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

(2022/C 266/01)

Last publication

OJ C 257, 4.7.2022

Past publications

OJ C 244, 27.6.2022

OJ C 237, 20.6.2022

OJ C 222, 7.6.2022

OJ C 213, 30.5.2022

OJ C 207, 23.5.2022

OJ C 198, 16.5.2022

These texts are available on:

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

Judgment of the Court (Grand Chamber) of 17 May 2022 (request for a preliminary ruling from the Audiencia Provincial de Zaragoza — Spain) — MA v Ibercaja Banco SA

(Case C-600/19) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Principle of equivalence - Principle of effectiveness - Mortgage enforcement proceedings - Unfairness of the term setting the nominal rate for default interest, and of the advanced repayment term in the loan agreement - Force of res judicata and time-barring - Loss of the possibility of relying on the unfairness of a contractual term before a court - Power of review by the national court of its own motion)

(2022/C 266/02)

Language of the case: Spanish

Referring court

Audiencia Provincial de Zaragoza

Parties to the main proceedings

Applicant: MA

Defendant: Ibercaja Banco SA

Intervening party: PO

Operative part of the judgment

1.

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation which, by virtue of the effect of res judicata and time-barring, neither allows a court to examine of its own motion whether contractual terms are unfair in the course of mortgage enforcement proceedings, nor a consumer, after the expiry of the period for lodging an objection, to raise the unfairness of those terms in those proceedings or in subsequent declaratory proceedings, where the potential unfairness of those terms has already been examined by the court of its own motion, at the stage when the mortgage enforcement proceedings were initiated, but the judicial decision authorising the mortgage enforcement does not contain any grounds, even of a summary nature, attesting to the existence of that examination, nor state that the assessment of that court at the end of that examination could no longer be called into question if an objection were not lodged within the aforementioned period.

2.

Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as not precluding national legislation which does not allow a national court, acting of its own motion or at the request of the consumer, to examine the possible unfairness of contractual terms where the mortgage security has been realised, the mortgaged property sold and the ownership rights in that property transferred to a third party, provided that the consumer whose property was the subject of mortgage enforcement proceedings may assert his or her rights during subsequent proceedings with a view to obtaining compensation, under that directive, for the financial consequences resulting from the application of unfair terms.

---

(1)  OJ C 357, 21.10.2019.

Judgment of the Court (Grand Chamber) of 17 May 2022 (requests for a preliminary ruling from the Tribunale di Milano — Italy) — SPV Project 1503 Srl, Dobank SpA v YB (C-693/19), Banco di Desio e della Brianza SpA and Others v YX, ZW (C-831/19)

(Joined Cases C-693/19 and C-831/19) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Principle of equivalence - Principle of effectiveness - Payment order and attachment proceedings against third parties - Force of res judicata implicitly covering the validity of the terms of an enforceable instrument - Power of the court hearing the enforcement proceedings to examine of its own motion the potential unfairness of a term)

(2022/C 266/03)

Language of the case: Italian

Referring court

Tribunale di Milano

Parties to the main proceedings

Applicants: SPV Project 1503 Srl, Dobank SpA (C-693/19), Banco di Desio e della Brianza SpA, Banca di Credito Cooperativo di Carugate e Inzago sc, Intesa Sanpaolo SpA, Banca Popolare di Sondrio s.c.p.a, Cerved Credit Management (C-831/19)

Defendants: YB (C-693/19), YX, ZW (C-831/19)

Operative part of the judgment

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation which provides that, where an order for payment issued by a court on application by a creditor has not been the subject of an objection lodged by the debtor, the court hearing the enforcement proceedings may not, on the ground that the force of res judicata of that order applies by implication to the validity of those terms, thus excluding any examination of their validity, subsequently review the potential unfairness of the contractual terms on which that order is based. The fact that, at the time when the order became final, the debtor was unaware that he or she could be classified as a ‘consumer’, within the meaning of that directive, is irrelevant in that regard.

---

(1)  OJ C 432, 23.12.2019.

OJ C 36, 3.2.2020.

Judgment of the Court (Grand Chamber) of 17 May 2022 (request for a preliminary ruling from the Judecătoria Sectorului 2 Bucureşti — Romania) — IO v Impuls Leasing România IFN SA

(Case C-725/19) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Principle of equivalence - Principle of effectiveness - Enforcement proceedings in respect of a leasing contract constituting an enforceable instrument - Objection to enforcement - National legislation not allowing the court hearing that objection to determine whether the terms of an enforceable instrument are unfair - Power of the court hearing the enforcement proceedings to examine of its own motion whether a term is unfair - Existence of an action under ordinary law allowing the review of whether those terms were unfair - Requirement of a security in order to suspend the enforcement proceedings)

(2022/C 266/04)

Language of the case: Romanian

Referring court

Judecătoria Sectorului 2 Bucureşti

Parties to the main proceedings

Applicant: IO

Defendant: Impuls Leasing România IFN SA

Operative part of the judgment

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding national legislation which does not allow the court hearing the enforcement proceedings in respect of a debt, before which an objection to enforcement has been lodged, to assess, of its own motion, or at the request of the consumer, whether the terms of a contract concluded between a consumer and a seller or supplier which constitutes an enforceable instrument are unfair, where the court having jurisdiction to rule on the substance of the case, which may be seised of a separate action under the ordinary law with a view to an assessment as to whether the terms of that contract are unfair, may only suspend the enforcement proceedings until a decision has been given on the substance if a security is paid at a level that is likely to dissuade the consumer from bringing and maintaining such an action.

---

(1)  OJ C 54, 17.2.2020.

Judgment of the Court (Grand Chamber) of 17 May 2022 (request for a preliminary ruling from the Tribunal Supremo — Spain) — L v Unicaja Banco SA, formerly Banco de Caja España de Inversiones, Salamanca y Soria S.A.U.

(Case C-869/19) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Principle of equivalence - Principle of effectiveness - Mortgage agreement - Unfairness of the ‘floor clause’ in the agreement - National rules concerning the judicial appeal procedure - Limitation of the temporal effects of the declaration that an unfair term is void - Restitution - Power of review by the national appeal court of its own motion)

(2022/C 266/05)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: L

Defendant: Unicaja Banco SA, formerly Banco de Caja España de Inversiones, Salamanca y Soria S.A.U.

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 precluding the application of principles of national judicial procedure, under which a national court, hearing an appeal against a judgment temporally limiting the repayment of sums wrongly paid by the consumer under a term declared to be unfair, cannot raise of its own motion a ground relating to the infringement of that provision and order the repayment of those sums in full, where the failure of the consumer concerned to challenge that temporal limitation cannot be attributed to his or her complete inaction.

---

(1)  OJ C 87, 16.3.2020.

Judgment of the Court (Fourth Chamber) of 19 May 2022 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — HEITEC AG v HEITECH Promotion GmbH, RW

(Case C-466/20) (1)

(Reference for a preliminary ruling - Trade marks - Directive 2008/95/EC - Article 9 - Regulation (EC) No 207/2009 - Articles 54, 110 and 111 - Limitation in consequence of acquiescence - Concept of ‘acquiescence’ - Interruption of the period of limitation in consequence of acquiescence - Sending of a warning letter - Date of interruption of the period of limitation in the event of a court action being initiated - Effects of limitation - Application for damages, the provision of information and destruction of goods)

(2022/C 266/06)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: HEITEC AG

Defendant: HEITECH Promotion GmbH, RW

Operative part of the judgment

1.

Article 9 of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks and Articles 54, 110 and 111 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark must be interpreted as meaning that an act, such as a warning letter, by which the proprietor of an earlier mark or other earlier right opposes the use of a later mark without taking the necessary steps to obtain a legally binding solution does not stop acquiescence and, consequently, does not interrupt the period of limitation;

2.

