no such justification exists.

By its second ground of appeal, the Commission claims that the General Court infringed, in paragraphs 104 to 109 of the judgment under appeal, Article 108(2) TFEU and Article 13(1) of Council Regulation (EC) No 2015/1589. The General Court held in the paragraphs cited that the Commission committed a manifest error of law in deciding to open the formal investigation procedure and ordering the suspension of the Polish tax on the retail sector. The General Court based that conclusion on an analysis of the decision closing the formal investigation procedure. The General Court erred in law in applying the same judicial review criterion to the decision to open the formal investigation procedure as to the assessment of the validity of the closing decision. In the case of the former decision, the General Court applied a higher standard of review instead of assessing whether the Commission manifestly could not entertain doubts as to whether the tax at issue was not selective.

30.9.2019

Official Journal of the European Union

C 328/30

Reference for a preliminary ruling from High Court (Ireland) made on 26 July 2019 — Irish Ferries Ltd v National Transport Authority

(Case C-570/19)

(2019/C 328/34)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicant: Irish Ferries Ltd

Respondent: National Transport Authority

Questions referred

Applicability of the Regulation (1)

Does the Regulation (in particular Articles 18 and/or 19) apply in circumstances where passengers have made advance bookings and entered into transport contracts and where the passenger services are cancelled with a minimum of seven weeks' notice prior to the scheduled departure due to the delay in the delivery of a new vessel to the ferry operator? In that regard, are any (or all) of the following matters relevant to the applicability of the Regulation:

a)	Delivery was ultimately delayed by 200 days;

b)	The ferry operator had to cancel a full season of sailings;

c)	No suitable alternative vessel could be obtained;

d)	Over 20,000 passengers were rebooked by the ferry operator on different sailings or refunded their fares;

e)	The sailings were on a new route being opened by the ferry operator with no similar alternative service on the route?

Interpretation of Article 18 of the Regulation

This question need only be answered if Article 18 is capable of applying.

2)	Where a passenger is re-routed in accordance with Article 18 does a new transport contract come into existence such that the right to compensation under Article 19 is to be determined in accordance with that new contract rather than the original transport contract?

If Article 18 is applicable then if a sailing is cancelled and there was no alternative service operating on that route (i.e. no direct service between those two ports) does providing an alternative sailing on any other route or routes available and chosen by the passenger including by ‘landbridge’ (e.g., travelling from Ireland to the UK by ferry and then driving, with the fuel costs reimbursed to the passenger by the ferry operator, to a UK port with a connection to France and travelling from there to France with the passenger choosing each of the sailings) amount to ‘re-routing to the final destination’ for the purposes of Article 18? If not, what criteria are to be employed in determining if a re-routing is ‘under comparable conditions’?

If there is no alternative sailing on the cancelled route, such that the affected passenger cannot be accommodated on a direct sailing from the original port of embarkation to the final destination as set out in the transport contract, is the carrier required to pay any additional costs incurred by a re-routed passenger in travelling to and from the new port of embarkation and/or to and from the new port of destination?

Interpretation of Article 19 of the Regulation

Can Article 19 apply when the voyage has in fact already been cancelled at least seven weeks prior to the scheduled departure? If Article 19 does apply, does it apply where Article 18 has been applied and the passenger has been re-routed at no additional cost and/or reimbursed and/or has chosen a later sailing?

b)	If Article 19 does apply what is the ‘final destination’ for the purposes of Article 19.

If Article 19 is capable of applying:

a)	How is the period of delay to be measured in such circumstances?

b)	How is the price within the meaning of Article 19 to be calculated when determining the level of compensation payable and in particular does it include costs referable to extras (e.g., cabins, kennels and premium lounges)?

Interpretation of Article 20(4)

6)	If the Regulation does apply then do the circumstances and considerations outlined in Q.1 amount to ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’ for the purposes of Article 20(4) of the Regulation?

Interpretation of Article 24

7)	Does Article 24 have the effect of imposing a mandatory obligation on any passenger seeking to benefit from compensation under Article 19 of the Regulation to make a complaint within two months from the date on which the service was performed or should have been performed?

Interpretation of Article 25

Is the jurisdiction of the national competent body responsible for the enforcement of the Regulation limited to sailings involving the ports specified in Article 25 of the Regulation or may it also extend to a return sailing from the port of another Member State to the state of the national competent body?

The validity of the Decision and the Notices

What principles and rules of EU law should the referring court apply in assessing the validity of the Decision and/or the Notices of the national enforcement body by reference to Article 16, 17, 20 and/or 47 of the Charter (2) and/or principles of proportionality, legal certainty, and equal treatment?

b)	Is the test of unreasonableness that should be applied by the domestic court that of manifest error?

Validity of Regulation 1177/2010

This question will only arise depending on the answers to the previous questions.

10)

Is Regulation 1177/2010 valid as a matter of EU law having regard in particular to:

a)	Articles 16, 17, and 20 of the Charter?

b)	The fact that airline operators have no obligation to pay compensation if it informs the airline passenger of the cancellation at least two weeks before the scheduled time of departure [Article 5(1) (c)(i) of Regulation 261/2004 (3)]?

c)	The principles of proportionality, legal certainty and equal treatment?

(1) Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ 2010, L 334, p. 1).

(2) Charter of Fundamental Rights of the European Union (OJ 2012, C 326, p. 391).

(3) 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).

30.9.2019

Official Journal of the European Union

C 328/32

Reference for a preliminary ruling from Supreme Court of the United Kingdom (United Kingdom) made on 30 July 2019 — X v Kuoni Travel Ltd

(Case C-578/19)

(2019/C 328/35)

Language of the case: English

Referring court

Supreme Court of the United Kingdom (United Kingdom)

Parties to the main proceedings

Applicant: X

Respondent: Kuoni Travel Ltd

Questions referred

Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which Council Directive 90/314/EEC (1) of 13 June 1990 on package travel, package holidays and package tours applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates:

a)	is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so,

b)	by which criteria is the national court to assess whether that defence applies?

Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which Council Directive 90/314/EEC applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a ‘supplier of services’ for the purposes of the defence under article 5(2), third alinea of the Directive?

(1) OJ 1990, L 158, p. 59.

30.9.2019

Official Journal of the European Union

C 328/33

Reference for a preliminary ruling from Supreme Court of the United Kingdom (United Kingdom) made on 30 July 2019 — R (on the application of Association of Independent Meat Suppliers and another) v The Food Standards Agency

(Case C-579/19)

(2019/C 328/36)

Language of the case: English

Referring court

Supreme Court of the United Kingdom (United Kingdom)

Parties to the main proceedings

Applicants: R (on the application of Association of Independent Meat Suppliers and another)

Respondent: The Food Standards Agency

Questions referred

Do Regulations (EC) Nos 854 (1) and 882 (2) preclude a procedure whereby pursuant to section 9 of the Food Safety Act 1990 a Justice of the Peace decides on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements?

Does Regulation (EC) No 882 mandate a right of appeal in relation to a decision of an Official Veterinarian under article 5.2 of Regulation (EC) No 854 that the meat of a carcass was unfit for human consumption and, if it does, what approach should be applied in reviewing the merits of the decision taken by the Official Veterinarian on an appeal in such a case?

(1) Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ 2004, L 139, p. 206).

(2) Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ 2004, L 165, p. 1).

30.9.2019

Official Journal of the European Union

C 328/34

Appeal brought on 16 August 2019 by John Dalli against the judgment of the General Court (Sixth Chamber) delivered on 6 June 2019 in Case T-399/17: Dalli v Commission

(Case C-615/19 P)

(2019/C 328/37)

Language of the case: English

Parties

Appellant: John Dalli (represented by: L. Levi, avocate, S. Rodrigues, avocat)

Other party to the proceedings: European Commission

Forms of order sought

The appellant claims that the Court should:

—

set aside the contested judgment and declare the appellant’s requests in case T-399/17 admissible and well-founded, and consequently, order

—	the compensation of the prejudice, notably the moral prejudice, which can be estimated, on a provisional basis, at 1 000 000 Euros;

—	the defendant to bear the entire costs.

—	order the European Commission to pay the costs of both the appeal and of the proceedings at first instance in full.

Pleas in law and main arguments

By his first plea in law the appellant alleges several errors in law, namely violation of the duty to state reasons and distortion of the file by rejecting the first complaint related to the unlawfulness of the decision to open the investigation.

Second, the appellant alleges that the General Court erred in law by rejecting the second complaint related to flaws in the characterisation of the investigation and the unlawful extension of the investigation.

Third, the appellant alleges a distortion of evidence and breach of the rights of the defence in the General Court’s judgment in which the third complaint related to breach of the principles governing the gathering of evidence and distortion and falsification of the evidence was rejected.

Fourth, the appellant alleges a distortion of the clear sense of facts and evidence and errors in law by the General Court’s rejecting of the fourth complaint relating to the breach of the rights of the defence, of Article 4 of Commission Decision 1999/396, (1) and of Article 18 of the OLAF Instructions.

