9.12.2019

Official Journal of the European Union

C 413/2

Judgment of the Court (Grand Chamber) of 1 October 2019 (request for a preliminary ruling from the Tribunal correctionnel de Foix — France) — Criminal proceedings against Mathieu Blaise and Others

(Case C-616/17) (1)

(Reference for a preliminary ruling - Environment - Placing of plant protection products on the market - Regulation (EC) No 1107/2009 - Validity - Precautionary principle - Definition of the concept of ‘active substance’ - Combination of active substances - Reliability of the assessment procedure - Public access to the dossier - Tests of long-term toxicity - Pesticides - Glyphosate)

(2019/C 413/02)

Language of the case: French

Referring court

Tribunal correctionnel de Foix

Parties in the main proceedings

Mathieu Blaise, Sabrina Dauzet, Alain Feliu, Marie Foray, Sylvestre Ganter, Dominique Masset, Ambroise Monsarrat, Sandrine Muscat, Jean-Charles Sutra, Blanche Yon, Kevin Leo-Pol Fred Perrin, Germain Yves Dedieu, Olivier Godard, Kevin Pao Donovan Schachner, Laura Dominique Chantal Escande, Nicolas Benoit Rey, Eric Malek Benromdan, Olivier Eric Labrunie, Simon Joseph Jeremie Boucard, Alexis Ganter, Pierre André Garcia

intervener: Espace Émeraude

Operative part of the judgment

An examination of the questions referred for a preliminary ruling has revealed nothing capable of affecting the validity of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC.

(1) OJ C 22, 22.1.2018.

9.12.2019

Official Journal of the European Union

C 413/3

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Kúria — Hungary) — Gyula Kiss v CIB Bank Zrt., Emil Kiss, Gyuláné Kiss

(Case C-621/17) (1)

(Reference for a preliminary ruling - Consumer protection - Unfair terms in consumer contracts - Directive 93/13/EEC - Article 3(1) - Assessment of the unfairness of contractual terms - Article 4(2) - Article 5 - Requirement that contractual terms be drafted in plain and intelligible language - Terms requiring the payment of costs for unspecified services)

(2019/C 413/03)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: Gyula Kiss

Defendants: CIB Bank Zrt., Emil Kiss, Gyuláné Kiss

Operative part of the judgment

Article 4(2) and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the requirement that a contractual term be drafted in plain, intelligible language does not require that non-individually negotiated contractual terms in a loan contract concluded with a consumer, such as those at issue in the main proceedings, that specify the exact amount of management charges and of a disbursement commission to be borne by the consumer, their method of calculation and the time when they have to be paid, also have to indicate all of the services provided in return for the amounts concerned;

Article 3(1) of Directive 93/13 must be interpreted as meaning that a contractual term such as that at issue in the main proceedings in relation to charges for the management of a loan contract, when it cannot be unequivocally determined what specific services are provided in return for those charges, does not in principle cause, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.

(1) OJ C 22, 22.1.2018.

9.12.2019

Official Journal of the European Union

C 413/4

Judgment of the Court (Grand Chamber) of 1 October 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Planet49 GmbH

(Case C-673/17) (1)

(Reference for a preliminary ruling - Directive 95/46/EC - Directive 2002/58/EC - Regulation (EU) 2016/679 - Processing of personal data and protection of privacy in the electronic communications sector - Cookies - Concept of consent of the data subject - Declaration of consent by means of a pre-ticked checkbox)

(2019/C 413/04)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV

Defendant: Planet49 GmbH

Operative part of the judgment

Article 2(f) and of Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Article 4(11) and Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation), must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent.

Article 2(f) and Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, read in conjunction with Article 2(h) of Directive 95/46 and Article 4(11) and Article 6(1)(a) of Regulation 2016/679, are not to be interpreted differently according to whether or not the information stored or accessed on a website user’s terminal equipment is personal data within the meaning of Directive 95/46 and Regulation 2016/679.

3.	Article 5(3) of Directive 2002/58, as amended by Directive 2009/136, must be interpreted as meaning that the information that the service provider must give to a website user includes the duration of the operation of cookies and whether or not third parties may have access to those cookies.

(1) OJ C 112, 26.3.2018.

9.12.2019

Official Journal of the European Union

C 413/5

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Eva Glawischnig-Piesczek v Facebook Ireland Limited

(Case C-18/18) (1)

(Reference for a preliminary ruling - Information society - Free movement of services - Directive 2000/31/EC - Liability of intermediary service providers - Article 14(1) and (3) - Hosting services provider - Possibility of requiring the service provider to terminate or prevent an infringement - Article 18(1) - Personal, material and territorial limits on the scope of an injunction - Article 15(1) - No general obligation to monitor)

(2019/C 413/05)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Eva Glawischnig-Piesczek

Defendant: Facebook Ireland Limited

Operative part of the judgment

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), in particular Article 15(1), must be interpreted as meaning that it does not preclude a court of a Member State from:

—	ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;

—

ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, and

—	ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.

(1) OJ C 104, 19.3.2018.

9.12.2019

Official Journal of the European Union

C 413/6

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Trier v Cardpoint GmbH, successor in law to Moneybox Deutschland GmbH

(Case C-42/18) (1)

(Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Sixth Council Directive 77/388/EEC - Exemptions - Article 13B(d)(3) - Transactions concerning payments - Services supplied by a company to a bank relating to the operation of cash points)

(2019/C 413/06)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Trier

Defendant: Cardpoint GmbH, successor in law to Moneybox Deutschland GmbH

Operative part of the judgment

Article 13B(d)(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that services supplied to a bank operating cashpoints, consisting in operating and maintaining those cashpoints, replenishing them, installing computer hardware and software necessary to read the data from bank cards, sending a cash withdrawal authorisation request to the bank which issued the bank card used, providing the cash requested and registering withdrawal transactions, do not constitute a transaction concerning payments which is exempt from value added tax for the purposes of that provision.

(1) OJ C 152, 30.4.2018.

9.12.2019

Official Journal of the European Union

C 413/6

Judgment of the Court (First Chamber) of 3 October 2019 (request for a preliminary ruling from the Raad van State — Netherlands) — Staatssecretaris van Justitie en Veiligheid v A, B, P

(Case C-70/18) (1)

(Reference for a preliminary ruling - EEC-Turkey Association Agreement - Decision No 2/76 - Article 7 - Decision No 1/80 - Article 13 - ‘Standstill’ clauses - New restriction - Collection, registration and retention of biometric data of Turkish nationals in a central filing system - Overriding reasons of public interest - Objective of preventing and combating identity and document fraud - Articles 7 and 8 of the Charter of Fundamental Rights of the European Union - Right to respect for private life - Right to the protection of personal data - Proportionality)

(2019/C 413/07)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie en Veiligheid

Other parties: A, B, P

Operative part of the judgment

Article 13 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the European Economic Community (EEC) and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 must be interpreted as meaning that a national rule, such as that at issue in the main proceedings, which makes the issuance of a temporary residence permit to third-country nationals, including Turkish nationals, conditional upon the collection, recording and retention of their biometric data in a central filing system does constitute a ‘new restriction’ within the meaning of that provision. Such a restriction is, however, justified by the objective of preventing and combating identity and document fraud.

(1) OJ C 161, 7.5.2018.

9.12.2019

Official Journal of the European Union

C 413/7

Judgment of the Court (First Chamber) of 2 October 2019 (request for a preliminary ruling from the Court of Appeal in Northern Ireland — United Kingdom) — Ermira Bajratari v Secretary of State for the Home Department

(Case C-93/18) (1)

(Reference for a preliminary ruling - Citizenship of the Union - Directive 2004/38/EC - Right of residence of a third-country national who is a direct relative in the ascending line of Union citizen minors - Article 7(1)(b) - Condition of sufficient resources - Resources formed by income from employment occupied without a residence card and work permit)

(2019/C 413/08)

Language of the case: English

Referring court

Court of Appeal in Northern Ireland

Parties to the main proceedings

Applicant: Ermira Bajratari

Defendant: Secretary of State for the Home Department

Intervener: Aire Centre

Operative part of the judgment

Article 7(1)(b) of 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 must be interpreted as meaning that a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit.

(1) OJ C 152, 30.4.2018.

9.12.2019

Official Journal of the European Union

C 413/8

Judgment of the Court (First Chamber) of 2 October 2019 — Crédit Mutuel Arkéa (C-152/18 P) Crédit Mutuel Arkéa (C-153/18 P) v European Central Bank, European Commission

(Joined Cases C-152/18 P and C-153/18 P) (1)

(Appeal - Economic and monetary policy - Article 127(6) TFEU - Regulation (EU) No 1024/2013 - Article 4(1)(g) - Prudential supervision of credit institutions on a consolidated basis - Regulation (EU) No 468/2014 - Article 2(21)(c) - Regulation (EU) No 575/2013 - Article 10 - Supervised group - Institutions permanently affiliated to a central body)

(2019/C 413/09)

Language of the case: French

Parties

(Case C-152/18 P)

Appellant: Crédit mutuel Arkéa (represented by: H. Savoie, avocat)

Other parties to the proceedings: European Central Bank (ECB) (represented by: K. Lackhoff, R. Bax and C. Olivier, acting as Agents, and by P. Honoré, avocat), European Commission (represented by: V. Di Bucci, K.-P. Wojcik and A. Steiblytė, acting as Agents)

Intervener in support of the other parties: Confédération nationale du Crédit mutuel (represented by: M. Grégoire and C. De Jonghe, avocats)

(Case C-153/19 P)

Appellant: Crédit Mutuel Arkéa (represented by: H. Savoie, avocat)

Other parties to the proceedings: European Central Bank (represented by: K. Lackhoff, R. Bax and C. Olivier, acting as Agents, and by P. Honoré, avocat), European Commission (represented by: V. Di Bucci, K.-P. Wojcik and A. Steiblytė, acting as Agents)

Intervener in support of the other parties: Confédération nationale du Crédit mutuel (represented by: C. De Jonghe and M. Grégoire, avocats)

Operative part of the judgment

The Court:

1.	Dismisses the appeals;

2.	Orders Crédit mutuel Arkéa to pay the costs.

(1) OJ C 161, 7.5.2018.

9.12.2019

Official Journal of the European Union

C 413/9

Judgment of the Court (First Chamber) of 3 October 2019 (request for a preliminary ruling from the Verwaltungsgericht Wien — Austria) — Proceedings brought by Wasserleitungsverband Nördliches Burgenland, Robert Prandl, Gemeinde Zillingdorf

(Case C-197/18) (1)

(Reference for a preliminary ruling - Environment - Directive 91/676/EEC - Protection of waters against pollution caused by nitrates from agricultural sources - Objective of reducing pollution - Waters affected by pollution - Maximum nitrate level of 50 mg/l - Action programmes adopted by the Member States - Rights of individuals to have such a programme amended - Locus standi before the national authorities and courts)

(2019/C 413/10)

Language of the case: German

Referring court

Verwaltungsgericht Wien

Parties to the main proceedings

Applicants: Wasserleitungsverband Nördliches Burgenland, Robert Prandl, Gemeinde Zillingdorf

Intervener: Bundesministerum für Nachhaltigkeit und Tourismus, formerly Bundesministerium für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

Operative part of the judgment

Article 288 TFEU and Article 5(4) and (5) of, and Annex I A, point 2 to, Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources must be interpreted as meaning that, provided that the discharge of nitrogen compounds of agricultural origin significantly contributes to the pollution of the groundwaters in question, natural and legal persons, such as the applicants in the main proceedings, should be in a position to require the competent national authorities to amend an existing action programme or adopt additional measures or reinforced actions, provided for in Article 5(5) of that directive, as long as the nitrate levels in the groundwaters exceed or could exceed, in the absence of such measures, 50 mg/l at one or more measuring points within the meaning of Article 5(6) of that directive.

(1) OJ C 268, 30.7.2018.

9.12.2019

Official Journal of the European Union

C 413/10

Judgment of the Court (First Chamber) of 3 October 2019 (request for a preliminary ruling from the Nejvyšší soud — Czech Republic) — Jana Petruchová v FIBO Group Holdings Limited

(Case C-208/18) (1)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 1215/2012 - Article 17(1) - Jurisdiction over consumer contracts - Notion of ‘consumer’ - Natural person carrying out transactions on the international exchange market through the intermediary of a brokerage company - Regulation (EC) No 593/2008 (Rome I) - Directive 2004/39/EC - Notion of ‘retail client’)

(2019/C 413/11)

Language of the case: Czech

Referring court

Nejvyšší soud

Parties to the main proceedings

Applicant: Jana Petruchová

Defendant: FIBO Group Holdings Limited

Operative part of the judgment

Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a natural person who, under a contract such as a CfD concluded with a brokerage company, carries out transactions on the international FOREX (foreign exchange) market through that company, must be classified as a ‘consumer’ within the meaning of that provision if the conclusion of that contract does not fall within the scope of that person’s professional activity, which it is for the national court to ascertain. For the purpose of that classification, on the one hand, factors such as the value of transactions carried out under contracts such as financial contracts for differences, the extent of the risks of financial loss associated with the conclusion of such contracts, any knowledge or expertise that person has in the field of financial instruments or his or her active conduct in the context of such transactions are, as such, in principle irrelevant, and, on the other, the fact that the financial instruments do not fall within the scope of Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) or that that person is a ‘retail client’ within the meaning of Article 4(1)(12) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC is, as such, in principle irrelevant.