Article 9 of Directive 2008/95 and Articles 54, 110 and 111 of Regulation No 207/2009 must be interpreted to mean that the limitation in consequence of acquiescence referred to in those provisions may not be prevented by the bringing of a court action in which the proprietor of an earlier mark or other earlier right sought a declaration of invalidity of a later mark or opposed the use of that mark, where the application initiating proceedings, although filed before the date of expiry of the period of limitation, did not, owing to a lack of diligence on the part of the applicant, satisfy the requirements of the applicable national law for service and was rectified only after that date for reasons attributable to the applicant;

3.

Article 9 of Directive 2008/95 and Articles 54, 110 and 111 of Regulation No 207/2009 must be interpreted as meaning that, where the proprietor of an earlier mark or other earlier right, within the meaning of those provisions, is time-barred from seeking a declaration of invalidity of a later mark and from opposing the use of that mark, that proprietor is also time-barred from bringing ancillary or related claims, such as claims for damages, the provision of information or the destruction of goods.

---

(1)  OJ C 443, 21.12.2020.

Judgment of the Court (Fourth Chamber) of 19 May 2022 (request for a preliminary ruling from the Spetsializiran nakazatelen sad — Bulgaria) — Criminal proceedings against IR

(Case C-569/20) (1)

(Reference for a preliminary ruling - Judicial cooperation in criminal matters - Directive (EU) 2016/343 - Article 8 - Right to be present at the trial - Information regarding the holding of the trial - Inability to locate the accused person notwithstanding the reasonable efforts of the competent authorities - Possibility of a trial and a conviction in absentia - Article 9 - Right to a new trial, or to another legal remedy, which allows a fresh determination of the merits of the case)

(2022/C 266/07)

Language of the case: Bulgarian

Referring court

Spetsializiran nakazatelen sad

Parties in the main proceedings

IR

Interested party: Spetsializirana prokuratura

Operative part of the judgment

Articles 8 and 9 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings must be interpreted as meaning that an accused person whom the competent national authorities, despite their reasonable efforts, do not succeed in locating and to whom they accordingly have not managed to give the information regarding his or her trial may be tried and, as the case may be, convicted in absentia, but must in that case, in principle, be able, after notification of the conviction, to rely directly on the right, conferred by that directive, to secure the reopening of the proceedings or access to an equivalent legal remedy resulting in a fresh examination, in his or her presence, of the merits of the case. That person may, however, be denied that right if it is apparent from precise and objective indicia that he or she received sufficient information to know that he or she was going to be brought to trial and, by deliberate acts and with the intention of evading justice, prevented the authorities from informing him or her officially of that trial.

---

(1)  OJ C 28, 25.1.2021.

Judgment of the Court (Seventh Chamber) of 19 May 2022 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL), Istituto nazionale della previdenza sociale (INPS) v Ryanair DAC

(Case C-33/21) (1)

(Reference for a preliminary ruling - Migrant workers - Social security - Legislation applicable - Regulation (EEC) No 1408/71 - Article 14(2)(a)(i) and (ii) - Regulation (EC) No 883/2004 - Article 11(5) - Article 13(1)(a) and (b) - Concept of ‘operating base’ - Flight and cabin crew - Workers employed in the territory of two or more Member States - Connecting factors)

(2022/C 266/08)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicants: Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL), Istituto nazionale della previdenza sociale (INPS)

Defendant: Ryanair DAC

Operative part of the judgment

Article 14(2)(a)(i) of Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, Article 13(1)(a) and Article 87(8) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, and subsequently by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, and Article 11(5) of Regulation No 883/2004, as amended by Regulation No 465/2012 must be interpreted as meaning that the social security legislation applicable to the flight and cabin crew of an airline, established in a Member State, which crew is not covered by E101 certificates and which work for 45 minutes per day in premises intended to be used by staff, known as the ‘crew room’, which that airline has in the territory of another Member State in which that flight and cabin crew reside and, which for the remaining working time, are on board that airline’s aircraft is the legislation of the latter Member State.

---

(1)  OJ C 110, 29.3.2021.

Order of the Court (Ninth Chamber) of 15 March 2022 (request for a preliminary ruling from the Landesverwaltungsgericht Steiermark — Austria) — WY v Steiermärkische Landesregierung

(Case C-85/21) (1)

(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - Citizenship of the Union - Articles 20 and 21 TFEU - Scope - Automatic loss of nationality of a Member State before the accession of that State to the European Union - Clear lack of jurisdiction of the Court)

(2022/C 266/09)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: WY

Respondent: Steiermärkische Landesregierung

Operative part of the order

The Court of Justice of the European Union clearly has no jurisdiction to answer the question referred by the Landesverwaltungsgericht Steiermark (Regional Administrative Court, Styria, Austria) by decision of 3 February 2021.

---

(1)  OJ C 148, 26.4.2021.

Order of the Court (Eighth Chamber) of 16 May 2022 (request for a preliminary ruling from the Landgericht Köln — Germany) — RV

(Case C-724/21) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Citizenship of the Union - Article 21 TFEU - Right to move and reside freely in the territory of the Member States - Criminal offence specifically concerning international child abduction - Restriction - Child protection - Proportionality)

(2022/C 266/10)

Language of the case: German

Referring court

Landgericht Köln

Parties to the main proceedings

Defendant: RV

Interested party: Staatsanwaltschaft Köln

Operative part of the order

Article 21 TFEU must be interpreted as precluding the legislation of a Member State under which the removal by a parent of a child from the carer who is entitled to determine the place of that child’s residence, with the aim of taking the child abroad, attracts criminal penalties even in the absence of force, threat of serious harm or deception, whereas where such removal takes place in the territory of the first Member State, the same act is punishable only if recourse is had to force, threat of serious harm or deception.

---

(1)  Date lodged: 30 November 2021.

Request for a preliminary ruling from the Tribunal da Relação de Lisboa (Portugal) lodged on 17 March 2022 — Super Bock Bebidas, S.A., AN, BQ v Autoridade da Concorrência

(Case C-211/22)

(2022/C 266/11)

Language of the case: Portuguese

Referring court

Tribunal da Relação de Lisboa

Parties to the main proceedings

Appellants: Super Bock Bebidas, S.A., AN, BQ

Respondent: Autoridade da Concorrência

Questions referred

1.	Does the vertical fixing of minimum prices constitute in and of itself an infringement by object which does not require a prior analysis of whether that agreement is sufficiently harmful?

2.

In order to demonstrate that the ‘agreement’ element of the infringement consisting in the (tacit) fixing of the minimum prices to be charged by distributors is present, is it necessary to show that the distributors actually charged the fixed prices in the case in question, in particular by direct evidence?

3.

Do the following factors constitute sufficient evidence of the commission of an infringement consisting in the (tacit) fixing of the minimum prices to be charged by distributors: i) the sending of lists containing minimum prices and margins for distribution; ii) asking distributors for information on the selling prices they charge; iii) complaints from distributors (where they consider the resale prices imposed on them to be uncompetitive or find that competing distributors do not adhere to them); iv) the existence of price-tracking mechanisms (as a minimum); and v) the existence of retaliatory measures (even though it has not been demonstrated that these have actually been applied)?

4.

In the light of Article 101(1)(a) TFEU, Article 4(a) of Regulation No 330/2010, (1) the European Commission’s Guidelines on Vertical Restraints and the case-law of the European Union, can an agreement between a supplier and its distributors which (vertically) fixes minimum prices and other terms of business applicable to resale be presumed to be sufficiently harmful to competition, without prejudice to an analysis of any positive economic effects arising from such a practice, within the meaning of Article 101(3) TFEU?

5.

