12.6.2023

Official Journal of the European Union

C 205/2

Judgment of the Court (First Chamber) of 20 April 2023 (request for a preliminary ruling from the Juzgado de lo Mercantil No 2 de Madrid — Spain) — ZA, AZ, BX, CV, DU, ET v Repsol Comercial de Productos Petrolíferos SA

(Case C-25/21, (1) Repsol Comercial de Productos Petrolíferos)

(Reference for a preliminary ruling - Competition - Vertical restrictions of competition - Article 101(1) and (2) TFEU - Principle of effectiveness - Regulation (EC) No 1/2003 - Article 2 - Directive 2014/104/EU - Article 9(1) - Binding effect of the final decisions of the national competition authorities finding an infringement of the competition law rules - Temporal and material application - Actions for damages and for a declaration of nullity for infringements of the EU competition law provisions)

(2023/C 205/02)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 2 de Madrid

Parties to the main proceedings

Applicants: ZA, AZ, BX, CV, DU, ET

Defendant: Repsol Comercial de Productos Petrolíferos SA

Operative part of the judgment

Article 101 TFEU, as implemented by Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] and read in combination with the principle of effectiveness, must be interpreted as meaning that the infringement of competition law found in a decision of a national competition authority, against which an action for annulment had been brought before the competent national courts but which became final after having been confirmed by those courts, must be deemed to be established, in the context of both an action for a declaration of nullity under Article 101(2) TFEU and an action for damages for an infringement of Article 101 TFEU, by the applicant until proof to the contrary is adduced, thereby shifting the burden of proof defined by that Article 2 to the defendant, provided that the nature of the alleged infringement that is the subject of those actions and its material, personal, temporal and territorial scope coincide with those of the infringement found in the said decision.

In the light of the foregoing considerations, the answer to the second question is that Article 101 TFEU must be interpreted as meaning that, in so far as an applicant succeeds in establishing the existence of an infringement of Article 101 TFEU which is the subject of its action for annulment brought under Article 101(2) TFEU, as well as its action for damages in respect of that infringement, the national court must draw all the consequences and infer from this, in particular, pursuant to Article 101(2) TFEU, that all the contractual provisions incompatible with Article 101(1) TFEU are automatically void, as the agreement concerned is void in its entirety only if those elements do not appear to be severable from the agreement itself.

(1) OJ C 189, 17.5.2021.

12.6.2023

Official Journal of the European Union

C 205/3

Judgment of the Court (Fourth Chamber) of 20 April 2023 — European Parliament v European Commission

(Case C-144/21) (1)

(Action for annulment - Implementing Decision C(2020) 8797 - Authorisation of certain uses of chromium trioxide - Regulation (EC) No 1907/2006 - Registration, evaluation, authorisation and restriction of chemicals - Article 60 - Granting of authorisations - Obligation to demonstrate that socio-economic benefits outweigh the risk to human health or the environment arising from the use of the substance and that there are no suitable alternative substances or technologies - Article 62 - Applications for authorisation - Article 64 - Procedure for authorisation decisions)

(2023/C 205/03)

Language of the case: English

Parties

Applicant: European Parliament (represented by: C. Ionescu Dima, M. Menegatti and L. Visaggio, acting as Agents)

Defendant: European Commission (represented by: R. Lindenthal and K. Mifsud-Bonnici, acting as Agents)

Intervener in support of the defendant: European Chemicals Agency (ECHA) (represented by: W. Broere, M. Heikkilä and T. Zbihlej, acting as Agents)

Operative part of the judgment

The Court:

Annuls Article 1(1) and (5) and Articles 2 to 5, 7, 9 and 10 of Commission Implementing Decision C(2020) 8797 of 18 December 2020 partially granting an authorisation for certain uses of chromium trioxide under Regulation (EC) No 1907/2006 of the European Parliament and of the Council (Chemservice GmbH and others), inasmuch as those articles concern the authorisation for uses 2, 4 and 5, as well as use 1 in relation to the formulation of mixtures for uses 2, 4 and 5;

2.	Declares that the effects of Implementing Decision C(2020) 8797 are to be maintained for a period not exceeding one year from the date of delivery of the present judgment;

3.	Orders the European Commission to pay the costs.

(1) OJ C 163, 3.5.2021.