(1) OJ C 200, 11.6.2018.

9.12.2019

Official Journal of the European Union

C 413/11

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Kamil Dziubak, Justyna Dziubak v Raiffeisen Bank International AG, prowadzący działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA

(Case C-260/18) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Consumer contracts - Unfair terms - Mortgage loan indexed to a foreign currency - Term relating to arrangement of the exchange rate between the currencies - Effects of a declaration that a term is unfair - Whether it is possible for the court to remedy unfair terms by having recourse to general terms of civil law - Assessment of the consumer’s interests - Continued existence of the contract without unfair terms)

(2019/C 413/12)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicants: Kamil Dziubak, Justyna Dziubak

Defendant: Raiffeisen Bank International AG, prowadzący działalność w Polsce w formie oddziału pod nazwą Raiffeisen Bank International AG Oddział w Polsce, formerly Raiffeisen Bank Polska SA

Operative part of the judgment

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national court, after finding that certain terms of a loan agreement indexed to a foreign currency and subject to an interest rate directly linked to the interbank rate of the currency concerned are unfair, from taking the view, in accordance with its domestic law, that that contract cannot continue in existence without those terms because the effect of their removal would be to alter the nature of the main subject matter of the contract.

Article 6(1) of Directive 93/13 must be interpreted as meaning that, first, the consequences for the consumer of a contract being annulled in its entirety, as referred to in the judgment of 30 April 2014, Kásler and Káslerné Rábai (C-26/13, EU:C:2014:282), must be assessed in the light of the existing or foreseeable circumstances at the time when the dispute arose, and that, second, for the purposes of that assessment, the wishes expressed by the consumer in that regard are the decisive factor.

Article 6(1) of Directive 93/13 must be interpreted as precluding gaps in a contract caused by the removal of the unfair terms contained in that contract from being filled solely on the basis of national provisions of a general nature which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs, which are neither supplementary provisions nor provisions applicable where the parties to the contract so agree.

Article 6(1) of Directive 93/13 must be interpreted as precluding unfair terms contained in a contract from being upheld where their removal would entail that contract being annulled and the court takes the view that that annulment would give rise to unfavourable effects for the consumer, if the latter has not consented to them being upheld.

(1) OJ C 259, 23.7.2018.

9.12.2019

Official Journal of the European Union

C 413/12

Judgment of the Court (Fourth Chamber) of 3 October 2019 (request for a preliminary ruling from the Curtea de Apel București — Romania) — Delta Antrepriză de Construcții și Montaj 93 SA v Compania Națională de Administrare a Infrastructurii Rutiere SA

(Case C-267/18) (1)

(Reference for a preliminary ruling - Public Procurement - Public procurement procedure - Directive 2014/24/EU - Article 57(4) - Optional grounds for exclusion - Exclusion of an economic operator from participating in a public procurement procedure - Early termination of a prior contract on account of partial subcontracting - Concept of ‘significant or persistent deficiencies’ - Scope)

(2019/C 413/13)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: Delta Antrepriză de Construcții și Montaj 93 SA

Defendant: Compania Națională de Administrare a Infrastructurii Rutiere SA

Operative part of the judgment

Article 57(4)(g) of 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 must be interpreted as meaning that the subcontracting, by an economic operator, of part of the works under a prior public contract, decided upon without the contracting authority’s authorisation and which led to the early termination of that contract, constitutes a significant or persistent deficiency shown in the performance of a substantive requirement under that public contract, within the meaning of that provision, and is therefore capable of justifying that economic operator being excluded from participation in a subsequent public procurement procedure if, after conducting its own evaluation of the integrity and reliability of the economic operator concerned by the early termination of the prior public contract, the contracting authority which organises that subsequent procurement procedure considers that such subcontracting entails breaking the relationship of trust with the economic operator in question. Before deciding such an exclusion, the contracting authority must however, in accordance with Article 57(6) of that directive, read in conjunction with recital 102 thereof, allow that economic operator the opportunity to set out the corrective measures adopted by it further to the early termination of the prior public contract.

(1) OJ C 249, 16.7.2018.

9.12.2019

Official Journal of the European Union

C 413/13

Judgment of the Court (First Chamber) of 3 October 2019 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Verein für Konsumenteninformation v TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG

(Case C-272/18) (1)

(Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in civil matters - Law applicable to contractual obligations - Exclusion of company law from the scope of the Rome Convention and of Regulation (EC) No 593/2008 (Rome I) - Trust agreement concluded between a professional and a consumer for the management of shares in a limited partnership)

(2019/C 413/14)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Verein für Konsumenteninformation

Defendant: TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG

Operative part of the judgment

Article 1(2)(e) of the Convention on the law applicable to contractual relations, opened for signature in Rome on 19 June 1980, and Article 1(2)(f) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as not excluding from the scope of that convention or of that regulation contractual obligations, such as those at issue in the main proceedings, which are based on a trust agreement for the purposes of administering shares in a limited partnership.

Article 5(4)(b) of the Convention on the law applicable to contractual relations and Article 6(4)(a) of Regulation No 593/2008 must be interpreted as meaning that a trust agreement pursuant to which the services owed to a consumer must be provided in the country of the consumer’s habitual residence at a distance, from another country, do not fall within the scope of the exclusion in those provisions.

Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a term in a trust agreement concluded between a professional and a consumer for the management of shares in a limited partnership, such as those at issue in the main proceedings, which has not been individually negotiated and according to which the applicable law is the law of the Member State of the partnership’s seat, is unfair, within the meaning of that provision, where it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 5(2) of the Convention on the law applicable to contractual relations and Article 6(2) of Regulation No 593/2008 he also enjoys the protection of the mandatory provisions of the national law that would be applicable in the absence of that term.

(1) OJ C 221, 25.6.2018.

9.12.2019

Official Journal of the European Union

C 413/14

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Arbeits- und Sozialgericht Wien — Austria) — Minoo Schuch-Ghannadan v Medizinische Universität Wien

(Case C-274/18) (1)

(Reference for a preliminary ruling - Social policy - Framework Agreement on part-time work - Clause 4 - Principle of non-discrimination - Less favourable treatment of part-time workers in relation to full-time workers as regards their conditions of employment - Prohibition - National legislation fixing a maximum duration of fixed-term employment that is longer for part-time workers than for full-time workers - Principle of pro rata temporis - Directive 2006/54/EC - Equal treatment of men and women in matters of employment and occupation - Article 2(1)(b) - Concept of indirect discrimination on the ground of sex - Article 14(1)(c) - Employment and working conditions - Article 19 - Burden of proof)

(2019/C 413/15)

Language of the case: German

Referring court

Arbeits- und Sozialgericht Wien

Parties to the main proceedings

Applicant: Minoo Schuch-Ghannadan

Defendant: Medizinische Universität Wien

Operative part of the judgment

Clause 4(1) of the Framework Agreement on part-time work concluded on 6 June 1997, which is annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down, as regards fixed-term workers covered by that legislation, a maximum duration of employment relationships that is longer for part-time workers than for comparable full-time workers, unless such a difference in treatment is justified on objective grounds and is proportionate to those grounds, which is for the referring court to determine. Clause 4(2) of the Framework Agreement on part-time work must be interpreted as meaning that the principle of pro rata temporis referred to therein does not apply to such legislation.

Article 2(1)(b) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down, as regards fixed-term workers covered by that legislation, a maximum duration of employment relationships that is longer for part-time workers than for comparable full-time workers, if it is established that that legislation adversely affects a significantly higher percentage of women in the workforce than men in the workforce, and if that legislation is not objectively justified by a legitimate aim or the means of achieving that aim are not appropriate and necessary. Article 19(1) of that directive must be interpreted as meaning that that provision does not require the party who considers himself wronged by such discrimination to submit, in order to establish a prima facie case of discrimination, specific statistics or specific facts regarding workers affected by the national legislation at issue, if that party does not have access or only has limited access to those statistics or facts.

(1) OJ C 285, 13.8.2018.

9.12.2019

Official Journal of the European Union

C 413/15

Judgment of the Court (Fourth Chamber) of 3 October 2019 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — Proceedings brought by Kauno miesto savivaldybė, Kauno miesto savivaldybės administracija

(Case C-285/18) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 12(1) - Temporal application - Freedom of the Member States as to choice of how services are provided - Limits - Public contracts subject to so-called ‘in house’ awards - In-house transaction - Overlapping of a public contract and an in-house transaction)

(2019/C 413/16)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellants: Kauno miesto savivaldybė, Kauno miesto savivaldybės administracija

Other parties: UAB ‘Irgita’, UAB ‘Kauno švara’

Operative part of the judgment

A situation, such as that at issue in the main proceedings, where a public contract has been awarded by a contracting authority to a legal person over which it exercises a control similar to the control it exercises over its own departments, as part of a procedure initiated when Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts was still in force and which led to the conclusion of a contract after the date of repeal of that directive, namely 18 April 2016, falls within the scope of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18, where the contracting authority definitively resolved the question of whether it was obliged to initiate a prior competition procedure for the award of a public contract after that date.

Article 12(1) of Directive 2014/24 must be interpreted as not precluding a rule of national law whereby a Member State imposes a requirement that the conclusion of an in-house transaction should be subject, inter alia, to the condition that public procurement does not ensure that the quality of the services performed, their availability or their continuity can be guaranteed, provided that the choice made in favour of one means of providing services in particular, made at a stage prior to that of public procurement, has due regard to the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency.

Article 12(1) of Directive 2014/24, read in the light of the principle of transparency, must be interpreted as meaning that the conditions to which the Member States subject the conclusion of in-house transactions must be made known by means of precise and clear rules of the substantive law governing public procurement, which must be sufficiently accessible, precise and predictable in their application to avoid any risk of arbitrariness, which it is, in this case, for the referring court to determine.

4.	The conclusion of an in-house transaction which satisfies the conditions laid down in Article 12(1(a) to (c) of Directive 2014/24 is not as such compatible with EU law.

(1) OJ C 276, 6.8.2018.

9.12.2019

Official Journal of the European Union

C 413/16

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Raad voor Vreemdelingenbetwistingen — Belgium) — X v Belgische Staat

(Case C-302/18) (1)

(Reference for a preliminary ruling - Immigration policy - Status of third-country nationals who are long-term residents - Directive 2003/109/EC - Conditions for acquiring long-term resident status - Article 5(1)(a) - Stable, regular and sufficient resources)

(2019/C 413/17)

Language of the case: Dutch

Referring court

Raad voor Vreemdelingenbetwistingen

Parties to the main proceedings

Applicant: X

Defendant: Belgische Staat

Operative part of the judgment

Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of ‘resources’ referred to in that provision does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient.

(1) OJ C 276, 6.8.2018.

9.12.2019

Official Journal of the European Union

C 413/16

Judgment of the Court (Third Chamber) of 3 October 2019 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Valsts ieņēmumu dienests v ‘Altic’ SIA

(Case C-329/18) (1)

(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Procurement of food products - Deduction of input tax - Refusal of deduction - Possibly fictitious supplier - VAT fraud - Requirements relating to knowledge on the part of the purchaser - Regulation (EC) No 178/2002 - Obligations of traceability of foodstuffs and identification of the supplier - Regulations (CE) No 852/2004 and (EC) No 882/2004 - Registration obligations of operators in the food sector - Effect on the right to deduct VAT)

(2019/C 413/18)

Language of the case: Latvian

Referring court

Augstākā tiesa

Parties to the main proceedings

Applicant: Valsts ieņēmumu dienests

Other party:‘Altic’ SIA

Operative part of the judgment

Article 168(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted as precluding a taxable person who participates in the food chain from being refused the right to deduct input value added tax (VAT) on the sole ground, assuming that it has been duly established, that that taxable person has not complied with his obligations under Article 18(2) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, to identify his suppliers for the purposes of traceability of foodstuffs, which it is for the referring court to ascertain. Non-compliance with those obligations may, however, constitute one element among others which, taken together and in a consistent manner, tend to show that the taxable person knew or should have known that he was involved in a transaction involving VAT fraud, which it is for the referring court to assess.