Is it compatible with Article 101(1)(a) TFEU and the case-law of the European Union for a judicial decision to find that the presence of the objective defining element of an ‘agreement’ between a supplier and its distributors is proved on the basis of: (i) the fixing and imposition, by the former on the latter, on a regular, universal and unchanging basis during the period of the practice, of the terms of business which the latter must fulfil when reselling the products they acquire from the supplier, in particular the prices they charge their customers, principally in terms of minimum prices or average minimum prices; (ii) the fact that the resale prices imposed are notified either verbally or in writing (via e-mail); (iii) the fact that distributors are unable to fix their resale prices independently; (iv) the customary and universal practice whereby the supplier’s employees ask distributors (by telephone or in person) to adhere to the prices indicated; (v) the universal adherence by distributors to the resale prices fixed by the supplier (other than in the event of occasional disagreements) and the finding that the conduct of distributors on the market is generally in keeping with the terms laid down by the supplier; (vi) the fact that, in order not to breach the terms laid down, distributors themselves often ask the supplier to tell them what resale prices to charge; (vii) the finding that distributors frequently complain about the prices set by the supplier rather than simply charging other prices; (viii) the fixing by the supplier of (reduced) distribution margins and the assumption by distributors that those margins correspond to the level of remuneration payable for their business; (ix) the finding that, by imposing low margins, the supplier imposes a minimum resale price, as the distribution margins would otherwise be negative; (x) the supplier’s policy of granting discounts to distributors on the basis of the resale prices actually charged by them — the minimum price previously fixed by the supplier being the level of the price of restocks at sell-out; (xi) the need for distributors — in the light in many cases of the negative distribution margin — to adhere to the resale price levels imposed by the supplier; the practice of lower resale prices is followed only in very specific circumstances and where the distributors ask the supplier for a further discount at sell-out; (xii) the fixing by the supplier of (reduced) distribution margins and the assumption by distributors that those margins correspond to the level of remuneration payable for their business; (xiii) the direct contact between the supplier and the distributors’ customers and the fixing of the terms of business subsequently imposed on distributors; (xiv) the supplier’s intervention, on the distributors’ initiative, inasmuch as it is the supplier that makes the decision to apply certain trade discounts or renegotiates the terms of business for resale; and (xv) the fact that distributors ask the supplier to authorise them to conclude a particular transaction on certain terms in order to ensure their distribution margin?

6.	Is an agreement on the fixing of minimum resale prices which exhibits the characteristics described above and covers almost the entire national territory capable of affecting trade between Member States?

---

(1)  Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ 2010 L 102, p. 1).

Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 22 March 2022 — Instituto de Financiamento de Agricultura e Pescas, IP v CS

(Case C-213/22)

(2022/C 266/12)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Appellant: Instituto de Financiamento de Agricultura e Pescas, IP

Respondent: CS

Questions referred

1.

May repayment of the maintenance costs and premiums for loss of income provided for in Article 3(b) and (c) respectively of Regulation No 2080/92 (1) of 30 June 1992 be required where the beneficiary proves that the afforestation conditions required by the national aid programme were not met for reasons beyond his or her control and he or she made every effort to achieve the outcome?

2.

Is the outcome produced by the rules interpreting Article 7(b) of Ministerial Order No 199/94 in conjunction with Article 26 of that order, according to which the occurrence of adverse weather conditions in the years following the evaluation year (which is the year following the year of the restocking) results in partial repayment of the premiums, whereas where the same outcomes, caused by the same adverse weather conditions, occur in the year following the restocking, this results in total loss of entitlement to premiums, consistent with the rules of EU law?

3.

Must the outcome established in Article 7(1)(b) of Ministerial Order No 199/94, which results in total loss of the beneficiary’s entitlements to premiums for maintenance and loss of income where the reforestation density established in Annex C is not achieved, with no scope for a proportional reduction in payment of the aforementioned premiums where the outcome can be attributed to external factors such as the weather, be considered contrary to the proportionality principle as a general principle of the European Union, as appears to be implied (a contrario sensu) by the judgment in József Lingurâr (C-315/16, paragraphs 29 and 35)?

---

(1)  Council Regulation (EEC) No 2080/92 of 30 June 1992 instituting a Community aid scheme for forestry measures in agriculture (OJ 1922 L 215, p. 96).

Request for a preliminary ruling from the Rayonen sad Nesebar (Bulgaria) lodged on 28 March 2022 — Criminal proceedings against QS

(Case C-219/22)

(2022/C 266/13)

Language of the case: Bulgarian

Referring court

Rayonen sad Nesebar

Party to the main proceedings

QS

Question referred

Must Article 3(3) of Council Framework Decision 2008/675/JHA (1) of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings be interpreted as precluding national legislation such as Article 68(1) of the NK, in conjunction with Article 8(2) thereof, which provides that the national court seised of an application for execution of the sentence imposed by a previous conviction handed down by a court of another Member State may, for that purpose, alter the arrangements for executing that sentence by ordering its actual execution?

---

(1)  OJ 2008 L 220, p. 32.

Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 5 April 2022 — FW v LATAM Airlines Group SA

(Case C-238/22)

(2022/C 266/14)

Language of the case: German

Referring court

Landgericht Frankfurt am Main

Parties to the main proceedings

Applicant and appellant: FW

Defendant and respondent: LATAM Airlines Group SA

Questions referred

1.

Is Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 to be interpreted as meaning that, even where an operating air carrier has already given prior notification that it does not intend to carry a passenger, that passenger must still have presented himself for check-in or boarding at the time indicated or no later than 45 minutes before the published departure time — as provided for by Article 3(2) and/or Article 2(j) — in order for the regulation to become applicable and to establish an instance of denied boarding subject to compensation under to Article 4(3) in conjunction with Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004?

2.

In the event that the answer to question 1 is in the affirmative: Is Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 to be interpreted as meaning that rights to compensation for denied boarding under Articles 4 and 7 applied by analogy with Article 5(1)(c)(i) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 are excluded where the passenger has been informed of the denial of boarding at least two weeks before the scheduled time of departure?

---

(1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 11 April 2022 — Fallimento Villa di Campo Srl v Agenzia delle Entrate

(Case C-250/22)

(2022/C 266/15)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Fallimento Villa di Campo Srl

Cross-appellant: Agenzia delle Entrate

Question referred

Do Article 5(8) of Directive 77/388/EEC (1) and Article 19 of Directive 2006/112/EC (2) preclude national legislation such as Article 20 of Presidential Decree No 131 of 26 April 1986, as amended by points (1) and (2) of Article 1(87)(a) of Law No 205 of 27 December 2017 and by Article 1(1084) of Law No 145 of 30 December 2018, which requires that the tax authorities classify transactions between parties solely on the basis of the textual information contained in the relevant contract and prohibits the use of extrinsic (extratextual) information (even if it objectively exists and is proven), with the result that the tax authorities are absolutely precluded from proving that an economic supply, constituting a transfer of a business, which is in itself indissociable, has in reality been artificially broken down into a number of different supplies — multiple supplies of goods — and therefore gives rise to a right to deduct VAT where the requirements laid down by EU law are not met?

---

(1)  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 (OJ 1977 L 145, p. 1).

(2)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

Appeal brought on 8 April 2022 by Polskie Górnictwo Naftowe i Gazownictwo S.A. against the judgment of the General Court delivered on 2 February 2022 in Case T-616/18, Polskie Górnictwo Naftowe i Gazownictwo v Commission

(Case C-255/22 P)

(2022/C 266/16)

Language of the case: Polish

Parties

Appellant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (represented by: K. Karasiewicz, radca prawny, and T. Kaźmierczak, adwokat)

Other parties to the proceedings: European Commission, Republic of Lithuania, Republic of Poland, Gazprom PJSC, Gazprom export LLC, and Overgas Inc.