12.6.2023

Official Journal of the European Union

C 205/3

Judgment of the Court (Second Chamber) of 20 April 2023 (request for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Proceedings brought by Starkinvest SRL

(Case C-291/21, (1) Starkinvest)

(Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 655/2014 - European Account Preservation Order procedure - Conditions for issuing a preservation order - Article 4 - Concept of ‘judgment’ - Article 7 - Concept of ‘judgment requiring the debtor to pay the creditor’s claim’ - Judgment ordering a party to make a penalty payment for breach of a prohibitory order - Regulation (EU) No 1215/2012 - Article 55 - Scope)

(2023/C 205/04)

Language of the case: French

Referring court

Tribunal de première instance de Liège

Parties to the main proceedings

Applicant: Starkinvest SRL

Operative part of the judgment

Article 7(2) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

must be interpreted as meaning that a judgment that orders a debtor to make a penalty payment in the event of a future breach of a prohibitory order and that therefore does not definitively set the amount of that penalty payment does not constitute a judgment requiring the debtor to pay the creditor’s claim, within the meaning of that provision, such that the creditor who requests a European Account Preservation Order is not exempt from the obligation to provide sufficient evidence to satisfy the court before which an application for that order is brought that he or she is likely to succeed on the substance of his or her claim against the debtor.

(1) OJ C 278, 12.7.2021.

12.6.2023

Official Journal of the European Union

C 205/4

Judgment of the Court (Fifth Chamber) of 20 April 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — DIGI Communications NV v Nemzeti Média- és Hírközlési Hatóság Hivatala

(Case C-329/21, (1) DIGI Communications)

(Reference for a preliminary ruling - Telecommunications - Electronic communications networks and services - Directive 2002/21/EC (Framework Directive) - Article 4(1) - Directive 2002/20/EC (Authorisation Directive) - Article 7 - Award of rights to use frequencies - Auction procedure - Holding company not registered as a provider of electronic communications services in the Member State concerned - Exclusion from the award procedure - Right of appeal against the award decision)

(2023/C 205/05)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: DIGI Communications NV

Defendant: Nemzeti Média- és Hírközlési Hatóság Hivatala

Intervening party: Magyar Telekom Nyrt.

Operative part of the judgment

Article 7 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009,

must be interpreted as meaning that:

—	a selection procedure for the award of rights to use frequencies and the award decision resulting from that procedure are intended to promote and develop effective and undistorted competition, while respecting the principles of equal treatment and proportionality;

—

the fact that such a procedure includes a stage for examining whether any applications comply with the relevant tender specifications is not contrary to that objective, provided that that procedure, taken as a whole, complies with the requirements and conditions laid down in Article 7 of Directive 2002/20, as amended by Directive 2009/140.

Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as conferring a right of appeal on an undertaking:

—	which participated, as an applicant, in an auction procedure in the electronic communications sector, conducted by the national regulatory authority of a Member State other than that in which that undertaking is established and carries out its operations,

—

which does not itself provide an electronic communications service on the market of the Member State concerned by that procedure, but fulfils the objective conditions to which the general authorisation, referred to in Article 3(2) of Directive 2002/20, as amended by Directive 2009/140, is subject in that Member State, irrespective of whether it controls, as the case may be, another undertaking which is present on that market, and

—

which was the subject of a decision of the national regulatory authority refusing to register its application in the context of that procedure on the ground that it does not satisfy the necessary conditions, that decision having become final following a judicial decision dismissing an action brought against that decision,

in order to challenge the subsequent decision by which the national regulatory authority in question awarded the contract concerned by the auction procedure to third parties, provided that the appeal brought by that undertaking does not undermine the force of res judicata attaching to the aforementioned judicial decision.