Article 168(a) of Directive 2006/112, as amended by Directive 2010/45, must be interpreted as meaning that the failure, by a taxable person who participates in the food chain, to ascertain that his suppliers are registered with the competent authorities, in accordance with Article 6(2) of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs and Article 31(1) of 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, is not relevant for the purpose of determining whether the taxable person knew or should have known that he was involved in a transaction involving VAT fraud.

(1) OJ C 276, 6.8.2018.

9.12.2019

Official Journal of the European Union

C 413/17

Judgment of the Court (Eighth Chamber) of 3 October 2019 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Landwirtschaftskammer Niedersachsen v Reinhard Westphal

(Case C-378/18) (1)

(Reference for a preliminary ruling - Regulation (EC, Euratom) No 2988/95 - Protection of the European Union’s financial interests - Article 3(1) - Limitation period - Regulations (EEC) No 3887/92 and (EC) No 2419/2001 - Integrated administration and control system for certain Community aid schemes - Recovery of undue payments - Application of the more lenient limitation rule)

(2019/C 413/19)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Landwirtschaftskammer Niedersachsen

Defendant: Reinhard Westphal

Operative part of the judgment

Article 49(6) of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92, as amended by Commission Regulation (EC) No 118/2004 of 23 January 2004, must be interpreted as meaning that the starting point of the limitation period which it lays down is determined in accordance with Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests and corresponds, in the case of continuous or repeated irregularities, to the day on which the irregularity ceases.

(1) OJ C 301, 27.8.2018.

9.12.2019

Official Journal of the European Union

C 413/18

Judgment of the Court (Eighth Chamber) of 3 October 2019 (request for a preliminary ruling from the Conseil d’État — Belgium) — Fonds du Logement de la Région de Bruxelles-Capitale SCRL v Institut des Comptes nationaux (ICN)

(Case C-632/18) (1)

(Reference for a preliminary ruling - Economic and monetary policy - European system of national and regional accounts in the European Union - Regulation (EU) No 549/2013 - General government sector - Captive financial institution - Definition - Company offering, under the control of a public administration, mortgage loans to households with medium or modest incomes)

(2019/C 413/20)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicant: Fonds du Logement de la Région de Bruxelles-Capitale SCRL

Defendant: Institut des Comptes nationaux (ICN)

Operative part of the judgment

The provisions of Annex A to Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union must be interpreted as meaning that, in order to determine whether a separate institutional entity placed under government control should be classified in the general government sector, within the meaning of the revised European system of accounts established by that regulation, where it has the characteristics of a captive financial institution, it is necessary to examine its exposure to economic risk in the exercise of its activity;

An institutional unit, such as that at issue in the main proceedings, whose degree of independence from general government is limited by national legislation, under which the institutional unit does not have complete control over the management of its assets and liabilities, in so far as that government exercises control over its assets and assumes part of the risk arising from its liabilities, may be regarded as a ‘captive financial institution’ within the meaning of paragraphs 2.21 to 2.23 of Annex A to Regulation No 549/2013, provided that the control measures laid down by that national legislation may be interpreted by the national courts to the effect that the institutional unit concerned may not act independently from that government given that the latter imposes the conditions under which the institutional unit is required to act, without that unit having any margin to substantially modify those conditions on its own initiative.

(1) OJ C 4, 7.1.2019.

9.12.2019

Official Journal of the European Union

C 413/19

Request for an opinion submitted by the European Parliament pursuant to Article 218(11) TFEU

(Opinion 1/19)

(2019/C 413/21)

Language of the case: all the official languages

Applicant

European Parliament (represented by: D. Warin, O. Hrstková Šolcová, A. Neergaard, agents, acting as Agents)

Questions submitted to the Court

—

Do Articles 82(2) and 84 TFEU constitute appropriate legal bases for the act of the Council relating to the conclusion, in the name of the European Union, of the Istanbul Convention, or must that act be based on Articles 78(2), 82(2) and 83(1) TFEU, and is it necessary or possible to separate the decisions concerning the signature and the conclusion of the convention as a consequence of that choice of legal basis?

—	Is the conclusion by the European Union of the Istanbul Convention, in accordance with Article 218(6) TFEU, compatible with the Treaties in the absence of mutual agreement between all the Member States concerning their consent to be bound by that convention?

9.12.2019

Official Journal of the European Union

C 413/19

Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) lodged on 9 July 2019 — DC v Banco Bilbao Vizcaya Argentaria, S.A.

(Case C-522/19)

(2019/C 413/22)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 6 de Ceuta

Parties to the main proceedings

Applicant: DC

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, 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.

9.12.2019

Official Journal of the European Union

C 413/20

Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) lodged on 9 July 2019 — ED v Banco Bilbao Vizcaya Argentaria, S.A.

(Case C-523/19)

(2019/C 413/23)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 6 de Ceuta

Parties to the main proceedings

Applicant: ED

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.

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

9.12.2019

Official Journal of the European Union

C 413/21

Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción No 6 de Ceuta (Spain) lodged on 9 July 2019 — HG and IH v Bankia, S.A.

(Case C-527/19)

(2019/C 413/24)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia e Instrucción No 6 de Ceuta

Parties to the main proceedings

Appellant: HG, IH

Respondent: Bankia, S.A.

Questions referred

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

9.12.2019

Official Journal of the European Union

C 413/23

Appeal brought on 1 August 2019 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 11 June 2019 in Case T-138/18, De Esteban Alonso v Commission

(Case C-591/19 P)

(2019/C 413/26)

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Mongin and J. Baquero Cruz, acting as Agents)

Other party to the proceedings: Fernando De Esteban Alonso

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of 11 June 2019 (T-138/18);

—	dismiss the action brought at first instance;

—	order Mr De Esteban to pay in full the costs of both sets of proceedings.

Grounds of appeal and main arguments

By the first ground of appeal, alleging an incorrect legal classification of the facts in the light of Article 4 of Commission Decision No 1999/396, the Commission submits that the General Court should not have held that Mr De Esteban had to be ‘treated in the same way’ as the persons referred to by name in the note sent by OLAF to the French authorities on 19 March 2003 or at the very least regarded as being personally involved in the facts, whereas the person concerned did not fall within any of those categories.

The second ground of appeal alleges an error of law in the interpretation of Article 9(4) of Regulation No 1073/1999 according to which the institutions must take ‘such action, in particular disciplinary or legal,’ on the report submitted by OLAF ‘as the results … warrant’. The Commission claims that that provision cannot be interpreted a contrario as limiting the discretion available to it in the defence of the European Union’s interests and, in particular, as prohibiting it from appearing as a civil party in criminal proceedings and from filing a criminal complaint before the national authorities where it deems it appropriate in the light of the information available to it, including at a stage prior to the adoption of any OLAF report.

By its third ground of appeal, relied on in the alternative, the Commission claims that the General Court could not uphold the action for compensation since there was no causal link. The General Court unduly departed from its case-law according to which there is no sufficiently direct causal link between the forwarding of information by OLAF to the national authorities and the harm allegedly suffered.

9.12.2019

Official Journal of the European Union

C 413/24

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 16 August 2019 — Ge.Fi.L. — Gestione Fiscalità Locale SpA v Regione Campania

(Case C-618/19)

(2019/C 413/29)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Ge.Fi.L. — Gestione Fiscalità Locale SpA

Defendant: Regione Campania

Question referred

Does a provision of regional legislation, such as Article 1(121) of Law No 16 of the Campania Region of 7 August 2014 which awards directly to the [Automobile Club d’Italia], without a tender procedure, a contract for services relating to the management of the tax on vehicles of the Campania Region infringe [European Union] law and, in particular, the principle of free movement of services and the principle of opening up to competition as far as possible in the field of public service contracts?

9.12.2019

Official Journal of the European Union

C 413/25

Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 3 September 2019 — Criminal proceedings in respect of IR

(Case C-649/19)

(2019/C 413/30)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Party to the main proceedings

Questions referred

Do the rights of an accused person under Article 4 (in particular the right under Article 4(3)), Article 6(2) and Article 7(1) of Directive 2012/13 (1) apply to an accused person who has been arrested on the basis of a European arrest warrant?

If the first question is answered in the affirmative: is Article 8 of Framework Decision 2002/584 to be interpreted as meaning that it allows the content of a European arrest warrant to be amended with regard to the form specified in the annex, in particular the insertion of new text into that form, in relation to the rights of the requested person against the judicial authorities of the issuing Member State to challenge the validity of the national arrest warrant and of the European arrest warrant?

If the second question is answered in the negative: is it compatible with recital 12 and Article 1(3) of Framework Decision 2002/584, Articles 4, 6(2) and 7(1) of Directive 2012/13/ЕU and Articles 6 and 47 of the Charter if a European arrest warrant is issued in strict compliance with the form set out in the annex (that is to say without informing the requested person about his rights against the issuing judicial authority) and the issuing judicial authority informs him about the rights to which he is entitled and sends him the relevant documents immediately after that authority becomes aware of the arrest?

If there are no other legal means for safeguarding the rights of a person arrested on the basis of a European arrest warrant under Article 4 of Directive 2012/13/ЕU, in particular the right under Article 4(3), Article 6(2) and Article 7(1) of Directive 2012/13/ЕU, is Framework Decision 2002/584 valid?

(1) Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

9.12.2019

Official Journal of the European Union

C 413/26

Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 10 September 2019 — ‘Skonis ir kvapas’ UAB v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

(Case C-674/19)

(2019/C 413/31)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Applicant:‘Skonis ir kvapas’ UAB

Defendant: Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

Questions referred

(1)

Is Article 2(2) of Council Directive 2011/64/EU (1) of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco to be construed as meaning that water-pipe tobacco, such as that under consideration in the present case (that is to say, consisting of tobacco (up to 24 %), sugar syrup, glycerine, flavourings and preservative), is to be regarded as ‘consisting […] in part of substances other than tobacco’ for the purposes of the application of that provision?

(2)

Is Article 5(1) of Directive 2011/64/EU, including in those cases in which it is to be read together with Article 2(2) of that directive, to be construed as meaning that, in the case where the tobacco contained in a blend intended for smoking — in this case, water-pipe tobacco (the contested product in the case under examination) — satisfies the criteria listed in Article 5(1) of Directive 2011/64/EU, that entire blend is to be regarded as smoking tobacco, irrespective of the other substances contained therein?

(3)

If the second question is answered in the negative, is Article 2(2) and/or Article 5(1) of Directive 2011/64/EU to be construed as meaning that the entire contested product, such as that in the main proceedings, made by blending fine-cut tobacco with other liquid and normally fine substances (sugar syrup, glycerine, flavourings and preservative), is to be treated as smoking tobacco for the purposes of the application of that directive?

(4)

If the second question is answered in the negative and the first and third questions are answered in the affirmative, are the provisions in heading 2 403 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 (2) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EU) No 1006/2011 of 27 September 2011, Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013 and Commission Implementing Regulation (EU) No 1101/2014 of 16 October 2014, to be construed as meaning that such components of water-pipe tobacco as (1) sugar syrup, (2) flavourings and/or (3) glycerine are not to be treated as ‘tobacco substitutes’?

(1) OJ 2011 L 176, p. 24.

(2) OJ 1987 L 256, p. 1.

9.12.2019

Official Journal of the European Union

C 413/27

Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 17 September 2019 — mk advokaten GbR v MBK Rechtsanwälte GbR

(Case C-684/19)

(2019/C 413/32)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Appellant: mk advokaten GbR

Respondent: MBK Rechtsanwälte GbR

Question referred

Does a third party referred to in an entry published on a website that contains a sign identical to a trade mark ‘use’ that trade mark, within the meaning of Article 5(1) of Directive 2008/95/EC, (1) if the entry was not placed there by the third party itself, but was taken by the website’s operator from another entry that the third party had placed in infringement of the trade mark?

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

9.12.2019

Official Journal of the European Union

C 413/27

Action brought on 20 September 2019 — European Commission v Kingdom of Spain

(Case C-704/19)

(2019/C 413/33)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: B. Stromsky and P. Němečková, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to take, within the time limits prescribed, all the measures necessary to recover from the principal beneficiary, Telecom Castilla-La Mancha SA., the State aid declared illegal and incompatible with the internal market by Article 1 of Commission Decision (EU) 2016/1385 of 1 October 2014 on State aid SA.27408 (C 24/10) (ex NN 37/10, ex CP 19/09) granted by the authorities of Castilla-La Mancha for the deployment of digital terrestrial television in remote and less urbanised areas of Castilla-La Mancha (1) (published in the Official Journal of the European Union L 222 of 17 August 2016, p. 52), by failing to establish the cancellation of all outstanding payments of that aid, and by failing to communicate to the Commission, within the time limit prescribed, the measures adopted to comply with that decision, the Kingdom of Spain has failed to fulfil its obligations under Article 288(4) TFEU and Articles 3 and 4 of that decision;

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Kingdom of Spain has not implemented the decision within the time limits prescribed in Article 4(2) and (3) of the decision.