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment under appeal in its entirety;

—	annul the contested decision of the European Commission in its entirety;

—	in the alternative, remit the case to the General Court for review in accordance with the judgment of the Court of Justice;

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

Pleas in law and main arguments

(1)

The General Court erred in law, infringing Article 9(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1) (‘Regulation No 1/2003’) by: (a) incorrectly interpreting that provision, read in conjunction with paragraph 127 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; (b) manifestly distorting the facts on a number of occasions, which led it to misapply Article 9 of Regulation No 1/2003 and, as a result of that infringement, incorrectly to find that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; (c) failing to consider that, in the context of its permissible discretion in assessing complex economic and technical issues, the Commission was obliged to act in a manner that complied with and accounted for the provisions of the TFEU and the fundamental principles of the EU legal order, since its actions may not be contrary to the provisions of the TFEU and the fundamental principles of the EU legal order; nor may they lead to an outcome that would be contrary to those provisions [or] principles;

(2)	The General Court erred in law, infringing Article 194 TFEU by incorrectly interpreting that provision and, as a result, incorrectly failing to apply it, which led to Article 9 of Regulation No 1/2003 and Article 194 TFEU being deprived of their effectiveness;

(3)

The General Court erred in law, infringing Article 9(1) of Regulation No 1/2003 by incorrectly interpreting the concept of ‘manifest error of assessment’ when examining the manner in which the Commission had conducted the assessment of complex economic and technical issues when examining the adequacy of the commitments, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments;

(4)

The General Court erred in law, infringing Article 9(2) of Regulation No 1/2003 by incorrectly interpreting that provision with regard to its indicating, as a basis for reopening the proceedings: (a) infringement of a commitment the content of which does not result from the content of the operative part, that is to say, the legally binding part of the decision in Case AT.39816 — Upstream gas supplies in Central and Eastern Europe; (b) circumstances which did not form the basis of that decision and which were not related to its subject matter, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; the appellant also submits that all the aforementioned infringements, jointly and severally, had a decisive influence on the content of the judgment under appeal and, consequently, each of the indicated infringements on its own should result in that judgment being set aside.

---

(1)  OJ 2003 L 1, p. 1.

Request for a preliminary ruling from the Krajský soud v Brně (Czech Republic) lodged on 14 April 2022 — CD v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky

(Case C-257/22)

(2022/C 266/17)

Language of the case: Czech

Referring court

Krajský soud v Brně

Parties to the main proceedings

Applicant: CD

Defendant: Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky

Question referred

Should Article 4(2) and (3) and Article 5 in fine of Directive 2008/115/EC (1) 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 in conjunction with Article 2, Article 4, and Article 19(2) of the Charter of Fundamental Rights of the European Union be interpreted as precluding the application, in assessing whether a return decision under Article 6 of Directive 2008/115/EC leads to a breach of the non-refoulement principle, of the concept of a safe country of origin under Articles 36 and 37 of Directive 2013/32/EU (2) of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, in combination with the narrowed definition of the non-refoulement principle focused solely on the prohibition of ill treatment under Article 4 of the Charter of Fundamental Rights of the European Union and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms?

---

(1)  OJ 2008 L 348, p. 98.

(2)  OJ 2013 L 180, p. 60.

Request for a preliminary ruling from the Tribunale ordinario di Ravenna (Italy) lodged on 22 April 2022 — G.D., A.R., C.M. v Ministero dell’istruzione, Istituto nazionale della previdenza sociale (INPS)

(Case C-270/22)

(2022/C 266/18)

Language of the case: Italian

Referring court

Tribunale ordinario di Ravenna

Parties to the main proceedings

Applicants: G.D., A.R., C.M.

Defendants: Ministero dell’istruzione, Istituto nazionale della previdenza sociale (INPS)

Questions referred

1.

Does the judgment of the Court of Justice of the European Union in Motter require Italy’s national rules on the reconstruction of teachers’ careers to be disapplied where, ‘in fact’, they are not more favourable for a teacher who was previously employed on a fixed-term basis than the career reconstruction carried out pursuant to Article 485 of decreto legislativo n. 297/1994 (Legislative Decree No 297/1994) and related rules? Or has Motter established in general and abstract terms — and thus in a way that applies to each individual case — that career reconstruction under national rules is compatible with clause 4, as a result of which the national court is not to disapply Article 485 of Legislative Decree No 297/1994 and related rules since they are compatible with EU law in that respect?

2.

In the alternative (that is to say, only if it were held that a selective disapplication of Article 485 was required under EU law, which should therefore be considered to be a ‘greater benefit’ rule), is clause 4 of the framework agreement on fixed-term work concluded on 18 March 1999, annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work (OJ 1999 L 175, p. 43), to be interpreted as requiring national legislation to recognise — for the purpose of calculating the length of service accrued under fixed-term contracts of a teacher who subsequently became permanent — the work carried out by the teacher under fixed-term contracts without there being any minimum threshold as regards the number of days to have been worked in each academic year? Or, on the contrary, is a national rule compatible with clause 4 if it disregards the temporary work carried out by teachers (short-term and ad hoc supply teaching jobs), unless such work was carried out for at least 180 days in each academic year, or from 1 February until the end of the grading process (Article 11(14) of legge n. 124/1999 (Law No 124/1999), according to which ‘paragraph 1 of Article 489 of the consolidated law is to be understood as meaning that temporary teaching work carried out since the 1974-1975 academic year is treated as a full academic year if it was carried out over a minimum of 180 days or if it was carried out continuously from 1 February until the end of the final grading process’)?

3.

In the further alternative (that is to say, only if it were held that a selective disapplication of Article 485 was required under EU law, which should therefore be considered to be a ‘greater benefit’ rule), does clause 4 require fixed-term work carried out for a number of hours that is below the standard hours for permanent posts to be given equal value when calculating length of service once the teacher has become permanent? If not, the Court of Justice is asked to give its opinion on the minimum number of hours (for example part-time for an indefinite period) after which clause 4 would require such recognition in national law. From another point of view, is a national law compatible with the abovementioned clause 4 if it disregards — for the purpose of recognition of the temporary period of service completed by a teacher who subsequently becomes permanent — work carried out on an hourly basis which is below the minimum weekly threshold for the number of hours worked part-time by a teacher in a comparable situation? In the further alternative to the last sub-question, is a national law compatible with the abovementioned clause 4 if — for the purpose of recognition of temporary periods of service completed by a teacher who subsequently becomes permanent — it provides for weight to be given on a pro rata basis to work carried out on an hourly basis which is below the minimum weekly threshold for the number of hours worked part-time by a teacher in a comparable situation?

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 22 April 2022 — Edil Work 2 S.r.l., S.T. S.r.l. v STE S.a.r.l.

(Case C-276/22)

(2022/C 266/19)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Edil Work 2 S.r.l., S.T. S.r.l.

Cross-appellant: STE S.a.r.l.

Question referred

Do Articles 49 and 54 of the Treaty on the Functioning of the European Union preclude a situation where a Member State in which a (limited liability) company was originally incorporated applies to that company the provisions of national law relating to the operation and management of the company where the company, having transferred its registered office and reincorporated the company under the laws of the Member State of destination, maintains its principal place of business in the Member State of origin and the management act in question has a decisive effect on the company’s activities?

Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 3 May 2022 — A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt. (in liquidation) v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-289/22)

(2022/C 266/20)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: A.T.S. 2003 Vagyonvédelmi és Szolgáltató Zrt. (in liquidation)

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Questions referred

1.

