20.2.2023

Official Journal of the European Union

C 63/2

Judgment of the Court (Sixth Chamber) of 22 December 2022 — European Parliament v Giulia Moi

(Case C-246/21 P) (1)

(Appeal - Law governing the institutions - Member of the European Parliament - Principle of ne ultra petita - Subject matter of the dispute - Rights of the defence - Article 232 TFEU - Operating arrangements of the Parliament - Sixth paragraph of Article 263 TFEU - Time limit for bringing proceedings - Cross-appeal)

(2023/C 63/02)

Language of the case: Italian

Parties

Appellant: European Parliament (represented by: T. Lazian, S. Seyr and M. Windisch, acting as Agents)

Other party to the proceedings: Giulia Moi (represented by: M. Pisano and P. Setzu, avvocati)

Operative part of the judgment

The Court:

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

2.	Orders the European Parliament to pay the costs relating to the main appeal;

3.	Orders Ms Giulia Moi to pay the costs relating to the cross-appeal.

(1) OJ C 228, 14.6.2021.

20.2.2023

Official Journal of the European Union

C 63/2

Judgment of the Court (Second Chamber) of 22 December 2022 (request for a preliminary ruling from the Østre Landsret — Denmark) — X v Udlændingenævnet

(Case C-279/21) (1)

(Reference for a preliminary ruling – EEC-Turkey - Association Agreement - Article 9 - Decision No 1/80 - Article 10(1) - Article 13 - Standstill clause - Family reunification - National rule introducing new more restrictive conditions in the area of family reunification for spouses of Turkish nationals who hold a permanent residence permit in the Member State concerned - Requirement that Turkish workers successfully take a test demonstrating a certain level of knowledge of the official language of that Member State - Justification - Objective of ensuring successful integration)

(2023/C 63/03)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: X

Defendant: Udlændingenævnet

Operative part of the judgment

Article 13 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the association between the European Economic Community and Turkey,

must be interpreted as meaning that national legislation, introduced after the entry into force of that decision in the Member State concerned, which makes family reunification between a Turkish worker residing legally in that Member State and his or her spouse subject to the condition that that worker has successfully taken a test demonstrating a certain level of knowledge of the official language of that Member State, constitutes a ‘new restriction’ within the meaning of that provision. Such a restriction cannot be justified by the objective of ensuring successful integration of that spouse, since that legislation does not allow the competent authorities to take account either of the spouse’s own ability to integrate or of factors, other than successfully taking such a test, demonstrating the effective integration of that worker in the Member State concerned and, therefore, his or her ability to help his or her spouse integrate into that Member State.

(1) OJ C 278, 12.7.2021.

20.2.2023

Official Journal of the European Union

C 63/3

Judgment of the Court (Sixth Chamber) of 22 December 2022 — Universität Koblenz-Landau v European Education and Culture Executive Agency (EACEA)

(Case C-288/21 P) (1)

(Appeal - Arbitration clause - Tempus IV Programmes - Grant agreements Ecesis, Diusas and Deque - Systemic and recurrent irregularities - Request for full repayment of the amounts paid - Right to be heard - Principle of proportionality - Principle of the protection of legitimate expectations - Application to reopen the oral part of the procedure at first instance - Article 113(2)(c) of the Rules of Procedure of the General Court)

(2023/C 63/04)

Language of the case: German

Parties

Appellant: Universität Koblenz-Landau (represented by: R. Di Prato and C. von der Lühe, Rechtsanwälte)

Other party to the proceedings: European Education and Culture Executive Agency (EACEA) (represented by: H. Monet and N. Sbrilli, acting as Agents, and by R. van der Hout, advocaat, and C. Wagner, Rechtsanwalt)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Universität Koblenz-Landau to pay the costs.

(1) OJ C 278, 12.7.2021.

20.2.2023

Official Journal of the European Union

C 63/4

Judgment of the Court (Tenth Chamber) of 22 December 2022 (request for a preliminary ruling from the Tribunalul Bucureşti — Romania) — Quadrant Amroq Beverages SRL v Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

(Case C-332/21) (1)

(Reference for a preliminary ruling - Harmonisation of fiscal legislation - Directive 92/83/EEC - Harmonisation of the structures of excise duties on alcohol and alcoholic beverages - Excise duty - Ethyl alcohol - Exemptions - Article 27(1)(e) - Production of flavours for the preparation of foodstuffs and non-alcoholic beverages with an alcohol strength not exceeding 1,2 % volume - Scope - Principles of proportionality and effectiveness)

(2023/C 63/05)

Language of the case: Romanian

Referring court

Tribunalul Bucureşti

Parties to the main proceedings

Applicant: Quadrant Amroq Beverages SRL

Defendant: Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

Operative part of the judgment

Article 27(1)(e) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages

must be interpreted as meaning that both ethyl alcohol used for the production of flavours intended, in turn, for the preparation of non-alcoholic beverages with an alcohol strength not exceeding 1,2 % volume and ethyl alcohol which has already been used for the production of such flavours are covered by the exemption provided for in that provision.

Article 27(1)(e) of Directive 92/83

must be interpreted as meaning that, once ethyl alcohol that has been released for consumption in a Member State in which it is exempt from excise duty, on the ground that it has been used for the production of flavours intended for the preparation of non-alcoholic beverages with an alcoholic strength not exceeding 1,2 % volume, is subsequently marketed in another Member State, the latter is required to treat that ethyl alcohol in an identical manner within its territory, since the first Member State applied correctly the exemption provided for in that provision and there is no evidence of evasion, avoidance or abuse.

Article 27(1)(e) of Directive 92/83

must be interpreted as precluding legislation of a Member State which makes the grant, to an economic operator marketing within its territory goods purchased from a seller located in the territory of another Member State in which they were manufactured, released for consumption and exempted from excise duty in accordance with that provision, of the benefit of that exemption provided for in that provision subject to the conditions that that operator has the status of registered consignee and that that seller has the status of authorised warehousekeeper, unless it follows from concrete, objective and verifiable evidence that those conditions are necessary to ensure the correct and straightforward application of such an exemption and to prevent any evasion, avoidance or abuse.

(1) OJ C 357, 6.9.2021.

20.2.2023

Official Journal of the European Union

C 63/5

Judgment of the Court (Fifth Chamber) of 22 December 2022 (requests for a preliminary ruling from the Conseil d’État (Belgium)) — Sambre & Biesme SCRL (C-383/21), Commune de Farciennes (C-384/21) v Société wallonne du logement

(Joined Cases C-383/21 and C-384/21) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Award of a public contract without a tendering procedure - Public contracts between entities within the public sector - Article 12(3) - Public contracts awarded in house - Concept of ‘similar control’ - Conditions - Representation of all the participating contracting authorities - Article 12(4) - Contract between contracting authorities pursuing common public interest objectives - Concept of ‘cooperation’ - Conditions - Failure to transpose within the prescribed period - Direct effect)

(2023/C 63/06)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Sambre & Biesme SCRL (C-383/21), Commune de Farciennes (C-384/21)

Defendant: Société wallonne du logement

Operative part of the judgment

Article 12(3) and (4) 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 it has direct effect in the context of litigation between legal persons governed by public law in relation to the direct award of public contracts where the Member State concerned has failed to transpose that directive into national law within the prescribed period.

Article 12(3), second subparagraph, (i), of Directive 2014/24

must be interpreted as meaning that, for the purpose of demonstrating that a contracting authority exercises, jointly with other contracting authorities, a control over the legal person awarded the contract which is similar to that which they exercise over their own departments, the requirement laid down in that provision, namely that a contracting authority be represented in the decision-making bodies of the controlled legal person, is not satisfied solely on the basis that the board of directors of that controlled legal person includes the representative of another contracting authority who is also part of the board of the first contracting authority.

Article 12(4) of Directive 2014/24

must be interpreted as meaning that a public contract, by which a contracting authority is entrusted with public service tasks that are part of a relationship of cooperation between other contracting authorities, is not excluded from that directive, where, in performing such tasks, the contracting authority to which those tasks were entrusted does not seek to attain objectives that it shares with the other contracting authorities but merely contributes to achieving objectives which only those other contracting authorities have in common.

(1) OJ C 357, 6.9.2021.

20.2.2023

Official Journal of the European Union

C 63/6

Judgment of the Court (Second Chamber) of 22 December 2022 (request for a preliminary ruling from the Curtea de Apel Cluj — Romania) — TJ v Inspectoratul General pentru Imigrări

(Case C-392/21) (1)

(Reference for a preliminary ruling - Social policy - Protection of the safety and health of workers - Directive 90/270/EEC - Article 9(3) - Work with display screen equipment - Protection of workers’ eyes and eyesight - Special corrective appliances - Spectacles - Acquisition by the employee - Arrangements for the employer to meet the costs)

(2023/C 63/07)

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Appellant: TJ

Respondent: Inspectoratul General pentru Imigrări

Operative part of the judgment

Article 9(3) of Council Directive 90/270/EEC of 29 May 1990 on the minimum safety and health requirements for work with display screen equipment (fifth individual Directive within the meaning of Article 16(1) of Directive 87/391/EEC)

must be interpreted as meaning that ‘special corrective appliances’ provided for in that provision include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment. Moreover, those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes.

Article 9(3) and (4) of Directive 90/270

must be interpreted as meaning that the employer’s obligation, laid down in that provision, to provide the workers concerned with a special corrective appliance, may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.

(1) OJ C 391, 27.9.2021.

20.2.2023

Official Journal of the European Union

C 63/6

Judgment of the Court (Fifth Chamber) of 22 December 2022 (request for a preliminary ruling from the Tribunale ordinario di Asti — Italy) — WP v Istituto nazionale della previdenza sociale, Repubblica italiana

(Case C-404/21) (1)

(Reference for a preliminary ruling - European Central Bank (ECB) staff members - Transfer of pension rights acquired in a national pension scheme to the ECB pension scheme - Article 4(3) TEU - Principle of sincere cooperation - ECB Conditions of Employment - Article 8 of Annex IIIa - No provision of national law or agreement between the Member State concerned and the ECB)

(2023/C 63/08)

Language of the case: Italian

Referring court

Tribunale ordinario di Asti

Parties to the main proceedings

Applicant: WP

Defendants: Istituto nazionale della previdenza sociale, Repubblica italiana

Operative part of the judgment

Articles 45 and 48 TFEU, Article 11(2) of Annex VIII to the Staff Regulations and Article 8(a) of Annex IIIa to the Decision of the European Central Bank of 9 June 1998 on the adoption of the Conditions of Employment for Staff of the European Central Bank as amended on 31 March 1999,

must be interpreted as not precluding, in the absence of an agreement between the European Central Bank (ECB) and the Member State concerned, legislation or an administrative practice of that Member State which does not allow an ECB staff member to transfer, to the ECB pension scheme, an amount corresponding to the pension rights he or she has acquired under the pension scheme of that Member State. However, Article 4(3) TEU requires, in accordance with the principle of sincere cooperation enshrined in that provision, that a Member State to which the conclusion of an agreement is proposed by the ECB, pursuant to Article 8(a) of Annex IIIa, on the transfer, to the ECB pension scheme, of pension rights acquired by its staff members under the pension scheme of that Member State, must participate actively and in good faith in negotiations with the ECB with a view to entering into an agreement with the latter following the opening of negotiations.

EU law must be interpreted as not authorising a court of a Member State seised by a European Central Bank (ECB) staff member to order the transfer to the ECB pension scheme of pension rights acquired by the person concerned under the pension scheme of that Member State, in the absence of a provision of national law or an agreement between the Member State concerned and the ECB providing for such a transfer. However, where, owing to the breach, by that Member State, of its obligation, arising from the principle of sincere cooperation enshrined in Article 4(3) TEU, to participate actively and in good faith in negotiations with the ECB with a view to concluding an agreement on the transfer of pension rights, that ECB staff member is unable to have the pension rights which he or she has acquired under the pension scheme of that Member State transferred to the ECB pension scheme, that provision requires that such a national court take all the measures provided by national procedural rules so as to ensure that that obligation is fulfilled by the competent national authority.

(1) OJ C 357, 6.9.2021.

20.2.2023

Official Journal of the European Union

C 63/7

Judgment of the Court (Eighth Chamber) of 22 December 2022 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Hauptzollamt Hamburg v Shell Deutschland Oil GmbH

(Case C-553/21) (1)

(Reference for a preliminary ruling - Directive 2003/96/EC - Taxation of energy products and electricity - Fourth indent of Article 5 - Differentiated rates of excise duty according to whether those products are for business or non-business use - Optional tax exemptions and reductions - Submission of an application for an optional tax reduction after the expiry of the period prescribed for that purpose but before the expiry of the period for assessment of the tax concerned - Principle of legal certainty - Principle of effectiveness - Principle of proportionality)

(2023/C 63/09)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant in the appeal on a point of law: Hauptzollamt Hamburg

Respondent in the appeal on a point of law: Shell Deutschland Oil GmbH

Operative part of the judgment

The principle of effectiveness and the principle of proportionality, as a general principle of EU law, must be interpreted, in the context of implementing a provision such as that in the fourth indent of Article 5 of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity — which allows Member States to apply, under certain conditions, differentiated rates of taxation between business and non-business use, for energy products and electricity referred to in that directive — as precluding national legislation under which the competent authorities of a Member State are required to reject, automatically and without exception, an application for tax relief lodged within the period for assessment of the tax at issue as laid down in national law, on the sole ground that the applicant failed to comply with the period prescribed by that law for the submission of such an application.

(1) OJ C 490, 6.12.2021.

20.2.2023

Official Journal of the European Union

C 63/8

Judgment of the Court (Fifth Chamber) of 22 December 2022 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — IM Gestão de Ativos (IMGA) — Sociedade Gestora de Organismos de Investimento Coletivo SA and Others v Autoridade Tributária e Aduaneira

(Case C-656/21) (1)

(Reference for a preliminary ruling - Directive 2008/7/EC - Article 5(2)(a) - Indirect taxes on the raising of capital - Stamp duty on services relating to the marketing of shares in undertakings for collective investment in transferable securities)

(2023/C 63/10)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicants: IM Gestão de Ativos (IMGA) — Sociedade Gestora de Organismos de Investimento Coletivo SA, IMGA Rendimento Semestral, IMGA Ações Portugal Cat A, IMGA Ações América Cat A, IMGA Mercados Emergentes, IMGA Eurofinanceiras, IMGA Eurocarteira, IMGA Rendimento Mais, IMGA Investimento PPR, IMGA Alocação Moderada Cat A, IMGA Alocação Dinâmica Cat A, IMGA Global Equities Selection Cat A, IMGA Liquidez Cat A, IMGA Money Market Cat A, IMGA Euro Taxa Variável Cat A, IMGA Dívida Pública Europeia, IMGA Retorno Global Cat A, IMGA Poupança PPR, IMGA Alocação Conservadora Cat A, IMGA Iberia Equities ESG Cat A, IMGA Iberia Fixed Income ESG Cat A, IMGA Alternativo, CA Curto Prazo, IMGA Ações Europa, IMGA Flexível Cat A, CA Monetário, CA Rendimento, Eurobic PPR/OICVM Ciclo Vida 35-44, Eurobic PPR/OICVM Ciclo Vida 45-54, Eurobic PPR/OICVM Ciclo Vida + 55, Eurobic Seleção Top, IMGA European Equities Cat A

Defendant: Autoridade Tributária e Aduaneira

Operative part of the judgment

Article 5(2)(a) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital

must be interpreted as precluding national legislation which provides for the imposition of stamp duty on, first, the remuneration received by a financial institution from a common fund management company for the supply of marketing services for the purposes of new capital contributions aimed at the subscription of newly issued shares in funds and, second, the amounts which that management company receives from common funds in so far as those amounts include the remuneration which that management company has paid to financial institutions in respect of those marketing services.

(1) OJ C 37, 24.1.2022.