Fifth, the appellant alleges that the General Court erred in law by breaching the duty to state reasons and distorting evidence by rejecting the fifth complaint relating to the infringement of Article 11(7) of Regulation (EC) No 1073/1999 (2) and of Article 13(5) of the Supervisory Committee’s Rules.

Sixth, the appellant alleges several errors in law and distortion of evidence in the General Court’s judgment in which the sixth complaint relating to the breach of the principle of the presumption of innocence, the infringement of Article 8 of Regulation No 1073/1999 and of Article 339 TFEU and the breach of the right to the protection of personal data was rejected.

By its seventh and final plea in law the appellant alleges a distortion of the clear sense of the application and of evidence and an error in law by the General Court’s concluding that the appellant had not established the existence of a moral damage.

(1) 1999/396/EC, ECSC, Euratom: Commission Decision of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests (OJ 1999, L 149, p. 57).

(2) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999, L 136, p. 1).

30.9.2019

Official Journal of the European Union

C 328/36

Judgment of the General Court of 2 July 2019 — Mahmoudian v Council

(Case T-406/15) (1)

(Non-contractual liability - Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran - Freezing of funds - Restrictions on admission to the territories of the Member States - Compensation for the damage allegedly suffered as a result of the inclusion and maintenance of the applicant’s name on the lists of persons and entities subject to the restrictive measures - Material damage - Non-material damage)

(2019/C 328/38)

Language of the case: French

Parties

Applicant: Fereydoun Mahmoudian (Tehran, Iran) (represented by A. Bahrami and N. Korogiannikis, lawyers)

Defendant: Council of the European Union (represented by R. Liudvinaviciute-Cordeiro and M. Bishop, acting as Agents)

Intervener in support of the defendant: European Commission (represented initially by A. Aresu and D. Gauci, then by A. Aresu and R. Tricot acting as Agents)

Re:

Action under Article 268 TFEU seeking compensation in respect of the damage allegedly suffered by the applicant as a result of the adoption of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25), Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413/CFSP (OJ 2010 L 281, p. 81), and Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010, L 281, p. 1), by which the applicant’s name was included and maintained on the lists of persons and entities subject to the restrictive measures.

Operative part of the judgment

The Court:

1.	Orders the Council of the European Union to pay Mr Fereydoun Mahmoudian EUR 71 000 in compensation for the non-material damage suffered;

2.	Dismisses the action as to the remainder;

3.	Orders Mr Fereydoun Mahmoudian, the Council and the Commission each to bear their own costs.

(1) OJ C 337, 12.10.2015.

30.9.2019

Official Journal of the European Union

C 328/37

Judgment of the General Court of 11 July 2019 — CCPL and Others v Commission

(Case T-522/15) (1)

(Competition - Agreements, decisions and concerted practices - Retail food packaging market - Decision finding an infringement of Article 101 TFEU - Attributability of unlawful conduct - 2006 Guidelines on the method of setting fines - Value of sales - Ceiling of the fine - Proportionality - Equal treatment - Ability to pay)

(2019/C 328/39)

Language of the case: Italian

Parties

Applicants: CCPL — Consorzio Cooperative di Produzione e Lavoro SC (Reggio Emilia, Italy), Coopbox group SpA (Reggio Emilia), Poliemme Srl (Reggio Emilia), Coopbox Hispania, SL (Lorca, Spain), Coopbox Eastern s. r. o. (Nové Mesto nad Váhom, Slovakia) (represented by: S. Bariatti and E. Cucchiara, lawyers)

Defendant: European Commission (represented initially by F. Jimeno Fernández, A. Biolan and P. Rossi, and subsequently by F. Jimeno Fernandez, P. Rossi and L. Malferrari, acting as Agents)

Re:

Application under Article 263 TFEU for, principally, the partial annulment of Commission Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 — Retail food packaging) and, in the alternative, for the reduction of the fines imposed on the applicants.

Operative part of the judgment

The Court:

1.	Annuls Article 2(1)(f) and (g), Article 2(d) and (e) and Article 2(4)(c) and (d) of Commission Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 — Retail food packaging);

2.	Orders the European Commission to pay the costs, including those of the application for interim measures.

(1) OJ C 354, 26.10.2015.

30.9.2019

Official Journal of the European Union

C 328/38

Judgment of the General Court of 12 July 2019 — Toshiba Samsung Storage Technology and Toshiba Samsung Storage Technology Korea v Commission

(Case T-8/16) (1)

(Competition - Agreements, decisions and concerted practices - Market for optical disk drives - Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement - Collusive agreements relating to procurement events organised by two computer manufacturers - Breach of essential procedural requirements and of the rights of the defence - Jurisdiction of the Commission - Geographic scope of the infringement - Single and continuous infringement - Principle of good administration - 2006 Guidelines on the method of setting fines)

(2019/C 328/40)

Language of the case: English

Parties

Applicants: Toshiba Samsung Storage Technology Corp. (Tokyo, Japan) and Toshiba Samsung Storage Technology Korea Corp. (Suwon-si, South Korea) (represented initially by M. Bay, J. Ruiz Calzado, A. Aresu and A. Scordamaglia-Tousis, and subsequently by M. Bay, J. Ruiz Calzado and A. Aresu, lawyers)

Defendant: European Commission (represented initially by N. Khan, A. Biolan and M. Farley, and subsequently by A. Biolan, M. Farley and A. Cleenewerck de Crayencour, Agents,)

Re:

Action under Article 263 TFEU seeking, principally, annulment in whole or in part of Commission Decision C(2015) 7135 final of 21 October 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 — Optical disk drives), or, in the alternative, a reduction of the amount of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Toshiba Samsung Storage Technology Corp. and Toshiba Samsung Storage Technology Korea Corp. to bear their own costs and pay the costs incurred by the European Commission.

(1) OJ C 98, 14.3.2016.

30.9.2019

Official Journal of the European Union

C 328/38

Judgment of the General Court of 11 July 2019 — Yanukovych v Council

(Joined Case T-244/16 and T-285/17) (1)

(Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Maintenance of the applicant’s name on the list - Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)

(2019/C 328/41)

Language of the case: English

Parties

Applicant: Viktor Fedorovych Yanukovych (Kiev, Ukraine) (represented by: T. Beazley QC, E. Dean and J. Marjason-Stamp, Barristers)

Defendant: Council of the European Union (represented by: P. Mahnič and J.-P. Hix, Agents)

Re:

Application under Article 263 TFEU seeking the annulment, first, of Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 76), and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2016 L 60, p. 1) and, second, of Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 34), and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2017 L 58, p. 1), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures.

Operative part of the judgment

The Court:

Annuls Council Decision (CFSP) 2016/318 of 4 March 2016 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2016/311 of 4 March 2016 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as well as Council Decision (CFSP) 2017/381 of 3 March 2017 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2017/374 of 3 March 2017 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Viktor Fedorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures;

2.	Orders the Council of the European Union to bear its own costs and to pay those incurred by Mr Yanukovych.

(1) OJ C 243, 4.7.2016.

30.9.2019

Official Journal of the European Union

C 328/39

Judgment of the General Court of 11 July 2019 — IPPT PAN v Commission and REA

(Case T-805/16) (1)

(Arbitration clause - Sixth and Seventh Framework Programmes for research, technological development and demonstration activities - Decision to recover by offsetting claims of the European Union arising from the performance of a contract - Effective judicial protection - Right to refer to the Ombudsman - Financial regulation - Debts which are certain - Legitimate expectations - Principle of non-discrimination - Principle of sound administration - Misuse of powers - Contractual liability - Audit report - Eligible costs)

(2019/C 328/42)

Language of the case: English

Parties

Applicants: Instytut Podstawowych Problemów Techniki Polskiej Akademii Nauk (IPPT PAN) (Warsaw, Poland) (represented by: M. Le Berre, lawyer)

Defendants: European Commission (represented: initially by M. Siekierzyńska and P. Rosa Plaza, and subsequently by M. Siekierzyńska and F. van den Berghe, Agents), Research Executive Agency (REA), represented by S. Payan-Lagrou and V. Canetti, acting as Agents, and D. Waelbroeck and A. Duron, lawyers)

Intervener in support of the applicant: Republic of Poland (represented by: B. Majczyna, Agent)

Re:

Action, first, under Article 263 TFEU, seeking annulment of the Commission Decision of 6 September 2016 to recover alleged claims against the applicant under two contracts concluded in the context of the Sixth Framework Programme of the European Community for research, technological development and demonstration activities, by offsetting them against sums owing to the applicant by the Research Executive Agency (REA) under a grant agreement concluded in the context of the Seventh Framework Programme of the European Community for research, technological development and demonstration activities and, second, under Article 272 TFEU, seeking a declaration that the alleged claims of the Commission under the two contracts concluded in the context of the Sixth Framework Programme referred to above are invalid and an order directing the Commission and REA to pay the applicant the sum of EUR 69 623.94 in relation to the grant agreement concluded in the context of the Seventh Framework Programme referred to above plus default interest.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Instytut Podstawowych Problemów Techniki Polskiej Akademii Nauk (IPPT PAN) to bear two thirds of its own costs and pay those incurred by the Research Executive Agency (REA);

3.	Orders the European Commission to bear its own costs and pay one third of the costs incurred by IPPT PAN;

4.	Orders the Republic of Poland to bear its own costs.

(1) OJ C 22, 23.1.2017.