Are Articles 167, 168(a) and 178(a) of the VAT Directive (1) to be interpreted as meaning that, if the tax authority finds, in respect of any member of a supply chain, that there has been an infringement of special legislation concerning the services provided under a contract concluded with the taxpayer or under agreements concluded between the members of the chain, or an infringement of any other legislation, such an infringement is sufficient in itself, as an objective circumstance, to establish the existence of tax evasion, even where the activities of the members of the chain are lawful in all respects, or does the tax authority also have to specify in that case what the tax evasion consists of, and by which members of the chain and by means of what action it has been committed? In that context, if such a breach is found, is it necessary for the tax authority to examine the causal link between the breach of the regulatory obligations governing the economic activity and the taxpayer’s right of deduction, so that it is only if such a link is established that it can refuse the taxpayer his or her right to deduct VAT?

2.

Having regard to those articles of the VAT Directive, and the right to a fair trial enshrined as a general principle of law in Article 47 of the Charter of Fundamental Rights of the European Union and the fundamental principles of proportionality and legal certainty, can the taxpayer be required, in the context of his or her general duty of control, to verify whether the previous members of the chain have complied with the obligations laid down by special legislation for carrying out the services invoiced and the conditions to operate lawfully? If that question is answered in the affirmative, is this a continuous obligation for the taxpayer for the duration of the legal relationship or, if appropriate, how often must it be complied with?

3.

Are Articles 167, 168(a) and 178(a) of the VAT Directive to be interpreted as meaning that, if the taxpayer finds that any previous member of the chain has failed to fulfil his or her obligations, a duty arises for the taxpayer not to exercise his or her right to deduct input VAT in such a case, failing which the application of the VAT deduction would be regarded as tax evasion?

4.

Are those articles of the VAT Directive, in light of the principles of legal certainty and fiscal neutrality, to be interpreted as meaning that, when examining and categorising the fraudulent nature of the chain, and also when establishing the relevant facts and assessing the evidence supporting those facts, the tax authority cannot disregard the provisions of the special legislation relating to services invoiced, in particular the rules governing the rights and obligations of the parties?

5.

Is it consistent with the abovementioned articles of the VAT Directive, and with the right to a fair trial enshrined as a general principle of law in Article 47 of the Charter and with the fundamental principle of legal certainty, for the tax authority [to adopt] a practice whereby, as a result of a review of the right of deduction in respect of an economic transaction carried out in the course of supplying services, the actual existence of that economic transaction, documented by invoices, contracts and other accounting records, may be refuted on the basis of the findings made by the inspection authority during the inspection, the statements made during the inspection by the persons inspected and the witness statements made by employees engaged through temporary employment agencies as to what they think of their employment relationship, how they legally define it and who they consider to be the employer?

6.

Is it compatible with the abovementioned articles of the VAT Directive, and also with the right to a fair trial enshrined in Article 47 of the Charter and with the fundamental principle of legal certainty for the tax authority [to adopt] a practice whereby the choice of a taxpayer to carry out his or her economic activity in a way that enables that taxpayer to reduce his or her costs as much as possible is classified as an unlawful exercise of the right and, on that basis, the tax authority exercises its right to reclassify contracts in such a way as to create a contract between parties who were not previously in a contractual relationship?

---

(1)  Council Directive 2006/112/EC of 28 November on the common system of value added tax (OJ 2006 L 347, p. 1).

Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 4 May 2022 — Teritorialna direktsia Mitnitsa — Varna v NOVA TARGOVSKA KOMPANIA 2004 AD

(Case C-292/22)

(2022/C 266/21)

Language of the case: Bulgarian

Referring court

Administrativen sad Varna

Parties to the main proceedings

Appellant in the appeal on a point of law: Teritorialna direktsia Mitnitsa — Varna

Respondent in the appeal on a point of law: NOVA TARGOVSKA KOMPANIA 2004 AD

Questions referred

1.

According to what criteria must a product such as that in the main proceedings — namely refined, bleached and deodorised palm oil with the trade name PALM FAT MP 36-39, which has been ‘stirred, filtered, chilled, tempered and packaged’ in its technological production process using only physical processes which did not chemically modify it — be classified under heading 1511 or heading 1517 of Chapter 15 of the [Combined Nomenclature]?

2.	What is the meaning of the term ‘texturation’, which has been used to describe the process by which the products referred to as ‘shortenings’ in the Explanatory Notes to the Harmonized Commodity Description and Coding System for heading 1517 are obtained?

3.	If ‘palm oil and its fractions, whether or not refined, but not chemically modified’ have undergone a ‘texturation’ process, is that sufficient reason to exclude classification of that product under heading 1511?

4.

In the absence of standards, methods, criteria and indicators established in the [Combined Nomenclature], the Explanatory Notes to the [Combined Nomenclature] and the Explanatory Notes to the Harmonized System for the purpose of testing the consistency of palm oil and proving that it has been processed by means of ‘texturation’, is it permissible for the competent customs authorities independently to develop and apply analytical working methods — such as RAP 66, version 02/17.11.2020, which was applied in the present case — in order to establish the texturation of fats by means of penetration, that method being based on the officially published method AOCS Cc 16-[60], for the purposes of the tariff classification of goods under heading 1511 or heading 1517? If that is not permissible, according to what standards, methods, criteria and indicators may the product be tested in order to establish that it has undergone a ‘texturation’ process, that is to say, that it constitutes ‘palm shortening’?

5.

Must the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 (1) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Implementing Regulation (EU) 2018/1602 (2) of 11 October 2018, be interpreted as meaning that products described as ‘shortenings’, which have been obtained from refined palm oil by means of texturation, are to be classified under heading 1517 of that nomenclature and, in particular, under subheading 1517 90 99 thereof?

---

(1)  OJ 1987 L 256, p. 1.

(2)  OJ 2018 L 273, p. 1.

Judgment of the General Court of 11 May 2022 — Fininvest and Berlusconi v ECB

(Case T-913/16) (1)

(Economic and monetary policy - Prudential supervision of credit institutions - Specific supervisory tasks assigned to the ECB - Assessment of acquisitions of qualifying holdings - Opposition to the acquisition of a qualifying holding - Non-retroactivity - Res judicata - Application of national transposing measures - Rights of the defence - Right of access to the file - Right to be heard - New plea - Primacy of EU law - Right to effective judicial protection)

(2022/C 266/22)

Language of the case: Italian

Parties

Applicants: Finanziaria d’investimento Fininvest SpA (Fininvest) (Rome, Italy), Silvio Berlusconi (Rome) (represented by: R. Vaccarella, A. Di Porto, M. Carpinelli, A. Saccucci, B. Nascimbene, N. Ghedini and A. Baldaccini, lawyers)

Defendant: European Central Bank (represented by: C. Hernández Saseta and G. Buono, acting as Agents, and by M. Lamandini, lawyer)

Intervener in support of the defendant: European Commission (represented by: V. Di Bucci and A. Steiblytė, acting as Agents)

Re:

Application under Article 263 TFEU for annulment of the ECB’s decision ECB/SSM/2016 — 7LVZJ6XRIE7VNZ4UBX81/4 of 25 October 2016, by which the latter refused to authorise the acquisition of a holding by Fininvest and by Mr Silvio Berlusconi in the credit institution Banca Mediolanum SpA.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Finanziaria d’investimento Fininvest SpA (Fininvest) and Mr Silvio Berlusconi to bear their own costs and to pay those incurred by the European Central Bank (ECB);

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

---

(1)  OJ C 63, 27.2.2017.