20.2.2023

Official Journal of the European Union

C 63/9

Judgment of the Court (Seventh Chamber) of 22 December 2022 (request for a preliminary ruling from the Conseil d’État — France) — Syndicat Les Entreprises du médicament (LEEM) v Ministre des Solidarités et de la Santé

(Case C-20/22) (1)

(Reference for a preliminary ruling - Medicinal products for human use - Directive 89/105/EEC - Transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems - Article 4 - Price freeze imposed on all medicinal products or on certain categories of medicinal products - National measure concerning only certain medicinal products, on an individual basis - Setting a maximum price for sales to health establishments of certain medicinal products)

(2023/C 63/11)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Syndicat Les Entreprises du médicament (LEEM)

Defendant: Ministre des Solidarités et de la Santé

Operative part of the judgment

Article 4(1) of Council Directive 89/105/EEC of 21 December 1988 relating to the transparency of measures regulating the pricing of medicinal products for human use and their inclusion in the scope of national health insurance systems

must be interpreted as meaning that the concept of a ‘price freeze … on all medicinal products or on certain categories of medicinal products’ does not apply to a measure whose purpose is to control the prices of certain medicinal products, on an individual basis.

(1) OJ C 119, 14.3.2022.

20.2.2023

Official Journal of the European Union

C 63/10

Judgment of the Court (Seventh Chamber) of 22 December 2022 — European Investment Bank v KL

(Case C-68/22 P) (1)

(Appeal - Civil service - Staff of the European Investment Bank (EIB) - Concept of ‘invalidity’ - Declaration of fitness to work - Unjustified absence - Action for annulment and for damages)

(2023/C 63/12)

Language of the case: French

Parties

Appellant: European Investment Bank (represented by: G. Faedo and I. Zanin, acting as Agents, and by A. Duron, avocate)

Other party to the proceedings: KL (represented by: A. Champetier and L. Levi, avocates)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Investment Bank (EIB) to bear its own costs and to pay the costs incurred by KL.

(1) OJ C 213, 30.5.2022.

20.2.2023

Official Journal of the European Union

C 63/10

Judgment of the Court (Eighth Chamber) of 22 December 2022 (request for a preliminary ruling from the Cour d’appel de Paris — France) — Eurelec Trading SCRL, Scabel SA v Ministre de l’Économie et des Finances

(Case C-98/22) (1)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Jurisdiction and recognition and enforcement of judgments in civil and commercial matters - Regulation (EU) No 1215/2012 - Article 1(1) - Concept of ‘civil and commercial matters’ - Action brought by a public authority seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order that they cease)

(2023/C 63/13)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicants: Eurelec Trading SCRL, Scabel SA

Defendant: Ministre de l’Économie et des Finances

Intervening parties: Groupement d’achat des centres Édouard Leclerc (GALEC), Association des centres distributeurs Édouard Leclerc (ACDLEC)

Operative part of the judgment

Article 1(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 the concept of ‘civil and commercial matters’, within the meaning of that provision, does not include an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order that they cease in relation to suppliers established in the first Member State, where that public authority exercises powers to bring proceedings or powers of investigation falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.

(1) OJ C 198, 16.5.2022.

20.2.2023

Official Journal of the European Union

C 63/11

Order of the Court (Ninth Chamber) of 22 December 2022 (request for a preliminary ruling from the Úrad pre verejné obstarávanie — Slovakia) — Úrad pre dohľad nad zdravotnou starostlivosťou, Všeobecná zdravotná poisťovňa, a.s., Dôvera zdravotná poist’ovňa a.s., Union zdravotná poisťovňa, a.s.

(Case C-204/22) (1)

(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - Article 267 TFEU - Concept of a ‘court or tribunal’ - Criteria relating to the constitution and function of that body - Exercise of judicial or administrative functions - Duty of cooperation of the body making the reference - Directives 89/665/EEC and 2014/24/EU - Public procurement - National regulatory body for public procurement procedures - Entitlement to act on an ex officio basis - Power to impose penalties - Decisions that are open to challenge before the courts - No dispute before the referring body - Manifest inadmissibility of the request for a preliminary ruling)

(2023/C 63/14)

Language of the case: Slovakian

Referring court

Úrad pre verejné obstarávanie

Parties to the main proceedings

Proceedings brought against: Úrad pre dohľad nad zdravotnou starostlivosťou, Všeobecná zdravotná poisťovňa, a.s., Dôvera zdravotná poist’ovňa a.s., Union zdravotná poisťovňa, a.s.

Operative part of the order

The request for a preliminary ruling from the Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority, Slovakia), by decision of 16 March 2022, is manifestly inadmissible.

(1) Date lodged: 16.3.2022.

20.2.2023

Official Journal of the European Union

C 63/11

Order of the Court (Ninth Chamber) of 8 December 2022 (request for a preliminary ruling from the High Court (Ireland)) — Enniskerry Alliance, Enniskerry Demesne Management Company CLG and Protect East Meath Limited v An Bord Pleanála, the Attorney General, Ireland and Louth County Council

(Case C-464/22) (1)

(Environment - Aarhus Convention - Access to justice - Requirement for a procedure which is not prohibitively expensive - Scope - Obligation to interpret in accordance with the national procedural law)

(2023/C 63/15)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicants: Enniskerry Alliance, Enniskerry Demesne Management Company CLG and Protect East Meath Limited

Defendants: An Bord Pleanála, the Attorney General, Ireland and Louth County Council

Operative part of the order

By Order of 8 December 2022, the President of the Ninth Chamber ordered the removal of Case C-464/22 from the register.

(1) Date lodged: 11.7.2022.

20.2.2023

Official Journal of the European Union

C 63/12

Order of the Court (Ninth Chamber) of 8 December 2022 (request for a preliminary ruling from the High Court — Ireland) — Save Roscam Peninsula CLG, SC-F, MF, PH, Abbey Park and District Residents Association Baldoyle v An Bord Pleanála, Galway City Council, the Minister for Housing, Local Government and Heritage, Ireland, the Attorney General and Fingal County Council

(Case C-543/22) (1)

(Aarhus Convention - Access to justice - Requirement for a procedure which is not prohibitively expensive - Scope - Obligation to interpret in accordance with the national procedural law)

(2023/C 63/16)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicants: Save Roscam Peninsula CLG, SC-F, MF, PH, Abbey Park and District Residents Association Baldoyle

Defendants: An Bord Pleanála, Galway City Council, the Minister for Housing, Local Government and Heritage, Ireland, the Attorney General and Fingal County Council

Operative part of the order

By Order of 8 December 2022, the President of the Ninth Chamber ordered the removal of Case C-543/22 from the register.

(1) Date lodged: 11.8.2022.

20.2.2023

Official Journal of the European Union

C 63/12

Order of the Court (Ninth Chamber) of 8 December 2022 (request for a preliminary ruling from the High Court — Ireland) — GY v An Bord Pleanála, the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

(Case C-616/22) (1)

(Aarhus Convention - Access to justice - Requirement for a procedure which is not prohibitively expensive - Scope - Obligation to interpret in accordance with the national procedural law)

(2023/C 63/17)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicant: GY

Defendants: An Bord Pleanála, the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

Operative part of the order

By Order of 8 December 2022, the President of the Ninth Chamber ordered the removal of Case C-616/22 from the register.

(1) Date lodged: 23.9.2022.

20.2.2023

Official Journal of the European Union

C 63/13

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 October 2022 — Airbnb Ireland UC v Autorità per le Garanzie nelle Comunicazioni

(Case C-662/22)

(2023/C 63/18)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Airbnb Ireland UC

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does Regulation (EU) 2019/1150 (1) preclude a national provision that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, requires providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties?

Does Directive (EU) 2015/1535 (2) oblige Member States to notify the Commission of measures that require providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does the directive allow a private individual to object to measures not notified to the Commission being applied to him or her?

Does Article 3 of Directive 2000/31/EC (3) preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another European country, such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties?

Does the principle of freedom to provide services laid down in Article 56 TFEU and Article 16 of Directive 2006/123/EC (4) preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another European country, such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties?

Does Article 3(4)(b) of Directive 2000/31/EC require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does the directive allow a private individual to object to measures not notified to the Commission being applied to him or her?

(1) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57).

(2) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).

(3) 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 (OJ 2000 L 178, p. 1).

(4) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

20.2.2023

Official Journal of the European Union

C 63/14

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 October 2022 — Expedia Inc. v Autorità per le Garanzie nelle Comunicazioni

(Case C-663/22)

(2023/C 63/19)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Expedia Inc.

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does Regulation (EU) 2019/1150, (1) and in particular Article 15 thereof, as well as the principle of proportionality, preclude legislation of a Member State or a measure adopted by an independent national authority — such as those indicated in the grounds of the order for reference — requiring foreign providers of online intermediation services to submit a report containing information that is irrelevant as regards the aims of that regulation?

2.	In any event, can the information requested through the submission of the ESI be considered relevant and instrumental for the adequate and effective implementation of Regulation 2019/1150?

20.2.2023

Official Journal of the European Union

C 63/14

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 21 October 2022 — Google Ireland Limited v Autorità per le Garanzie nelle Comunicazioni

(Case C-664/22)

(2023/C 63/20)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Google Ireland Limited

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does EU law preclude the application of national provisions, such as Article 1(515), (516) and (517) of legge 30 dicembre 2020, n. 178 (Law No 178 of 30 December 2020), which impose additional administrative and financial obligations on operators established in another European country but operating in Italy, such as the obligation to be entered in a special register and to pay a financial contribution? Specifically, do such national provisions infringe Article 3 of the Directive on electronic commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 (1)) under which a provider of information society services — in this case Google Ireland Limited — is subject exclusively to the legislation (…) of the Member State in which the service provider is established?

Does EU law preclude the application of national provisions, such as Article 1(515), (516) and (517) of Law No 178 of 30 December 2020, which impose additional administrative and financial obligations on operators established in another European country? Specifically, does the principle of freedom to provide services enshrined in Article 56 [TFEU], as well as similar principles that can be inferred from Directives 2006/123/EC (2) and 2000/31/EC, preclude a national measure that places, on intermediaries operating in Italy but not established there, additional obligations to those envisaged in the country of origin for the pursuit of the same activity?

Does EU law, and in particular Directive (EU) 2015/1535, (3) require the Italian State to notify the Commission of the introduction of the obligation to be entered in the RCO, imposed on providers of online intermediation services and providers of online search engines? Specifically, must the second indent of Article 3(4)(b) of Directive 2000/31 be interpreted as meaning that a private individual, established in a Member State other than Italy, may object to measures adopted by the Italian legislature (under Article 1(515), (516), (517) of Law No 178 of 30 December 2020) that are liable to restrict the free movement of an information society service, when those measures were not notified in accordance with that provision?

Does Regulation (EU) 2019/1150, (4) and in particular Article 15 thereof, as well as the principle of proportionality, preclude legislation of a Member State or a measure adopted by an independent national authority requiring providers of online intermediation services operating in a Member State to be entered in the RCO, which gives rise to a series of formal and procedural obligations, obligations to pay contributions and restrictions on earning profits in excess of a certain amount?

(1) 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 (OJ 2000 L 178, p. 1).

(2) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

(3) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).

(4) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ 2019 L 186, p. 57).

20.2.2023

Official Journal of the European Union

C 63/15

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 21 October 2022 — Amazon Services Europe SARL v Autorità per le Garanzie nelle Comunicazioni

(Case C-665/22)

(2023/C 63/21)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Amazon Services Europe SARL

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does Regulation (EU) 2019/1150 (1) preclude a national provision that, for the specific purpose of ensuring the adequate and effective implementation of that regulation, including by gathering relevant information, requires providers of online intermediation services and providers of online search engines to regularly communicate relevant information about their revenue?

2.	On the basis of Regulation 2019/1150, can the information required in the context of the Economic System Information, mainly relating to revenue earned, be considered relevant and instrumental for the objective pursued by that regulation?

Does Directive (EU) 2015/1535 (2) require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to submit a report containing relevant information about their revenue, non-compliance with which gives rise to a fine? If so, does the directive allow a private individual to object to measures not notified to the Commission being applied to him or her?

Does Article 3 of Directive 2000/31/EC (3) preclude the adoption by national authorities of provisions that, in order to implement Regulation 2019/1150, lay down additional administrative and financial obligations for operators, established in another European country but operating in Italy, such as the communication of a report containing relevant information about their revenue, non-compliance with which gives rise to a fine?

Does the principle of freedom to provide services enshrined in Article 56 TFEU and Article 16 of Directive 2006/123/EC (4) and Directive 2000/31 preclude the adoption by national authorities of provisions that, in order to implement Regulation 2019/1150, lay down additional administrative and financial obligations for operators established in another European country, such as the submission of a report containing relevant information about their revenue, non-compliance with which gives rise to a fine?

Does Article 3(4)(b) of Directive 2000/31/EC require Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to submit a report containing relevant information about their revenue, non-compliance with which gives rise to a fine? If so, does the directive allow a private individual to object to measures not notified to the Commission being applied to him or her?

(4) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

20.2.2023

Official Journal of the European Union

C 63/16

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 21 October 2022 — Eg Vacation Rentals Ireland Limited v Autorità per le Garanzie nelle Comunicazioni

(Case C-666/22)

(2023/C 63/22)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Eg Vacation Rentals Ireland Limited

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does EU law preclude the application of national provisions, such as Article 1(515), (516) and (517) of legge 30 dicembre 2020, n. 178 (Law No 178 of 30 December 2020), which impose additional administrative and financial obligations on operators established in another European country but operating in Italy, such as the obligation to be entered in a special register and to pay a financial contribution? Specifically, do such national provisions infringe Article 3 of the Directive on electronic commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 (1)) under which a provider of information society services is subject to the legislation (…) of the Member State in which the service provider is established?

Does EU law preclude the application of national provisions, such as Article 1(515), (516) and (517) of Law No 178 of 30 December 2020, which impose additional administrative and financial obligations on operators established in another European country? Specifically, does the principle of freedom to provide services enshrined in Article 56 [TFEU], as well as similar principles that can be inferred from Directives 2006/123/EC (2) and 2000/31/EC, preclude a national measure that requires, for intermediaries operating in Italy but not established there, entry in a register entailing additional obligations to those envisaged in the country of origin for the pursuit of the same activity?

Does EU law, and in particular Directive (EU) 2015/1535, (3) require the Italian State to notify the Commission of the introduction of the obligation to be entered in the RCO, which is imposed on providers of online intermediation services and providers of online search engines? Specifically, must the second indent of Article 3(4)(b) of Directive 2000/31 be interpreted as meaning that a private individual, established in a Member State other than Italy, may object to measures adopted by the Italian legislature (under Article 1(515), (516), (517) of Law No 178 of 30 December 2020) that are liable to restrict the free movement of an information society service, when those measures were not notified in accordance with that provision?

(2) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

20.2.2023

Official Journal of the European Union

C 63/17

(Case C-667/22)

(2023/C 63/23)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per il Lazio

Parties to the main proceedings

Applicant: Amazon Services Europe SARL

Defendant: Autorità per le Garanzie nelle Comunicazioni

Questions referred

Does Directive (EU) 2015/1535 (2) oblige Member States to notify the Commission of measures requiring providers of online intermediation services and providers of online search engines to be entered in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties? If so, does the directive allow a private individual to object to measures not notified to the Commission being applied to him or her?

Does the principle of freedom to provide services enshrined in Article 56 TFEU and Article 16 of Directive 2006/123/EC (4) preclude the adoption by national authorities of provisions that, in order to promote fairness and transparency for business users of online intermediation services, including by adopting guidelines, encouraging codes of conduct to be drawn up and gathering relevant information, impose additional administrative and financial obligations on operators established in another European country, such as entry in a register, which involves the communication of relevant information about their organisation and payment of a financial contribution, a failure to comply with which results in the imposition of penalties?

(4) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

20.2.2023

Official Journal of the European Union

C 63/19

Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 25 October 2022 — T GmbH v Bezirkshauptmannschaft Spittal an der Drau

(Case C-671/22)

(2023/C 63/24)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Appellant on a point of law: T GmbH

Respondent authority: Bezirkshauptmannschaft Spittal an der Drau

Questions referred

Is point 1.2.2 of Annex V (Definitions for high, good and moderate ecological status in lakes) to Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (1) to be interpreted as meaning that ‘disturbed conditions’ in the ‘biological quality elements’ table, ‘fish fauna’ row, ‘high status’ column refer exclusively to anthropogenic impacts on physico-chemical and hydromorphological quality elements?

If Question 1 is answered in the negative:

Is the aforementioned provision to be interpreted as meaning that if a biological quality element ‘fish fauna’ deviates from ‘high status’ as a result of disturbed conditions other than anthropogenic impacts on physico-chemical and hydromorphological quality elements, the biological quality element ‘fish fauna’ also cannot be classified as having ‘good status’ or ‘moderate status’?