(1) OJ C 357, 6.9.2021.

12.6.2023

Official Journal of the European Union

C 205/5

Judgment of the Court (Sixth Chamber) of 20 April 2023 — Council of the European Union v Aisha Muammer Mohamed El-Qaddafi

(Case C-413/21 P) (1)

(Appeal - Common foreign and security policy - Restrictive measures taken in view of the situation in Libya - List of persons and entities subject to the freezing of funds and economic resources - List of persons subject to restrictions on entry into and transit through the territory of the European Union - Retention of Ms El-Qaddafi’s name on the lists - Sufficiently solid factual basis - Obligation to state reasons)

(2023/C 205/06)

Language of the case: French

Parties

Appellant: Council of the European Union (represented by: M. Bishop and V. Piessevaux, acting as Agents)

Other party to the proceedings: Aisha Muammer Mohamed El-Qaddafi (represented by: S. Bafadhel, Barrister)

Intervener in support of the appellant: French Republic (represented by: J.-L. Carré, A.-L. Desjonquères and W. Zemamta, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the Council of the European Union to bear its own costs and to pay those incurred by Ms Aisha Muammer Mohamed El-Qaddafi;

3.	Orders the French Republic to bear its own costs.

(1) OJ C 382, 20.9.2021.

12.6.2023

Official Journal of the European Union

C 205/6

Judgment of the Court (Fifth Chamber) of 20 April 2023 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — EEW Energy from Waste Großräschen GmbH v MNG Mitteldeutsche Netzgesellschaft Strom GmbH

(Case C-580/21, (1) EEW Energy from Waste)

(Reference for a preliminary ruling - Environment - Directive 2009/28/EC - Promotion of energy from renewable energy sources - Article 16(2)(c) - Access to transmission and distribution grids - Priority access of electricity produced from renewable energy sources - Production from both renewable and conventional energy sources)

(2023/C 205/07)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: EEW Energy from Waste Großräschen GmbH

Defendant: MNG Mitteldeutsche Netzgesellschaft Strom GmbH

Intervener: 50 Hertz Transmission GmbH

Operative part of the judgment

Article 16(2)(c) of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC

must be interpreted as meaning that priority access to the electricity grid enjoyed by electricity generating installations using renewable energy sources must be granted not only to installations producing electricity exclusively from renewable energy sources, but also to those producing from both renewable and conventional energy sources.

Article 16(2)(c) of Directive 2009/28

must be interpreted as meaning that an installation which produces electricity from both renewable and conventional energy sources enjoys priority access to the grid solely in respect of the proportion of electricity produced from renewable energy sources. It is for the Member States to establish the detailed rules for applying that priority access, by setting transparent and non-discriminatory criteria which, whilst taking into account requirements relating to the maintenance of reliability and safety of the grid, make it possible to establish an order of priority according to the size of the share of renewable energy sources used by each installation for the production of electricity.

(1) OJ C 502, 13.12.2021.

12.6.2023

Official Journal of the European Union

C 205/7

Judgment of the Court (Ninth Chamber) of 20 April 2023 — European Commission v Republic of Poland

(Case C-602/21) (1)

(Failure of a Member State to fulfil obligations - Directive 2002/49/EC - Assessment and management of environmental noise - Noise prevention - Major roads and major railways - Article 8(1) and (2) - Non-compliant or nonexistent action plans - Article 10(2) - Annex VI - Nonexistent summaries of action plans)

(2023/C 205/08)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: D. Milanowska, M. Noll-Ehlers and M. Rynkowski, acting as Agents)

Defendant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

Operative part of the judgment

The Court:

Declares that the Republic of Poland has failed to fulfil its obligations under Article 8(1) and (2), Annex V, point 1, ninth indent, and Article 10(2) of Directive 2002/49/EC of the European Parliament and of the Council of 25 June 2002 relating to the assessment and management of environmental noise, read in conjunction with Annex VI of that directive:

—	by failing to adopt, within the time limits laid down by that directive, action plans for the areas in which the limit values were not exceeded;

—	by failing to make provision for the action plans to include actions intended to be taken in the next five years to preserve quiet areas;

—	by failing to draw up action plans concerning the 13 major railways and 247 major roads referred to in Annex A to the present judgment; and

—	by failing to submit summaries of the action plans concerning those major railways and major roads as well as the 16 major roads referred to in Annex B to the present judgment.