Judgment of the General Court of 4 May 2022 — CRIA and CCCMC v Commission

(Cases T-30/19 and T-72/19) (1)

(Dumping - Subsidies - Imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in China - Definitive anti-dumping duty - Definitive countervailing duty - Action for annulment - Locus standi - Direct concern - Individual concern - Regulatory act which does not entail implementing measures - Interest in bringing proceedings - Injury to the Union industry - Objective examination - Causal link - Calculation of the price undercutting and the injury margin - Fair comparison of prices - Constructed import prices - Prices charged to first independent buyers - Difference in the level of trade - Complex economic assessments - Intensity of judicial review - Injury indicators - Weighting of the data - Access to non-confidential investigation data - Rights of the defence)

(2022/C 266/23)

Language of the case: English

Parties

Applicants: China Rubber Industry Association (CRIA) (Beijing, China), China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC) (Beijing) (represented by: R. Antonini, B. Maniatis and E. Monard, lawyers)

Defendant: European Commission (represented by: M. Gustafsson and G. Luengo, acting as Agents)

Intervener in support of the defendant: Marangoni SpA (Rovereto, Italy) (represented by: C. Bouvarel, A. Coelho Dias and O. Prost, lawyers)

Re:

Application, in Case T-30/19, based on Article 263 TFEU, seeking the partial annulment of Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163 (OJ 2018 L 263, p. 3) and, in Case T-72/19, based on Article 263 TFEU seeking the partial annulment of Commission Implementing Regulation (EU) 2018/1690 of 9 November 2018 imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation 2018/1579 (OJ 2018 L 283, p. 1).

Operative part of the judgment

The Court:

1.	Joins Cases T-30/19 and T-72/19 for the purposes of judgment;

2.

Annuls Commission Implementing Regulation (EU) 2018/1579 of 18 October 2018 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China and repealing Implementing Regulation (EU) 2018/163, in so far as it imposes definitive anti-dumping duties on imports of products manufactured by the following exporting producers: — Chaoyang Long March Tyre Co. Ltd; — Triangle Tyre Co. Ltd; — Shandong Wanda Boto Tyre Co. Ltd; — Qingdao Doublestar Tire Industrial Co. Ltd; — Ningxia Shenzhou Tire Co. Ltd; — Guizhou Tyre Co. Ltd; — Aeolus Tyre Co. Ltd; — Shandong Huasheng Rubber Co. Ltd; — Chongqing Hankook Tire Co. Ltd; — Prinx Chengshan (Shandong) Tire Co. Ltd; — Jiangsu Hankook Tire Co. Ltd; — Shandong Linglong Tire Co. Ltd; — Shandong Jinyu Tire Co., Ltd; — Sailun Jinyu Group Co. Ltd; — Shandong Kaixuan Rubber Co. Ltd; — Weifang Yuelong Rubber Co. Ltd; — Weifang Shunfuchang Rubber And Plastic Products Co. Ltd; — Shandong Hengyu Science & Technology Co. Ltd; — Jiangsu General Science Technology Co. Ltd; — Double Coin Group (Jiang Su) Tyre Co. Ltd; — Hefei Wanli Tire Co. Ltd; — Giti Tire (Anhui) Company Ltd; — Giti Tire (Fujian) Company Ltd; — Giti Tire (Hualin) Company Ltd; — Giti Tire (Yinchuan) Company Ltd; — Qingdao GRT Rubber Co. Ltd;

3.

Annuls Commission Implementing Regulation (EU) 2018/1690 of 9 November 2018 imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation 2018/1579, in so far as it imposes definitive countervailing duties on imports of products manufactured by the exporting producers listed in paragraph 2 of the operative part of the present judgment, on the one hand, and by Zhongce Rubber Group Co., Ltd, on the other;

4.	Rejects the remainder of the heads of claim in the actions;

5.	Orders the European Commission to bear its own costs and to pay those incurred by China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC), with the exception of those relating to the interventions;

6.	Orders Marangoni SpA to bear its own costs and to pay those incurred by CRIA and CCCMC as a result of the interventions.

---

(1)  OJ C 82, 4.3.2019.

Judgment of the General Court of 4 May 2022 — Wizz Air Hungary v Commission (TAROM; Rescue Aid)

(Case T-718/20) (1)

(State aid - Air transport - Support measure taken by Romania - Rescue aid to TAROM - Decision not to raise any objections - Action for annulment - Status as a party concerned - Safeguarding of procedural rights - Admissibility - Guidelines on State aid for rescuing and restructuring non-financial undertakings in difficulty - Measure aiming to prevent social hardship or to address market failure - ‘One time, last time’ principle - Effect of earlier aid granted before Romania’s accession to the European Union - Serious difficulties - Obligation to state reasons)

(2022/C 266/24)

Language of the case: English

Parties

Applicant: Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) (Budapest, Hungary) (represented by: E. Vahida, S. Rating and I.-G. Metaxas-Maranghidis, lawyers)

Defendant: European Commission (represented by: L. Flynn, V. Bottka and I. Barcew, acting as Agents)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of Decision C(2020) 1160 final of the Commission of 24 February 2020 concerning State Aid SA.56244 (2020/N) — Romania — Rescue aid to TAROM (OJ 2020 C 310, p. 3), by which the European Commission, first, did not raise any objections to an aid measure granted by Romania to the Compania Nationala de Transporturi Aeriene Romane ‘TAROM SA’ (‘TAROM’) consisting of a loan in the amount of 175 952 000 Romanian lei (RON) (approximately EUR 36 660 000), repayable at the end of a period of six months, and, second, declared that aid to be compatible with the internal market.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Wizz Air Hungary Légiközlekedési Zrt. (Wizz Air Hungary Zrt.) to bear its own costs and to pay those incurred by the European Commission.

---

(1)  OJ C 53, 15.2.2021.

Judgment of the General Court of 11 May 2022 — Creaticon v EUIPO — Paul Hartmann (SK SKINTEGRA THE RARE MOLECULE)

(Case T-93/21) (1)

(EU trade mark - Opposition proceedings - International registration designating the European Union - EU figurative mark SK SKINTEGRA THE RARE MOLECULE - Earlier national word mark SKINTEGRITY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

(2022/C 266/25)

Language of the case: English

Parties

Applicant: Creaticon d.o.o. (Zagreb, Croatia) (represented by: P. Krmpotić, lawyer)

Defendant: European Union Intellectual Property Office (represented by: R. Raponi and V. Ruzek, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Paul Hartmann AG (Heidenheim, Germany)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment and modification of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 December 2020 (Case R 847/2020-5).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Creaticon d.o.o. to pay the costs.

---

(1)  OJ C 138, 19.4.2021.

Judgment of the General Court of 4 May 2022 — Sturz v EUIPO — Clatronic International (STEAKER)

(Case T-261/21) (1)

(EU trade mark - Invalidity proceedings - EU word mark STEAKER - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) - No distinctive character - Article 52(1)(a) of Regulation No 207/2009 (now Article 59(1)(a) of Regulation 2017/1001) - Right to be heard - Article 94(1) of Regulation 2017/1001)

(2022/C 266/26)

Language of the case: German

Parties

Applicant: Manfred Sturz (Schorndorf, Germany) (represented by: B. Bittner, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Clatronic International GmbH (Kempen, Germany) (represented by: V. Herbort, lawyer)

Re:

By his action under Article 263 TFEU, the applicant seeks annulment of the decision of the Second Board of Appeal of EUIPO of 4 March 2021 (Case R 214/2020-2) concerning an application for registration of the word sign STEAKER as an EU trade mark, by which the Board of Appeal found that the mark applied for was descriptive of the goods in question.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Manfred Sturz to pay the costs.

---

(1)  OJ C 289, 19.7.2021.

Judgment of the General Court of 27 April 2022 — Veen v Europol

(Case T-436/21) (1)

(Non-contractual liability - Cooperation of the police authorities and other law enforcement agencies of the Member States - Fight against crime - Communication of information by Europol to a Member State - Alleged unauthorised data processing - Regulation (EU) 2016/794 - Article 50(1) - Non-material harm)

(2022/C 266/27)

Language of the case: Slovak

Parties

Applicant: Leon Leonard Johan Veen (Oss, Netherlands) (represented by: T. Lysina, lawyer)

Defendant: European Union Agency for Law Enforcement Cooperation (represented by: A. Nunzi, acting as Agent, and G. Ziegenhorn and M. Kottmann, lawyers)

Re:

By his action brought pursuant to Article 268 TFEU, the applicant seeks compensation for the harm he allegedly suffered as a result of the unlawful processing of personal data by the European Union Agency for Law Enforcement Cooperation (Europol).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Leon Leonard Johan Veen to pay the costs.