(1) OJ 2000 L 327, p. 1.

20.2.2023

Official Journal of the European Union

C 63/19

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 22 November 2022 — S.R.G. v Profi Credit Bulgaria EOOD

(Case C-714/22)

(2023/C 63/25)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: S.R.G.

Defendant: Profi Credit Bulgaria EOOD

Questions referred

Is Article 3(g) of Directive 2008/48/EC (1) to be interpreted as meaning that costs in respect of ancillary services agreed in connection with a consumer credit agreement, such as fees for the possibility of deferring and reducing instalments, constitute part of the annual percentage rate of charge for the credit?

Is Article 10(2)(g) of Directive 2008/48/EC to be interpreted as meaning that an incorrect indication of the annual percentage rate of charge in a credit agreement between a trader and a consumer borrower must be regarded as a failure to indicate the annual percentage rate of charge in the credit agreement and the national court must apply the consequences provided for in national law for failure to indicate the annual percentage rate of charge in a consumer agreement?

Is Article [23] of Directive 2008/48/EC to be interpreted as meaning that a penalty provided for in national law, in the form of the nullity of the consumer credit agreement, whereby only the principal amount granted is to be repaid, is proportionate where the annual percentage rate of charge is not accurately indicated in the consumer credit agreement?

Is Article 4(1) and (2) of Directive 93/13/EEC (2) to be interpreted as meaning that a fee for a package of ancillary services provided for in a supplementary agreement to a consumer credit agreement, which has been concluded separately and in addition to the main agreement, must be regarded as part of the main subject matter of the agreement and cannot therefore be the subject matter of the assessment of unfairness?

Is Article 3(1) of Directive 93/13/EEC read in conjunction with point 1(o) of the annex to that directive to be interpreted as meaning that a term in an agreement on ancillary services relating to consumer credit is unfair if it grants the consumer the abstract possibility of deferring and rescheduling payments, in respect of which that consumer owes fees even if he or she does not make use of it?

Are Articles 6(1) and 7(1) of Directive 93/13 and the principle of effectiveness to be interpreted as meaning that they preclude a legal provision whereby the consumer may be made to bear part of the costs of the proceedings in the following cases: (1) where a claim for a declaration that sums are not owed by reason of the established unfairness of a term is upheld in part […]; (2) where it is practically impossible or excessively difficult for the consumer, in the exercise of his or her rights, to specify the amount of the claim; (3) in all cases where an unfair term is present, including in cases where the presence of the unfair term does not directly affect, either in whole or in part, the amount of the creditor’s claim, or where the term has no direct connection with the subject matter of the proceedings?

(1) Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

(2) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

20.2.2023

Official Journal of the European Union

C 63/20

Reference for a preliminary ruling from Supreme Court (Ireland) made on 25 November 2022 — Friends of the Irish Environment CLG v Government of Ireland, Minister for Housing, Planning and Local Government, Ireland and the Attorney General

(Case C-727/22)

(2023/C 63/26)

Language of the case: English

Referring court

Supreme Court

Parties to the main proceedings

Applicant: Friends of the Irish Environment CLG

Defendants: Government of Ireland, Minister for Housing, Planning and Local Government, Ireland and the Attorney General

Questions referred

Must Article 2(a) of the SEA Directive (1), read in conjunction with Article 3(2)(a), be interpreted to mean that a measure adopted by the executive arm of a Member State, other than by reason of a legislative or administrative compulsion, and not on the authority of any regulatory, administrative or legislative measure, is capable of being a plan or programme to which the Directive applies, if the plan or programme so adopted sets a framework for downstream grant or refusal of development consent and thus satisfies the test from Article 3(2) of the Directive

Must Article 3(1) read in conjunction with Article 3(8) and (9) of the SEA Directive be interpreted to mean that a plan or programme which makes specific, albeit described as ‘indicative’, provision for the allocation of funds to build certain infrastructure projects with a view to supporting the spatial development strategy of another plan, itself forming the basis of downstream spatial development strategy, could itself be a plan or programme within the meaning of the SEA Directive?

If the answer to previous question is yes, does the fact that a plan which has as its objective the allocation of resources, mean that it must be treated as a budgetary plan within the meaning of Article 3(8)?

Must Article 5, and Annex 1, of the SEA Directive be interpreted to mean that where an environmental assessment is required under Article 3(1), the environmental report for which provision is made therein should, once reasonable alternatives to a preferred option are identified, carry out an assessment of the preferred option and the reasonable alternatives on a comparable basis?

If the answer to previous question is yes, is the requirement of the Directive met if the reasonable alternatives are assessed on a comparable basis prior to the selection of the preferred option, and thereafter the draft plan or programme is assessed and a more complete SEA assessment then carried out in regard to the preferred option only?

(1) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001, L 197, p. 30).

20.2.2023

Official Journal of the European Union

C 63/21

Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 29 November 2022 — Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia pri Tsentralno upravlenie na NAP v ‘Valentina Heights’ EOOD

(Case C-733/22)

(2023/C 63/27)

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Appellant in cassation: Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’ — Sofia pri Tsentralno upravlenie na NAP

Respondent in cassation:‘Valentina Heights’ EOOD

Questions referred

Must Article 98(2) of, in conjunction with point 12 of Annex III to, Council Regulation 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that the reduced rate made available in that provision for accommodation provided in hotels and similar establishments may be applied where those establishments have not been categorised in accordance with the national legal provisions of the Member State requesting the preliminary ruling[?]

If that question is answered in the negative, must Article 98(2) of, in conjunction with point 12 of Annex III to, Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax be interpreted as meaning that it allows the reduced rate to be applied selectively to concrete and specific aspects of a given category of supply, in the case where the application of the reduced rate is subject to the condition that ‘accommodation provided in hotels and similar establishments’ may take place only in accommodation facilities which have been categorised in accordance with the national legal provisions of the Member State requesting the preliminary ruling, or in respect of which a provisional certificate attesting to the commencement of categorisation proceedings has been issued[?]

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

20.2.2023

Official Journal of the European Union

C 63/22

Request for a preliminary ruling from the Østre Landsret (Denmark) lodged on 1 December 2022 — Staten og Kommunernes Indkøbsservice A/S v BibMedia A/S

(Case C-737/22)

(2023/C 63/28)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Staten og Kommunernes Indkøbsservice A/S

Defendant: BibMedia A/S

Question referred

Do the principles of transparency and equal treatment in Article 18 of the Public Procurement Directive (1) and the consequent ban on negotiations preclude a tenderer who has submitted the second most economically advantageous tender in connection with an open procedure for separate lots (see Articles 27 and 46 of the Public Procurement Directive) from being given the opportunity, after the deadline for submission of the tender has expired, and in accordance with the predetermined terms in the specifications, to supply the proposed services within a lot under the same terms as a tenderer who has submitted the most economically advantageous tender and who, therefore, is awarded another lot put out to tender at the same time?

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

20.2.2023

Official Journal of the European Union

C 63/22

Request for a preliminary ruling from the Itä-Suomen hovioikeus (Finland) lodged on 2 December 2022 — Endemol Shine Finland Oy

(Case C-740/22)

(2023/C 63/29)

Language of the case: Finnish

Referring court

Itä-Suomen hovioikeus

Parties to the main proceedings

Appellant: Endemol Shine Finland Oy

Questions referred

1.	Does an oral transfer of personal data constitute processing of personal data within the meaning of Article 2(1) and Article 4(2) of the General Data Protection Regulation? (1)

Can public access to official documents be reconciled with the right to protection of personal data pursuant to the General Data Protection Regulation, in the manner referred to by Article 86 of the regulation, by allowing information on criminal convictions or offences of a natural person to be obtained from a court’s register of persons without restriction where a request is made to transfer the information orally to the applicant?

3.	Is it relevant for the answer to Question 2 whether the applicant is a company or a private individual?

(1) 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/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).

20.2.2023

Official Journal of the European Union

C 63/23

Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 6 December 2022 — Slovenské Energetické Strojárne A. S. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-746/22)

(2023/C 63/30)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: Slovenské Energetické Strojárne A. S.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Questions referred

Is Article 23(2) of Council Directive 2008/9/EC (1) laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (‘Directive 2008/9’) to be construed as meaning that national legislation — to be specific, Paragraph 124(3) of the az adóigazgatási rendtartásról szóló 2017. évi CLI. törvény (Law CLI of 2017 governing tax administration; ‘the Law on tax administration’) — which, for the purposes of the examination of applications for a refund of value added tax pursuant to Council Directive 2006/112/EC (2) on the common system of value added tax (‘the VAT Directive’), does not allow, at the appeal stage, new facts to be pleaded or new evidence to be relied on or produced, where the applicant was aware of that evidence before the adoption of the first-tier decision but did not present it, even though it was requested to do so by the tax authority, or did not rely on it, thereby creating a material constraint which exceeds the requirements as to form and time limits laid down by Directive 2008/9, is compatible with the requirements laid down in that Directive with regard to appeals?

Does an affirmative answer to the first question mean that the one-month period indicated in Article 20(2) of Directive 2008/9 is to be considered mandatory? Is the foregoing compatible with the right to an effective remedy and to a fair trial enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), with Articles 167, 169, 170 and 171(1) of the VAT Directive, and with the fundamental principles of fiscal neutrality, effectiveness and proportionality developed by the Court of Justice of the European Union?

Is Article 23(1) of Directive 2008/9, which relates to the refusal of a refund application in whole or in part, to be interpreted as meaning that national legislation — specifically, Paragraph 49(1) of the Law on tax administration — pursuant to which the tax authority is to bring the proceedings to a close if the applicant taxable person does not respond to a request from the tax authority or comply with its obligation of rectification, failing which it is not possible to examine the application without the proceedings continuing ex officio, is compatible with that provision?

(1) OJ 2008 L 44, p. 23.

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

20.2.2023

Official Journal of the European Union

C 63/24

Appeal brought on 21 December 2022 by the European Central Bank against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 12 October 2022 in Case T-502/19, Francesca v ECB

(Case C-777/22 P)

(2023/C 63/31)

Language of the case: Italian

Parties

Appellant: European Central Bank (represented by: C. Hernández Saseta, A. Pizzolla, acting as Agents, M. Lamandini, lawyer)

Other parties to the proceedings: Francesca Corneli, European Commission

Form of order sought

The appellant claims that the Court should:

(1)	set aside the judgment of the General Court delivered on 12 October 2022 in Case T-502/19, Francesca Corneli v ECB (T-502/19, not published, EU:T:2022:627), in so far as it annulled the decisions of the ECB of 1 January 2019 and 29 March 2019, and, to that end,

(2)	declare the action brought by Francesca Corneli before the General Court inadmissible under the fourth paragraph of Article 263 TFEU and, consequently, dismiss it in its entirety;

(3)	in the alternative, declare that the decisions of the ECB, in so far as they are the subject matter of the present proceedings, are lawful and, if necessary, refer the case back to the General Court for a ruling on the pleas in the action that were not examined in the judgment under appeal; and

(4)	order Francesca Corneli to pay the costs incurred by the ECB at both instances.

Grounds of appeal and main arguments

In support of its appeal, the European Central Bank raises two grounds.

By the first ground of appeal, the ECB claims that the General Court committed several errors of law, based in part on distortion of the facts in the assessment of Francesca Corneli’s standing to bring proceedings and interest in bringing proceedings, which does not meet the requirements of the fourth paragraph of Article 263 TFEU. More specifically, the ECB claims that the Court:

i.	distorted the relevant facts in holding that the annulled decisions affected the most essential ‘rights’ that Francesca Corneli allegedly has as a shareholder of Banca Carige, which do not, in actual fact, exist or are not affected by those decisions;

ii.	erred in law in attributing to those decisions a direct effect on the legal position of Francesca Corneli, one of the 35 000 small shareholders of Banca Carige at the time when the action was brought;

iii.	erred in law in holding that the annulled decisions were of individual concern to Francesca Corneli in her capacity as a shareholder of Banca Carige, which, according to the General Court, identified her individually, and that the annulled decisions were therefore of individual concern to her;

iv.

erred in law in finding that Francesca Corneli’s interest in the annulment of the annulled decisions was separate from that of the person to whom the decisions were addressed, that is, Banca Carige, in so far as that finding runs counter to settled case-law relating to exceptional cases in which a shareholder’s interest in bringing proceedings can be recognised.

By the second ground of appeal, the ECB claims that the General Court erred in law in its assessment of the legal basis used by the ECB for the adoption of the annulled decisions, as the ‘significant deterioration of a credit institution’, the expression of the serious circumstances described analytically in the annulled decisions, is among the conditions for the adoption of a temporary administration measure. More specifically, the ECB submits that the General Court:

failed to have regard to the interpretation given by the national courts to Article 70 of the Consolidated Law on Banking and therefore committed an error of law in the interpretation of that article and the scope of reference of that article to Article 69octiesdecies(1)(b) of the Consolidated Law on Banking;

ii.	erred in law in failing to take into consideration Italian law as a whole, from which it is clearly apparent that the Italian legislature intended to transpose Directive 2014/59/EU (1) in its entirety and correctly;

iii.	erred in law in failing to take into consideration the contextual and teleological interpretation of Articles 69octiesdecies(1)(b) and 70 of the Consolidated Law on Banking in the light of the scope of the early intervention measures, including temporary administration;

iv.	erred in law in holding that the interpretation of Article 70 of the Consolidated Law on Banking in the light of Article 29 of Directive 2014/59/EU is an interpretation contra legem of Italian law.

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

20.2.2023

Official Journal of the European Union

C 63/25

Appeal brought on 23 December 2022 by LE against the judgment of the General Court (First Chamber) delivered on 26 October 2022 in Case T-475/20, LE v Commission

(Case C-781/22 P)

(2023/C 63/32)

Language of the case: English

Parties

Appellant: LE (represented by: M. Straus, advocaat)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

—	set aside the judgement of the General Court on the request for annulment of or another ruling concerning the dispute in relation to the Decision C(2020)3988 final;

—	refer the case back to the General Court for further proceedings on pleas and objections raised by LE, also on behalf of its linked parties, against and in relation to the contested Decision;

Alternatively

—	rule or take an interlocutory judgement for hearing witnesses or providing evidence supporting the case prior to adjudicate in the main claims;

—

set aside the judgement of the General Court on the request for annulment of or another ruling concerning the dispute in relation to the Decision C(2020)3988 final, and if so ascertained and adjudicated by the Court, to refer the case back to the General Court for further proceedings on pleas and objections against and in relation to the contested Decision;

More alternatively

—	rule or take such other measures as the European Court of Justice shall deem just and appropriate.

In the procedural issue

—	order the European Commission to pay the costs of these proceedings, including the lawyer's fees on its part.

Pleas in law and main arguments

The Applicant put forward four pleas in law, some of which consist of several parts. By these pleas, LE submits that, in the judgment under appeal, the General Court erred in law by:

—	basing its assessment of the substance of the contested decision on the statement of objections provided by the European Commission;

—	applying excessively strict and incorrect rules of evidence to decisions;

—	limiting the judicial review to be carried out by the General Court to the minimum;

—	failing to observe the applicable legal criteria relating to the procedural legal principles and ignored legal principles, such as adversarial proceedings, principles of equal treatment, good administration, legitimate expectations and case law in favor of the Applicant;

—	relying on alleged evidence that was not provided or submitted to Applicant prior to the Decision taken by the Commission.