The Kingdom of Spain has failed to recover the total amount of aid from the principal beneficiary of the aid, Telecom Castilla-La Mancha, SA.. The Kingdom of Spain has failed to establish that all pending aid payments were cancelled following adoption of the decision. The failure to completely recover the amount of the aid to which the decision relates and which was granted to Telecom CLM, and the failure to submit reliable proof of the cancellation of all outstanding payments constitutes a breach on the part of the Kingdom of Spain of its obligation under Article 3 of the decision.

In addition, the Kingdom of Spain has not communicated to the Commission, within the time limit prescribed, the information regarding implementation of the decision, as required under Article 4(3) and (4) thereof.

(1) OJ 2016 L 222, p. 52.

9.12.2019

Official Journal of the European Union

C 413/28

Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 25 September 2019 — Von Aschenbach & Voss GmbH v Hauptzollamt Duisburg

(Case C-708/19)

(2019/C 413/34)

Language of the case: German

Referring court

Finanzgericht Düsseldorf

Parties to the main proceedings

Applicant: Von Aschenbach & Voss GmbH

Defendant: Hauptzollamt Duisburg

Questions referred

Is Article 1(1) of Commission Implementing Regulation (EU) 2017/271 of 16 February 2017 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 925/2009 on imports of certain aluminium foil originating in the People’s Republic of China to imports of slightly modified certain aluminium foil (1) invalid because it infringes Article 13(1) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union, (2) in that it extended to aluminium converter foil the definitive anti-dumping duty imposed in respect of aluminium household foil pursuant to Commission Implementing Regulation (EU) 2015/2384 of 17 December 2015 imposing a definitive anti-dumping duty on imports of certain aluminium foils originating in the People’s Republic of China and terminating the proceeding for imports of certain aluminium foils originating in Brazil following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (3) and provides for exemption for aluminium converter foil from anti-dumping duty only under the conditions of Article 1(4) of Implementing Regulation 2017/271?

2.	Is Article 1(1) of Implementing Regulation 2017/271 invalid because the Commission made a manifest error of assessment when adopting that regulation as adequate reasons are not stated for its assumption that 80 % of the products under investigation were slightly modified products?

3.	Is Article 1(1) of Implementing Regulation 2017/271 invalid because the Commission made a manifest error of assessment when adopting that regulation as it did not check the end use of the imported aluminium foil in the European Union?

(1) OJ 2017 L 40, p. 51.

(2) OJ 2016 L 176, p. 21.

(3) OJ 2015 L 332, p. 63.

9.12.2019

Official Journal of the European Union

C 413/29

Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 27 September 2019 — Ordre des barreaux francophones et germanophone, Association pour le droit des Étrangers ASBL, Coordination et Initiatives pour et avec les Réfugiés and Étrangers ASBL, Ligue des Droits de l’Homme ASBL, Vluchtelingenwerk Vlaanderen ASBL v Conseil des ministres

(Case C-718/19)

(2019/C 413/35)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone, Association pour le droit des Étrangers ASBL, Coordination et Initiatives pour et avec les Réfugiés and Étrangers ASBL, Ligue des Droits de l’Homme ASBL, Vluchtelingenwerk Vlaanderen ASBL

Defendant: Conseil des ministres

Questions referred

Must EU law, in particular Articles 20 and 21 of the Treaty on the Functioning of the European Union and 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 (1) be interpreted as precluding national legislation according to which the provisions that apply to EU citizens and members of their families are similar to those which, in respect of third-country nationals, transpose Article 7(3) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, that is to say, provisions according to which EU citizens and members of their families can be obliged to comply with preventive measures designed to prevent any risk of absconding during the period given to those persons in which to leave the territory following adoption of a decision to terminate residence on grounds of public policy or during an extension of that period?

(1) OJ 2004 L 158, p. 77.

9.12.2019

Official Journal of the European Union

C 413/30

Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 1 October 2019 — Criminal proceedings against HP

(Case C-724/19)

(2019/C 413/36)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Party to the main proceedings

Question referred

Is a national law (Article 5(1)(1) of the Zakon za Evropeyskata zapoved za razsledvane (Law on the European investigation order; ‘the ZEZR’)), according to which, during the pre-trial stage of the criminal proceedings, the authority competent to issue a European investigation order for the provision of traffic and location data related to telecommunications is a public prosecutor, consistent with Article 2(c)(i) of Directive 2014/41 (1) and the principle of equivalence, provided that in an identical domestic case the competent authority is a judge?

Does recognition of that European investigation order by the competent authority of the executing State (public prosecutor or an investigating judge) replace the court order required under the law of the issuing State?

(1) Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters.

OJ 2014 L 130, p. 1.

9.12.2019

Official Journal of the European Union

C 413/31

Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 7 October 2019 — Euromin Holdings (Cyprus) Limited v Finanšu un kapitāla tirgus komisija

(Case C-735/19)

(2019/C 413/37)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Applicant at first instance and appellant in cassation: Euromin Holdings (Cyprus) Limited

Defendant at first instance and appellant in cassation: Finanšu un kapitāla tirgus komisija

Questions referred

Is national legislation which provides that the share price for a mandatory buyback offer is to be calculated by dividing the net assets of the offeree company (including non-controlling (minor) interests) between the number of shares issued contrary to the correct application of Article 5 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids? (1)

If the first question is answered in the negative, that is to say, to the effect that the net assets of the offeree company do not have to include non-controlling or minority interests, may a method of determining the share price be regarded as clearly determined, within the meaning of the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, if it is necessary to apply a method of legal interpretation — teleological reduction — in order to understand it?

Is legislation providing that the highest price out of the following three variants must be used compatible with Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, that is to say, compatible with the determination of an equitable price?

3.1.

the price at which the offeror or persons acting in concert with the latter acquired the shares of the offeree company in the preceding 12 months. In the event of the acquisition of shares at different prices, the buyback price is to be the highest price at which shares were purchased during the 12 months preceding the legal obligation to submit a buyback offer;

3.2.

the weighted average share price on the regulated market or on the multilateral trading facility via which the largest volume of the shares were traded during the last 12 months. The weighted average share price is to be calculated on the basis of the 12 months preceding the legal obligation to submit a buyback offer;

3.3.

the share value calculated by dividing the net assets of the offeree company by the number of shares issued. Net assets are to be calculated by deducting the offeree company’s own shares and liabilities from its total assets. If the offeree company has shares with different nominal values, in order to calculate the share value, the net assets are to be divided by the percentage of each nominal share value in the share capital.

If the method of calculation laid down by national law, using the discretion granted [to Member States] by the second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, results in a higher price than that resulting from the application of the first subparagraph of Article 5(4), is it consistent with the objective of the Directive to always choose the higher price?

If damage is caused to an individual as a result of the incorrect application of EU law, may national law provide for the limitation of compensation for such damage if that limitation applies equally to damage suffered as a result of the incorrect application of national law and to damage suffered as a result of the incorrect application of EU law?

6.	Do the provisions of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids that are applicable to the present case confer rights on individuals, that is to say, is the corresponding requirement for State liability met?

(1) OJ 2004 L 142, p. 12.

9.12.2019

Official Journal of the European Union

C 413/32

Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 7 October 2019 — ZS Plaukti v Lauku atbalsta dienests

(Case C-736/19)

(2019/C 413/38)

Language of the case: Latvian

Referring court

Augstākā tiesa (Senāts)

Parties to the main proceedings

Appellant on a point of law: ZS ‘Plaukti’

Other party in the appeal on a point of law: Lauku atbalsta dienests

Questions referred

Does the third subparagraph of Article 16(5) of Commission Regulation (EU) No 65/2011 of 27 January 2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1698/2005, (1) as regards the implementation of control procedures as well as cross-compliance in respect of rural development support measures apply to a situation in which the applicant has failed to comply with the requirements relating to mowing the area for which the maintenance of pasture biodiversity payments were claimed (a requirement which goes beyond the mandatory minimum requirements under Article 39(3) of Regulation No 1698/2005 (2)) but where no change in the crop group has been found?

2.	Can both the penalty established in the third subparagraph of Article 16(5) of Commission Regulation (EU) No 65/2011 of 27 January 2011 and the penalty laid down in Article 18(1)(a) of Regulation No 65/2011 be imposed simultaneously for a single infringement?

Do Articles 4 and 6 of Council Regulation (EC) No 73/2009 (3) of 19 January 2009, in conjunction with Article 39(3) of Council Regulation (EC) No 1698/2005 of 20 September 2005 preclude national legislation according to which the same requirement can simultaneously be a mandatory minimum requirement and impose requirements greater than the minimum mandatory requirements (requirement for an agri-environment payment)?

(1) OJ 2011 L 25, p. 8.

(2) Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1).

(3) Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

9.12.2019

Official Journal of the European Union

C 413/33

Request for a preliminary ruling from the tribunal administratrif de Montreuil (France) lodged on 7 October 2019 — Bank of China Limited v Ministre de l’Action and des Comptes publics

(Case C-737/19)

(2019/C 413/39)

Language of the case: French

Referring court

Tribunal administratrif de Montreuil

Parties to the main proceedings

Applicant: Bank of China Limited

Defendant: Ministre de l’Action and des Comptes publics

Questions referred

Are the solutions adopted in the judgment of 24 January 2019, Morgan Stanley & Co International plc v Ministre de l’Économie et des Finances (C-165/17) applicable where a branch, on the one hand, carries out, in a Member State, transactions subject to VAT, and, on the other, supplies services for the benefit of its principal establishment and branches established in a third country?

Where a branch established in a Member State claims a right to deduct based on the expenditure incurred by it in connection with the supply of services for the benefit of its principal establishment in a third-country, that is exports of financial and banking services, may the taxable person deduct value added tax pursuant to Article 169(a) or Article 169(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, p. 1)?

If the first question is answered in the affirmative and the branch may claim a deduction pursuant to Article 169(a), under what conditions may banking transactions carried out by the principal establishment established in a third country be regarded as giving rise to a right to deduct if they had been carried out in the Member State the expenditure subject to value added tax is incurred? If the first question is answered in the affirmative and the branch may claim a deduction pursuant to Article 169(c), under what conditions may the recipient of the services be regarded as being established outside the European Union where the branch is located in the European Union and forms part of one and the same legal entity as its principal establishment?

9.12.2019

Official Journal of the European Union

C 413/34

Reference for a preliminary ruling from the Supreme Court (Ireland) made on 7 October 2019 – VK v An Bord Pleanála

(Case C-739/19)

(2019/C 413/40)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicants: VK

Defendant: An Bord Pleanála

Questions referred

Is a member state precluded from exercising the option to be found in Article 5 of Directive 77/249/EEC (1) of 22 March 1977, as amended, which permits a member state to impose a requirement on a lawyer who is engaged in the activity of representing a client in legal proceedings ‘to work in conjunction with a lawyer who practises before the judicial authority in question’, in all circumstances where the party whom the visiting lawyer wishes to represent in such proceedings would be entitled to self-represent?

2.	If the answer to question 1 is no, by reference to what factors should a national court assess whether it is permissible to impose a requirement to ‘practice in conjunction with’?

In particular, would the imposition of a limited obligation to practice ‘in conjunction with’, in the manner described earlier in this order for reference, amount to a proportionate interference in the freedom of lawyers to provide services so as to be justified, having regard to the public interest involved being both the need to protect consumers of legal services and the need to secure the proper administration of justice?

4.	If the answer to question 3 is yes, does that position pertain in all circumstances and, if not, what factors should a national court take into account in determining whether such a requirement can be imposed in a particular case?

(1) Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977, L 78, p. 17).

9.12.2019

Official Journal of the European Union

C 413/34

Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 8 October 2019 — Republic of Moldova v Komstroy, a company the successor in law to the company Energoalians

(Case C-741/19)

(2019/C 413/41)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Appellant: Republic of Moldova

Respondent: Komstroy, a company the successor in law to the company Energoalians

Questions referred

—	Must Article 1.6 of the Energy Charter Treaty be interpreted as meaning that a claim which arose from a contract for the sale of electricity and which did not involve any contribution on the part of the investor in the host State can constitute an ‘investment’ within the meaning of that article?

—	Must Article 26(1) of the Energy Charter Treaty be interpreted as meaning that the acquisition, by an investor of a Contracting Party, of a claim established by an economic operator which is not from one of the States that are Parties to that Treaty constitutes an investment?

—

Must Article 26(1) of the Energy Charter Treaty be interpreted as meaning that a claim held by an investor, which arose from a contract for the sale of electricity supplied at the border of the host State, can constitute an investment made in the area of another Contracting Party, in the case where the investor does not carry out any economic activity in the territory of that latter Contracting Party?