---

(1)  OJ C 431, 25.10.2021.

Judgment of the General Court of 4 May 2022 — PricewaterhouseCoopers Belastingadviseurs NV v EUIPO — Haufe-Lexware (TAXMARC)

(Case T-619/21) (1)

(EU trade mark - Opposition proceedings - Application for EU word mark TAXMARC - Prior EU figurative mark TAXMAN - Suspension of proceedings - Article 71(1) of Delegated Regulation (EU) 2018/625)

(2022/C 266/28)

Language of the case: English

Parties

Applicant: PricewaterhouseCoopers Belastingadviseurs NV (Amsterdam, Netherlands) (represented by: R. Stoop, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Haufe-Lexware GmbH & Co. KG (Freiburg im Breisgau, Germany) (represented by: N. Hebeis, lawyer)

Re:

By its action based on Article 263 TFEU, the applicant seeks annulment of the decision of the Fourth Board of Appeal of EUIPO of 21 July 2021 (Case R 131/2021-4), relating to opposition proceedings between Haufe-Lexware GmbH Co. KG and the applicant.

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 July 2021 (Case R 131/2021-4);

2.	Orders EUIPO to bear its own costs and to pay those incurred by PricewaterhouseCoopers Belastingadviseurs NV for the purposes of the proceedings before the Court;

3.	Orders Haufe-Lexware GmbH & Co. KG to bear its own costs relating to the proceedings before the Court.

---

(1)  OJ C 471, 22.11.2021.

Judgment of the General Court of 27 April 2022 — Roos and Others v Parliament

(Joined Cases T-710/21, T-722/21 and T-723/21) (1)

(Public health - Requirement to present a valid EU digital COVID-19 certificate to access the Parliament’s buildings - Legal basis - Freedom and independence of Members of the European Parliament - Obligation to ensure the health of staff in the service of the European Union - Parliamentary immunity - Processing of personal data - Right to respect for private life - Right to physical integrity - Right to security - Equal treatment - Proportionality)

(2022/C 266/29)

Language of the case: French

Parties

Applicants: Robert Roos and 17 other applicants whose names appear in the annex to the judgment (represented by: P. de Bandt, M. Gherghinaru, L. Panepinto and V. Heinen, lawyers)

Defendant: European Parliament (represented by: S. Alves and A.-M. Dumbrăvan, acting as Agents)

Re:

By their actions under Article 263 TFEU, the applicants, who are all elected Members of the European Parliament for the 2019-2024 term, seek the annulment of the Parliament Bureau Decision of 27 October 2021 on exceptional health and safety rules for access to the Parliament’s buildings at its three places of work.

Operative part of the judgment

The Court:

1.	Dismisses the actions;

2.	Orders Robert Roos and the other applicants whose names appear in the annex to pay the costs, including those relating to the proceedings for interim measures.

---

(1)  OJ C 11, 10.1.2022.

Order of the General Court of 6 April 2022 — Saure v Commission

(Case T-154/21) (1)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Confirmatory application made prematurely - Article 7 of Regulation No 1049/2001 - No challengeable act - Express refusal to grant access - Modification of the application - Manifest inadmissibility)

(2022/C 266/30)

Language of the case: German

Parties

Applicant: Hans-Wilhelm Saure (Berlin, Germany) (represented by: C. Partsch, lawyer)

Defendant: European Commission (represented by: A. Spina, K. Herrmann and G. Gattinara, acting as Agents)

Re:

By his action under Article 263 TFEU, the applicant seeks annulment of the alleged decision refusing him access to certain documents, which decision arose implicitly on 19 March 2021 in the absence of a response from the European Commission within the time period prescribed to his confirmatory application and, following the modification of the form of order sought, annulment of the express decision of the Commission of 9 June 2021, by way of which it partially refused to grant the applicant access to certain documents.

Operative part of the order

1.	The action is dismissed as manifestly inadmissible.

2.	Mr Hans-Wilhelm Saure is ordered to bear his own costs and pay those incurred by the European Commission in relation to the request to modify the application, and the Commission is ordered to bear its own costs relating to the application.

---

(1)  OJ C 189, 17.5.2021.

Order of the General Court of 7 April 2022 — SS and ST v Frontex

(Case T-282/21) (1)

(Actions for failure to act - Right to asylum - Invitation to act - Position taken by Frontex - Inadmissibility)

(2022/C 266/31)

Language of the case: English

Parties

Applicants: SS, ST (represented by: M. Van den Broeck and L. Lambert, lawyers)

Defendant: European Border and Coast Guard Agency (represented by: H. Caniard, S. Drew and W. Szmidt, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Application under Article 265 TFEU seeking a declaration that Frontex unlawfully failed to adopt, under Article 46(4) of Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ 2019 L 295, p. 1), a decision suspending or terminating its activities in the Aegean Sea region.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	SS, ST and the European Border and Coast Guard Agency (Frontex) shall bear their own costs.

---

(1)  OJ C 289, 19.7.2021.

Order of the General Court of 7 April 2022 — Mendus v EUIPO — (CENSOR.NET)

(Case T-336/21) (1)

(EU trade mark - Revocation of the contested decision - Action which has become devoid of purpose - No need to adjudicate)

(2022/C 266/32)

Language of the case: English

Parties

Applicant: Iaroslav Mendus (Kyiv, Ukraine) (represented by: P. Kurcman, lawyer)

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

Re:

By document lodged at the Court Registry on 15 June 2021, the applicant brought the present action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 April 2021 (Case R 1225/2020-1), concerning an application for registration of the word sign CENSOR.NET as an EU trade mark.

Operative part of the order

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

2.	The European Union Intellectual Property Office (EUIPO) shall bear its own costs and pay those incurred by Mr Iaroslav Mendus.

---

(1)  OJ C 320, 9.8.2021.

Order of the General Court of 7 April 2022 — Essity Hygiene and Health v EUIPO (Representation of a leaf)

(Case T-364/21) (1)

(EU trade mark - Revocation of the contested decision - Action which has become devoid of purpose - No need to adjudicate)

(2022/C 266/33)

Language of the case: Swedish

Parties

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

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

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 31 March 2021 (Case R 2196/2017-1), concerning an application for registration of a figurative sign representing a leaf as an EU trade mark

Operative part of the order

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

2.	The European Union Intellectual Property Office (EUIPO) shall pay the costs.

---

(1)  OJ C 320, 9.8.2021.

Order of the General Court of 6 April 2022 — Leinfelder Uhren München v EUIPO — Schafft (Representation of a geometric figure)

(Case T-375/21) (1)

(EU trade mark - Revocation proceedings - Withdrawal of the application for revocation - No need to adjudicate)

(2022/C 266/34)

Language of the case: German

Parties

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

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Thomas Schafft (Munich, Germany) (represented by: V. Sandulache, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 29 March 2021 (Joined Cases R 1931/2018-2 and R 1936/2018-2), relating to revocation proceedings between Thomas Schafft and Leinfelder Uhren München.

Operative part of the order

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

2.	Thomas Schafft shall bear the costs.

---

(1)  OJ C 329, 16.8.2021.