20.2.2023

Official Journal of the European Union

C 63/26

Appeal brought on 29 December 2022 by ‘Sistem ecologica’ production, trade and services d.o.o. Srbac against the judgment of the General Court (Second Chamber) delivered on 19 October 2022 in Case T-81/21, ‘Sistem ecologica’ production, trade and services d.o.o. v Commission

(Case C-787/22 P)

(2023/C 63/33)

Language of the case: English

Parties

Appellant:‘Sistem ecologica’ production, trade and services d.o.o. Srbac (represented by: D. Diris, advocaat, D. Rjabynina, advocaat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claim that the Court should:

—	Declare the Appeal admissible and well-founded;

—	Set aside the judgement delivered by the General Court on 19 October 2022 in Case T-81/21;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

First plea in law, alleging an infringement of Article 263 TFEU, Regulation No 883/2013 (1) and Regulation No 1049/2001 (2), as well as a failure to state reasons and contradictory reasoning in the examination of the admissibility of the action for annulment;

Second plea in law, alleging an infringement of Article 124 of the Bosnian-European Agreement, Article 7(2) and (4) of Protocol 5, Articles 21 juncto 51 CFR and Regulation No 883/2013 in the examination of the applicable law and OLAF’s responsibility in general and in particular during the inspection of 4 December 2019;

Third plea in law, alleging an infringement of the appellant’s privilege against self-incrimination during the inspection of 4 December 2019;

Fourth plea in law, alleging an incorrect application or interpretation of Regulation No 883/2013 as to OLAF’s internal advisory and control mechanism and the appellant’s right to lodge a complaint;

Fifth plea in law, alleging a failure to state reasons and a contradictory reasoning as to the appellant’s right to be heard;

Sixth plea in law, alleging a failure to state reasons as regards the impartiality of OLAF’s Director-General;

Seventh plea in law, alleging an infringement of, and contradictory reasoning as to the appellant’s rights of defense and in particular Article 9(1) Regulation No 883/2013 with regard to the sampling carried out by Croatian Customs upon OLAF’s request.

(1) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013, L 248, p. 1)

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

20.2.2023

Official Journal of the European Union

C 63/27

Appeal brought on 22 December 2022 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 12 October 2022 in Case T-502/19 Francesca v ECB

(Case C-789/22 P)

(2023/C 63/34)

Language of the case: Italian

Parties

Appellant: European Commission (represented by: V. Di Bucci, D. Triantafyllou, A. Nijenhuis, acting as Agents)

Other parties to the proceedings: Francesca Corneli, European Central Bank

Form of order sought

The appellant claims that the Court should:

1.	set aside the judgment of the General Court (Fourth Chamber, Extended Composition), delivered on 12 October 2022 and of which the Commission was notified on the same day, in Case T-502/19, Francesca Corneli v European Central Bank;

2.	dismiss the action at first instance as inadmissible and unfounded, and order the applicant to pay the costs at both instances;

3.	in the alternative, set aside the judgment of the General Court and refer the case back to the General Court.

Grounds of appeal and main arguments

In support of its appeal, the Commission raises five grounds.

By its first ground of appeal, the Commission submits that the General Court infringed Article 263 TFEU — finding incorrectly that the decisions at issue at first instance are of direct and individual concern to the applicant at first instance, and that she had a separate interest in bringing an action for the annulment of those decisions — and distorted the facts.

By the second ground of appeal, the Commission claims that, in examining a plea alleging infringement of Article 70(1) of Legislative Decree of 1 September 1993 No 385 consolidating the laws on banking and credit (‘the Consolidated Law on Banking’), the General Court infringed Article 84 of the Rules of Procedure of the General Court. That plea was not raised in the action at first instance and it was not possible to infer it out of time from the reply, as it was not based on matters of law and fact which came to light during the course of the procedure. If so, the General Court breached the rule that a court is to confine itself to the matters raised before it and the prohibition on raising of its own motion a plea for annulment pertaining to the substantial legality of the decision at issue.

By the third ground of appeal, the Commission submits that the General Court infringed Article 4(3) of Council Regulation (EU) No 1024/2013 (1) and Article 70(1) of the Consolidated Law on Banking, incorrectly interpreting in relation to the conventional principles of interpretation of Italian law the conditions set out in the latter provision for the dissolution of managing or supervisory bodies of banks. It claims that the General Court erred in its textual interpretation of Article 70, failing to take account of the need to carry out a systemic, historic and teleological interpretation in accordance with the Constitution of the Italian Republic and, in addition, failed to consider national case-law.

By the fourth ground of appeal, the Commission argues that the General Court infringed the third paragraph of Article 288 TFEU, incorrectly holding that Article 70(1) of the Consolidated Law on Banking cannot be interpreted in a way that complies with Article 29 of Directive 2014/1059/EU. (2) More specifically, the General Court failed to fulfil its duty as a court to do whatever lies within its jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it.

By the fifth ground of appeal, the Commission claims that the General Court infringed Article 4(3) of Regulation (EU) No 1024/2013 and the second and third paragraphs of Article 288 TFEU by prohibiting the European Central Bank from basing its own action on the directly applicable provisions of the directives and requiring it to apply national transposing legislation which is contrary to those directives.

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

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

20.2.2023

Official Journal of the European Union

C 63/28

Appeal brought on 27 December 2022 by the Hellenic Republic against the judgment of the General Court (First Chamber) delivered on 19 October 2022 in Case T-850/19, Greece v Commission

(Case C-797/22 P)

(2023/C 63/35)

Language of the case: Greek

Parties

Appellant: Hellenic Republic (represented by: E. Leftheriotou and A.-E. Vasilopoulou)

Other party to the proceedings: European Commission

Form of order sought

The appellant submits that the Court should uphold the appeal and set aside the judgment of the General Court of the European Union of 19 October 2022 in Case T-850/19, (1) dismissing the action brought by the Hellenic Republic on 12 December 2019 seeking annulment of Commission Decision (EU) 2020/394 of 7 October 2019 concerning the measures SA.39119 (2016/C) (ex 2015/NN) (ex 2014/CP) implemented by the Hellenic Republic in the form of interest subsidies and guarantees linked to the fires of 2007 (the present decision covers only the agricultural sector) (OJ 2020 L 76, p. 4), in order then to uphold that action and annul the Commission’s decision.

Grounds of appeal and main arguments

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

The first ground of appeal, alleging misinterpretation and misapplication of Article 107(1) TFEU and an insufficient and inadequate statement of reasons in the judgment under appeal, is divided into two parts.

In the first part of the first ground of appeal, it is submitted that, by misinterpreting and misapplying Article 107(1) TFEU, the General Court found that agricultural undertakings in fire-affected areas which received loans guaranteed by the Greek State (and only those undertakings) obtained an economic advantage. Furthermore, it failed to give sufficient reasons for that finding.

In the second part of the first ground of appeal, it is submitted that the General Court misinterpreted and misapplied Article 107(1) TFEU in finding that the measures at issue were selective.

The second ground of appeal alleges misinterpretation and misapplication of the concept of exceptional circumstances which render aid irrecoverable, in accordance with the general principles of proportionality and sound administration, and an inadequate and contradictory statement of reasons.

(1) ECLI:ECLI:EU:T:2022:638.

20.2.2023

Official Journal of the European Union

C 63/30

Judgment of the General Court of 14 December 2022 — Xinyi PV Products (Anhui) Holdings v Commission

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

(Dumping - Imports of solar glass originating in China - Article 2(8) to (10) and Articles 19 and 20 of Regulation (EC) No 1225/2009 (now Article 2(8) to (10) and Articles 19 and 20 of Regulation (EU) 2016/1036) - Right to access confidential documents - Manifest error of assessment - Rights of the defence)

(2023/C 63/36)

Language of the case: English

Parties

Applicant: Xinyi PV Products (Anhui) Holdings Ltd (Anhui, China) (represented by: Y. Melin and B. Vigneron, lawyers)

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

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

Re:

By its action under Article 263 TFEU, the applicant seeks the 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.	Dismisses the action;

2.	Orders Xinyi PV Products (Anhui) Holdings Ltd to bear its own costs and to pay those incurred by the European Commission;

3.	Orders GMB Glasmanufaktur Brandenburg GmbH to bear its own costs.

(1) OJ C 372, 20.10.2014.

20.2.2023

Official Journal of the European Union

C 63/31

Judgment of the General Court of 14 December 2022 — PT Wilmar Bioenergi Indonesia and Others v Commission

(Case T-111/20) (1)

(Subsidies - Imports of biodiesel originating in Indonesia - Implementing Regulation (EU) 2019/2092 - Definitive countervailing duty - Article 3(1)(a) of Regulation (EU) 2016/1037 - Financial contribution - Article 3(2) of Regulation 2016/1037 - Benefit - Article 7(1)(a) of Regulation 2016/1037 - Calculation of the amount of the countervailable subsidy - Article 3(1)(a)(iv) and (2) of Regulation 2016/1037 - Action consisting in ‘entrusting’ or ‘directing’ a private body to carry out a function constituting a financial contribution - Less than adequate remuneration - Income or price support - Article 28(5) of Regulation 2016/1037 - Use of available information - Article 3(2) and Article 6(d) of Regulation 2016/1037 - Benefit - Article 8(8) of Regulation 2016/1037 - Threat of material injury to the Union industry - Article 8(5) and (6) of Regulation 2016/1037 - Causal link - Attribution analysis - Non-attribution analysis)

(2023/C 63/37)

Language of the case: English

Parties

Applicants: PT Wilmar Bioenergi Indonesia (Medan, Indonesia), PT Wilmar Nabati Indonesia (Medan), PT Multi Nabati Sulawesi (North Sulawesi, Indonesia) (represented by: P. Vander Schueren and T. Martin-Brieu, lawyers)

Defendant: European Commission (represented by: P. Kienapfel, G. Luengo and P. Němečková, acting as Agents)

Intervener in support of the defendant: European Biodiesel Board (EBB) (Brussels, Belgium) (represented by: M.-S. Dibling and L. Amiel, lawyers)

Re:

By their action under Article 263 TFEU, the applicants seek annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42), in so far as that regulation concerns them.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia and PT Multi Nabati Sulawesi to pay the costs.

(1) OJ C 129, 20.4.2020.

20.2.2023

Official Journal of the European Union

C 63/31

Judgment of the General Court of 14 December 2022 — Autoridad Portuaria de Bilbao v Commission

(Case T-126/20) (1)

(State aid - Ports sector - Corporate tax exemption scheme implemented by Spain in favour of ports in the province of Biscay - Decision declaring the aid incompatible with the internal market - Existing aid - Advantage - Burden of proof - Selective nature - Effect on trade between Member States - Distortion of competition - Appropriate measures)

(2023/C 63/38)

Language of the case: Spanish

Parties

Applicant: Autoridad Portuaria de Bilbao (Bilbao, Spain) (represented by: D. Sarmiento Ramírez-Escudero and X. Codina García-Andrade, lawyers)

Defendant: European Commission (represented by: B. Stromsky, acting as Agent)

Re:

By its action based on Article 263 TFEU, the applicant seeks the annulment of: (i) Commission Decision C(2018) 8676 final of 8 January 2019 concerning State aid SA.38397 (2018/E) — Taxation on ports in Spain, by which the Commission found that State aid in the form of corporate tax exemptions granted by the Kingdom of Spain to its port authorities was existing aid which is incompatible with the internal market and proposed ‘appropriate measures’ in accordance with Article 108(1) TFEU; (ii) Commission Decision C(2019) 1765 final of 7 March 2019 concerning State aid SA.38397 (2018/E) — Taxation of ports in Spain, by which the Commission corrected its proposal for appropriate measures; and (iii) Commission Decision C(2019) 8068 final of 15 November 2019 on State aid SA.38397 (2018/E) — Corporate tax exemption for port authorities in Spain — Decision to record acceptance of proposed appropriate measures (existing aid), based on Article 23 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9), by which the Commission took note that the Kingdom of Spain had accepted the proposed appropriate measures.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Autoridad Portuaria de Bilbao to pay the costs.

(1) OJ C 129, 20.4.2020.

20.2.2023

Official Journal of the European Union

C 63/32

Judgment of the General Court of 14 December 2022 — PT Ciliandra Perkasa v Commission

(Case T-138/20) (1)

(Subsidies - Imports of biodiesel originating in Indonesia - Implementing Regulation (EU) 2019/2092 - Definitive countervailing duty - Article 8(1) and (2) of Regulation (EU) 2016/1037 - Price undercutting - Price pressure - Article 8(5) of Regulation 2016/1037 - Causal link - Article 3(2) and Article 6(d) of Regulation 2016/1037 - Benefit - Article 3(1)(a)(i) and (2) of Regulation 2016/1037 - Direct transfer of funds - Article 7 of Regulation 2016/1037 - Calculation of the amount of the benefit - Article 8(1) and (8) of Regulation 2016/1037 - Threat of material injury - Rights of the defence)

(2023/C 63/39)

Language of the case: English

Parties

Applicant: PT Ciliandra Perkasa (West Jakarta, Indonesia) (represented by: F. Graafsma, J. Cornelis and E. Rogiest, lawyers)

Defendant: European Commission (represented by: P. Kienapfel, G. Luengo and P. Němečková, acting as Agents)

Intervener in support of the defendant: European Biodiesel Board (EBB) (Brussels, Belgium) (represented by: M.-S. Dibling and L. Amiel, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42), in so far as that regulation concerns it.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders PT Ciliandra Perkasa to pay the costs.

(1) OJ C 129, 20.4.2020.

20.2.2023

Official Journal of the European Union

C 63/33

Judgment of the General Court of 14 December 2022 — PT Pelita Agung Agrindustri and PT Permata Hijau Palm Oleo v Commission

(Case T-143/20) (1)

(Subsidies - Imports of biodiesel originating in Indonesia - Implementing Regulation (EU) 2019/2092 - Definitive countervailing duty - Article 8(1) and (2) of Regulation (EU) 2016/1037 - Price undercutting - Price pressure - Article 8(5) of Regulation 2016/1037 - Causal link - Article 3(1)(a)(iv) and (2) of Regulation 2016/1037 - Action consisting in ‘entrusting’ or ‘directing’ a private body to carry out a function constituting a financial contribution - Less than adequate remuneration - Income or price support - Article 3(2) and Article 6(d) of Regulation 2016/1037 - Benefit - Article 3(1)(a)(i) and (2) of Regulation 2016/1037 - Direct transfer of funds - Article 7 of Regulation 2016/1037 - Calculation of the amount of the benefit - Article 8(1) and (8) of Regulation 2016/1037 - Threat of material injury - Rights of the defence)

(2023/C 63/40)

Language of the case: English

Parties

Applicants: PT Pelita Agung Agrindustri (Medan, Indonesia), PT Permata Hijau Palm Oleo (Medan) (represented by: F. Graafsma, J. Cornelis and E. Rogiest, lawyers)

Defendant: European Commission (represented by: P. Kienapfel, G. Luengo and P. Němečková, acting as Agents)

Intervener in support of the defendant: European Biodiesel Board (EBB) (Brussels, Belgium) (represented by: M.-S. Dibling and L. Amiel, lawyers)

Re:

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders PT Pelita Agung Agrindustri and PT Permata Hijau Palm Oleo to pay the costs.

(1) OJ C 129, 20.4.2020.

20.2.2023

Official Journal of the European Union

C 63/33

Judgment of the General Court of 14 December 2022 — Devin v EUIPO — Haskovo Chamber of Commerce and Industry (DEVIN)

(Case T-526/20) (1)

(EU trade mark - Invalidity proceedings - EU word mark DEVIN - Absolute grounds for refusal - Descriptive character - Geographical name - Not contrary to public policy - Mark not of such a nature as to mislead the public - Article 7(1)(c), (f) and (g) of Regulation (EC) No 207/2009 (now Article 7(1)(c), (f) and (g) of Regulation (EU) 2017/1001) - Distinctive character acquired through use - Article 7(3) and Article 52(2) of Regulation No 207/2009 (now Article 7(3) and Article 59(2) of Regulation 2017/1001) - Cross-claim)

(2023/C 63/41)

Language of the case: English

Parties

Applicant: Devin EAD (Devin, Bulgaria) (represented by: B. Van Asbroeck, G. de Villegas and C. Haine, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Haskovo Chamber of Commerce and Industry (Haskovo, Bulgaria) (represented by: D. Dimitrova and I. Pakidanska, lawyers)

Re:

By its action based on Article 263 TFEU, the applicant seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 May 2020 (Case R 2535/2019-1).

Operative part of the judgment

The Court:

Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 May 2020 (Case R 2535/2019-1) in so far as it declared the EU trade mark number 9 408 865 to be invalid for all the goods covered other than the product ‘mineral water complying with the specifications of the [protected geographical indication] Devin Natural Mineral Water’ in Class 32;

2.	Dismisses the cross-claim;

3.	Orders, in respect of the main action, EUIPO to bear, in addition to its own costs, the costs incurred by Devin EAD; and orders Haskovo Chamber of Commerce and Industry to bear its own costs;

4.	Orders, in respect of the cross-claim, Haskovo Chamber of Commerce and Industry to bear its own costs and to pay the costs incurred by Devin and by EUIPO.

(1) OJ C 339, 12.10.2020.