9.12.2019

Official Journal of the European Union

C 413/35

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 10 October 2019 — PH, OI v ‘Eurobank Bulgaria’ AD

(Case C-745/19)

(2019/C 413/42)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicants: PH, OI

Defendant:‘Eurobank Bulgaria’ AD

Questions referred

If it is shown that a term allowing the creditor to unilaterally change the interest rate on a loan agreement concluded between a seller or supplier and a consumer is unfair, can the national court assume that the interest rate payable under the agreement is fixed (despite any provision to the contrary in the initial agreement) in the amount set as at the date the loan was granted?

2.	If the answer to the first question is in the negative, is the national court allowed to award any interest at all where there is an unfair term that fails to set the variable interest rate on the agreement in a fair manner?

3.	What effect does the fact that, in the course of repayment of the loan, the consumer has agreed to the application of a methodology for setting the interest rate that does not contain any unfair terms, have on the answer to the first two questions?

9.12.2019

Official Journal of the European Union

C 413/36

Action brought on 23 October 2019 — European Commission v Republic of Austria

(Case C-787/19)

(2019/C 413/43)

Language of the case: German

Parties

Applicant: European Commission (represented by: J. Jokubauskaitė and M. Wasmeier, acting as Agents)

Defendant: Republic of Austria

Form of order sought

The applicant claims that the Court should:

—

declare that, by excluding from the special value-added-tax scheme applicable to travel agents travel services that are provided to taxable persons who use those services for their business, and by allowing travel agents, in so far as they are subject to that scheme, to determine the taxable amount for value added tax on a flat-rate basis for groups of services or for all services provided during a taxable period, the Republic of Austria has failed to fulfil its obligations under Article 73 and Articles 306 to 310 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1);

order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant submits that the scheme laid down in Austria for calculating the value added tax on travel services does not comply with Directive 2006/112. That directive lays down, in Articles 306 to 310, a special scheme pursuant to which travel services provided by a travel agent to a customer are to be regarded as a single service. Austrian law impermissibly departs from that scheme.

First, it is not permissible to exclude from the application of that special scheme taxable persons who use travel services for their business. In its judgment of 26 September 2013, Commission v Spain (C-189/11, EU:C:2013:587), the Court of Justice already held that the special scheme in question is applicable not only to services provided to private end consumers, but also to services provided to taxable undertakings. It is not open to Member States to restrict the application of that scheme to the former category. This was confirmed once more by the Court of Justice in its judgment of 8 February 2018, Commission v Germany (C-380/16, EU:C:2018:76).

Secondly, the calculation method provided for under the Austrian law on turnover tax is incompatible with Directive 2006/112. Under Article 73 and Articles 306 to 310 of that directive, the taxable amount is to be determined separately for each journey. Austrian law, by contrast, allows the profit margin for ‘groups of services’ or for all journeys in a specific time period to be calculated at a flat-rate. In the abovementioned judgments the Court of Justice also held that a flat-rate calculation of that kind is not consistent with the common system of value added tax.

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

9.12.2019

Official Journal of the European Union

C 413/36

Action brought on 25 October 2019 — European Commission v Republic of Poland

(Case C-791/19)

(2019/C 413/44)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Banks, H. Krämer, S.L. Kalėda, Agents)

Defendant: Republic of Poland

Form of order sought

Declare that:

—	by allowing the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts (Article 107(1) of the Law on the Organisation of the Ordinary Courts and Article 97(1) and (3) of the Law on the Supreme Court),

—

by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings against judges (Article 3, point 5, Article 27 and Article 73(1) of the Law on the Supreme Court, in conjunction with Article 9a of the Law on the National Council for the Judiciary),

—

by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts (Article 110(3) and Article 114(7) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’, and

—

by conferring on the Minister for Justice the power to appoint a Disciplinary Representative of the Minister for Justice (Article 112b of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and in providing that: acts connected with the designation of counsel for the defence and that counsel’s conduct of the defence do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of the Law on the Organisation of the Ordinary Courts) and that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his defence counsel (Article 115a(3) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee the rights of the defence of accused judges of the ordinary courts,

the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; and that

—	by allowing the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings,

the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;

2.	Order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

First, as regards the infringement of the second subparagraph of Article 19(1) TEU, the Commission submits that the disputed provisions (i) allow the content of judicial decisions to be treated as a disciplinary offence, (ii) fail to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings, (iii) confer on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts and, therefore, fail to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’, (iv) fail to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and thus fail to guarantee the rights of the defence of accused judges of the ordinary courts.

Secondly, as regards the infringement of the second and third paragraphs of Article 267 TFEU, the Commission submits that the national provisions at issue allow the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings.

9.12.2019

Official Journal of the European Union

C 413/38

Judgment of the General Court of 24 September 2019 — Xinyi PV Products (Anhui) Holdings v Commission

(Case T-586/14 RENV) (1)

(Dumping - Imports of solar glass originating in China - Article 2(7)(b) and (c) of Regulation (EC) No 1225/2009 (now Article 2(7)(b) and (c) of Regulation (EU) 2016/1036) - Market economy treatment - Concept of ‘significant distortion in the production costs and financial situation of firms’ - Tax incentives - Manifest error of assessment)

(2019/C 413/45)

Language of the case: English

Parties

Applicant: Xinyi PV Products (Anhui) Holdings Ltd (Anhui, China) (represented by: Y. Melin, lawyer)

Defendant: European Commission (represented by: L. Flynn and T. Maxian Rusche, acting as Agents)

Interverner in support of the defendant: GMB Glasmanufaktur Brandenburg GmbH (Tschernitz, Germany) (represented by: R. MacLean, Solicitor)

Re:

Application under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) No 470/2014 of 13 May 2014 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of solar glass originating in the People’s Republic of China (OJ 2014 L 142, p. 1; corrigendum OJ 2014 L 253, p. 4).

Operative part of the judgment

The Court:

1.	Annuls Commission Implementing Regulation (EU) No 470/2014 of 13 May 2014 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of solar glass originating in the People’s Republic of China;

2.	Orders the European Commission to bear its own costs and to pay the costs of Xinyi PV Products (Anhui) Holdings Ltd, with the exception of those relating to the intervention;

3.	Orders GMB Glasmanufaktur Brandenburg GmbH to bear its own costs and to pay the costs of Xinyi PV Products (Anhui) Holdings relating to its intervention.

(1) OJ C 372, 20.10.2014.

9.12.2019

Official Journal of the European Union

C 413/39

Judgment of the General Court of 24 September 2019 — Luxembourg and Fiat Chrysler Finance Europe v Commission

(Cases T-755/15 and T-759/15) (1)

(State aid - Aid granted by Luxembourg - Decision declaring the aid incompatible with the internal market and unlawful and ordering its recovery - Tax ruling - Advantage - Arm’s length principle - Selectivity - Presumption - Restriction of competition - Recovery)

(2019/C 413/46)

Languages of the case: French and English

Parties

Applicant in Case T-755/15: Grand Duchy of Luxembourg (represented initially by: D. Holderer and T. Uri, subsequently by T. Uri, acting as Agents, and initially by D. Waelbroeck, S. Naudin and A. Steichen, subsequently by D. Waelbroeck and A. Steichen, lawyers)

Applicant in Case T-759/15: Fiat Chrysler Finance Europe (Luxembourg, Luxembourg) (represented by: J. Rodríguez, Solicitor, G. Maisto and M. Engel, lawyers)

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

Intervener in support of the applicants: Ireland (represented, in Case T-755/15, initially by: E. Creedon, G. Hodge and A. Joyce, subsequently by G. Hodge, M. Browne and A. Joyce, and finally by A. Joyce and J. Quaney, acting as Agents, and by P. Gallagher and M. Collins, Senior Counsel, B. Doherty and S. Kingston, Barristers, and, in Case T-759/15, initially by E. Creedon, G. Hodge, K. Duggan and A. Joyce, subsequently by G. Hodge, K. Duggan, M. Browne and A. Joyce, and finally by A. Joyce and J. Quaney, acting as Agents, and by M. Collins and P. Gallagher, Senior Counsel, S. Kingston and B. Doherty, Barristers)

Re:

Applications pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2016/2326 of 21 October 2015 on State aid SA.38375 (2014/C ex 2014/NN) which Luxembourg granted to Fiat (OJ 2016 L 351, p. 1).

Operative part of the judgment

The Court:

1.	Joins Cases T-755/15 and T-759/15 for the purposes of the judgment;

2.	Dismisses the actions;

3.	Orders the Grand Duchy of Luxembourg to bear its own costs and to pay those incurred by the European Commission in Case T-755/15;

4.	Orders Fiat Chrysler Finance Europe to bear its own costs and to pay those incurred by the Commission in Case T-759/15;

5.	Orders Ireland to bear its own costs.

(1) OJ C 59, 15.2.2016.

9.12.2019

Official Journal of the European Union

C 413/40

Judgment of the General Court of 24 September 2019 — Netherlands and Others v Commission

(Cases T-760/15 and T-636/16) (1)

(State aid - Aid implemented by the Netherlands - Decision declaring the aid to be incompatible with the internal market and unlawful and ordering its recovery - Tax ruling - Transfer pricing - Calculation of the tax base - Arm’s length principle - Advantage - Reference system - Fiscal and procedural autonomy of the Member States)

(2019/C 413/47)

Language of the case: Dutch and English

Parties

Applicant in Case T-760/15: Kingdom of the Netherlands (represented initially by M. Bulterman, B. Koopman, M. de Ree and M. Noort, subsequently by M. Bulterman)

Applicants in Case T-636/16: Starbucks Corp. (Seattle, Washington, United States), Starbucks Manufacturing Emea BV (Amsterdam, Netherlands) (represented by: S. Verschuur, M. Petite and M. Stroungi, lawyers),

Defendant: European Commission (in Case T-760/15 represented initially by P. J. Loewenthal and B. Stromsky, subsequently by P. J. Loewenthal and F. Tomat, acting as Agents, and in Case T-636/16, by P. J. Loewenthal and F. Tomat, acting as Agents)

Intervener in support of the applicant in Case T-760/15: Ireland (represented initially by E. Creedon, G. Hodge, K. Duggan and A. Joyce, subsequently by G. Hodge, A. Joyce, K. Duggan, M. Browne and J. Quaney, acting as Agents, and by M. Collins, P. Gallagher, Senior Counsel, B. Doherty and S. Kingston, Barristers)

Re:

Applications based on Article 263 TFEU seeking annulment of Commission Decision (EU) 2017/502 of 21 October 2015 on State aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks (OJ 2017 L 83, p. 38).

Operative part of the judgment

The Court:

1.	Joins Cases T-760/15 and T-636/16 for the purposes of the judgment;

2.	Annuls Commission Decision (EU) 2017/502 of 21 October 2015 on State aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks;

3.	Orders the European Commission to bear its own costs and to pay those incurred by the Kingdom of the Netherlands, Starbucks Corp. and Starbucks Manufacturing Emea BV;

4.	Orders Ireland to bear its own costs.

(1) OJ C 59, 15.2.2016.

9.12.2019

Official Journal of the European Union

C 413/41

Judgment of the General Court of 24 September 2019 — HSBC Holdings and Others v Commission

(Case T-105/17) (1)

(Competition - Agreements, decisions and concerted practices - Euro Interest Rate Derivatives sector - Decision establishing an infringement of Article 101 TFEU and Article 53 of the EEA Agreement - Manipulation of the Euribor interbank reference rates - Exchange of confidential information - Restriction of competition by object - Single and continuous infringement - Fines - Basic amount - Value of sales - Article 23(2) of Regulation (EC) No 1/2003 - Obligation to state reasons)

(2019/C 413/48)

Language of the case: English

Parties

Applicants: HSBC Holdings plc (London, United Kingdom), HSBC Bank plc (London), HSBC France (Paris, France) (represented by: K. Bacon QC, D. Bailey, Barrister, M. Simpson, Solicitor, and Y. Anselin and C. Angeli, lawyers)

Defendant: European Commission (represented by: M. Farley, B. Mongin and F. van Schaik, acting as Agents, and B. Lask, Barrister)

Re:

Application pursuant to Article 263 TFEU seeking, first, annulment in part of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.39914 — Euro Interest Rate Derivatives) and, second, a variation of the amount of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1.	Annuls Article 2(b) of Commission Decision C(2016) 8530 final of 7 December 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39914 — Euro Interest Rate Derivatives (EIRD));

2.	Dismisses the action as to the remainder;

3.	Orders HSBC Holdings plc, HSBC Bank plc and HSBC France to bear their own costs;

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

(1) OJ C 112, 10.4.2017.