Order of the General Court of 7 April 2022 — Bloom v Parliament and Council

(Case T-645/21) (1)

(Action for annulment - Common fisheries policy - Regulation (EU) 2021/1139 - European Maritime, Fisheries and Aquaculture Fund - Financial support granted under shared management with the Member States - Ineligible operations or expenditure - Derogations from ineligibility - Association for the protection of the marine environment - Legislative act - No individual concern - No direct concern - Right to effective judicial protection - Inadmissibility)

(2022/C 266/35)

Language of the case: French

Parties

Applicant: Bloom (Paris, France) (represented by: C. Saynac and L. Chovet-Ballester, lawyers)

Defendants: European Parliament (represented by: G. Ricci and I. Terwinghe, acting as Agents), Council of the European Union (represented by: F. Naert and A. Nowak-Salles, acting as Agents)

Re:

Application under Article 263 TFEU seeking partial annulment of Regulation (EU) 2021/1139 of the European Parliament and of the Council of 7 July 2021 establishing the European Maritime, Fisheries and Aquaculture Fund and amending Regulation (EU) 2017/1004 (OJ 2021 L 247, p. 1).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no longer any need to adjudicate on the European Commission’s application to intervene.

3.	Bloom shall bear its own costs and pay those incurred by the European Parliament and the Council of the European Union.

4.	The Commission shall bear its own costs relating to the application to intervene.

---

(1)  OJ C 481, 29.11.2021.

Order of the President of the General Court of 13 May 2022 — Conserve Italia and Conserves France v Commission

(Case T-59/22 R)

(Interim relief - Competition - Agreements, decisions and concerted practices - European market for preserved vegetables - Decision imposing a fine - Application for suspension of operation of a measure - No urgency)

(2022/C 266/36)

Language of the case: Italian

Parties

Applicants: Conserve Italia — Consorzio Italiano fra cooperative agricole Soc. coop. agr. (San Lazzaro di Savena, Italy) and Conserves France (Tarascon, France) (represented by: L. Di Via, M. Petite, L. Tresoldi and E. Belli, lawyers)

Defendant: European Commission (represented by: S. Baches Opi, F. Jimeno Fernández and C. Sjödin, acting as Agents)

Re:

Application under Articles 278 and 279 TFEU seeking suspension of the operation of Commission Decision C(2021) 8259 final of 19 November 2021 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement.

Operative part of the order

1.	The application for interim relief is dismissed.

2.	The costs are reserved.

Order of the President of the General Court of 18 May 2022 — OG and Others v Commission

(Case T-101/22 R)

(Interim Relief - Regulation (EU) 2021/953 - Delegated Regulation (EU) 2021/2288 - EU Digital COVID certificate - Application for suspension of operation of a measure - No urgency)

(2022/C 266/37)

Language of the case: Spanish

Parties

Applicants: OG, OH, OI, OJ (represented by: D. Gómez Fernández, lawyer)

Defendant: European Commission (represented by: E. Montaguti and J. Baquero Cruz,

Re:

By their application under Articles 278 and 279 TFEU, the applicants request suspension of the operation of Commission Delegated Regulation (EU) 2021/2288 of 21 December 2021 amending the Annex to Regulation (EU) 2021/953 of the European Parliament and of the Council as regards the acceptance period of vaccination certificates issued in the EU Digital COVID Certificate format indicating the completion of the primary vaccination series (OJ 2021 L 458, p. 459).

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

Action brought on 21 April 2022 — Greece v Commission

(Case T-211/22)

(2022/C 266/38)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: E. Leftheriotou, A.-E. Vasilopoulou and K. Konsta, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul the contested decision (1) in so far as it imposes financial corrections on the Hellenic Republic, amounting to a gross amount of EUR 43 525 011,74 and a net amount, after deductions, of EUR 43 156 228,16, following enquiry XC/2018/001/GR on the application of cross-compliance in claim years 2016/2017 (financial years 2016 and 2017, pages 72 to 124 of the summary report);

—	in the alternative, annul the contested decision and limit the rate of correction imposed by that decision to 5 %; and

—	in any event, reduce the amount of the net financial correction imposed that decision by EUR 12 225 532,12;

—	order the defendant to pay the legal costs incurred by the Hellenic Republic.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law. The first four pleas relate to the findings on which the Commission has based the contested decision, while the fifth and sixth pleas concern the calculation of the correction at issue.

1.	First plea in law, alleging that there is no legal basis for making the Commission’s findings part of the key controls and, furthermore, infringement of the principle of legal certainty, and failure to state reasons.

2.

Second plea in law, alleging, in the first part, that the Commission service imposing the corrections lacks substantive competence and, in the second part, infringement of the principle of proportionality in that corrections are imposed on the basis of findings which in no way lead to penalties being imposed on beneficiaries of aid.

3.	Third plea in law, alleging misinterpretation and misapplication of the rules of EU law and an error of fact on the part of the Commission in making its other findings.

4.

Fourth plea in law, which relates to the Commission’s findings concerning the key control ‘Reporting of audit findings’, alleging that the contested decision was adopted in breach of the principles of sincere cooperation and legal certainty (first part), and alleging factual errors in the conclusions drawn by the Commission (second part).

5.

Fifth plea in law, alleging that the Commission made corrections by way of the misinterpretation and misapplication of Article 12(6) and (7) of Commission Delegated Regulation (EU) No 907/2014 (OJ L 255, p. 18) (first part of the plea), as well as infringement of the first subparagraph of Article 34(2) of Commission Implementing Regulation (EU) No 908/2014 (OJ L 255, p. 59) and breach of the principle of the obligation not to exacerbate objections sent to the Member State during the clearance-of-accounts procedure (second part).

6.

Sixth plea in law, alleging unlawfulness in the calculation of the net financial correction at issue and a failure to apply deductions, as a result of the earlier application of financial corrections to the same expenditure as that subject to the financial correction at issue, in breach of the Commission’s guidelines.

---

(1)  Commission Implementing Decision (EU) 2022/222 of 16 February 2022 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) (notified under document C(2022) 830) (OJ 2022 L 37, p. 63).

Action brought on 25 May 2022 — celotec v EUIPO — Decotec Printing (DECOTEC)

(Case T-308/22)

(2022/C 266/39)

Language in which the application was lodged: English

Parties

Applicant: celotec GmbH & Co. KG (Sendenhorst, Germany) (represented by: E. Warnke and J. Römelt, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Decotec Printing, SA (Barcelona, Spain)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union word mark DECOTEC — European Union trade mark No 10 948 032

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 March 2022 in Case R 1025/2021-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to bear the costs of proceedings.

Pleas in law

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

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

—	Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 25 May 2022 — Abramovich v Council

(Case T-313/22)

(2022/C 266/40)

Language of the case: French

Parties

Applicant: Roman Arkadyevich Abramovich (Nemchinovo, Russia) (represented by: T. Bontinck, A. Guillerme and T. Payan, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—	annul Council Decision (CFSP) 2022/429 (1) of 15 March 2022 in so far as it includes the name of the applicant in the Annex to Council Decision 2014/145/CFSP of 17 March 2014;

—	annul Council Implementing Regulation (EU) 2022/427 (2) of 15 March 2022 in so far as it includes the name of the applicant in the Annex to Council Regulation (EU) No 2014/269 of 17 March 2014;

—	order the Council to make a provisional payment of EUR 1 000 000 to the charitable foundation for victims of conflicts which is being established in connection with the sale of Chelsea FC, in respect of the non-material damage which the applicant claims to have suffered;

—	order the Council to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging infringement of the right to effective judicial protection and the administration’s obligation to state reasons.

2.	Second plea in law, alleging a manifest error of assessment as to the Council’s reasons.

3.	Third plea in law, alleging infringement of the principle of proportionality and the principle of equal treatment in so far as concerns the adoption of restrictive measures against the applicant.

4.	Fourth plea in law, alleging infringement of fundamental rights and unjustified interference in the applicant’s fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union.

---

(1)  Council Decision (CFSP) 2022/429 of 15 March 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 87 I, p. 44).

(2)  Council Implementing Regulation (EU) 2022/427 of 15 March 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 87 I, p. 1).