20.2.2023

Official Journal of the European Union

C 63/34

Judgment of the General Court of 14 December 2022 — Green Power Technologies v Key Digital Technologies Joint Undertaking

(Case T-533/20) (1)

(Arbitration clause - Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) - Grant agreements - Eligible costs - OLAF report finding certain expenditure incurred to be ineligible - Recovery of sums paid - Burden of proof - Regulation (EU, Euratom) No 883/2013 - Counterclaim)

(2023/C 63/42)

Language of the case: Spanish

Parties

Applicant: Green Power Technologies (Bollullos de la Mitación, Spain) (represented by: A. León González and A. Martínez Solís, lawyers)

Defendant: Key Digital Technologies Joint Undertaking, formerly ECSEL Joint Undertaking (represented by: O. Lambinet and A. Salaun, acting as Agents, and by M. Troncoso Ferrer, lawyer)

Re:

By its action under Article 272 TFEU, the applicant seeks a declaration that the amounts advanced by the Key Digital Technologies Joint Undertaking in performance of the contracts Pollux (No 100205), IoE (No 269374), Motorbrain (No 270693) and AGATE (No 325630), concluded under the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) in order to finance the corresponding projects, which that joint undertaking sought to recover through the issuance of debit note No 4440200016, were eligible costs.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Allows the counterclaim brought by the Key Digital Technologies Joint Undertaking;

3.	Orders Green Power Technologies, SL to pay the Key Digital Technologies Joint Undertaking the sum of EUR 204 302,13 claimed by the latter in its counterclaim;

4.	Orders Green Power Technologies to pay the costs.

(1) OJ C 371, 3.11.2020.

20.2.2023

Official Journal of the European Union

C 63/35

Judgment of the General Court of 14 December 2022 — Jinan Meide Casting and Others v Commission

(Case T-687/20) (1)

(Dumping - Imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in China - Reimposition of a definitive anti-dumping duty - Legal certainty - Legitimate expectations - Non-retroactivity - Article 10 of Regulation (EC) No 1225/2009 (now Article 10 of Regulation (EU) 2016/1036) - Proportionality - Registration of imports - Article 14(5) of Regulation No 1225/2009 (now Article 14(5) of Regulation 2016/1036))

(2023/C 63/43)

Language of the case: English

Parties

Applicants: Jinan Meide Casting Co. Ltd (Jinan, China), and the 10 other applicants whose names are listed in the annex to the judgment (represented by: R. Antonini, E. Monard and B. Maniatis, lawyers)

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

Re:

By their action based on Article 263 TFEU, the applicants seek the annulment of Commission Implementing Regulation (EU) 2020/1210 of 19 August 2020 reimposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide [Casting Co.] Ltd following the judgment of the General Court in Case T-650/17 (OJ 2020 L 274, p. 20).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Jinan Meide Casting Co. Ltd and the other applicants whose names are listed in the annex to pay the costs.

(1) OJ C 19, 18.1.2021.

20.2.2023

Official Journal of the European Union

C 63/36

Judgment of the General Court of 14 December 2022 — Green Power Technologies v Commission

(Case T-753/20) (1)

(Arbitration clause - Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) - Grant agreement - Eligible costs - OLAF report finding certain expenses incurred to be ineligible - Repayment of sums paid - Burden of proof - Regulation (EU, Euratom) No 883/2013 - Obligation to state reasons - Unjust enrichment - Action for annulment - OLAF report - Act not open to challenge - Inadmissibility)

(2023/C 63/44)

Language of the case: Spanish

Parties

Applicant: Green Power Technologies, SL (Bollullos de la Mitación, Spain) (represented by: A. León González and A. Martínez Solís, lawyers)

Defendant: European Commission (represented by: B. Araujo Arce and J. Estrada de Solà, acting as Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by: L. Aguilera Ruiz and Á. Ballesteros Panizo, acting as Agents)

Re:

By its action, the applicant seeks, first, on the basis of Article 263 TFEU, annulment of the report of the European Anti-Fraud Office (OLAF) of 9 July 2018 reference number B.4(2017)4393 and, secondly, on the basis of Article 272 TFEU, that it be held (i) that the amounts advanced by the European Commission under grant contract No 2567509, concluded under the Seventh framework programme for research, technological development and demonstration activities (2007-2013), with a view to financing several related projects, including, in particular, the Powair project, relating to the development of ‘Zinc-air flow batteries for electrical power distribution networks’, the recovery of which was requested by the issue of debit note No 3242010798, related to eligible costs and (ii) that the amounts claimed by the Commission by the issue of debit note No 3242010800, relating to penalties for late payment, were not repayable.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Green Power Technologies, SL to bear its own costs and to pay the costs incurred by the European Commission;

3.	Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 53, 15.2.2021.

20.2.2023

Official Journal of the European Union

C 63/36

Judgment of the General Court of 14 December 2022 — PKK v Council

(Case T-182/21) (1)

(Common foreign and security policy - Restrictive measures imposed on the PKK with a view to combating terrorism - Freezing of funds - Common Position 2001/931/CFSP - Regulation (EC) No 2580/2001 - Applicability to situations of armed conflict - Terrorist group - Factual basis of the decisions to freeze funds - Decision taken by a competent authority - Authority of a third State - Review - Obligation to state reasons - Proportionality - Rights of the defence - Right to effective judicial protection)

(2023/C 63/45)

Language of the case: English

Parties

Applicant: Kurdistan Workers’ Party (PKK) (represented by: A. van Eik and T. Buruma, lawyers)

Defendant: Council of the European Union (represented by: B. Driessen and S. Van Overmeire, acting as Agents)

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of:

—	Council Decision (CFSP) 2021/142 of 5 February 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2020/1132 (OJ 2021 L 43, p. 14);

—

Council Implementing Regulation (EU) 2021/138 of 5 February 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) 2020/1128 (OJ 2021 L 43, p. 1);

—	Council Decision (CFSP) 2021/1192 of 19 July 2021 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2021/142 (OJ 2021 L 258, p. 42);

—

Council Implementing Regulation (EU) 2021/1188 of 19 July 2021 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2021/138 (OJ 2021 L 258, p. 14);

—	Council Decision (CFSP) 2022/152 of 3 February 2022 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2021/1192 (OJ 2022 L 25, p. 13);

—

Council Implementing Regulation (EU) 2022/147 of 3 February 2022 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2021/1188 (OJ 2022 L 25, p. 1), in so far as those measures concern the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders each party to bear its own costs.

(1) OJ C 217, 7.6.2021.

20.2.2023

Official Journal of the European Union

C 63/37

Judgment of the General Court of 14 December 2022 — SU v EIOPA

(Case T-296/21) (1)

(Civil service - Members of the temporary staff - Contract for a fixed period - Non-renewal - Renewal procedure - Taking into account of appraisal reports - Non-finalised appraisal report - Liability - Material damage - Loss of opportunity - Non-material damage - Unlimited jurisdiction - Implementation of a judgment of the General Court)

(2023/C 63/46)

Language of the case: English

Parties

Applicant: SU (represented by: L. Levi, lawyer)

Defendant: European Insurance and Occupational Pensions Authority (EIOPA) (represented by: C. Coucke and E. Karatza, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

By her action based on Article 270 TFEU, the applicant seeks, first, annulment of the decision of the European Insurance and Occupational Pensions Authority (EIOPA) of 15 July 2020 by which the latter did not renew her contract and, so far as necessary, of the decision of 11 February 2021 by which it rejected her complaint and, secondly, compensation for the material and non-material damage she claims to have suffered as a result.

Operative part of the judgment

The Court:

1.	Annuls the decision of the European Insurance and Occupational Pensions Authority (EIOPA) of 15 July 2020 not to renew SU’s contract as a member of the temporary staff;

2.	Annuls the decision of EIOPA of 11 February 2021 rejecting SU’s complaint;

3.	Orders EIOPA to pay EUR 10 000 as compensation for the material damage sustained by SU;

4.	Orders EIOPA to pay EUR 5 000 as compensation for the non-material damage sustained by SU;

5.	Dismisses the action as to the remainder;

6.	Orders EIOPA to pay the costs.

(1) OJ C 320, 9.8.2021.

20.2.2023

Official Journal of the European Union

C 63/38

Judgment of the General Court of 14 December 2022 — SY v Commission

(Case T-312/21) (1)

(Civil service - Recruitment - Notice of competition - Open Competition EPSO/AD/374/19 - Decision not to include the applicant’s name on the competition reserve list - Action for annulment - Amendment of the notice of competition after a part of the admission tests have been carried out - Lack of legal basis - Legitimate expectations - Legal certainty - Force majeure - Equal treatment - Entitlement to special arrangements - Organisation of the tests remotely - High pass rate of internal candidates - Action for failure to act)

(2023/C 63/47)

Language of the case: German

Parties

Applicant: SY (represented by: T. Walberer, lawyer)

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

Re:

By his action based on Article 270 TFUE and on Article 91 of the Staff Regulations of Officials of the European Union, the applicant seeks, in essence, first, the annulment of the addendum to the notice of Open Competition EPSO/AD/374/19 (OJ 2020 C 374 A, p. 3), which amended the rules for the tests in that competition on account of the outbreak of the COVID-19 pandemic, of the invitation by the European Commission of 20 November 2020 to sit a test, of the reserve list drawn up at the end of that competition in the field of competition law, of the decisions concerning the recruitment of candidates carried out on the basis of that reserve list and of the review decision of the competition selection board confirming the decision not to include his name on the reserve list. He requests, secondly, in the alternative, that, in the judgment to be delivered, the Court specify the detailed requirements to be complied with by the Commission in order to restore the applicant to the legal position he was in prior to the illegality committed by that selection board, in order to enable the latter to include his name on the reserve list. He requests, thirdly, that the Court find that the Commission infringed Article 265 TFEU by failing to issue a decision in respect of the applicant’s administrative complaint of 17 January 2021.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders SY to bear his own costs and to pay one half of the costs incurred by the European Commission;

3.	Orders the Commission to bear one half of its own costs.

(1) OJ C 310, 2.8.2021.

20.2.2023

Official Journal of the European Union

C 63/39

Judgment of the General Court of 11 January 2023 — Hecht Pharma v EUIPO — Gufic BioSciences (Gufic)

(Case T-346/21) (1)

(EU trade mark - Revocation proceedings - EU word mark Gufic - Genuine use of the mark - Article 58(1)(a) of Regulation (EU) 2017/1001 - Public and outward use - Extent of use - Nature and form of use - Use in connection with the goods in respect of which the mark was registered)

(2023/C 63/48)

Language of the case: German

Parties

Applicant: Hecht Pharma GmbH (Bremervörde, Germany) (represented by: C. Sachs and J. Sachs, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Gufic BioSciences Ltd (Mumbai, India) (represented by: A. Wehlau and T. Uhlenhut, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks partial annulment and alteration of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 June 2021 (Case R 2738/2019-2).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hecht Pharma GmbH to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);

3.	Orders Gufic BioSciences Ltd to bear its own costs.

(1) OJ C 329, 16.8.2021.

20.2.2023

Official Journal of the European Union

C 63/40

Judgment of the General Court of 14 December 2022 — Hotel Cipriani v EUIPO — Altunis (CIPRIANI FOOD)

(Case T-358/21) (1)

(EU trade mark - Revocation proceedings - EU figurative mark CIPRIANI FOOD - Genuine use of a mark - Nature of use - Article 18(1)(a) of Regulation (EU) 2017/1001 - Extent of use - Article 58(1)(a) and (2) of Regulation 2017/1001)

(2023/C 63/49)

Language of the case: English

Parties

Applicant: Hotel Cipriani SpA (Venice, Italy) (represented by: M. Rieger-Jansen, D. Op de Beeck and W. Pors, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Altunis-Trading, Gestão e Serviços, Sociedade unipessoal, Lda (Funchal, Portugal) (represented by: M. Pomares Caballero, E. Salis and T. Barber Giner, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 April 2021 (Case R 1599/2020-4).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Hotel Cipriani SpA to bear its own costs and to pay those incurred, in connection with the present proceedings, by the European Union Intellectual Property Office (EUIPO) and by Altunis-Trading, Gestão e Serviços, Sociedade unipessoal, Lda.

(1) OJ C 338, 23.8.2021.

20.2.2023

Official Journal of the European Union

C 63/40

Judgment of the General Court of 14 December 2022 — TM v ECB

(Case T-440/21) (1)

(Civil service - ECB staff - Recruitment - Vacancy notice - Procedure for filling a post of [confidential information redacted] - Selection criteria - Professional experience - Rejection of application - Appointment of another candidate - Obligation to state reasons - Manifest error of assessment - Misuse of powers - Interests of the service - Liability - Material and non-material damage)

(2023/C 63/50)

Language of the case: English

Parties

Applicant: TM (represented by: L. Levi and A. Champetier, lawyers)

Defendant: European Central Bank (represented by: B. Ehlers and D. Nessaf, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant seeks (i) annulment of the decision of the European Central Bank (ECB) of 15 December 2020 not to appoint him to the position of [confidential information redacted] but to appoint [confidential information redacted] to that position, and (ii) compensation for the material and non-material damage which he claims to have suffered as a result of that decision.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders TM to pay the costs.

(1) OJ C 391, 27.9.2021.

20.2.2023

Official Journal of the European Union

C 63/41

Judgment of the General Court of 14 December 2022 — Vanhoudt v EIB

(Case T-490/21) (1)

(Civil service - EIB staff - Recruitment - Vacancy notice - Rejection of application - Appointment of another candidate - Obligation to state reasons - Irregularity in the recruitment procedure - Manifest error of assessment - Liability)

(2023/C 63/51)

Language of the case: French

Parties

Applicant: Patrick Vanhoudt (Gonderange, Luxembourg) (represented by: L. Levi and A. Champetier, lawyers)

Defendant: European Investment Bank (represented by: T. Gilliams, G. Faedo and K. Carr, acting as Agents, and A. Dal Ferro, lawyer)

Re:

By his action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union, the applicant seeks, first, annulment of the decision of the European Investment Bank (EIB) of 16 December 2020, by which it rejected his application for a position at level 6/5-D/E, and of the decision by which the EIB appointed the successful candidate to that position, and, second, compensation for the harm which he claims to have suffered as a result of those decisions.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Patrick Vanhoudt to pay the costs.

(1) OJ C 422, 18.10.2021.

20.2.2023

Official Journal of the European Union

C 63/42

Judgment of the General Court of 14 December 2022 — Pierre Lannier v EUIPO — Pierre Lang Trading (PL)

(Case T-530/21) (1)

(EU trade mark - Opposition proceedings - Application for an EU figurative mark representing the superposed capital letters ‘P’ and ‘L’ - Earlier EU figurative mark representing a mirror image combination of the superposed capital letters ‘P’ and ‘L’ - Admissibility of the appeal before the Board of Appeal - Locus standi - 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))

(2023/C 63/52)

Language of the case: English

Parties

Applicant: Pierre Lannier (Ernolsheim-lès-Saverne, France) (represented by: N. Boespflug, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Pierre Lang Trading GmbH (Vienna, Austria) (represented by: A. Ginzburg, lawyer)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 June 2021 (Case R 1915/2020-5).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Pierre Lannier to pay the costs.

(1) OJ C 422, 18.10.2021.

20.2.2023

Official Journal of the European Union

C 63/42

Judgment of the General Court of 14 December 2022 — Agrarfrost v EUIPO — McCain (Shape of a smiley)

(Case T-553/21) (1)

(EU trade mark - Revocation proceedings - Three-dimensional EU trade mark - Shape of a smiley - Genuine use of the mark - Article 18(1), second subparagraph, point (a), and Article 58(1)(a) of Regulation (EU) 2017/1001 - Nature of use - No alteration of distinctive character)

(2023/C 63/53)

Language of the case: German

Parties

Applicant: Agrarfrost GmbH & Co. KG (Wildeshausen, Germany) (represented by: A. Ebert-Weidenfeller and H. Förster, lawyers)

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: McCain GmbH (Eschborn, Germany) (represented by: C. Schmitt and M. Kinkeldey, lawyers)

Re:

By its action based on Article 263 TFEU, the applicant seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 June 2021 (Case R 1088/2020-5).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Agrarfrost GmbH & Co. KG to pay the costs.

(1) OJ C 422, 18.10.2021.