9.12.2019

Official Journal of the European Union

C 413/42

Judgment of the General Court of 20 September 2019 — FVE Holýšov I and Others v Commission

(Case T-217/17) (1)

(State aid - Market for electricity generated from renewable sources - Measures setting a minimum purchase price for electricity generated from renewable energy sources or granting a bonus to producers of that electricity - Amendment of the initial measures - Decision declaring the aid scheme compatible with the internal market at the end of the preliminary examination stage - Article 107, paragraph 3(c) TFEU - Beneficiaries of the aid and shareholders of the beneficiaries - Legitimate expectations - State resources - Commission’s competence to examine the compatibility of the measures with other provisions of EU law than State aid)

(2019/C 413/49)

Language of the case: English

Parties

Applicants: FVE Holýšov I s. r. o. (Prague, Czech Republic) and the 27 other applicants whose names appear in the Annex to the Judgment (represented by: A. Reuter, H. Wendt, C. Bürger, T. Christner, W. Schumacher, A. Compes and T. Herbold, lawyers)

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

Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, J. Vláčil, T. Müller and O. Serdula and L. Dvořáková, acting as Agents), Kingdom of Spain (represented initially by: A. Gavela Llopis, and subsequently by A. Rubio González and S. Centeno Huerta, acting as Agents), Republic of Cyprus (represented by: E. Symeonidou and E. Zachariadou, acting as Agents), Slovak Republic (represented by: B. Ricziová and M. Kianička, acting as Agents)

Re:

Application pursuant to Article 263 TFEU for the partial annulment of Commission Decision C(2016) 7827 final of 28 November 2016 on State aid SA.40171 (2015/NN), concerning the promotion of electricity production from renewable energy sources, a summary of which has been published in the Official Journal of the European Union (OJ 2017 C 69, p. 2).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders FVE Holýšov I s. r. o. and the other applicants whose names are included in the annex to bear their own costs and to pay those incurred by the European Commission;

3.	Orders the Czech Republic, the Republic of Spain, the Republic of Cyprus and the Slovak Republic to bear their own costs.

(1) OJ C 202, 26.6.2017.

9.12.2019

Official Journal of the European Union

C 413/43

Judgment of the General Court of 24 September 2019 — Romania v Commission

(Case T-391/17) (1)

(Law governing the institutions - European citizens’ initiative - Protection of national and linguistic minorities - Strengthening of cultural and linguistic diversity - Registration in part - Principle of conferral - Commission not manifestly lacking legislative powers - Obligation to state reasons - Article 5(2) TEU - Article 4(2)(b) of Regulation (EU) No 211/2011 - Article 296 TFEU)

(2019/C 413/50)

Language of the case: Romanian

Parties

Applicant: Romania (represented initially by: R. Radu, C.-M. Florescu, E. Gane and L. Lițu, and subsequently by Florescu, Gane, Lițu and C.-R. Canțăr, acting as Agents)

Defendant: European Commission (represented by: H. Krämer, L. Radu Bouyon and H. Stancu, acting as Agents)

Intervener in support of the defendant: Hungary (represented by: M. Fehér, G. Koós and G. Tornyai, acting as Agents)

Re:

Application pursuant to Article 263 TFEU seeking annulment of Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack — one million signatures for diversity in Europe’ (OJ 2017 L 92, p. 100).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Romania to pay its own costs and those incurred by the Commission, including those relating to the interim proceedings;

3.	Orders Hungary to bear its own costs.

(1) OJ C 269, 14.8.2017.

9.12.2019

Official Journal of the European Union

C 413/44

Judgment of the General Court of 24 September 2019 — Printeos and Others v Commission

(Case T-466/17) (1)

(Competition - Agreements, decisions and concerted practices - European stock/catalogue and special printed envelopes market - Decision establishing an infringement of Article 101 TFEU - Annulment in part on the ground of infringement of the obligation to state reasons - Amending decision - Settlement procedure - Fines - Basic amount - Exceptional adjustment - 10 % ceiling on the total turnover - Article 23 (2) of Regulation (EC) No 1/2003 - Ne bis in idem principle - Legal certainty - Legitimate expectations - Equal treatment - Cumulation of penalties - Proportionality - Fairness - Unlimited jurisdiction)

(2019/C 413/51)

Language of the case: Spanish

Parties

Applicants: Printeos, SA (Alcalá de Henares, Spain), Printeos Cartera Industrial, SL (Alcalá de Henares), Tompla Scandinavia AB (Stockholm, Sweden), Tompla France (Fleury-Mérogis, France), Tompla Druckerzeugnisse Vertriebs GmbH (Leonberg, Germany) (represented by: H. Brokelmann et P. Martínez-Lage Sobredo, lawyers)

Defendant: European Commission (represented by: F. Castilla Contreras, F. Jimeno Fernández and C. Urraca Caviedes, acting as Agents)

Re:

Action based on Article 263 TFEU seeking annulment of Commission Decision C(2017) 4112 final of 16 June 2017 amending Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.39780 — Envelopes) and, in the alternative, reduction of the amount of the fine imposed on the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the European Commission to pay the costs.

(1) OJ C 318, 25.9.2017.

9.12.2019

Official Journal of the European Union

C 413/44

Judgment of the General Court of 24 September 2019 — US v ECB

(Case T-780/17) (1)

(Civil service - ECB staff - Appraisal report for 2016 - Annual salary and bonus review - Refusal to convert a fixed-term employment contract into a contract for an indefinite period - Obligation to state reasons - Manifest error of assessment)

(2019/C 413/52)

Language of the case: French

Parties

Applicant: US (represented by: L. Levi and A. Blot, lawyers)

Defendant: European Central Bank (represented by: F. von Lindeiner and M. Rötting, acting as Agents, and B. Wagenbaur, lawyer)

Re:

Application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking, first, annulment of the applicant’s appraisal report for 2016 and the decision regarding the annual salary and bonus review for 2016 and, secondly, compensation for the harm allegedly suffered by the applicant as a result of those measures.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders US to pay the costs.

(1) OJ C 52, 12.2.2018.

9.12.2019

Official Journal of the European Union

C 413/45

Judgment of the General Court of 24 September 2019 — Crédit mutuel Arkéa v EUIPO — Confédération nationale du Crédit mutuel (Crédit Mutuel)

(Case T-13/18) (1)

(EU trade mark - Invalidity proceedings - EU word mark Crédit Mutuel - Absolute grounds for refusal - Descriptive character - No distinctive character - Distinctive character acquired through use - Cross-claim - Article 7(1)(b) and (c), and Article 7(3) of Regulation (EU) 2017/1001 - Article 59(1)(a) and Article 59(2) of Regulation 2017/1001)

(2019/C 413/53)

Language of the case: French

Parties

Applicant: Crédit Mutuel Arkéa (Le Relecq Kerhuon, France) (represented by: A. Casalonga, L. Codevelle and C. Bercial Arias, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Confédération nationale du Crédit mutuel (Paris, France) (represented by: B. Moreau-Margotin and M. Merli, lawyers)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 8 November 2017 (Case R 1724/2016-5), relating to invalidity proceedings between Crédit Mutuel Arkéa and Confédération nationale du Crédit mutuel.

Operative part of the judgment

The Court:

Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 November 2017 (Case R 1724/2016-5) in so far as it concludes that the contested mark acquired distinctive character through use for the goods and services for which it was descriptive and non-distinctive;

2.	Dismisses the action as to the remainder;

3.	Dismisses the cross-claim;

4.	Orders Crédit Mutuel Arkéa to bear a third of its own costs and to pay a third of the costs incurred by EUIPO and Confédération nationale du Crédit mutuel in the main action;

5.	Orders EUIPO to pay two thirds of its own costs and two thirds of the costs incurred by the applicant in the main action;

6.	Orders Confédération nationale du Crédit mutuel to bear two thirds of its own costs incurred in the main action and the costs incurred in the cross-claim.

(1) OJ C 94, 12.3.2018.

9.12.2019

Official Journal of the European Union

C 413/46

Judgment of the General Court of 24 September 2019 — VF v ECB

(Case T-39/18) (1)

(Civil service - ECB staff - Appraisal report of the applicant - Annual salary and bonus review - Refusal to convert a fixed-term employment contract into a contract for an indefinite period - Obligation to state reasons - Manifest error of assessment - Principle of sound administration)

(2019/C 413/54)

Language of the case: English

Parties

Applicant: VF (represented by: L. Levi and A. Blot, lawyers)

Defendant: European Central Bank (represented by: F. von Lindeiner and D. Camilleri Podestà, acting as Agents, and B. Wägenbaur, lawyer)

Re:

Action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union essentially seeking, first, the annulment of the decision regarding the annual salary and bonus review for 2016 and the decision not to convert the applicant’s fixed-term employment contract into a contract for an indefinite period and, secondly, compensation for the damage which the applicant claims to have sustained as a result of those measures.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders VF to pay the costs.

(1) OJ C 112, 26.3.2018.

9.12.2019

Official Journal of the European Union

C 413/47

Judgment of the General Court of 24 September 2019 — Fränkischer Weinbauverband v EUIPO (Shape of an ellipsoidal bottle)

(Case T-68/18) (1)

(EU trade mark - Application for a three-dimensional EU trade mark - Shape of a bulbous ellipsoidal bottle, flattened on the front and back - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001)

(2019/C 413/55)

Language of the case: German

Parties

Applicant: Fränkischer Weinbauverband eV (Würzburg, Germany) (represented by: L. Petri and M. Gilch, lawyers)

Defendant: European Union Intellectual Property Office (represented by: W. Schramek, M. Fischer and D. Walicka, acting as Agents)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 4 December 2017 (Case R 413/2017-4), relating to an application for registration of a three-dimensional sign constituted by the shape of bulbous ellipsoidal bottle, flattened on the front and back.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Fränkischer Weinbauverband eV to pay the costs.

(1) OJ C 112, 26.3.2018.

9.12.2019

Official Journal of the European Union

C 413/47

Judgment of the General Court of 24 September 2019 — Piaggio & C. v EUIPO — Zhejiang Zhongneng Industry Group (Mopeds)

(Case T-219/18) (1)

(Community design - Invalidity proceedings - Registered Community design representing a moped - Earlier Community design - Ground for invalidity - Individual character - Different overall impression - Informed user - Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 - Interpretation consistent with Article 6 of Regulation No 6/2002 - No use of an earlier three-dimensional national trademark not registered in the registered design - Article 25(1)(e) of Regulation No 6/2002 - No unauthorised use of a work protected by the copyright law of a Member State in the registered design - Article 25(1)(f) of Regulation No 6/2002)

(2019/C 413/56)

Language of the case: Italian

Parties

Applicant: Piaggio & C. SpA (Pontedera, Italy) (represented by: F. Jacobacci, B. La Tella and B. Lucchetti, lawyers)

Defendant: European Union Intellectual Property Office (represented by: L. Rampini and J. Crespo Carrillo, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Zhejiang Zhongneng Industry Group Co. Ltd (Taizhou City, China) (represented by: M. Spolidoro, M. Gurrado, S. Verea and M. Balestriero, lawyers)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 19 January 2018 (Case R 1496/2015-3), in relation to cancellation proceedings between Piaggio & C. and Zhejiang Zhongneng Industry Group.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Piaggio & C. SpA to pay the costs

(1) OJ C 182, 28.5.2018.

9.12.2019

Official Journal of the European Union

C 413/48

Judgment of the General Court of 24 September 2019 — US v ECB

(Case T-255/18) (1)

(Civil service - ECB staff - Fixed-term contract - Contract for an indefinite period - Refusal to reclassify a fixed term contract as a contract for an indefinite period - Obligation to state reasons - Manifest error of assessment)

(2019/C 413/57)

Language of the case: French

Parties

Applicant: US (represented by: L. Levi and A. Blot, lawyers)

Defendant: European Central Bank (represented by: F. von Lindeiner and M. Rötting, Agents, and B. Wägenbaur, lawyer)

Re:

Application based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union and seeking, first, annulment of the ECB’s decision not to reclassify the applicant’s contract as a contract for an indefinite period and, secondly, compensation in respect of the harm which the applicant allegedly suffered as a result of that decision.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders US to pay the costs.

(1) OJ C 231, 2.7.2018.

9.12.2019

Official Journal of the European Union

C 413/49

Judgment of the General Court of 24 September 2019 — Volvo Trademark v EUIPO — Paalupaikka (V V-WHEELS)

(Case T-356/18) (1)

(EU trade mark - Opposition proceedings - Application for the EU figurative mark V V-WHEELS - Earlier EU, national and unregistered figurative marks VOLVO - Relative ground for refusal - Similarity of the signs - Article 8(5) of Regulation (EU) 2017/1001)

(2019/C 413/58)

Language of the case: English

Parties

Applicant: Volvo Trademark Holding AB (Gothenburg, Sweden) (represented by: T. Dolde, lawyer, and M. Hawkins, Solicitor)

Defendant: European Union Intellectual Property Office (represented by: S. Bonne and H. O’Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Paalupaikka Oy (Iisalmi, Finland)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 21 March 2018 (Case R 1852/2017-4), relating to opposition proceedings between Volvo Trademark Holding and Paalupaikka.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 March 2018 (Case R 1852/2017-4);

2.	Orders EUIPO to pay the costs, including the costs necessarily incurred by Volvo Trademark Holding AB for the purposes of the proceedings before the Board of Appeal of EUIPO.