30.9.2019

Official Journal of the European Union

C 328/40

Judgment of the General Court of 11 July 2019 — Air France v Commission

(Case T-894/16) (1)

(Action for annulment - State aid - Measures implemented by France in favour of Marseille Provence Airport and airlines using the airport - Decision declaring the aid compatible with the internal market - Investment subsidies - Differentiation between airport charges applicable to national and international flights - Reduced airport charges to encourage flights from the new Marseille Provence terminal 2 - Lack of individual concern - No substantial effect on the competitive position - Inadmissibility)

(2019/C 328/43)

Language of the case: French

Parties

Applicant: Société Air France (Tremblay-en-France, France) (represented by: R. Sermier, lawyer)

Defendant: European Commission (represented by: S. Noë, C. Giolito and C. Georgieva-Kecsmar, Agents)

Interveners in support of the defendant: Aéroport Marseille Provence SA (Marignane, France) (represented by: A. Lepièce, lawyer), Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland) and Airport Marketing Services Ltd (Dublin) (represented by: E. Vahida and I.-G. Metaxas-Maranghidis, lawyers)

Re:

Action under Article 263 TFEU for the annulment of Commission Decision (EU) 2016/1698 of 20 February 2014 concerning measures SA.22932 (11/C) (ex NN 37/07) implemented by France in favour of Marseille Provence Airport and airlines using the airport (OJ 2016 L 260, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action as inadmissible;

2.	Orders Société Air France to bear its own costs and those incurred by the European Commission

3.	Orders Ryanair DAC and Airport Marketing Services Ltd and Aéroport Marseille Provence SA to bear their own costs.

(1) OJ C 46, 13.2.2017.

30.9.2019

Official Journal of the European Union

C 328/41

Judgment of the General Court of 12 July 2019 — Transdev and Others v Commission

(Case T-291/17) (1)

(State aid - State aid scheme implemented by France between 1994 and 2008 - Investment subsidies granted by the Île-de-France Region - Decision declaring the aid scheme compatible with the internal market - Concepts of ‘existing aid’ and ‘new aid’ - Article 107 TFEU - Article 108 TFEU - Article 1(b)(i) and (v) of Regulation (EU) 2015/1589 - Limitation period - Article 17 of Regulation 2015/1589 - Obligation to state reasons)

(2019/C 328/44)

Language of the case: French

Parties

Applicants: Transdev (Issy-les-Moulineaux, France), Transdev Île de France (Issy-les-Moulineaux), Transports rapides automobiles (TRA) (Villepinte, France) (represented by: F. Salat-Baroux, lawyer)

Defendant: European Commission (represented by: L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents)

Re:

Application on the basis of Article 263 TFEU seeking the annulment in part of Commission Decision (EU) 2017/1470 of 2 February 2017, on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France Region (OJ 2017 L 209, p. 24).

Operative part of the judgment

The Court:

1.	Dismisses the application.

2.	Orders Transdev, Transdev Île de France and Transports rapides automobiles (TRA) to bear their own costs and to pay those incurred by the European Commission.

(1) OJ C 231, 17.7.2017.

30.9.2019

Official Journal of the European Union

C 328/42

Judgment of the General Court of 12 July 2019 — Île-de-France Region v Commission

(Case T-292/17) (1)

(State aid - Aid scheme unlawfully implemented by France between 1994 and 2008 - Investment subsidies awarded by the Île-de-France Region - Decision declaring the aid scheme compatible with the internal market - Advantage - Selective nature - Article 107(1) TFEU - Obligation to state reasons - Concepts of ‘existing aid’ and ‘new aid’ - Article 108 TFEU - Article 1, (b) (i) and (v) of Regulation (EU) 2015/1589)

(2019/C 328/45)

Language of the case: French

Parties

Applicant: Île-de-France Region (France) (represented by: J.-P. Hordies, lawyer)

Defendant: European Commission (represented by: L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents)

Re:

Application on the basis of Article 263 TFEU seeking the annulment in part of Commission Decision (EU) 2017/1470 of 2 February 2017 on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France Region (OJ 2017 L 209, p. 24).

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Île-de-France Region to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 231, 17.7.2017.

30.9.2019

Official Journal of the European Union

C 328/43

Judgment of the General Court of 12 July 2019 — Optile v Commission

(Case T-309/17) (1)

(State aid - Aid scheme unlawfully implemented by France between 1994 and 2008 - Investment subsidies awarded by the Île-de-France region - Decision declaring the aid scheme compatible with the internal market - Concepts of ‘existing aid’ and ‘new aid’ - Article 107 TFEU - Article 108 TFEU - Article 1, (b) (i) and (v) of Regulation (EU) 2015/1589 - Limitation period - Article 17 of Regulation 2015/1589)

(2019/C 328/46)

Language of the case: French

Parties

Applicant: Organisation professionnelle des transports d’Île de France (Optile) (Paris, France) (represented by: F. Thiriez and M. Dangibeaud, lawyers)

Defendant: European Commission (represented by: L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders the Organisation professionnelle des transports d’Île de France (Optile) to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 249, 31.7.2017.

30.9.2019

Official Journal of the European Union

C 328/43

Judgment of the General Court of 12 July 2019 — Ceobus and Others v Commission

(Case T-330/17) (1)

(2019/C 328/47)

Language of the case: French

Parties

Applicants: Ceobus (Génicourt, France) and the other applicants whose names are listed in the annex to the judgment (represented initially by D. de Combles de Nayves and subsequently by F. Segalen, lawyers)

Defendant: European Commission (represented by: L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Ceobus and the other applicants whose names are listed in the annex to bear their own costs and to pay those incurred by the European Commission.

(1) OJ C 231, 17.7.2017.

30.9.2019

Official Journal of the European Union

C 328/44

Judgment of the General Court of 12 July 2019 — Steifer v EESC

(Case T-331/17) (1)

(Civil service - Officials - Pensions - Pension entitlement acquired before entry into service of the EU - Transfer to the EU scheme - Grant of additional seniority - Reimbursement of the amount of pension entitlement not taken into account in the scheme for the calculation of annuities of pension of the EU - No new and substantial facts - No excusable error - Liability - Inadmissibility)

(2019/C 328/48)

Language of the case: French

Parties

Applicant: Guy Steifer (Brussels, Belgium) (represented by: M.-A Lucas and M. Bertha, lawyers)

Defendant: European Economic and Social Committee (represented by: M. Pascua Mateo, K. Gambino and L. Camarena Januzec, acting and Agents, assisted by M. Troncoso Ferrer and F.-M. Hislaire, lawyers)

Re:

Application pursuant to Article 270 TFEU seeking, first, to annul the decision of 21 October 2002 of the Director of Human and Financial Resources of the EESC rejecting the applicant’s request of 2 October 2002 for reimbursement, together with applicable interest, of the part of his Belgian pension rights not credited on transfer to the EU pension scheme and Decision No 360/03 A of that Director of 15 December 2003 fixing the applicant’s entitlement to a retirement pension, second, to order the EESC to reimburse the applicant the amount of the periodic annuity payments paid by the Belgian National Pensions Office to the EESC since 1 January 2004 as a result of the transfer of his pension rights and to reimburse the applicant each month the amount of the periodic annuity payments to be paid in the future and, third, compensation for the harm allegedly suffered by the applicant as a result of one of the grounds of that decision by which the Director wrongly informed him that he had no right to a Belgian pension.

Operative part of the judgment

The Court:

1.	Dismisses the action as inadmissible;

2.	Orders Guy Steifer to pay the costs.

(1) OJ C 231, 17.7.2017.

30.9.2019

Official Journal of the European Union

C 328/45

Judgment of the General Court of 12 July 2019 — STIF-IDF v Commission

(Case T-738/17) (1)

(State aid - Aid scheme unlawfully implemented by France between 1994 and 2008 - Investment subsidies awarded by the STIF-IDF - Decision declaring the aid scheme compatible with the internal market - Advantage - Offsetting of costs involved in the discharging of public service obligations - Article 107(1), TFEU - Obligation to state reasons)

(2019/C 328/49)

Language of the case: French

Parties

Applicant: Syndicat Transport Île de France (STIF-IDF) (Paris, France) (represented by: B. Le Bret and C. Rydzynski, lawyers)

Defendant: European Commission (represented by: L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the application.

2.	Orders Syndicat Transport Île de France (STIF-IDF) to bear its own costs and to pay those incurred by the European Commission.

(1) OJ C 22, 22.1.2018.