20.2.2023

Official Journal of the European Union

C 63/43

Judgment of the General Court of 14 December 2022 — Eurol v EUIPO — Pernsteiner (eurol LUBRICANTS)

(Case T-636/21) (1)

(EU trade mark - Invalidity proceedings - International registration designating the European Union - Figurative mark eurol LUBRICANTS - Earlier national word mark EUROLLUBRICANTS - Proof of genuine use of the earlier mark - Articles 15 and 57 of Regulation (EC) No 207/2009 (now Articles 18 and 64 of Regulation (EU) 2017/1001) - Use with the trade mark proprietor’s consent - No alteration of distinctive character - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001))

(2023/C 63/54)

Language of the case: English

Parties

Applicant: Eurol BV (Nijverdal, Netherlands) (represented by: M. Driessen and G. van Roeyen, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: August Wolfgang Pernsteiner (Feldkirchen an der Donau, Austria) (represented by: J. Öhlböck, lawyer)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 July 2021 (Case R 2403/2020-2).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Eurol BV to pay the costs.

(1) OJ C 471, 22.11.2021.

20.2.2023

Official Journal of the European Union

C 63/44

Judgment of the General Court of 14 December 2022 — Nemport Liman İşletmeleri Ve Özel Antrepo Nakliye Ticaret AŞ v EUIPO — Newport Europe (NEMPORT LİMAN İŞLETMELERİ)

(Case T-18/22) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark NEMPORT LİMAN İŞLETMELERİ - Earlier EU word mark Newport - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2023/C 63/55)

Language of the case: English

Parties

Applicant: Nemport Liman İşletmeleri Ve Özel Antrepo Nakliye Ticaret AŞ (Izmir, Türkiye) (represented by: V. Martín Santos, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO: Newport Europe BV (Moerdijk, Netherlands)

Re:

By its action based on Article 263 TFEU, the applicant seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 November 2021 (Case R 562/2021-4).

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 11 November 2021 (Case R 562/2021-4);

2.	Orders EUIPO to pay the costs.

(1) OJ C 84, 21.2.2022.

20.2.2023

Official Journal of the European Union

C 63/44

Judgment of the General Court of 14 December 2022 — Esedra v Parliament

(Case T-46/22) (1)

(Public service contracts - Tender procedure - Full management of the Parliament’s early childhood centre in Brussels - Rejection of a tenderer’s tender - Abnormally low tender - Compliance of a tender with the conditions laid down in the specifications - Obligation to state reasons - Manifest errors of assessment)

(2023/C 63/56)

Language of the case: French

Parties

Applicant: Esedra (Brussels, Belgium) (represented by: M. Vastmans, lawyer)

Defendant: European Parliament (represented by: M. Pencheva and M. Kazek, acting as Agents)

Re:

By its action, the applicant seeks, first, on the basis of Article 263 TFEU, annulment of the decision of the European Parliament of 26 November 2021, entitled ‘Procédure de passation de marché PE PERS 2021 027 — Gestion complète de la structure d’accueil petite enfance du Parlement européen à Bruxelles, sise rue Wayenberg’(Procurement procedure PE PERS 2021 027 — Full management of the European Parliament’s early childhood centre in Brussels, located on Rue Wayenberg), rejecting the tender submitted by it in the context of the call for tenders and awarding the contract to another tenderer, and, second, on the basis of Article 268 TFEU, compensation for the damage which it has suffered as a result of that decision.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Esedra to bear its own costs and to pay the costs incurred by the European Parliament, including those relating to the proceedings for interim relief.

(1) OJ C 109, 7.3.2022.

20.2.2023

Official Journal of the European Union

C 63/45

Order of the General Court of 6 December 2022 — CX v Commission

(Case T-735/16) (1)

(Civil service - Officials - Disciplinary proceedings - Removal from post - Decision to reduce the remuneration of the applicant - No need to adjudicate)

(2023/C 63/57)

Language of the case: French

Parties

Applicant: CX (represented by: É. Boigelot, lawyer)

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

Re:

By his action under Article 270 TFEU the applicant requests annulment, first, of the decision of the European Commission of 18 December 2015, in that it reduced his remuneration for a period of six months, and, second, in so far as necessary, of the decision of 12 July 2016 rejecting his claim.

Operative part of the order

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

2.	CX and the Commission are to bear their own costs.

(1) OJ C 475, 19.12.2016.

20.2.2023

Official Journal of the European Union

C 63/45

Order of the General Court of 6 December 2022 — CX v Commission

(Case T-52/20) (1)

(Civil service - Officials - Disciplinary proceedings - Removal from post - Reinstatement decision - Application for annulment - No need to adjudicate - Claim for compensation - Loss of opportunity for promotion - Action manifestly lacking any foundation in law)

(2023/C 63/58)

Language of the case: French

Parties

Applicant: CX (represented by: É. Boigelot, lawyer)

Defendant: European Commission (represented by: L. Vernier, L. Radu Bouyon and T. Bohr, acting as Agents)

Re:

By his action under Article 270 TFEU, the applicant seeks annulment of, first, the decision of the European Commission to reinstate him at grade AD8, step 5, complying with the judgment of 13 December 2018, CX v Commission (T-743/16 RENV, not published, EU:T:2018:937), which he claims becoming aware of in the note of 21 March 2019 as well as, when necessary, the decision of 21 October 2019 rejecting his complaint and, secondly, compensation for the damage he claims to have suffered as a result of those decisions.

Operative part of the order

1.	There is no longer any need to adjudicate on the claim for annulment.

2.	The action is dismissed as to the remainder as manifestly lacking any foundation in law.

3.	CX and the Commission shall bear their own costs.

(1) OJ C 95, 23.3.2020.

20.2.2023

Official Journal of the European Union

C 63/46

Order of the General Court of 6 December 2022 — CX v Commission

(Case T-280/20) (1)

(Civil service - Officials - Disciplinary proceedings - Removal from post - No need to adjudicate)

(2023/C 63/59)

Language of the case: French

Parties

Applicant: CX (represented by: É. Boigelot, lawyer)

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

Re:

By his action under Article 270 TFEU, the applicant seeks annulment of, first, the decision of the European Commission of 28 June 2019 to impose the penalty of removing the applicant from his post, without reduction of his pension rights, and, secondly, when necessary, the decision of 12 July 2016 rejecting his complaint.

Operative part of the order

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

2.	CX and the Commission shall bear their own costs.

(1) OJ C 247, 27.7.2020.

20.2.2023

Official Journal of the European Union

C 63/47

Order of the General Court of 15 December 2022 — Leonardo v Frontex

(Case T-675/20) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Tendering procedure - Aerial surveillance service - Remotely piloted aircraft system - Refusal to grant access - Application of the two main parties for a declaration that there is no need to adjudicate - No discontinuance or withdrawal - Sound administration of justice - No need to adjudicate)

(2023/C 63/60)

Language of the case: Italian

Parties

Applicant: Leonardo SpA (Rome, Italy) (represented by: M. Esposito, F. Caccioppoli and G. Calamo, lawyers)

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

Re:

By its action under Article 263 TFEU, the applicant seeks, in essence, the annulment of the decision of the European Border and Coast Guard Agency (Frontex) of 5 October 2020, by which it rejected the confirmatory application for access to documents submitted by the applicant under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

Operative part of the order

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

2.	Leonardo SpA shall bear its own costs and pay those of the European Border and Coast Guard Agency (Frontex).

(1) OJ C 19, 18.1.2021.

20.2.2023

Official Journal of the European Union

C 63/47

Order of the General Court of 19 December 2022 — XH v Commission

(Case T-522/21) (1)

(Staff case - Officials - Promotion - 2020 promotion exercise - Decision refusing to amend the applicant’s Sysper 2 file - Decision not to promote the applicant - Time limits for lodging an appeal - Public policy nature - Starting point - Application for legal aid - Suspension of time limits - Computation of time limits - Lateness - Unforeseeable circumstances or force majeure - Excusable error - Inadmissibility)

(2023/C 63/61)

Language of the case: English

Parties

Applicant: XH (represented by: K. Górny-Salwarowska, lawyer)

Defendant: European Commission (represented by: M. Brauhoff, L. Hohenecker and L. Vernier, acting as Agents)

Re:

By her action under Article 270 TFEU, the applicant seeks, first, annulment of the decision of the European Commission of 24 November 2020 refusing to amend her Sysper 2 file, confirmed by decision of 16 June 2021 rejecting her complaint, secondly, annulment of the decision of the Commission of 12 November 2020 not to include her name on the list of officials promoted in 2020, confirmed by decision of 8 June 2021 rejecting her complaint, and, thirdly, compensation for the damage suffered.

Operative part of the order

1.	The action is dismissed.

2.	XH is ordered to pay the costs.

(1) OJ C 237, 20.6.2022.

20.2.2023

Official Journal of the European Union

C 63/48

Order of the General Court of 7 December 2022 — WhatsApp Ireland v European Data Protection Board

(Case T-709/21) (1)

(Action for annulment - Protection of personal data - Draft decision of the lead supervisory authority - Resolution of disputes between supervisory authorities by the European Data Protection Board - Binding decision - Article 60(4) and Article 65(1)(a) of Regulation (EU) 2016/679 - Act not open to challenge - Preparatory act - Lack of individual concern)

(2023/C 63/62)

Language of the case: English

Parties

Applicant: WhatsApp Ireland Ltd (Dublin, Ireland) (represented by: H.-G. Kamann, F. Louis, A. Vallery, lawyers, P. Nolan, B. Johnston, C. Monaghan, Solicitors, P. Sreenan, D. McGrath, Senior Counsel, C. Geoghegan and E. Egan McGrath, Barristers-at-Law)

Defendant: European Data Protection Board (represented by: I. Vereecken and G. Le Grand, acting as Agents, and by G. Ryelandt, E. de Lophem and P. Vernet, lawyers)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of Binding Decision 1/2021 of the European Data Protection Board of 28 July 2021 on the dispute between the supervisory authorities concerned arising from the draft decision regarding WhatsApp drawn up by the Data Protection Commission (Ireland).

Operative part of the order

1.	The action is dismissed as inadmissible.

There is no longer any need to adjudicate on the applications to intervene made by the Republic of Finland, the European Commission, the European Data Protection Supervisor and the Computer & Communication Industry Association, or on the requests for confidential treatment to which they have given rise.

3.	WhatsApp Ireland Ltd shall bear its own costs and pay the costs incurred by the European Data Protection Board, with the exception of the latter’s costs relating to the applications to intervene.

4.	The European Data Protection Board, the Republic of Finland, the Commission, the European Data Protection Supervisor and the Computer & Communication Industry Association shall each bear their own costs relating to the applications to intervene.

(1) OJ C 2, 3.1.2022.

20.2.2023

Official Journal of the European Union

C 63/49

Order of the General Court of 14 December 2022 — ICA Traffic v Commission

(Case T-717/21) (1)

(Action for annulment - Public procurement - Negotiated procedure without prior publication of a contract notice - Supply of disinfection robots to European hospitals in the context of the COVID-19 crisis - Maximum quantity of goods to be supplied under a framework contract - Act forming part of a purely contractual framework - Act not amenable to review - Inadmissibility)

(2023/C 63/63)

Language of the case: German

Parties

Applicant: ICA Traffic GmbH (Dortmund, Germany) (represented by: S. Hertwig and C. Vogt, lawyers)

Defendant: European Commission (represented by: L. Mantl, B. Araujo Arce and M. Ilkova, acting as Agents)

Re:

By its action under Article 263 TFEU, the applicant seeks the annulment of the alleged decision of the Commission, made public in a press release of 21 September 2021, to order an additional 105 UV-disinfection robots for European hospitals (COVID-19).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	ICA Traffic GmbH shall pay the costs, including those of the interim proceedings.

(1) OJ C 2, 3.1.2022.

20.2.2023

Official Journal of the European Union

C 63/49

Order of the General Court of 7 December 2022 — Sunrise Medical and Sunrise Medical Logistics v Commission

(Case T-721/21) (1)

(Action for annulment - Customs union - Common Customs Tariff - Tariff and statistical nomenclature - Classification in the Combined Nomenclature - Tariff heading - Regulatory act entailing implementing measures - Lack of individual concern - Inadmissibility)

(2023/C 63/64)

Language of the case: English

Parties

Applicants: Sunrise Medical BV (Amsterdam, Netherlands), Sunrise Medical Logistics BV (Amsterdam) (represented by: L. Ruessmann and J. Beck, lawyers)

Defendant: European Commission (represented by: J. Hradil and M. Salyková, acting as Agents)

Re:

By their action based on Article 263 TFEU, the applicants seek the annulment of Commission Implementing Regulation (EU) 2021/1367 of 6 August 2021 concerning the classification of certain goods in the Combined Nomenclature (OJ 2021 L 294, p. 1).

Operative part of the order

1.	Dismisses the application as inadmissible.

2.	Orders Sunrise Medical BV and Sunrise Medical Logistics BV to pay the costs.

(1) OJ C 24, 17.1.2022.

20.2.2023

Official Journal of the European Union

C 63/50

Order of the General Court of 16 December 2022 — EMS v EUIPO (AIRFLOW)

(Case T-751/21) (1)

(Action for annulment - EU trade mark - International registration designating the European Union - Word mark AIRFLOW - Absolute grounds for refusal - Lack of distinctive character - Descriptive character - Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 - Action manifestly lacking any foundation in law)

(2023/C 63/65)

Language of the case: English

Parties

Applicant: EMS Electro Medical Systems GmbH (Munich, Germany) (represented by: K. Scheib and C. Schulte, lawyers)

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

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 September 2021 (Case R 546/2021-4).

Operative part of the order

1.	The action is dismissed.

2.	EMS Electro Medical Systems GmbH is ordered to pay the costs.

(1) OJ C 64, 7.2.2022.

20.2.2023

Official Journal of the European Union

C 63/50

Order of the General Court of 14 December 2022 — Kremer v Commission

(Case T-110/22) (1)

(Civil service - Members of the contract staff - Retirement pensions - Pension rights acquired before entry into the service of the European Union - Transfer to the EU scheme - Additional years of pensionable service - Action for annulment - Request for repayment of transferred capital which has not given rise to a bonus - Time limit for complaints - Undue enrichment - Manifest inadmissibility)

(2023/C 63/66)

Language of the case: French

Parties

Applicant: Christiane Kremer (Brussels, Belgium) (represented by: D. Grisay and A. Ansay, lawyers)

Defendant: European Commission (represented by: B. Mongin, M. Brauhoff and L. Radu Bouyon, acting as Agents)

Interveners in support of the defendant: European Parliament (represented by: J. Van Pottelberge and M. Windisch, acting as Agents), Council of the European Union (represented by: M. Bauer and I. Demoulin, acting as Agents)

Re:

By her action under Article 270 TFEU the applicant seeks, in essence, principally, first, annulment of the decision of the European Commission of 24 February 2022 rejecting her complaint in so far as it concerns the annulment of the notification of 13 January 2017 on the determination of her retirement pension rights and, second, referral of her case to the authority empowered to conclude contracts of employment of the Commission to determine the amount to repay her and, in the alternative, an order requiring the Commission to pay a sum of EUR 55 401,07 on the ground of unjust enrichment.

Operative part of the order

1.	The action is dismissed as being manifestly inadmissible.

2.	Ms Christiane Kremer is ordered to bear her own costs and to pay those of the European Commission.

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

(1) OJ C 158, 11.4.2022.

20.2.2023

Official Journal of the European Union

C 63/51

Order of the General Court of 14 December 2022 — Baert v Commission

(Case T-111/22) (1)

(Civil service - Retirement pension - Pension rights acquired before entry into the service of the European Union - Transfer to the EU scheme - Crediting of additional years of pensionable service - Action for annulment - Request for repayment of transferred capital which has not given rise to a crediting of additional years - Time limit for complaints - Unjust enrichment - Manifest inadmissibility)

(2023/C 63/67)

Language of the case: French

Parties

Applicant: Rhonny Baert (Deinze, Belgium) (represented by: D. Grisay and A. Ansay, lawyers)

Defendant: European Commission (represented by: B. Mongin, M. Brauhoff and L. Radu Bouyon, acting as Agents)

Re:

By his action under Article 270 TFEU, the applicant seeks, in essence, principally, first, annulment of the alleged implicit decision of the European Commission of 28 February 2022 rejecting his complaint in so far as it concerns annulment of the notification of 21 December 2016 on the determination of his retirement pension rights and, second, referral of his case to the appointing authority of the Commission to determine the amount to repay him and, in the alternative, an order requiring the Commission to pay a sum of EUR 31 066,80, on the ground of unjust enrichment.