(1) OJ C 268, 30.7.2018.

9.12.2019

Official Journal of the European Union

C 413/49

Judgment of the General Court of 20 September 2019 — Multifit v EUIPO (real nature)

(Case T-458/18) (1)

(EU trade mark - Application for EU word mark real nature - Absolute grounds for refusal - Descriptive character - No distinctive character - Article 7(1)(b) and (c) of Regulation (EU) 2017/1001)

(2019/C 413/59)

Language of the case: German

Parties

Applicant: Multifit Tiernahrungs GmbH (Krefeld, Germany) (represented by: N. Weber and P. Gentili, lawyers)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 28 May 2018 (Case R 2650/2017-2), relating to an application for registration of the word sign real nature as an EU trade mark.

Operative part of the judgment

The Court:

Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 May 2018 (Case R 2650/2017-2), in so far as registration as an EU trade mark of the word sign real nature was refused for the services ‘advertising; marketing services; organisational and business advice for franchise concepts; providing of business knowhow (franchising)’, in Class 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2.	Dismisses the action as to the remainder;

3.	Orders Multifit Tiernahrungs GmbH to bear its own costs and to pay two thirds of those incurred by EUIPO. EUIPO to bear one third of its costs.

(1) OJ C 319, 10.9.2018.

9.12.2019

Official Journal of the European Union

C 413/50

Judgment of the General Court of 24 September 2019 — Zhadanov v EUIPO (Scanner Pro)

(Case T-492/18) (1)

(EU trade mark - Application for the EU word mark Scanner Pro - Absolute ground for refusal - No distinctive character acquired through use - Article 7(3) of Regulation (EU) 2017/1001)

(2019/C 413/60)

Language of the case: English

Parties

Applicant: Igor Zhadanov (Odessa, Ukraine) (represented by: P. Olson, lawyer)

Defendant: European Union Intellectual Property Office (represented by: G. Sakalaitė-Orlovskienė, S. Palmero Cabezas and H. O’Neill, acting as Agents)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 6 June 2018 (Case R 1812/2017-2), relating to an application for registration of the word sign Scanner Pro as an EU trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Igor Zhadanov to pay the costs.

(1) OJ C 352, 1.10.2018.

9.12.2019

Official Journal of the European Union

C 413/51

Judgment of the General Court of 24 September 2019 — France v Commission

(Case T-507/18) (1)

(EAGF and EAFRD - Expenditure excluded from financing - Expenses incurred by France under the Programme of Options Specifically Relating to Remoteness and Insularity (POSEI) - Inaccurate accounting for certain consignments of bananas (financial years 2013 — 2016) - Flat-rate financial correction)

(2019/C 413/61)

Language of the case: French

Parties

Applicant: French Republic (represented by: F. Alabrune, D. Colas, S. Horrenberger, A.-L. Desjonquères, A. Alidière and C. Mosser, acting as Agents)

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

Re:

Application under Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2018/873 of 13 June 2018 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2018 L 152, p. 29) in so far as it applies to the French Republic a financial correction of 5 %, amounting to a total sum of EUR 1 945 435,39, as regards the measures entitled ‘Other Direct Aid — POSEI’, on the ground of ‘[i]naccurate accounting for certain consignments of bananas’ for the financial years 2013 — 2016.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the French Republic to pay the costs.

(1) OJ C 392, 29.10.2018.

9.12.2019

Official Journal of the European Union

C 413/52

Judgment of the General Court of 20 September 2019 — Reaktor Group v EUIPO (REAKTOR)

(Case T-650/18) (1)

(EU trade mark - Application for EU word mark REAKTOR - Absolute grounds for refusal - Lack of descriptive character - Distinctive character - Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 - Direct and specific relationship with the goods and services covered by the trade mark application)

(2019/C 413/62)

Language of the case: Finnish

Parties

Applicant: Reaktor Group Oy (Helsinki, Finland) (represented by L. Laaksonen, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 27 August 2018 (Case R 2626/2017-2), relating to an application for registration of the word sign REAKTOR as an EU trade mark.

Operative part of the judgment

The Court:

1.	Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 August 2018 (Case R 2626/2017-2) in so far as, by that decision, the Board of Appeal dismissed the applicant’s action on the basis of Article 7(1)(b) and (c) of Regulation 2017/1001;

2.	Orders EUIPO to pay the costs, including the unavoidable costs incurred by Reaktor Group Oy for the purposes of the proceedings before the Board of Appeal.

(1) OJ C 16, 14.1.2019.

9.12.2019

Official Journal of the European Union

C 413/52

Order of the General Court of 20 September 2019 — von Blumenthal and Others v EIB

(Case T-553/16) (1)

(Civil service - EIB Staff - Remuneration - Annual adjustment of the scale of basic salaries - Calculation method - Action which has become devoid of purpose - No need to adjudicate)

(2019/C 413/63)

Language of the case: French

Parties

Applicants: Henry von Blumenthal and Others (Bergem, Luxembourg) and the 369 other applicants whose names are set out in the annex to the order (represented by: L. Levi, lawyer)

Defendant: European Investment Bank (represented by: T. Gilliams, G. Faedo and J. Klein, Agents, and A. Dal Ferro, lawyer)

Re:

Application based on Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union and seeking, first, annulment of the decisions contained in the salary slips for the month of February 2015 and the subsequent months applying to the applicants the decision of the EIB’s Board of Directors dated 16 December 2014 and the decision of the EIB’s Management Committee dated 4 February 2015, and of the article published online on 6 February 2015 and the information note dated 10 February 2015 informing staff of the adoption of that latter decision and, secondly, compensation in respect of the material and non-material harm allegedly suffered by the applicants.

Operative part of the order

1.	Formal note is taken of the withdrawal of Mr Dominique Courbin from the proceedings.

2.	There is no further need to adjudicate on the action of Mr Henry von Blumenthal and the applicants other than Mr Courbin whose names are set out in the annex.

3.	The European Investment Bank (EIB) shall pay the costs.

(1) OJ C 279, 24.8.2015 (case initially registered before the European Union Civil Service Tribunal under number F-78/15 and transferred to the General Court of the European Union on 1.9.2016).

9.12.2019

Official Journal of the European Union

C 413/53

Order of the General Court of 24 September 2019 — TrekStor v EUIPO — Beats Electronics (i.Beat jump)

(Case T-746/17) (1)

(EU trade mark - Revocation proceedings - Withdrawal of the application for revocation - No need to adjudicate - Article 137 of the Rules of Procedure of the General Court - Avoidable costs - Article 139(a) of the Rules of Procedure of the General Court)

(2019/C 413/64)

Language of the case: English

Parties

Applicant: TrekStor Ltd (Hong Kong, China) (represented by: O. Spieker, M. Alber and A. Schönfleisch, lawyers)

Defendant: European Union Intellectual Property Office (represented initially by E. Markakis and D. Walicka, and subsequently by E. Markakis, A. Söder and H. O’Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Beats Electronics LLC (Culver City, California, United States) (represented by: M. Petersenn, lawyer, and I. Fowler, Solicitor)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 September 2017 (Case R 2236/2016-4), relating to revocation proceedings between Beats Electronics and TrekStor.

Operative part of the order

1.	There is no longer any need to adjudicate on the action and the cross-claim.

2.	TrekStor Ltd and Beats Electronics LLC shall bear their own respective costs and each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

3.	TrekStor and Beats Electronics shall each pay to the Court the sum of EUR 2 500 under Article 139(a) of its Rules of Procedure.

(1) OJ C 32, 29.1.2018.

9.12.2019

Official Journal of the European Union

C 413/54

Order of the General Court of 24 September 2019 — TrekStor and Beats Electronics v EUIPO — Beats Electronics and TrekStor (iBeat)

(Joined Cases T-748/17 and T-770/17) (1)

(2019/C 413/65)

Language of the case: English

Parties

Applicant in Case T-748/17: TrekStor Ltd (Hong Kong, China) (represented by: O. Spieker, M. Alber and A. Schönfleisch, lawyers)

Applicant in Case T-770/17: Beats Electronics LLC (Culver City, California, United States) (represented by: M. Petersenn, lawyer, and I. Fowler, Solicitor)

Defendant: European Union Intellectual Property Office (represented, in Case T-748/17, initially by: E. Markakis and D. Walicka, and subsequently by E. Markakis, A. Söder and H. O’Neill, acting as Agents, and, in Case T-770/17, initially by: A. Söder and D. Walicka, and subsequently by A. Söder, E. Markakis and H. O’Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court in Case T-748/17: Beats Electronics LLC (Culver City, California, United States) (represented by: M. Petersenn, lawyer, and I. Fowler, Solicitor)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court in Case T-770/17: TrekStor Ltd (Hong Kong, China) (represented by: O. Spieker, M. Alber and A. Schönfleisch, lawyers)

Re:

Actions brought against the decision of the Fourth Board of Appeal of EUIPO of 12 September 2017 (Joined Cases R 2175/2016-4 and R 2213/2016-4), relating to revocation proceedings between Beats Electronics and TrekStor.

Operative part of the order

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

2.	TrekStor Ltd and Beats Electronics LLC shall bear their own respective costs and each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

3.	TrekStor and Beats Electronics shall each pay to the Court the sum of EUR 2 500 under Article 139(a) of its Rules of Procedure.

(1) OJ C 22, 22.1.2018.

9.12.2019

Official Journal of the European Union

C 413/55

Order of the General Court of 24 September 2019 — TrekStor v EUIPO — Beats Electronics (i.Beat jess)

(Case T-749/17) (1)

(2019/C 413/66)

Language of the case: English

Parties

Applicant: TrekStor Ltd (Hong Kong, China) (represented by: O. Spieker, M. Alber and A. Schönfleisch, lawyers)

Defendant: European Union Intellectual Property Office (represented initially by E. Markakis and D. Walicka, and subsequently by E. Markakis, A. Söder and H. O’Neill, acting as Agents)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 September 2017 (Case R 2236/2016-4), relating to revocation proceedings between Beats Electronics and TrekStor.

Operative part of the order

1.	There is no longer any need to adjudicate on the action and the cross-claim.

2.	TrekStor Ltd and Beats Electronics LLC shall bear their own respective costs and each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

3.	TrekStor and Beats Electronics shall each pay to the Court the sum of EUR 2 500 under Article 139(a) of its Rules of Procedure.

(1) OJ C 22, 22.1.2018.

9.12.2019

Official Journal of the European Union

C 413/56

Order of the President of the General Court of 13 September 2019 — Scandlines Danmark and Scandlines Deutschland v Commission

(Case T-566/19 R)

(Application for interim measures - State aid - Extension of time limit - No interest)

(2019/C 413/67)

Language of the case: English

Parties

Applicants: Scandlines Danmark ApS (Copenhagen, Denmark), Scandlines Deutschland GmbH (Hamburg, Germany) (represented by: L. Sandberg-Mørch, lawyer)

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

Re:

Application pursuant to Articles 278 and 279 TFEU seeking suspension of the formal investigation procedure in State aid case SA.39078 (2019/C) (ex 2014/N) — Denmark — Financing of the Fehmarn Belt Fixed Link project (OJ 2019 C 226, p. 5).

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

9.12.2019

Official Journal of the European Union

C 413/56

Action brought on 10 September 2019 – ENIL Brussels Office and Others v Commission

(Case T-613/19)

(2019/C 413/68)

Language of the case: English

Parties

Applicants: European Network on Independent Living Brussels Office (ENIL Brussels Office) (Brussels, Belgium), Validity Foundation (Budapest, Hungary), Center for Independent Living - Sofia (Sofia, Bulgaria) (represented by: B. Van Vooren and Ł. Gorywoda, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

annul an act of the European Commission refusing to interrupt payment deadlines or suspend payments associated with the Call for Proposals BG16RFOP001-5 002‘Support for the deinstitutionalisation of services for elderly people and people with disabilities’ under Priority Axis 5 ‘Regional social infrastructure’ of Operational Programme ‘Regions in Growth’;

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging that the rules on standing to challenge an illegal act of EU institutions are discriminatory on the grounds of disability, in conjunction with the fundamental right to effective judicial protection.

—

The applicants submit that the United Nations Convention on Rights of Persons with Disabilities provides for an action by third party and the applicants are sufficiently representative to file an action to defend persons who are unable to defend themselves against discrimination resulting from the decision of the Commission not to interrupt payment deadlines or suspend payments associated with the call for proposals in question.

Second plea in law, alleging that the contested act affects the legal position of a clearly identified group of persons that are not capable of representing themselves before a court. This plea is divided into the following two limbs:

—	The contested act is of direct and individual concern to a closed group of 1020 persons with disabilities located in Bulgaria;

—	The said group of persons is unable to represent themselves before a court.