30.9.2019

Official Journal of the European Union

C 328/46

Judgment of the General Court of 9 July 2019 — Germany v Commission

(Case T-53/18) (1)

(Approximation of laws - Regulation (EU) No 305/2011 - Regulation (EU) No 1025/2012 - Construction products - Harmonised standards EN 13341:2005 + A1:2011 and EN 12285-2:2005 - Obligation to state reasons)

(2019/C 328/50)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented initially by T. Henze and J. Möller, and subsequently by J. Möller, acting as Agents, and by M. Winkelmüller, F. van Schewick and M. Kottmann, lawyers)

Defendant: European Commission (represented by: C. Hermes and A. Sipos, acting as Agents)

Re:

Application under Article 263 TFEU seeking annulment of, first, Commission Decision (EU) 2017/1995 of 6 November 2017 to maintain in the Official Journal of the European Union the reference of harmonised standard EN 13341:2005 + A1:2011 on static thermoplastic tanks for above-ground storage of domestic heating oils, kerosene and diesel fuels in accordance with Regulation (EU) No 305/2011 of the European Parliament and of the Council (OJ 2017 L 288, p. 36) and, second, Commission Decision (EU) 2017/1996 of 6 November 2017 to maintain in the Official Journal of the European Union the reference of harmonised standard EN 12285-2:2005 on Workshop fabricated steel tanks in accordance with Regulation (EU) No 305/2011 of the European Parliament and of the Council (OJ 2017 L 288, p. 39)

Operative part of the judgment

The Court:

1.	Dismisses the action;

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

(1) OJ C 112, 26.3.2018.

30.9.2019

Official Journal of the European Union

C 328/46

Judgment of the General Court of 11 July 2019 — Gollnisch v Parliament

(Case T-95/18) (1)

(Rules governing the payment of expenses and allowances to Members of the European Parliament - Parliamentary assistance allowance - Recovery of sums unduly paid - Complaint - Action for annulment - Admissibility - Rights of the defence - Obligation to state reasons - Error of fact)

(2019/C 328/51)

Language of the case: French

Parties

Applicant: Bruno Gollnisch (Villiers-le-Mahieu, France) (represented by B. Bonnefoy-Claudet, lawyer)

Defendant: European Parliament (represented by S. Seyr and M. Ecker, acting as Agents)

Intervener in support of the defendant: Council of the European Union (represented by M. Bauer, R. Meyer and A. Jensen, acting as Agents)

Re:

Application under Article 263 TFEU seeking annulment of the decision of the Secretary-General of the Parliament of 1 July 2016 concerning the recovery of a sum of EUR 275 984.23 unduly paid as parliamentary assistance allowance, the debit note of 5 July 2016 relating thereto, and the decision of the Bureau of the European Parliament of 23 October 2017 confirming the decision of the Quaestors of 14 March 2017 rejecting the complaint directed against the decision of 1 July 2016.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Bruno Gollnisch to bear his own costs and pay those incurred by the European Parliament;

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

(1) OJ C 142, 23.4.2018.

30.9.2019

Official Journal of the European Union

C 328/47

Judgment of the General Court of 11 July 2019 — Klymenko v Council

(Case T-274/18) (1)

(2019/C 328/52)

Language of the case: French

Parties

Applicant: Olexsandr Viktorovych Klymenko (Moscow, Russia) (represented by M. Phelippeau, lawyer)

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

Re:

Application under Article 263 TFEU seeking annulment of Council Decision (CFSP) 2018/333 of 5 March 2018, amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L63, p. 48) and of Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 5), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures.

Operative part of the judgment

The Court:

Annuls Council Decision (CFSP) 2018/333 of 5 March 2018, amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as Mr Oleksandr Viktorovych Klymenko’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures;

2.	Orders the Council of the European Union to pay the costs.

(1) OJ C 249, 16.7.2018.

30.9.2019

Official Journal of the European Union

C 328/48

Judgment of the General Court of 11 July 2019 — Pshonka v Council

(Case T-285/18) (1)

(Common foreign and security policy - Restrictive measures adopted with regard to the situation in Ukraine - Freezing of funds - List of persons, entities and bodies subject to the freezing of funds and economic resources - Maintenance of the applicant’s name on the list - Obligation on the Council to check that the decision of an authority of a third State was taken in observance of the rights of the defence and of the right to effective judicial protection)

(2019/C 328/53)

Language of the case: Czech

Parties

Applicant: Viktor Pavlovych Pshonka (Kiev, Ukraine) (represented by: M. Mleziva, lawyer)

Defendant: Council of the European Union (represented by: V. Piessevaux and R. Pekař, Agents)

Re:

Application based on Article 263 TFEU and seeking annulment of Council Decision (CFSP) 2018/333 of 5 March 2018 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 48), and of Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 5), in so far as the applicant’s name was maintained on the list of persons, entities and bodies subject to those restrictive measures.

Operative part of the judgment

The Court:

Annuls Council Decision (CFSP) 2018/333 of 5 March 2018 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine in so far Viktor Pavlovych Pshonka’s name was maintained on the list of person, entities and bodies subject to those restrictive measures;

2.	Orders the Council of the European Union to pay the costs.

(1) OJ C 249, 16.7.2018.

30.9.2019

Official Journal of the European Union

C 328/49

Judgment of the General Court of 11 July 2019 — Pshonka v Council

(Case T-289/18) (1)

(2019/C 328/54)

Language of the case: Czech

Parties

Applicant: Artem Viktorovych Pshonka (Kramatorsk, Ukraine) (represented by: M. Mleziva, lawyer)

Defendant: Council of the European Union (represented by: V. Piessevaux and R. Pekař, Agents)

Re:

Operative part of the judgment

The Court:

Annuls Council Decision (CFSP) 2018/333 of 5 March 2018 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine in so far Artem Viktorovych Pshonka’s name was maintained on the list of person, entities and bodies subject to those restrictive measures;

2.	Orders the Council of the European Union to pay the costs.

(1) OJ C 249, 16.7.2018.

30.9.2019

Official Journal of the European Union

C 328/50

Judgment of the General Court of 9 July 2019 — Hugo’s Hotel v EUIPO — H'ugo's (HUGO’S BURGER Bar)

(Case T-397/18) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark HUGO’S BURGER Bar - Earlier EU word mark H’ugo’s - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 328/56)

Language of the case: English

Parties

Applicant: Hugo’s Hotel Ltd (St. Julians, Malta) (represented by: R. Sladden, lawyer)

Defendant: European Union Intellectual Property Office (represented by: E. Śliwińska and J. Ivanauskas, Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: H’ugo’s GmbH (Munich, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 May 2018 (Case R 1879/2017-4), relating to opposition proceedings between H’ugo’s and Hugo’s Hotel 2 May 2018 (Case R 1879/2017-4), relating to opposition proceedings between H’ugo’s and Hugo’s Hotel.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hugo’s Hotel Ltd to pay the costs.

(1) OJ C 301, 27.8.2018.

30.9.2019

Official Journal of the European Union

C 328/51

Judgment of the General Court of 9 July 2019 — XF v Commission

(Case T-482/18) (1)

(Civil service - Officials - Remuneration - Installation allowance - Temporary change of place of employment - Change of residence)

(2019/C 328/57)

Language of the case: French

Parties

Applicant: XF (represented by J.-N. Louis, lawyer)

Defendant: European Commission (represented by T. Bohr and D. Milanowska, acting as Agents)

Re:

Action under Article 270 TFEU seeking annulment of the decision of the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 2 October 2017, by which it refused to grant the applicant the benefit of the installation allowance when he moved and took up his appointment at the headquarters of the European External Action Service (EEAS) in Brussels (Belgium).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders XF to bear his own costs and pay those incurred by the European Commission.

(1) OJ C 364, 8.10.2018.

30.9.2019

Official Journal of the European Union

C 328/52

Order of the General Court of 8 July 2019 — Lidl Stiftung v EUIPO — Amedei (For you)

(Case T-480/16) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark For you - Decision to reject the application for registration based on absolute grounds for refusal - No longer any locus standi - No need to adjudicate)

(2019/C 328/58)

Language of the case: English

Parties

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

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

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

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 28 April 2016 (Case R 851/2015-5), relating to opposition proceedings between Amedei and Lidl Stiftung.

Operative part of the order

1.	There is no longer any need to adjudicate on the action.

2.	Each party shall bear its own costs.

(1) OJ C 402, 31.10.2016.

30.9.2019

Official Journal of the European Union

C 328/52

Order of the General Court of 9 July 2019 — Scaloni and Figini v Commission

(Case T-158/18) (1)

(Action for damages - Resolution of credit institutions and investment firms - Directive 2014/59/EU and Regulation (EU) No 806/2014 - State Aid - Disregard of the procedural requirements - Article 76(d) of the Rules of Procedure - Manifest inadmissibility)

(2019/C 328/59)

Language of the case: Italian

Parties

Applicants: Mario Scaloni (Ancona, Italy) and Ennio Figini (Chiaravalle, Italy) (represented by: P. Putti, lawyer)

Defendant: European Commission (represented by: D. Recchia, A. Steiblytė and K.-P. Wojcik, acting as Agents)

Interveners in support of the defendant: European Parliament (represented by: L. Visaggio and M. Sammut, acting as Agents), Council of the European Union (represented by: E. Rebasti and J. Bauerschmidt, acting as Agents)

Re:

Action pursuant to Article 268 TFEU seeking compensation for material loss alleged to have been suffered as a result of the Commission’s refusal to allow the Italian state to establish a state aid in favour of the Banca delle Marche.