Operative part of the order

1.	The action is dismissed as being manifestly inadmissible.

2.	Mr Rhonny Baert is ordered to bear his own costs and to pay those of the European Commission.

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

(1) OJ C 158, 11.4.2022.

20.2.2023

Official Journal of the European Union

C 63/52

Order of the President of the General Court of 24 November 2022 — Belavia v Council

(Case T-116/22 R)

(Interim relief - Common foreign and security policy - Restrictive measures in view of the situation in Belarus - Application for suspension of operation of a measure - Lack of urgency)

(2023/C 63/68)

Language of the case: English

Parties

Applicant: Belavia — Belarusian Airlines AAT (Minsk, Belarus) (represented by: N. Tuominen and L. Engelen, lawyers)

Defendant: Council of the European Union (represented by: A. Boggio-Tomasaz and A. Antoniadis, acting as Agents)

Re:

By its application based on Articles 278 and 279 TFEU, the applicant seeks, in essence, the suspension of operation of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430 I, p. 16) and Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430 I, p. 1), in so far as they concern the applicant.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

20.2.2023

Official Journal of the European Union

C 63/52

Order of the General Court of 21 December 2022 — Suicha v EUIPO — Michael Kors (Switzerland) International (MK MARKTOMI MARKTOMI)

(Case T-264/22) (1)

(EU trade mark - Invalidity proceedings - EU figurative mark MK MARKTOMI - Earlier EU figurative mark MK MICHAEL KORS - Relative ground for invalidity - Likelihood of confusion - Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001 - Action manifestly lacking any foundation in law)

(2023/C 63/69)

Language of the case: English

Parties

Applicant: Lin Suicha (Wenxi, China) (represented by: J. Donoso Romero, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Gája and I. Stoycheva, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Michael Kors (Switzerland) International GmbH (Manno, Switzerland) (represented by: J. van Manen, E. van Gelderen and L. Fresco, lawyers)

Re:

By her action based on Article 263 TFEU, the applicant seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 March 2022 (Case R 1899/2021-1).

Operative part of the order

1.	The action is dismissed.

2.	Ms Lin Suicha shall bear her own costs and pay those incurred by Michael Kors (Switzerland) International GmbH.

3.	The European Union Intellectual Property Office (EUIPO) shall bear its own costs.

(1) OJ C 244, 27.6.2022.

20.2.2023

Official Journal of the European Union

C 63/53

Order of the General Court of 9 December 2022 — AMO Development v EUIPO (Medical instruments)

(Case T-311/22) (1)

(Community designs - Community designs representing medical instruments - No application for renewal - Cancellation of the designs on expiry of the registration - Application for restitutio in integrum - Article 67 of Regulation (EC) No 6/2002 - Duty to take due care - Action manifestly lacking any foundation in law)

(2023/C 63/70)

Language of the case: English

Parties

Applicant: AMO Development LLC (Santa Ana, California, United States) (represented by: J. Day, Solicitor, and T. de Haan, lawyer)

Defendant: European Union Intellectual Property Office (represented by: T. Klee and E. Markakis, acting as Agents)

Re:

By its action pursuant to Article 263 TFEU, the applicant, AMO Development LLC, seeks annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 March 2022 (Case R 1433/2021-3).

Operative part of the order

1.	The action is dismissed as manifestly lacking any foundation in law.

2.	AMO Development LLC shall pay the costs.

(1) OJ C 276, 18.7.2022.

20.2.2023

Official Journal of the European Union

C 63/54

Action brought on 14 November 2022 — Portumo Madeira and Others v Commission

(Case T-713/22)

(2023/C 63/71)

Language of the case: Portuguese

Parties

Applicants: Portumo — Madeira — Montagem e Manutenção de Tubaria SA (Zona Franca da Madeira) (Funchal, Portugal), Ponticelli — Consultadoria Técnica SA (Zona Franca da Madeira) (Funchal), Ponticelli Angoil — Serviços Para a Indústria Petrolífera SA (Zona Franca da Madeira) (Funchal) (represented by: M. Muñoz Pérez and P. Casillas Vázquez, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

—	annul Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) — Regime III (notified under document C(2020) 8550); (1)

—	in the alternative, annul Article 4(1) of the contested decision and the order to recover the aid contained therein;

—	in the alternative, annul Article 4(1) of the contested decision and the order to recover the aid contained therein, due to the incorrect method used to determine the basis of the aid;

—	order the defendant institution to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging that, by interpreting the concept of ‘activities effectively and materially performed in Madeira’ and ‘job creation/maintenance in the region’ restrictively, the Commission infringed Commission Decision of 27 June 2007 in Case N421/2006 and Commission Decision of 2 July 2013 in Case SA.34160 (2011/N), as well as the Guidelines on national regional aid for 2007-2013, Article 107(3)(a) TFEU, and Articles 21, 45, 49, 54 and 56 TFEU.

Second plea in law, alleging infringement of Article 107(3)(a) TFEU for failing to state directly that the aid scheme was compatible on the same basis.

Third plea in law, alleging, in the alternative, that Article 4(1) of the contested decision is invalid, in so far as the recovery order contained therein infringes Article 16(1) of Regulation 2015/1589, in that it contravenes to the general principles of protection of legitimate expectations and legal certainty.

Fourth plea in law, alleging, in the alternative, that Article 4(1) of the contested decision is invalid, in so far as the calculation of the taxable base of the alleged State aid is incorrect.

(1) OJ 2022 L 217, p. 49.

20.2.2023

Official Journal of the European Union

C 63/55

Action brought on 15 November 2022 — Nova Ship Invest v Commission

(Case T-720/22)

(2023/C 63/72)

Language of the case: Portuguese

Parties

Applicant: Nova Ship Invest, Unipessoal, Lda (Zona Franca da Madeira) (Funchal, Portugal) (represented by: M. Muñoz Pérez and P. Casillas Vázquez, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul European Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) — Regime III (notified under document C(2020) 8550); (1)

—	in the alternative, annul Article 4(1) of the contested decision and the order to recover the aid contained therein;

—	in the alternative, annul Article 4(1) of the contested decision and the order to recover the aid contained therein, due to the incorrect method used to determine the basis of the aid;

—	order the defendant institution to pay the costs.

Pleas in law and main arguments

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

Second plea in law, alleging infringement of Article 107(3)(a) TFEU for failing to state directly that the aid scheme was compatible on the same basis.

Third plea in law, alleging, in the alternative, that Article 4(1) of the contested decision is invalid, in so far as the recovery order contained therein infringes Article 16(1) of Regulation 2015/1589, in that it contravenes the general principles of protection of legitimate expectations and legal certainty.

Fourth plea in law, alleging, in the alternative, that Article 4(1) of the contested decision is invalid, in so far as the recovery of the incompatible aid is based on an incorrect method for determining the basis of the aid.

(1) OJ L 217, 22.8.2022, p. 49.

20.2.2023

Official Journal of the European Union

C 63/56

Action brought on 15 November 2022 — Neottolemo v Commission

(Case T-724/22)

(2023/C 63/73)

Language of the case: Portuguese

Parties

Applicant: Neottolemo, Lda (Zona Franca da Madeira) (Funchal, Portugal) (represented by: G. Leite de Campos and M. Clemente, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul Articles 1 to 3, Article 4(1) to (3) and the second part of (4), and Articles 5 and 6 of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) — Regime III (notified under document C(2020) 8550); (1)

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

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 108(2) TFEU and Articles 21 to 23 of Council Regulation (EU) 2015/1589 of 13 July 2015.

Second plea in law, alleging an irreconcilable contradiction between the contested decision and the reasons on which it is based.

Third plea in law, alleging breach of the principle of conferral of powers, enshrined in Article 5 TFEU.

Fourth plea in law, alleging infringement of Article 107 TFEU, in that some of the cases included in the decision do not involve State aid and the Portuguese State has been unjustly enriched, in breach of the principle that the wrongdoer (the Portuguese State) should not benefit from the infringement.

Fifth plea in law, alleging infringement of Article 26 TFEU as regards the promotion of the internal market.

(1) OJ 2022 L 217, p. 49.

20.2.2023

Official Journal of the European Union

C 63/56

Action brought on 15 November 2022 — Register.com v Commission

(Case T-725/22)

(2023/C 63/74)

Language of the case: Portuguese

Parties

Applicant: Register.com LP — Sucursal em Portugal (Zona Franca da Madeira) (Funchal, Portugal) (represented by: G. Leite de Campos and M. Clemente, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul Articles 1 to 3, Article 4(1) to (3) and the second part of (4), and Articles 5 and 6 of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) — Regime III, (1) and, in the alternative

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

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 108(2) TFEU and Articles 21 to 23 of Council Regulation (EU) 2015/1589 of 13 July 2015.

Second plea in law, alleging an irreconcilable contradiction between the contested decision and the reasons on which it is based.

Third plea in law, alleging breach of the principle of conferral of powers, enshrined in Article 5 TFEU.

Fifth plea in law, alleging infringement of Article 26 TFEU as regards the promotion of the internal market.

(1) OJ 2022 L 217, p. 49.

20.2.2023

Official Journal of the European Union

C 63/57

Action brought on 6 December 2022 — TB v ENISA

(Case T-760/22)

(2023/C 63/75)

Language of the case: English

Parties

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

Defendant: European Union Agency for Cybersecurity (ENISA)

Form of order sought

The applicant claims that the Court should:

—

annul the 2020 CDR resulting from ENISA Executive Director Decision 8/2022 of 3 February 2022 in so far as it contains the following comments:

—

Under B.1 ‘Efficiency’, page 4 — point 2) produce anti-fraud policy, update whistleblowing policy and code of conduct:

—

‘[…] The whistleblowing policy was updated by PO as a draft concept but was not taken further to receive prior approval from the COM services that was a specific precondition (review clause in the MB Decision) to have the whistleblowing policy reviewed. For the code of conduct for ENISA, the COM decision in a form of its publication (book) was annexed to the MB Decision on Antifraud strategy. The code of conduct therefore was not adopted by the MB. The antifraud strategy action plan for 2021 foresees to prepare a code of conduct in a form of a decision of the MB.’

—

Under B.1 ‘Efficiency’, page 4 — point 3) Achieve an optimal commitment rate:

—	‘[…] but budget management could still be improved (particular for monitoring of C8 and carry forwards).’

—

Under Point B.2 ‘Ability’, page 4:

—	‘[…]. However, in PO from the financial flow perspective there were several situations that led to the registry in exceptions, mainly as a posteriori commitment or the wrong use of C8 and C1 funds, one with materiality above 10 000,00 euros.’

—

Under Point B.3 ‘Conduct’, page 6:

—	‘[…] However, this has also led to some situations that an interim agent represents the agency with international partners for common messaging (ECSM preparations with US partners), as an example.’

—	annul, in so far as necessary, the decision of 26 August 2022 rejecting the complaint lodged by the applicant against the 2020 CDR and against ENISA Executive Director Decision 8/2022 of 3 February 2022;

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

—	order the defendant to pay all the costs.

Pleas in law and main arguments

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

First plea in law, alleging that the 2020 Career Development Report (CDR) and the appeal decision are illegal in so far as there has been no real dialogue and the rerunning of the appraisal procedure is vitiated by a violation of Administrative Notice 1/2021, page 9, and of Article 6(3) of Decision No MB/2015/15.

2.	Second plea in law, alleging that the 2020 CDR and the appeal decision are vitiated by manifest errors of appreciation and insufficient motivation and by a violation of Article 5 of Decision No MB/2015/15 and of the Administrative Notice 1/2021, pages 11 and 12.

Third plea in law, alleging that the 2020 CDR and the appeal decision are vitiated by an infringement of the rules of objectivity and impartiality, by a breach of Article 41(1) of the Charter of Fundamental Rights of the European Union and by a violation of the duty of care and assistance and also alleging violation of the duty to motivate.

20.2.2023

Official Journal of the European Union

C 63/58

Action brought on 18 December 2022 — Frajese v Commission

(Case T-786/22)

(2023/C 63/76)

Language of the case: Italian

Parties

Applicant: Giovanni Frajese (Rome, Italy) (represented by: O. Milanese and A. Montanari, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul

(1)

Commission Implementing Decision of 3 October 2022 granting marketing authorisation under Regulation (EC) No 726/2004 (1) of the European Parliament and of the Council for ‘Spikevax — elasomeran’, a medicinal product for human use and repealing Decision C(2021) 94(final), published in the Official Journal of the European Union on 30 November 2022; and

(2)

Commission Implementing Decision of 10 October 2022 granting marketing authorisation under Regulation (EC) No 726/2004 of the European Parliament and of the Council for ‘Comirnaty — tozinameran, COVID-19 mRNA vaccine (nucleoside-modified)’, a medicinal product for human use and repealing Decision C(2020) 9598(final), published in the Official Journal of the European Union on 30 November 2022;

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

Pleas in law and main arguments

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

First plea in law, alleging absence of/incompleteness of efficacy and safety studies, in breach of Regulations (EC) 507/2006 (2) and (EC) 726/2004, Directive 2001/83/EC, (3) the Treaties and Community legislation.

In that respect, the following is alleged:

—

Absence of/incompleteness of studies. The obligations imposed with the granting of conditional authorisations have not been complied with and the placebo-controlled, randomised, observer-blind clinical trials were never completed. The annexes to the contested implementing decisions expressly refer to the absence of studies considered to be essential and mandatory by Regulations No 726/2004 and No 507/2006 and Directive 2001/83/EC for the purpose of granting the AIC standard. The authorised pharmaceuticals contain excipients (ALC-0315, ALC-0159 and SM-102) whose use is permitted exclusively for the purposes of research with the express prohibition for human or veterinary use. The safety of the technology used has been neither shown nor tested and the related pharmaco-toxicological aspects have not been studied.

—

Failure to complete studies or expected completion of studies as compared to the originally planned schedules. During those two years, it has been found that the authorised pharmaceuticals have neither a sterilizing effect nor an ability to reduce the serious effects of the illness. It appears that it is no longer possible to provide such proof, in the light of the fact that the placebo groups have been vaccinated, thus eliminating the control groups. The safety of the authorised pharmaceuticals is also lacking, as shown by the countless published studies and the pharmacovigilance data themselves, linked to the steep increase in mortality recorded in all EU and non-EU countries in which there was an intensive vaccination campaign, as expressly stated and alleged in the action.

—

Absence of any conversion request on the part of the companies. The authorisations were converted into a standard authorisation solely on account of the ‘data submitted’ and in the absence of a specific application for conversion on the part of the pharmaceutical companies, in clear breach of the procedure.

—	Absence of a full opinion of the Committee.

—	Absence of communication to the States, in breach of Article 10 of Regulation (EU) 726/2004.

Second plea in law, alleging breach of the precautionary principle.

In that regard, it is alleged that the contested implementing decisions breach the precautionary principle, as defined in the 1992 Rio Declaration and transposed by the Treaty on the Functioning of the European Union, which applies where a phenomenon, product or process might have potentially dangerous effects and it is not possible to determine the risk with sufficient certainty. The application of those principles in the field of health and pharmaceutical innovation means that, where there is scientific uncertainty giving rise to the possibility of serious and irreversible risk, the choice between use and non-use of that product must necessarily fall on non-use, as the safeguarding of the health of the individual must prevail.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1).

(2) Commission Regulation (EC) No 507/2006 of 29 March 2006 on the conditional marketing authorisation for medicinal products for human use falling within the scope of Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ 2006 L 92, p. 6).

(3) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).

20.2.2023

Official Journal of the European Union

C 63/60

Action brought on 19 December 2022 — PT v Commission

(Case T-788/22)

(2023/C 63/77)

Language of the case: French

Parties

Applicant: PT (represented by: S. Orlandi, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

Declare and adjudge that

—	the European Commission is ordered to refund to the applicant the updated capital representing her pension rights that she transferred to the Pension Scheme of the European Union Institutions under Article 11(2) of Annex VIII to the Staff Regulations;

—	the European Commission is ordered to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law.

The applicant relies on unjust enrichment, in so far as she transferred her pension rights into the Pension Scheme of the European Union Institutions (‘PSEUI’), which gave rise to a ‘crediting’ of additional pensionable years recognised in the PSEUI. However, that ‘crediting’ did not give rise to any increase in the amount of pension paid to her under the fourth paragraph of Article 77 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the calculation of which is based exclusively on years of service (to the exclusion of additional pensionable years to be credited in respect of the transfer of pension rights).