2.	Orders the Republic of Poland to pay the costs.

(1) OJ C 490, 6.12.2021.

12.6.2023

Official Journal of the European Union

C 205/8

Judgment of the Court (Second Chamber) of 20 April 2023 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — FW, CE

(Case C-650/21, (1) Landespolizeidirektion Niederösterreich and Finanzamt Österreich)

(Reference for a preliminary ruling - Social policy - Equal treatment in employment and occupation - Directive 2000/78/EC - Prohibition of discrimination on grounds of age - Remuneration of civil servants - Previous national legislation found to be discriminatory - Grading under a new system of remuneration by reference to seniority fixed under a previous system of remuneration - Correction of that seniority by determining a comparison reference date - Discriminatory nature of the new grading - Rule placing older officials at a disadvantage)

(2023/C 205/09)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: FW, CE

Interveners: Landespolizeidirektion Niederösterreich, Finanzamt Österreich

Operative part of the judgment

Articles 1, 2 and 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, read in conjunction with Article 21 of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding national legislation under which the grading of a civil servant is fixed on the basis of his or her seniority in the remuneration scale of a previous remuneration system found to be discriminatory in so far as that system, for the purposes of determining that seniority, allowed only accreditable periods prior to the recruitment of the civil servant which were completed from the age of 18 to be taken into account, to the exclusion of those completed before that age, where that legislation provides that a correction of the civil servant’s accreditable periods completed prior to his or her recruitment, as initially calculated, is to be made by determining a comparison reference date, for the purposes of which, in order to determine that seniority, accreditable periods prior to recruitment which were completed before that civil servant’s 18th birthday are henceforth taken into account where, first, as regards periods completed after the 18th birthday, only ‘other periods’ of which half must be taken into account are taken into account and, second, those ‘other periods’ are increased from three to seven years, but are taken into account only in so far as they exceed four years.

The principle of equal treatment, as enshrined in Article 20 of the Charter of Fundamental Rights, and the principle of legal certainty

must be interpreted as precluding national legislation which provides, as regards civil servants in respect of whom a procedure intended to redefine their position in the remuneration scale was pending on the date of publication of a legislative amendment to the remuneration system including that scale, that remuneration is to be recalculated in accordance with the new provisions relating to the comparison reference date, those provisions containing new limitations regarding the maximum length of accreditable periods, with the result that discrimination on grounds of age contrary to Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter of Fundamental Rights, is not eliminated, whereas no such calculation is made for civil servants in respect of whom a procedure with the same purpose, initiated previously, has already been closed by a final decision, based on a reference date determined more favourably under the previous remuneration system whose provisions, considered by national courts as being discriminatory, have been disapplied in direct application of the principle of equal treatment laid down by EU law.

Articles 1, 2 and 6 of Directive 2000/78, read in conjunction with Article 21 of the Charter of Fundamental Rights,

must be interpreted as not precluding national legislation which provides that periods of apprenticeship undertaken with a national local authority are to be taken into account in their entirety, for the purposes of determining the comparison reference date, only where the civil servant concerned was recruited by the State after a certain date, whereas half of periods of apprenticeship are to be taken into account, in being subject to a flat-rate deduction, where the civil servant concerned was recruited by the State before that date.

(1) OJ C 73, 14.2.2022.