Operative part of the order

1.	The action is dismissed.

2.	Mario Scaloni and Ennio Figini shall bear their own costs and the costs incurred by the Commission.

3.	The European Parliament and the Council of the European Union shall bear their own costs.

(1) OJ C 152, 30.4.2018.

30.9.2019

Official Journal of the European Union

C 328/53

Order of the General Court of (Ninth Chamber) of 5 July 2019 — ArcelorMittal Bremen v Commission

(Case T-544/18) (1)

(Environment - Directive 2003/87/EC - System for greenhouse gas emission allowance trading - Regulation (EU) No 389/2013 - Transitional rules for harmonised free allocation of emission allowances - Notification of a change in the national allocation table for Germany for the period from 2013 to 2020 - Request to change the national allocation table recorded in the European Union Transaction Log - Action for failure to act - Instruction given during the proceedings by the Commission to the central administration - Action which has become devoid of purpose - No need to adjudicate)

(2019/C 328/60)

Language of the case: German

Parties

Applicant: ArcelorMittal Bremen GmbH (Bremen, Germany) (represented by: S. Altenschmidt and D. Jacob, lawyers)

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

Re:

Application, principally, pursuant to Article 265 TFEU seeking a declaration that the Commission unlawfully failed to instruct the central administrator to record in the national allocation table in the European Union Transaction Log (EUTL) the change notified on 8 February 2018 by the Federal Republic of Germany in respect of the applicant’s installation and, in the alternative, an application pursuant to Article 263 TFEU seeking the annulment of the alleged decision adopted by the Commission on 31 August 2018 following the applicant’s letter of formal notice of 14 May 2018.

Operative part of the order

1.	There is no longer any need to adjudicate on the action.

2.	The claim seeking to ‘reprimand’ the Commission representatives for having produced inaccurate material before the General Court and for having failed to comply with their procedural obligation to present a factually accurate statement is rejected.

3.	There is no longer any need to adjudicate on the application by the Federal Republic of Germany for permission to intervene.

4.	The Commission shall bear its own costs and those incurred by ArcelorMittal Bremen GmbH.

5.	The Federal Republic of Germany shall bear its own costs relating to the application to intervene.

(1) OJ C 399, 5.11.2018.

30.9.2019

Official Journal of the European Union

C 328/54

Order of the General Court of 9 July 2019 — VodafoneZiggo Group v Commission

(Case T-660/18) (1)

(Action for annulment - Electronic communications - Article 7 of Directive 2002/21/EC - Wholesale provision of fixed access - Joint significant market power - Specific regulatory obligations imposed on operators - Draft measure made accessible by the national regulatory authority - Comments of the Commission - Second phase of the procedure not opened - Act not open to challenge - Article 130 of the Rules of Procedure - Inadmissibility)

(2019/C 328/61)

Language of the case: English

Parties

Applicant: VodafoneZiggo Group BV (Utrecht, Netherlands) (represented by: W. Knibbeler and A. Pliego Selie, lawyers)

Defendant: European Commission (represented by: G. Braun and L. Nicolae, acting as Agents)

Re:

Action pursuant to Article 263 TFEU seeking the annulment of the decision allegedly contained in the letter of 30 August 2018 sent by the Commission to the Autoriteit Consument en Markt (Consumers and Markets Authority, Netherlands), the Dutch regulatory authority, containing its comments made pursuant to Article 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), on a draft measure made accessible by that authority (Cases NL/2018/2099 and NL/2018/2100).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no longer any need to rule on the applications for leave to intervene made by the Kingdom of the Netherlands or by T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV.

3.	VodafoneZiggo Group BV shall bear its own costs and shall pay the costs incurred by the European Commission, with the exception of those relating to the applications for leave to intervene.

4.	VodafoneZiggo Group, the Commission, the Kingdom of the Netherlands, T-Mobile Netherlands Holding, T-Mobile Netherlands, T-Mobile Thuis and Tele2 Nederland shall each bear their own costs relating to the applications for leave to intervene.

(1) OJ C 4, 7.1.2019.

30.9.2019

Official Journal of the European Union

C 328/55

Order of the General Court of 11 July 2019 — Vattenfall Europe Nuclear Energy v Commission

(Case T-674/18) (1)

(Action for annulment - State aid - 16th Law amending the Law on Nuclear Energy (Atomgesetz) - Implementation of a judgment of the Bundesverfassungsgericht (German Federal Constitutional Court) - Companies operating nuclear power stations - Cessation of operation - Financial compensation for the amounts of electricity not generated - Letter from the Commission - No requirement for formal notification under Article 108(3) TFEU - Act not open to challenge - Inadmissibility)

(2019/C 328/63)

Language of the case: German

Parties

Applicant: Vattenfall Europe Nuclear Energy GmbH (Hamburg, Germany) (represented by: U. Karpenstein and R. Sangi, lawyers)

Defendant: European Commission (represented by: B. Stromsky and K. Herrmann, acting as Agents)

Re:

Action under Article 263 TFEU seeking annulment of the decision allegedly contained in the Commission’s letter of 4 July 2018, signed by the Commission’s Deputy Director-General for Competition and addressed to the Federal Republic of Germany.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no longer any need to adjudicate on the application of the Federal Republic of Germany for leave to intervene.

3.	Vattenfall Europe Nuclear Energy GmbH shall bear its own costs and pay those incurred by the European Commission.

4.	The Federal Republic of Germany, Vattenfall Europe Nuclear Energy and the Commission shall each bear their own respective costs relating to the application for leave to intervene.

(1) OJ C 25, 21.1.2019.

30.9.2019

Official Journal of the European Union

C 328/56

Order of the General Court of 10 July 2019 — Pilatus Bank v ECB

(Case T-687/18) (1)

(Action for annulment - Economic and monetary policy - Prudential supervision of credit institutions - Suspension measures taken by the national supervisory authority - Appointment of a contact person - Limited communication with the ECB - Procedural defects - Intermediary or preparatory measures - Rights of defence - Inadmissibility)

(2019/C 328/64)

Language of the case: English

Parties

Applicant: Pilatus Bank plc (Ta’Xbiex, Malta) (represented by: O. Behrends, M. Kirchner and L. Feddern, lawyers)

Defendant: European Central Bank (ECB) (represented by: E. Yoo, M. Puidokas and A. Karpf, Agents)

Re:

Application pursuant to Article 263 TFEU seeking annulment of the ECB’s email of 10 September 2018 in so far as, by that email, the ECB requested the applicant to direct its communications via the Competent Person appointed under Maltese law or with the Competent Person’s approval.

Operative part of the order

1.	The action is dismissed as being inadmissible;

2.	Pilatus Bank plc shall pay the costs, including those relating to the interlocutory proceedings.

(1) OJ C 25, 21.1.2019.

30.9.2019

Official Journal of the European Union

C 328/57

Order of the President of the General Court of 15 July 2019 — 3V Sigma v ECHA

(Case T-176/19 R)

(Application for interim measures - REACH - UVASORB HEB - Evaluation procedure - Decision of the Board of Appeal of ECHA - Application for interim measures - No urgency)

(2019/C 328/65)

Language of the case: English

Parties

Applicant: 3V Sigma SpA (Milan, Italy) (represented, initially, by C. Bryant and S. Hainsworth, Solicitors, and C. Krampitz, lawyer, and, subsequently, by C. Bryant, S. Hainsworth and D. Anderson, Solicitors)

Defendant: European Chemicals Agency (represented, initially, by M. Heikkilä and W. Broere and, subsequently, by W. Broere, acting as Agents)

Re:

Application under Articles 278 TFEU and 279 TFEU seeking suspension of the application of Decision A-004-2017 of the Board of Appeal of ECHA of 15 January 2019 regarding the substance evaluation of the chemical substance UVASORB HEB and, consequently, the extension, for the duration of the suspension, of the prescribed period for submission of the results of the tests, or an order for any other or additional measure which the President of the Court may consider necessary or appropriate.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs shall be reserved.

30.9.2019

Official Journal of the European Union

C 328/59

Action brought on 8 July 2019 — Landesbank Baden-Württemberg v SRB

(Case T-480/19)

(2019/C 328/69)

Language of the case: German

Parties

Applicant: Landesbank Baden-Württemberg (Stuttgart, Germany) (represented by: H. Berger and K. Rübsamen, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the Single Resolution Board of 16 April 2019 on the calculation of the ex-ante contributions to the Single Resolution Fund for 2019 (SRB/ES/SRF/2019/10), including the annex thereto, in so far as the contested decision, including the annex thereto, concerns the applicant’s contribution; and

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

Pleas in law and main arguments

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

First plea in law, alleging infringement of the second paragraph of Article 296 TFEU and of Article 41(1) and (2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’) due to the fact that the contested decision fails to state adequate reasons

—

The applicant claims that the defendant Board has infringed its obligation to state reasons as the contested decision is inadequately reasoned and the annex consists merely of a set of figures from which it is not possible to determine, even to a limited degree, how and on the basis of what reasoning the defendant calculated the applicant’s contribution. The contested decision fails to do justice in any way whatsoever to the increased requirements to state reasons. The infringement of the obligation to state reasons is also material in that it influences the content of the contested decision.