The refusal to repay the pension rights transferred having no effect where the mechanism of the minimum subsistence figure referred to in the fourth paragraph of Article 77 of the Staff Regulations applies, gives rise, according to the applicant, to the unjust enrichment of the European Union.

20.2.2023

Official Journal of the European Union

C 63/60

Action brought on 1 December 2022 — Sberbank Europe v ECB

(Case T-790/22)

(2023/C 63/78)

Language of the case: English

Parties

Applicant: Sberbank Europe AG (Vienna, Austria) (represented by: O. Behrends, lawyer)

Defendant: European Central Bank (ECB)

Form of order sought

The applicant claims that the Court should:

—	annul the ECB’s decision dated 21 September 2022 by which the ECB rejected the applicant’s request for access to the ECB’s failing or likely to fail-assessment pursuant to the rules governing public access to documents with respect to Sberbank Slovenia (Sberbank banka d.d);

—	order the ECB to bear the applicant’s 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 that the ECB violated the applicant’s rights by failing to deal with the applicant’s request in one comprehensive decision which takes into account all relevant legal aspects and specifically that the ECB ignored certain grounds for access, that it artificially neutralised certain grounds for access, that it erroneously interpreted the public access regime in a manner which limits rather than expands access and transparency, that it failed to interpret and apply all access regimes in a coherent manner, that it failed to provide an adequate statement of reasons, that it erred by adopting a separate decision on a potential right for access pursuant to Article 22(2) of the SSMR (1) and Article 32(1) of the SSMFR, (2) that it erroneously excluded from consideration the principle of effective legal protection pursuant to Article 47 of the Charter of Fundamental Rights of the European Union and that it erroneously assumed an obligation to withhold the unredacted text of the FOLTF-assessment.

2.	Second plea in law, alleging that the contested decision is insufficiently reasoned and vitiated by manifest errors of assessment because there is no discernible reason and no explanation why specifically the redacted parts of the FOLTF-assessment needed to be withheld.

3.	Third plea in law, alleging that the ECB misinterpreted and incorrectly applied Article 4(1)(c) of the ECB Public Access Decision, (3) Article 27 SSMR, Article 53 CRD IV (4) and the Baumeister decision of the Court of Justice. (5)

4.	Fourth plea in law, alleging that the ECB misinterpreted and incorrectly applied Article 4(2) of the ECB Public Access Decision.

5.	Fifth plea in law, alleging that the contested decision is procedurally flawed because the ECB failed to grant access to the file pursuant to Article 41 of the Charter of Fundamental Rights of the European Union in the procedure leading to the contested decision.

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

(3) Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (2004/258/EC) (OJ 2004 L 80, p. 42).

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

(5) Judgment of the Court of Justice of 19 June 2018Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister (C-15/16, EU:C:2018:464).

20.2.2023

Official Journal of the European Union

C 63/61

Action brought on 26 December 2022 — Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council

(Case T-797/22)

(2023/C 63/79)

Language of the case: French

Parties

Applicants: Ordre néerlandais des avocats du barreau de Bruxelles (Brussels, Belgium) and 10 other applicants (represented by: P. de Bandt, T. Ghysels, J. Nowak, T. Bontinck and A. Guillerme, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

—

annul Article 1(12) of Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine and Article 1(13) of Council Regulation (EU) 2022/2474 of 16 December 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine in so far as they replace and amend, respectively, paragraph 2 and paragraphs 4 to 12, and paragraph 2 and paragraphs 4 to 11 of Article 5n of Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as regards legal advisory services;

—	order the Council 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 infringement of the fundamental rights to protection of privacy and access to justice, provided for in Articles 7 and 47 respectively of the Charter of Fundamental Rights of the European Union, in that the general prohibition on the provision of legal advisory services constitutes interference with the right of every litigant to seek legal advice from his or her lawyer, and with the principle of professional secrecy and the principle of the independence of the lawyer.

Second plea in law, alleging breach of the principle of proportionality, in that the introduction of a general prohibition on the provision of legal advisory services is not suitable for achieving the legitimate objectives pursued by the European Union in the context of the conflict between Russia and Ukraine, and goes beyond what is strictly necessary to achieve those objectives.

3.	Third plea in law, alleging breach of the principle of legal certainty, in that the general prohibition on the provision of legal advisory services introduced is neither clear nor precise and does not allow any foreseeability as to its application.

20.2.2023

Official Journal of the European Union

C 63/62

Action brought on 28 December 2022 — Ordre des avocats à la cour de Paris and Couturier v Council

(Case T-798/22)

(2023/C 63/80)

Language of the case: French

Parties

Applicants: Ordre des avocats à la cour de Paris (Paris, France), Julie Couturier (Paris) (represented by: L. Donnedieu de Vabres, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

—

declare that it has jurisdiction to rule on the present action for annulment in that its jurisdiction to exercise a full review of legality is in no way restricted in respect of a regulation, adopted on the basis of Article 215 TFEU, which gives effect to the positions adopted by the European Union in the context of the CFSP;

—	declare their actions admissible under the fourth paragraph of Article 263 TFEU;

—

annul Article 1(12) of Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine and Article 1(13) of Council Regulation (EU) 2022/2474 of 16 December 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, in so far as they replace and amend, respectively, Article 5n(2) and (4) to (12), and subsequently Article 5n(2) and (4) to (11), of Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, as regards legal advisory services, in so far as the amended Article 5n:

—	infringes the obligation to state reasons under Article 296 TFEU,

—

infringes:

—	legal professional privilege protected by Article 7 of the Charter of Fundamental Rights of the European Union,

—	the right to be ‘advised’ by a lawyer protected by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union,

without respecting the essence of those rights and freedoms or the principle of proportionality as required under Article 52(1) of the Charter of Fundamental Rights;

—	order the Council to pay the costs, in accordance with Article 134 of the Rules of Procedure of the General Court.

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 the obligation to state reasons laid down in Article 296 TFEU.

—

The applicants claim, in that regard, that the Council provides no explanation as to the reason for the general prohibition on the provision of legal advisory services in non-contentious matters. The only recital relating to that general prohibition (recital 19 of Regulation 2022/1904) consists only of a mere definition of the services concerned and in no way consists of a ‘clear and unequivocal’ explanation of the ‘reasoning followed by the institution which adopted the measure’, as required by the Court of Justice and the General Court. In so far as that recital does not contain any explanation as to the reason for that prohibition and how it achieves the objective pursued, it does not enable the applicants to ascertain the reasons for the measure or enable the court having jurisdiction to exercise its power of review.

Second plea in law, alleging infringement of the legal professional privilege of the lawyer.

—

According to the applicants, a lawyer who wishes to advise a legal person or entity established in Russia, considering that such legal advice would fall within the scope of the derogations of the amended Article 5n(10) of Regulation No 833/2014, would be required to seek prior authorisation from the competent national authority and, for that purpose, to disclose to it information concerning not only the content, but also the very existence of the consultation that the lawyer is to carry out and the potential client, even though that information is strictly confidential in nature. That interference with legal professional privilege is neither appropriate to attain the objective pursued nor strictly necessary for that objective.

Third plea in law, alleging infringement of the right to be ‘advised’ by a lawyer.

—

According to the applicants, by depriving a person of his or her right to legal advice from a lawyer, the amended Article 5n of Regulation No 833/2014 prevents him or her from being informed of the scope of his or her rights and from being able to decide to bring a case before a court having jurisdiction. The right to be advised must be given due protection as part of the effective remedy enshrined in Article 47 of the Charter. That infringement of the right to be ‘advised’ by a lawyer is neither appropriate to obtain the objective pursued, nor strictly necessary for that objective.

20.2.2023

Official Journal of the European Union

C 63/64

Action brought on 30 December 2022 — TZ v Council

(Case T-803/22)

(2023/C 63/81)

Language of the case: English

Parties

Applicant: TZ (represented by: J. Janssen, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	admit and uphold the pleas for annulment raised in the present application;

—	annul Chapter III of Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices (1) (‘contested Regulation’);

—	in the alternative, annul Article 15 of the contested Regulation insofar as it allows the retroactive levy of a solidarity contribution over the year 2022; and

—	order the Council to pay the costs of this procedure.

Pleas in law and main arguments

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

First plea in law, alleging that the contested Regulation was incorrectly adopted on the basis of article 122(1) TFEU and should have been adopted by the Council, acting unanimously after consulting the European Parliament and in accordance with a special legislative procedure, as the contested Regulation contains fiscal measures.

Second plea in law, alleging that the contested Regulation constitutes a violation of the right to property as enshrined in Article 1 First Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the EU, as well as the EU principles of legality and legal certainty, insofar the contested Regulation allows for retroactive application.

(1) OJ 2022, L 261 I, p. 1.

20.2.2023

Official Journal of the European Union

C 63/64

Action brought on 22 December 2022 — Poland v European Commission

(Case T-830/22)

(2023/C 63/82)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: B. Majczyna and S. Żyrek, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the decisions of the European Commission contained in the letters of 12 October 2022 (1) and 23 November 2022 (2) concerning the offsetting of the amounts receivable by way of the daily penalty payments imposed by the order of the Vice-President of the Court of Justice of 27 October 2021 (Commission v Poland, C-204/21 R, EU:C:2021:878) with regard to the period from 15 July 2022 to 29 August 2022;

—	order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law, alleging infringement of Articles 101 and 102 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council, (3) read in conjunction with Article 98 thereof, in that the procedure for recovery by offsetting of the amounts receivable was applied, whereas the order of 27 October 2021 had imposed daily penalty payments for the period until the date of compliance with the order of the Vice-President of the Court of Justice of 14 July 2021 (4) and the provisions whose application was required to be suspended by the order of 14 July 2021 had ceased to apply on 15 July 2022.

(1) Letter from the European Commission of 12 October 2022, Ref. ARES(2022)7041596.

(2) Letter from the European Commission of 23 November 2022, Ref. ARES(2022)8087579.

(3) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

(4) Order of the Vice-President of the Court of Justice of 14 July 2021, Commission v Poland, C-204/21 R, EU:C:2021:593.

20.2.2023

Official Journal of the European Union

C 63/65

Action brought on 22 December 2022 — TO v EUAA

(Case T-831/22)

(2023/C 63/83)

Language of the case: French

Parties

Applicant: TO (represented by: É. Boigelot, lawyer)

Defendant: European Union Agency for Asylum (EUAA)

Form of order sought

The applicant claims that the Court should:

—	declare the action admissible and well-founded and, accordingly;

—	annul the decision of [confidential] (1) to terminate the applicant’s contract, with reference [confidential], taken by [confidential], which entered into force on the same day and was notified to the applicant on [confidential];

—	order the defendant to pay provisional compensation for the material and non-material damage in the amount of EUR 45 000, subject to alteration in the proceedings;

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea, alleging infringement of Articles 1d, 1e(2), 12, 12a, 17(1), 22a and 25(2) of the Staff Regulations of Officials of the European Union, applicable by analogy to contract staff pursuant to Articles 10 and 11 of the Conditions of Employment of Other Servants of the European Union, and infringement of Articles 8, 31(1), 41(1) and 41(2)(a) of the Charter of Fundamental Rights of the European Union and Article 10 of Regulation (EU, Euratom) No 883/2013 (2) of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999.

Second plea, alleging infringement of fundamental and general principles of EU law including, inter alia, the principle of effective exercise of the rights of the defence, the principle of non-discrimination, the principle of confidentiality, the principle of proportionality and the principle of sound administration.

Third plea, alleging infringement of the principle which requires the authority to hand down decisions only on the basis of legally admissible grounds, by which is meant grounds which are relevant and not vitiated by manifest errors of assessment, fact or law, or by ultra vires and improper exercise of authority.

4.	Fourth plea, alleging breach of the duty of care and damage to the applicant’s dignity and reputation.

Fifth plea, alleging infringement of, inter alia, Articles 4, 5, 14, 16(2)(b) and (e), 16(3), 17(1)(e) and (g), 18 and 19 of Regulation (EU) No 2018/1725 (3) of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC.

(1) Confidential data omitted.

(2) OJ 2013 L 248, p. 1.

(3) OJ 2018 L 295, p. 39.

20.2.2023

Official Journal of the European Union

C 63/66

Action brought on 9 January 2023 — UA v EUAA

(Case T-3/23)

(2023/C 63/84)

Language of the case: French

Parties

Applicant: UA (represented by: É. Boigelot, lawyer)

Defendant: European Union Agency for Asylum (EUAA)

Form of order sought

The applicant claims that the Court should:

—	declare the action admissible and well founded and consequently;

—

annul Decision No 99, reference [confidential], (1) taken by the EUAA Management Board on [confidential], notified by e-mail on [confidential] by the Secretariat of the Management Board, and in so far as necessary, all preparatory and/or implementing acts and decisions, by which the Management Board decides, inter alia, that ‘[confidential] is ordered to make good [the damage suffered by] the Agency due to serious personal misconduct liable to entail his personal financial liability, in accordance with Article 22 of the [Staff Regulations of Officials of the European Union]. The implementing measure and modalities for compensation will be communicated separately to [confidential]’;

—	order the defendant to pay provisional compensation of EUR 25 000 for both material and non-material damage, subject to modification during the proceedings;

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 22 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), applicable by analogy to temporary staff in accordance with Article 11 of the Conditions of Employment of Other Servants of the European Union, infringement of the Guidelines for applying Article 22 of the Staff Regulations (Financial liability of officials), and in particular Articles 2.1, 2.3.2 and 3.2 thereof, infringement of the rights of defence, in particular Articles 3, 4 and 22 of Annex IX to the Staff Regulations (right to be heard) made applicable by Article 22 of the Staff Regulations, infringement of Articles 41(1) and (2)(a), 48 and 51(1) of the Charter of Fundamental Rights of the European Union.

Second plea in law, alleging manifest errors of assessment, lack of materiality of the facts complained of, inadequate statement of reasons, breach of the principle of non bis in idem, breach of the duty to have regard for the welfare of officials, breach of the principle of legal certainty and sound administration and of the principle of proportionality, breach of the principle of a single administration and of equal treatment, breach of the principle of the authenticity of documents and misuse of powers.

(1) Confidential information redacted.

20.2.2023

Official Journal of the European Union

C 63/67

Action brought on 10 January 2023 — Illumina v Commission

(Case T-5/23)

(2023/C 63/85)

Language of the case: English

Parties

Applicant: Illumina, Inc. (Wilmington, Delaware, United States) (represented by: D. Beard, Barrister-at-Law, and F. González Díaz, M. Siragusa and T. Spolidoro, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the Commission’s decision of 28 October 2022 in Case M.10938 — Illumina/GRAIL (the Decision);

—	order the Commission to pay the applicant’s legal costs and other fees and expenses incurred in connection with this application.

Pleas in law and main arguments

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

First plea in law, alleging that the Decision erred in law, and committed errors of fact and assessment, in finding that the conditions for adopting interim measures ex Article 8(5)(c) of Council Regulation No 139/2004 on the control of concentrations between undertakings (1) (the Merger Regulation) were met.

Second plea in law, alleging that the Decision is disproportionate, commits errors of facts and assessment, fails to provide sufficient reasons, and/or is vitiated by lack of motivation, in finding that the interim measures were necessary and appropriate to the objectives of Article 8(5)(c) of the Merger Regulation).

3.	Third plea in law, alleging that the Decision’s provisions on funding are disproportionate as they unduly restrict Illumina’s ability to review the proportionality of funding requests.

4.	Fourth plea in law, alleging that the Decision unlawfully delegates the Commission’s enforcement powers to a monitoring trustee and requires the applicant to bear the costs associated with the monitoring trustee’s activities.

5.	Fifth plea in law, alleging that the Decision disproportionately excludes the applicant’s pre-existing contractual obligations from exceptions to ring-fencing obligations, and fails to provide adequate reasons for this exclusion.

6.	Sixth plea in law, alleging that the Decision imposes excessive, disproportionate, and likely unenforceable restraints on the Parties’ recruitment activities during the interim period.

(1) OJ 2004, L 24, p. 1.

		ISSN 1977-091X
Official Journal of the European Union		C 63

English edition	Information and Notices	Volume 66 20 February 2023

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2023/C 63/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1