3.	Third plea in law, alleging that, by adopting the contested act, the defendant infringed its obligations under, first, Regulation (EU) 1303/2013 (1)and, second, the UN Convention on the Rights of Persons with Disabilities and the Charter of Fundamental Rights of the European Union.

(1) Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund (OJ 2013 L 347, p. 320).

9.12.2019

Official Journal of the European Union

C 413/57

Action brought on 26 September 2019– Nike European Operations Netherlands and Converse Netherlands v Commission

(Case T-648/19)

(2019/C 413/69)

Language of the case: English

Parties

Applicants: Nike European Operations Netherlands BV (Hilversum, Netherlands) and Converse Netherlands BV (Amsterdam, Netherlands) (represented by: R. Martens and D. Colgan, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul, in its entirety, the contested opening Decision, i.e. the Commission Decision of 10 January 2019 to initiate the formal investigation procedure in case State aid SA.51284 (2018/NN) – Netherlands – Possible State aid in favour of Nike (1); and

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

Pleas in law and main arguments

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

First plea in law, alleging breach of Article 107(1) TFEU, Article 108(2) TFEU, Articles 1(d), 1(e) and 6(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 (2) laying down detailed rules for the application of Article 108 TFEU, Articles 41(1) and 41(2) of the Charter of fundamental rights of the European Union, the principle of good administration and the principle of equal treatment, by erring in law in the preliminary assessment of the aid character of the contested measures.

Second plea in law, alleging breach of Articles 107(1), 108(2), 296(2) TFEU, Articles 41(1) and 41(2)(c) of the Charter of fundamental rights of the European Union and Article 6(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU, by not providing sufficient reasons for finding that the contested measures fulfil all elements of State aid, especially why they should be regarded as selective.

Third plea in law, alleging breach of Article 296(2) TFEU, Articles 41(1) and 41(2)(c) of the Charter of Fundamental Rights of the European Union and Articles 6(1) and 7(1) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU, by prematurely opening a formal investigation and providing insufficient reasoning for the existence of State aid where there were no difficulties to continue the preliminary investigation.

(1) OJ 2019, C 226, p.31

(2) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015, L 248, p.9)

9.12.2019

Official Journal of the European Union

C 413/58

Action brought on 30 September 2019 – Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY)

(Case T-663/19)

(2019/C 413/70)

Language of the case: English

Parties

Applicant: Hasbro, Inc. (Pawtucket, Rhode Island, United States) (represented by: J. Moss, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Kreativni Dogadaji d.o.o. (Zagreb, Croatia)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant before the General Court

Trade mark at issue: European Union word mark MONOPOLY – European Union trade mark No 9 071 961

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 July 2019 in Case R 1849/2017-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order the defendant to pay the applicant’s costs.

Pleas in law

—	Failure to properly apply Article 59(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Violation of the applicant’s right to a fair hearing.

9.12.2019

Official Journal of the European Union

C 413/59

Action brought on 9 October 2019 – Kerry Luxembourg v EUIPO – Ornua (KERRYMAID)

(Case T-693/19)

(2019/C 413/71)

Language of the case: English

Parties

Applicant: Kerry Luxembourg Sàrl (Luxembourg, Luxembourg) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Ornua Co-operative Ltd (Dublin, Ireland)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union trade word mark KERRYMAID – Application for registration No 10 083 251

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 23 July 2019 in Case R 2473/2013-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision to the extent that the appeal brought by the applicant against the decision of 22 October 2013 of the Opposition Division in Case B 1 938 417 was dismissed;

—	dismiss the opposition brought by Ornua Co-operative Ltd against the registration of the EU trade mark KERRYMAID, No. 10 083 251;

—	order EUIPO and Ornua Co-operative Ltd, if it should intervene in these proceedings, to bear the costs.

Plea in law

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

9.12.2019

Official Journal of the European Union

C 413/60

Action brought on 14 October 2019 – Teva Pharmaceutical Industries v EUIPO (Moins de migraine pour vivre mieux)

(Case T-696/19)

(2019/C 413/72)

Language of the case: English

Parties

Applicant: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel) (represented by: J. Bogatz and Y. Stone, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union word mark Moins de migraine pour vivre mieux – Application for registration No 17 942 393

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 12 August 2019 in Case R 778/2019-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs incurred by the applicant.

Plea in law

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

9.12.2019

Official Journal of the European Union

C 413/61

Action brought on 14 October 2019 – Teva Pharmaceutical Industries v EUIPO (Weniger Migräne. Mehr vom Leben)

(Case T-697/19)

(2019/C 413/73)

Language of the case: English

Parties

Applicant: Teva Pharmaceutical Industries Ltd (Jerusalem, Israel) (represented by: J. Bogatz and Y. Stone, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union word mark Weniger Migräne. Mehr vom Leben – Application for registration No 17 942 400

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 12 August 2019 in Case R 779/2019-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs incurred by the applicant.

Plea in law

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

9.12.2019

Official Journal of the European Union

C 413/61

Action brought on 15 October 2019 — GV v Commission

(Case T-705/19)

(2019/C 413/74)

Language of the case: French

Parties

Applicant: GV (represented by: B.-H. Vincent, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	give priority to the present case;

—	annul the decision of 26 July 2019 under reference No R/213/19 and requesting his request for assistance;

—	order the appointing authority to take any transfer measure of such a nature as to remove the applicant from DG EAC in compliance with the grade by respecting the actual location of the post in Brussels in order to avoid any family or private prejudice;

—	order the Commission to pay the provisional sum of EUR 13 018 by way of compensation for material damage and EUR 250 per day from 1 February 2018 to the day on which the judgment is delivered by way of compensation for non-material damage;

—	order the Commission to pay all the costs of the proceedings in accordance with the rules of procedure.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 24 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the principle of sound administration and the duty to have regard for the welfare of officials. In that regard, the applicant submits that the Commission rejected his request for assistance, that it did not take any investigative measures and that it dealt with his request in a slow, bureaucratic and inappropriate manner.

2.	Second plea in law, alleging infringement of Article 12a of the Staff Regulations, in that the Commission should have classified as harassment the facts on which the request for assistance is based.

3.	Third plea in law, alleging infringement of Article 7 of the Staff Regulations. The applicant alleges that the Commission failed to strike the necessary balance between the interests of the service and the interests of the official concerned.

Fourth plea in law, based on Article 270 TFEU and Article 91 of the Staff Regulations. The applicant submits in that regard that the Union has an obligation to make good the damage caused to its staff by any illegality committed in its capacity as an employer without the need to prove a sufficiently serious infringement. According to the applicant, the facts on which the request for assistance is based are unlawful acts committed in their capacity as employers and therefore oblige the Union to compensate for material and non-material damage, namely the costs of medical and legal assistance and the suffering caused during the period in question.

Fifth plea in law, alleging infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 47 of the Charter of Fundamental Rights of the European Union, on the ground that the procedures relating to an application for transfer require, by its very nature, a swift decision.

9.12.2019

Official Journal of the European Union

C 413/62

Action brought on 16 October 2019 — FF&GB Srl v EUIPO (ONE-OFF)

(Case T-707/19)

(2019/C 413/75)

Language of the case: Italian

Parties

Applicant: FF&GB Srl (Mantova, Italy) (represented by: M. Locatelli, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union figurative mark ‘ONE-OFF’ — Application for registration No 17 933 041

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 12 August 2019 in Case R 239/2019-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	declare that the mark ONE-OFF may be registered as a European Union trade mark for the goods in Classes 18 and 25 as indicated in the application for registration No 17 933 041;

—	order EUIPO to pay the costs of the present proceedings.

Pleas in law

—	Infringement of Article 7(1)(b) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of the principle of coherence and equal treatment.

9.12.2019

Official Journal of the European Union

C 413/63

Action brought on 21 October 2019 — GW v European Court of Auditors

(Case T-709/19)

(2019/C 413/76)

Language of the case: French

Parties

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

Defendant: European Court of Auditors

Form of order sought

The applicant claims that the Court should:

—	annul the decision of 22 May 2019 of the European Court of Auditors rejecting the request to refer the matter to the Invalidity Committee in order to establish the development of his state of health and lay down the procedures for medical checks after invalidity;

—	order the Court of Auditors to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 15 of Annex VIII to the Staff Regulations of Officials of the European Union, on the ground that that article provides only for the possibility, and not the obligation, for the institution to have an official who receives an invalidity allowance periodically examined in order to ensure that he still fulfils the conditions required to receive that allowance.

Second plea in law, alleging infringement of Conclusion No 273/15 of 25 February 2016 of the Board of Heads of Administration on medical examination following retirement on grounds of invalidity, in so far as it provides that the institution’s doctor may, exceptionally, accept a report prepared by the attending physician or defer the examination if the nature of the condition that gave rise to the invalidity does not justify an examination to assess the possibility of returning to work.

Third plea in law, alleging breach of the duty to have regard for the welfare of officials. The applicant submits in this regard that the institution was required to take into account the opinions of the attending physician and the medical officer of 23 and 24 August 2017, of the psychologist of 26 September 2019 and of the attending physician of 11 October 2019.

9.12.2019

Official Journal of the European Union

C 413/64

Action brought on 18 October 2019 — Ashworth v Parliament

(Case T-720/19)

(2019/C 413/77)

Language of the case: French

Parties

Applicant: Richard Ashworth (Lingfield, United Kingdom) (represented by: A. Schmitt and A. Waisse, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

—	declare the present application admissible;

—

where necessary, by way of measures of organisation of procedure or measures of inquiry in relation to the present case, order the European Parliament to submit the opinions of the Legal Service of the European Parliament which, regardless of the exact date, are believed to have been issued on 16 July 2018 and 3 December 2018 and in any event before the adoption of the decision of the Bureau of the European Parliament of 10 December 2018 amending the Implementing Measures for the Statute for Members of the European Parliament (2018/C 466/02, Official Journal, 28 December 2018, C 466/8);

—

declare the contested individual decision notified to the applicant by the Members’ Salaries and Social Entitlements Unit of the Directorate-General for Finance of the European Parliament concerning the applicant’s right to his (voluntary) additional pension during the month of September 2019 to be annulled on the basis of Article 263 TFEU in so far as that decision applies the special levy of 5 % on the nominal amount of the (voluntary) additional pension payable to the applicant pursuant to the abovementioned decision of the Bureau of 10 December 2018;

—

declare the abovementioned decision of the Bureau of 10 December 2018 inapplicable under Article 277 TFEU in so far as it amends Article 76 of the Implementing Measures for the Statute for Members of the European Parliament and, more specifically, in so far as it introduces a special levy of 5 % on the nominal amount of (voluntary) additional pensions payable from 1 January 2019;

—	order the Parliament to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging lack of competence ratione materiae on the part of the Bureau:

—

first, the decision of the Bureau of 10 December 2018 (‘the Bureau decision’) breaches the Statute for Members of the European Parliament adopted by decision of the European Parliament of 28 September 2005, 2005/684/EC, Euratom (OJ 2005 L 62, p.1) (‘the Statute’). The Bureau decision is, inter alia, contrary to the provisions of Article 27 of the Statute, which requires the maintenance of ‘acquired rights’ and ‘future entitlements’;

—	secondly, the Bureau decision creates a tax by introducing a special levy of 5 % on the nominal amount of the pension although the creation of a tax is not within the competence of the Bureau pursuant to Article 223(2) TFEU.

Second plea in law, alleging infringement of essential procedural requirements:

—	first, the Bureau adopted its decision without complying with the rules laid down in Article 223 TFEU;

—	secondly, the Bureau decision is inadequately reasoned and thus fails to comply with the obligation to state reasons laid down in Article 296(2) TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

Third plea in law, alleging infringement of acquired rights and future entitlements and of the principle of legitimate expectations:

—	first, the Bureau decision infringes the acquired rights and future entitlements resulting from both the general principles of law and the Statute, which expressly provides that they are to be maintained ‘in full’ (Article 27);

—	secondly, the Bureau decision infringes the principle of legitimate expectations.

Fourth plea in law, alleging infringement of the principle of proportionality and of the principles of equal treatment and non-discrimination:

—	first, the infringement of the applicant’s rights is disproportionate to the objectives pursued by the Bureau decision;

—	secondly, the Bureau decision must be declared inapplicable on grounds of infringement of the principles of equal treatment and non-discrimination.

Fifth plea in law, alleging breach of the principle of legal certainty and a lack of transitional measures:

—	first, the Bureau decision breaches the principle of legal certainty in so far as it has unlawful retroactive effects;

—	secondly, the Bureau decision infringes the principle of legal certainty in so far as it fails to provide for transitional measures.

		ISSN 1977-091X
Official Journal of the European Union		C 413

English edition	Information and Notices	Volume 62 9 December 2019

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2019/C 413/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1