Second plea in law, alleging infringement of the right to be heard under Article 41(1) and (2)(a) of the Charter due to the fact that the applicant was not given an opportunity to set out its views orally

—

In addition, the defendant Board has infringed the applicant’s fundamental procedural right to be heard since it adopted the act that is legally detrimental to the applicant without having heard the applicant beforehand. The infringement of the right to be heard is material since, had the applicant submitted observations prior to the contested decision, the content of the calculation decision could have been different.

Third plea in law, alleging infringement of the fundamental right to effective legal protection under the first paragraph of Article 47 of the Charter due to fact that the contested decision is not subject to review

—

The applicant claims that the defendant Board has infringed the applicant’s fundamental right to effective legal protection since it is practically impossible to subject the contested decision to judicial review. Furthermore, the defendant has failed to ensure, to the greatest possible extent, compliance with the adversarial principle, in order to enable the applicant to contest the grounds on which the contested decision is based and, therefore, to put forward an effective defence.

Fourth plea in law, alleging infringement of Article 103(7)(h) of Directive 2014/59/EU, (1) of Article 113(7) of Regulation (EU) No 575/2013, (2) of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, (3) of Articles 16 and 20 of the Charter and of the principle of proportionality due to the application of the multiplier for the IPS (Institutional Protection Scheme) Indicator

—

The applicant claims that the defendant Board, in breach of Article 103(7)(h) of Directive 2014/59/EU, of Article 113(7) of Regulation (EU) No 575/2013, of the first sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, of Articles 16 and 20 of the Charter and of the principle of proportionality, has not fully applied the IPS Indicator to the applicant. The protection offered by an institutional protection scheme applies to all member institutions fully and equally. Discrimination between the institutions at the level of IPS-Indicators is inconsistent with that scheme and is arbitrary.

Fifth plea in law, alleging infringement of Article 16 of the Charter and of the principle of proportionality due to the application of the risk adjustment multiplier

—

The applicant also relies on the fact that the defendant Board has infringed its freedom to conduct a business and the principle of proportionality, in so far as it calculated risk adjustment multipliers that are incompatible with the applicant’s risk profile, which, relative to the other contributor-institutions, is better than average. The risk that the applicant might become a bank in resolution and use the funds of the Single Resolution Fund (SRF) is very low, it being the task of the risk adjustment multiplier, which is supposed to reflect adequately the individual risk, to take into account that probability.

Sixth plea in law, alleging the illegality of Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and of Annex I to that delegated regulation

—

Finally, the contested decision should also be annulled since Articles 4 to 7 and Article 9 of Delegated Regulation (EU) 2015/63 and Annex I to that delegated regulation infringe the principle of effective legal protection and the principle of legal certainty. The applicant can claim indirectly under Article 277 TFEU that the legal basis of the contested decision infringes superior EU law. Article 277 TFEU expresses the general principle that the illegality of a legal basis has an effect on the individual decision adopted on the basis thereof.

(1) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

(2) 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 646/2012. Text with EEA relevance (OJ 2013 L 176, p. 1).

(3) Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

30.9.2019

Official Journal of the European Union

C 328/61

Action brought on 17 July 2019 — Puma v EUIPO — Gemma Group (Device of a jumping animal)

(Case T-510/19)

(2019/C 328/70)

Language of the case: English

Parties

Applicant: Puma SE (Herzogenaurach, Germany) (represented by: P. González-Bueno Catalán de Ocón, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Gemma Group Srl (Cerasolo Ausa, Italy)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union figurative mark representing device of a jumping animal — Application for registration No 11 573 474

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 30 April 2019 in Case R 2057/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO and GEMMA GROUP S.r.l. to pay the costs of the proceedings.

Plea in law

—	Infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

30.9.2019

Official Journal of the European Union

C 328/62

Action brought on 19 July 2019 — Homoki v Commission

(Case T-517/19)

(2019/C 328/71)

Language of the case: Hungarian

Parties

Applicant: Andrea Homoki (Gyál, Hungary) (represented by: T. Hüttl, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

in accordance with Article 264 of the consolidated versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), (1) annul Decision No OCM(2019) 7991-04/04/2019 (olaf.c.4[2019] 8720) adopted on 4 April 2019 by the European Anti-Fraud Office (OLAF) in Case No OF/2015/0034/B4, as well as Decision No OCM(2019) 11506-22/05/2019 (olaf.c.4[2019] 12610) adopted on 22 May 2019 in the same case, confirming, pursuant to the provisions of the second paragraph of Article 264 TFEU, those parts of the contested decisions the purpose of which is to protect the identity of informants and the confidentiality of the OLAF internal memorandum and the procedural working documents;

—	order the defendant to pay the applicant’s costs in accordance with Article 134 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

In the first contested decision, OLAF refused the applicant access to the OLAF report on Elios Innovatív Zrt.’s investment in street lighting (OLAF case No OF/2015/0034/B4), while in the second contested decision, it rejected the confirmatory application submitted by the applicant.

In support of the action for annulment of the contested decisions, the applicant relies on eight pleas in law.

First plea in law, alleging failure to protect fundamental rights

—

Knowledge of the requested document forms part of the applicant’s right to freedom of expression and information under Article 11 of the Charter of Fundamental Rights. The applicant submits that by refusing to disclose the document requested, the defendant failed to comply with the fundamental rights criterion laid down by the Charter of Fundamental Rights, and also failed to take fundamental rights into account. Instead it disproportionately restricted the applicant’s right to freedom of expression and information.

Second plea in law, based on the rebuttal of the general presumption prohibiting access to documents

—

The applicant submits that the general presumption prohibiting access to OLAF documents is unlawful. According to the applicant, the fundamental right of access to documents cannot be negated in such a way that the body applying the law may exclude from the general rule of publicity all documents drawn up by one of the institutions (in the present case, OLAF) without analysing the content of the data requested.

Third plea in law, contesting the duty of confidentiality

—

The applicant complains that OLAF refused to grant full access to the document on the ground of the duty of confidentiality. As a result, the restriction which, on the basis of that duty, allows the entire file of the OLAF investigation to remain exempt from disclosure is disproportionate, thus completely negating the right of EU citizens to access the documents of the EU institutions.

Fourth plea in law, based on the right of access

—

The applicant submits that the situation in which the body applying the law only grants access to specific documents if the applicant establishes an overriding reason in the public interest against the presumption prohibiting access to documents is incompatible with the general rule of publicity. The applicant takes the view that the body processing the data must demonstrate that there is an exception which justifies limiting disclosure.

Fifth plea in law, alleging failure to state reasons relating to external pressure and the protection of the decision-making process

—	The applicant submits that, so far as concerns exercising the right of access, the defendant failed to conduct an individual assessment or to state reasons on the substance as to exactly which part of the data requested was necessary for the adoption of the decision in progress.

Sixth plea in law, alleging failure to state reasons in relation to the protection of commercial interests

—

The applicant submits that the defendant failed to justify its finding that the grant of access would jeopardise the commercial interests of natural or legal persons. An unjustified and hypothetical risk cannot negate the fundamental right to knowledge and disclosure of data of public interest, from which the person requesting the data benefits.

Seventh plea in law, alleging that the transmission of personal data is justified on established public-interest grounds

—

The applicant submits that the defendant’s argument relating to the protection of personal data is unlawful in that, in providing a public service and using public money, the protection of personal data is to be applied subject to restrictions. Moreover, the defendant failed to inform the applicant that the latter ought to have justified the possibility of having knowledge of personal data on public-interest grounds.

Eighth plea in law, alleging that there is an overriding public interest in the disclosure of the documents requested

—

The applicant submits that there is an overriding public interest in the disclosure of the document requested. The applicant bases that overriding public interest on the fact that it cannot be expected that the Hungarian authorities will conduct an examination on the substance as regards the serious abuses found by OLAF. In the applicant’s view, only disclosure can serve as an effective tool in that respect.

(1) OJ 2010 C 83, p. 1.

30.9.2019

Official Journal of the European Union

C 328/64

Action brought on 25 July 2019 — Intering and Others v Commission

(Case T-525/19)

(2019/C 328/72)

Language of the case: German

Parties

Applicants: Intering SH.P.K. (Obiliq, Kosovo), Steinmüller Engineering GmbH (Gummersbach, Germany), Deling d.o.o. za proizvodnju, promet i usluge (Šići bb, Tuzla, Bosnia and Herzegovina), ZM- Vikom d.o.o. za proizvodnju, konstruckcije i montažu (Šibenik, Croatia) (represented by: R. Spielhofen, Rechtsanwalt), forming a consortium

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

annul the decision of the defendant, represented by the European Commission, in the name of and on behalf of Kosovo, of June 2019 (by means of an undated document, made available to the applicant on 7 June 2019) — Ref.: Ares(2019)3677456-07/06/2019 — on the exclusion of the applicant from the further tendering procedure and its non-inclusion on the short list in connection with a procedure for the award of a contract under the programme entitled ‘EU Support to clean air in Kosovo’ to reduce dust and NOx emissions at TPP Kosovo B, Units B1 and B2 — Publication reference no.: EuropeAid/140043/DH/WKS/XK.

By application of 2 August 2019, the form of order was modified as follows:

—

annul the decision of the defendant, represented by the European Commission, in the name of and on behalf of Kosovo, of 29 June 2019 (disclosed to the applicant by letter of 30 July 2019) — Ref.: Ares(2019)4979920-30/07/2019 and Ares D(2019) NA/vk — on the exclusion of the applicant from the further tendering procedure and its non-inclusion on the short list in connection with a procedure for the award of a contract under the programme entitled ‘EU Support to clean air in Kosovo’ to reduce dust and NOx emissions at TPP Kosovo B, Units B1 and B2 — Publication reference no.: EuropeAid/140043/DH/WKS/XK.

Pleas in law and main arguments

In support of the action, the applicants rely on eight pleas in law:

First plea in law: Infringement of the principles of transparency, proportionality and equal treatment of tenderers in that the defendant failed to resolve its doubts with regard to the documents filed by the applicants, despite the fact that it appeared to have doubts to that effect, and excluded the applicants from the further tendering procedure without giving them the opportunity to resolve the abovementioned doubts.

Second plea in law: Infringement of the principles of transparency and proportionality in that the defendant failed to justify its decision to exclude the applicants from the further tendering procedure while at the same time failing to grant the applicants access to the detailed evaluation report on which the contested decision was based or to provide them with information on the advantages and characteristics of the tenderers included on the short list.

Third plea in law: Infringement of the general principle that the tender documents are to be protected from any changes during the tendering procedure in that, in accordance with the defendant’s communication, the applicants’ tender was evaluated on the basis of sub-criteria and interpretations that were not provided for in the documents of the relevant procedure.

Fourth plea in law: Infringement of Article 5(1) (‘Financial assistance under this Regulation shall be consistent with Union policies’) and Article 5(2) (‘The Commission, in liaison with Member States, shall contribute to the implementation of Union commitments towards increased transparency and accountability in the delivery of assistance, including by publicly disclosing information on assistance volume and allocation, ensuring that data is internationally comparable and can be easily accessed, shared and published’) of Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-Accession Assistance (IPA II) (1) with regard to the fact that the contested decision infringes the general principles of public procurement law.

Fifth plea in law: Infringement of Article 1(3) (‘The Commission shall ensure that actions are implemented in accordance with the objectives of the applicable Instrument, and in conformity with an effective protection of the financial interests of the Union’) and Article 1(6) (‘The Union shall seek to promote, develop and consolidate the principles of democracy, the rule of law and respect for human rights and fundamental freedoms on which it is founded, on the basis of, where appropriate, dialogue and cooperation with partner countries and regions’) of Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action, (2) with regard to the fact that the contested decision infringes the general principles of public procurement law.

Sixth plea in law: Infringement of the provisions of the ‘Practical Guide on Procurement and Grants for European Union external actions’ (applicable as from 2 August 2018) (‘PRAG’) with regard to the scope of this procedure and the terms of the notice (as defined above), as specified by the contracting authorities, in particular point 17 of the notice.

Seventh plea in law: Infringement of the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (3) in that the defendant did not justify its decision to exclude the applicants from the further tendering procedure while at the same time failing to grant the applicants access to the detailed evaluation report on which the contested decision was based or to provide them with information on the advantages and characteristics of the contractors included on the short list.

Eighth plea in law: Infringement of the provisions of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (4) (‘the Financial Rules’) in connection with the failure to state adequate reasons for the rejection of the applicants’ request to participate in the procedure covered by the contract notice.

(1) Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-Accession Assistance (IPA II) (OJ 2014 L 77, p. 11).

(2) Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ 2014 L 77, p. 95).

(3) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, pp. 43 to 48).

(4) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, pp. 1 to 96). No longer in force, repealed by Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, pp. 1 to 222).

30.9.2019

Official Journal of the European Union

C 328/65

Action brought on 30 July 2019 — DK v GSA

(Case T-537/19)

(2019/C 328/73)

Language of the case: French

Parties

Applicant: DK (represented by: T. Bontinck and A. Guillerme, lawyers)

Defendant: European GNSS Agency

Form of order sought

The applicant claims that the Court should:

—	annul the GSA decision of 20 May 2019 refusing full access to the document ‘summary of 26 June 2017 by Mr [X]’;

—	order the GSA to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging an error of law in the application of Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43). In that regard, the applicant claims that the decision of the European GNSS Agency (GSA) of 20 May 2019 refusing it full access to the document ‘summary of 26 June 2017 by Mr [X]’ is illegal in that that refusal is based on the public security exception provided for in Article 4(1)(a) of Regulation No 1049/2001, whereas the document in question:

—	cannot be connected with issues of public security since it concerns a case connected with agency personnel and;

—	cannot be classified [RESTREINT/RESTRICTED EU].

Second plea in law, alleging an error of law in the application of Article 4(1)(b) of Regulation No 1049/2001. In that regard, the applicant submits that the contested decision is illegal in so far as the refusal is based on the exception in respect of protection of personal data of the natural persons named in the document, provided for in Article 4(1)(b) of Regulation No 1049/2001, since relying on that exception is, in the present case, unjustified and disproportionate.

30.9.2019

Official Journal of the European Union

C 328/66

Action brought on 30 July 2019 — Casino, Guichard-Perrachon v Commission

(Case T-538/19)

(2019/C 328/74)

Language of the case: French

Parties

Applicant: Casino, Guichard-Perrachon (Saint-Étienne, France) (represented by: I. Simic, G. Aubron, O. de Juvigny and T. Reymond, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	declare Article 20 of Regulation No 1/2003 inapplicable in the present case on the basis of Article 277 TFEU and, consequently, annul European Commission Decision C(2019) 3761 of 13 May 2019;

—	annul European Commission Decision C(2019) 3761 of 13 May 2019 on the basis of Article 263 TFEU;

—	order the Commission to pay all of the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging that the contested decision is illegal in so far as it was adopted solely on the basis of documents seized during an inspection carried out beforehand on the basis of a decision that was itself illegal.

Second plea in law, alleging that the contested decision is illegal in so far as it is based on Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ 2003 L 1, p. 1), a provision that is itself illegal and therefore inapplicable in the present case in accordance with Article 277 TFEU. That provision infringes the fundamental right to an effective remedy in that it does not allow undertakings to which a Commission inspection decision is addressed to bring proceedings to challenge the manner in which the inspection is carried out.

3.	Third plea in law, alleging infringement of the fundamental right to the inviolability of the home in that the contested decision is valid for an indefinite period and is both imprecise and disproportionate in scope.

30.9.2019

Official Journal of the European Union

C 328/67

Action brought on 30 July 2019 — Les Mousquetaires and ITM Entreprises v Commission

(Case T-539/19)

(2019/C 328/75)

Language of the case: French

Parties

Applicants: Les Mousquetaires (Paris, France), ITM Entreprises (Paris) (represented by: N. Jalabert-Doury, K. Mebarek and B. Chemama, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	order the joinder of the present case and Case T-255/17;

—

uphold the plea of illegality in respect of Article 20(4) of Regulation No 1/2003 in that it does not provide for an effective remedy with regard to the conditions for carrying out inspection decisions in accordance with Articles 6(1), 8 and 13 of the [European Convention on the Protection of Human Rights and Fundamental Freedoms] and Articles 7 and 47 of the [Charter of Fundamental Rights of the European Union];

—	annul decision AT.40466 — Tute 1 of 13 May 2019 ordering Les Mousquetaires S.A.S. and all its subsidiaries to submit to an inspection under Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002;

—	annul the refusals to grant the protection guaranteed by EU law with which the applicants were met;

—	annul the Commission’s decision served on the applicants on 18 June 2019 depriving them, without due cause, of the right to an effective remedy with regard to the information examined as part of an ongoing inspection;

—	order the European Commission to pay all the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging an infringement of fundamental rights, of the right to inviolability of the home and of the right to effective judicial protection as a result of the lack of effective judicial remedy as regards the conditions for carrying out inspection decisions.

Second plea in law, alleging an infringement of Article 20(4) of Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ 2003 L 1, p. 1) and of fundamental rights on the ground that the inspection decision does not contain an adequate statement of reasons and, as a result, that decision deprived the applicants of fundamental guarantees required in that context.

3.	Third plea in law, alleging an infringement of Article 20(4) of Regulation No 1/2003 and of fundamental rights on the ground that the Commission had no evidence which justified the contested decision.

Fourth plea in law, alleging misuse of powers, an infringement of Article 20(4) of Regulation No 1/2003 and an infringement of fundamental rights on the ground that the inspection decision is not the result of an impartial examination but instead has every appearance of an act adopted for purposes other than those asserted.

5.	Fifth plea in law, alleging an infringement of Article 20(3) and (4) and Article 21 of Regulation No 1/2003 and of fundamental rights on the ground that the applicants were deprived of other fundamental guarantees which are in turn required and without which the inspection decision is invalid.

6.	Sixth plea in law, alleging a manifest error of assessment and infringement of the principle of proportionality in the manner in which the Commission decided on the appropriateness, duration and extent of the inspection and ongoing inspection.

7.	Seventh plea in law, alleging an infringement of fundamental rights as a result of the decision to refuse to provide adequate protection for certain documents in respect of which the applicants had sought the protection of EU law.

8.	Eighth plea in law, alleging an infringement of fundamental rights by virtue of the denial, without due cause, of the right to apply to the EU Courts to suspend inspection of the information placed under seal pending resolution of the present action.

30.9.2019

Official Journal of the European Union

C 328/68

Action brought on 7 August 2019 — Malacalza Investimenti v ECB

(Case T-552/19)

(2019/C 328/76)

Language of the case: Italian

Parties

Applicant: Malacalza Investimenti Srl (Genoa, Italy) (represented by: P. Ghiglione, E. De Giorgi and L. Amicarelli, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—	by way of a measure of inquiry, pursuant to Article 91(1)(c) of the Rules of Procedure of the General Court, order the production of the decision adopted by the ECB on 2 January 2019 in respect of Banca Carige S.p.A and of the other documents for which a confirmatory application has been made;

—	annul the contested measure, as identified in the introductory part of the application; and

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

Pleas in law and main arguments

The present action concerns ECB Decision No LS/LdG/19/185 of 12 June 2019, sent by email on the same day by the ECB pursuant to Article 8 of Decision ECB/2004/3, concerning the refusal in full of the confirmatory application submitted by Malacalza Investimenti S.r.l. for access to the decision of 2 January 2019 by which the ECB appointed the temporary administrators of Banca Carige S.p.A and to a number of related documents.

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

First plea in law, alleging that the measure refusing access to the ECB decision of 2 January 2019 is unlawful, in particular:

—	incorrect application of Article 4(1)(c) of Decision ECB/2004/3; absence of a general presumption of non-disclosure of ECB decisions in that they are not merely procedural but have binding effect;

—	the conditions for the application of Article 4(1)(c) of Decision ECB/2004/3 are not satisfied; information relating to Banca Carige S.p.A. has already been made public including in relation to compliance with the information obligations imposed by the sectoral regulatory framework;

—	infringement of the principles of proportionality and impartiality resulting from the failure to communicate a non-confidential version of the ECB decision of 2 January 2019;

—	infringement of the second paragraph of Article 296 TFEU on the ground of a failure to state reasons for the measure refusing access; and

—	infringement of the applicant’s rights of defence and right to judicial review.

Second plea in law, alleging that the refusal to give access to the documents covered by the confirmatory application, other than the ECB decision of 2 January 2019, is unlawful, in particular:

—	infringement and misapplication of Article 4(1)(c) in conjunction with the first indent of Article 4(2) of Decision ECB/2004/3 on the grounds of failure to satisfy the conditions for application, failure to state reasons and infringement of the rights of the defence;

—

incorrect application of Article 27 of Regulation (EU) No 1024/2013 (1), Article 53 et seq of Directive 2013/36/EU (2) and Article 32 of Regulation (EU) No 468/2014 (3) and, consequently, non-applicability of the exception relating to the possible confidentiality of the information in the other documents, other than the ECB decision of 2 January 2019.

(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).

(2) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

(3) Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (OJ 2014 L 141, p. 1).

30.9.2019

Official Journal of the European Union

C 328/70

Action brought on 9 August 2019 — Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO — Fontana Food (GRILLOUMI)

(Case T-555/19)

(2019/C 328/77)

Language of the case: English

Parties

Applicant: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (Nicosia, Cyprus) (represented by: S. Malynicz QC, S. Baran, Barrister and V. Marsland, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Fontana Food AB (Tyresö, Sweden)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark GRILLOUMI — Application for registration No 15 963 291

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 May 2019 in Case R 1355/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to bear its own costs and those of the applicant.

Pleas in law

—	Infringement of Art 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Art 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

30.9.2019

Official Journal of the European Union

C 328/71

Action brought on 9 August 2019 — Republic of Cyprus v EUIPO — Fontana Food (GRILLOUMI)

(Case T-556/19)

(2019/C 328/78)

Language of the case: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz QC, S. Baran, Barrister and V. Marsland, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Fontana Food AB (Tyresö, Sweden)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark GRILLOUMI — Application for registration No 15 963 291

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 May 2019 in Case R 1284/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to bear its own costs and pay those of the applicant.

Pleas in law

—	Infringement of Art 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Art 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

30.9.2019

Official Journal of the European Union

C 328/72

Action brought on 9 August 2019 — Seven v EUIPO (7Seven)

(Case T-557/19)

(2019/C 328/79)

Language of the case: English

Parties

Applicant: Seven SpA (Leinì, Italy) (represented by: L. Trevisan, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: European Union figurative mark 7Seven — European Union trade mark No 8 252 223

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 4 June 2019 in Case R 2076/2018-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	grant the application lodged by Seven SpA for restitutio in integrum and recordal request No 14 602 687 for EU trademark No 8 252 223.

Pleas in law

—	Infringement of Article 53 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 104 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

30.9.2019

Official Journal of the European Union

C 328/72

Action brought on 12 August 2019 — Julius Sämann v EUIPO — Maharishi Vedic University (Representation of a tree)

(Case T-559/19)

(2019/C 328/80)

Language of the case: English

Parties

Applicant: Julius Sämann Ltd (Thayngen, Switzerland) (represented by: D. Parrish, Solicitor)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Maharishi Vedic University Ltd (Mgarr, Malta)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union figurative mark in colours white, brown, yellow and shades of blue (Representation of a tree) — Application for registration No 15 666 639

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 16 May 2019 in Case R 1743/2018-1

Form of order sought

The applicant claims that the Court should:

—	uphold the applicant’s application;

—	annul the contested decision;

—	order EUIPO to pay the applicant’s costs of this application and the proceedings before the Office.

Pleas in law

—	Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

30.9.2019

Official Journal of the European Union

C 328/73

Action brought on 13 August 2019 — Lípidos Santiga v Commission

(Case T-561/19)

(2019/C 328/81)

Language of the case: English

Parties

Applicant: Lípidos Santiga, SA (Santa Perpètua de Mogoda, Spain) (represented by: P. Muñiz Fernández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul Article 3 of Commission Delegated Regulation (EU) 2019/807 of 13 March 2019, supplementing Directive (EU) 2018/2001 of the European Parliament and of the Council as regards the determination of high indirect land-use change-risk feedstock for which a significant expansion of the production area into land with high carbon stock is observed and the certification of low indirect land-use change-risk biofuels, bioliquids and biomass fuels and its Annex;

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

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 that the global approach of the defendant, as a result of which palm oil qualifies as a high ILUC-risk feedstock is not proportionate.

2.	Second plea in law, alleging that the defendant committed a manifest error of assessment in deciding that palm oil regardless of its origin is a high ILUC-risk feedstock.

3.	Third plea in law, alleging that the criteria for the classification of palm oil as a high ILUC-risk feedstock are discriminatory.

4.	Fourth plea in law, alleging that the Commission failed to conduct the necessary impact assessment prior to the adoption of the contested Regulation.

5.	Fifth plea in law, alleging that the Commission failed to state the reasons underlying the design of the formula used for deciding that palm oil is a high ILUC-risk feedstock.

30.9.2019

Official Journal of the European Union

C 328/76

Action brought on 19 August 2019 — Leinfelder Uhren München v EUIPO — Schafft (Leinfelder)

(Case T-577/19)

(2019/C 328/85)

Language in which the application was lodged: German

Parties

Applicant: Leinfelder Uhren München GmbH & Co. KG (Munich, Germany) (represented by: S. Lüft, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Thomas Schafft (Munich, Germany)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU word mark Leinfelder — EU trade mark No 13 975 461

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 14 May 2019 in Joined Cases R 1930/2018-2 and R 1937/2018-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision in so far as the contested EU trade mark was also revoked for goods in Class 14 (wristwatches) and Class 18 (watch straps);

—	dismiss the cancellation applicant’s appeal in Case R 1930/2018-2;

—	order EUIPO to pay the costs;

—	in the event that the other party participates in the proceedings as intervener, order him to bear his own costs.

Plea in law

—	Infringement of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

		ISSN 1977-091X
Official Journal of the European Union		C 328

English edition	Information and Notices	Volume 62 30 September 2019

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2019/C 328/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1