12.6.2023

Official Journal of the European Union

C 205/9

Judgment of the Court (Fifth Chamber) of 20 April 2023 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Brink’s Lithuania’ UAB v Lietuvos bankas

(Case C-772/21, (1) Brink’s Lithuania)

(Reference for a preliminary ruling - Protection of the euro against counterfeiting - Regulation (EC) No 1338/2001 - Article 6(1) - Payment service providers engaged in the processing of banknotes and their distribution to the public - Decision ECB/2010/14 - Article 6(2) - Detection of unfit euro banknotes - Automated fitness checking of banknotes - Minimum standards published on the website of the European Central Bank (ECB) and amended from time to time - Personal scope - Extent of cash handlers’ obligations - Binding force - Principle of legal certainty)

(2023/C 205/10)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Appellant:‘Brink’s Lithuania’ UAB

Other party to the appeal proceedings: Lietuvos bankas

Operative part of the judgment

Article 6(2) of Decision ECB/2010/14 of the European Central Bank of 16 September 2010 on the authenticity and fitness checking and recirculation of euro banknotes, as amended by Decision ECB/2012/19 of the European Central Bank of 7 September 2012,

must be interpreted as meaning that the minimum standards referred to in that provision do not apply to cash handlers when they carry out automated fitness checks in respect of euro banknotes.

However, Article 3(1) and Article 10(1) of Decision ECB/2010/14, as amended, read in conjunction with Article 6(1) of Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the euro against counterfeiting, as amended by Council Regulation (EC) No 44/2009 of 18 December 2008,

must be interpreted as meaning that cash handlers are required to adopt the necessary measures to remedy a situation where an inspection by a national central bank of a Member State whose currency is the euro has shown that their banknote handling machines are not capable of detecting, below a 5 % tolerance level, that euro banknotes are unsuitable for recirculation.

Article 6(2) of Decision ECB/2010/14, as amended by Decision ECB/2012/19, read in conjunction with Article 3(5) of Decision ECB/2010/14, as amended,

must be interpreted as precluding a Member State from requiring cash handlers to comply with the European Central Bank’s minimum standards referred to therein when they carry out automated fitness checks in respect of euro banknotes.

(1) OJ C 95, 28.2.2022.

12.6.2023

Official Journal of the European Union

C 205/10

Judgment of the Court (Sixth Chamber) of 20 April 2023 (requests for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Blue Air Aviation SA v UCMR — ADA Asociaţia pentru Drepturi de Autor a Compozitorilor (C-775/21) and Uniunea Producătorilor de Fonograme din România (UPFR) v Societatea Națională de Transport Feroviar de Călători (SNTFC) ‘CFR Călători’ SA (C-826/21)

(Joined Cases C-775/21 and C-826/21, (1) Blue Air Aviation and Others)

(Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 2001/29/EC - Article 3(1) - Communication to the public - Concept - Broadcasting of background music - Directive 2006/115/EC - Article 8(2) - Equitable remuneration - Mere provision of physical facilities - Sound equipment on board trains and aircraft - Presumption of communication to the public)

(2023/C 205/11)

Language of the case: Romanian

Referring court

Curtea de Apel Bucureşti

Parties to the main proceedings

Applicants: Blue Air Aviation SA (C-775/21), Uniunea Producătorilor de Fonograme din România (UPFR) (C-826/21)

Defendants: UCMR — ADA Asociaţia pentru Drepturi de Autor a Compozitorilor (C-775/21), Societatea Națională de Transport Feroviar de Călători (SNTFC) ‘CFR Călători’ SA (C-826/21)

Operative part of the judgment

Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision.

Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property

must be interpreted as meaning that the installation, on board a means of transport, of sound equipment, and, where appropriate, of software enabling the broadcasting of background music, does not constitute a communication to the public within the meaning of those provisions.

3.	Article 8(2) of Directive 2006/115 must be interpreted as precluding national legislation, as interpreted by the national courts, which establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport.

(1) OJ C 191, 10.5.2022.

12.6.2023

Official Journal of the European Union

C 205/11

Judgment of the Court (Seventh Chamber) of 20 April 2023 — Amazon.com Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl, Amazon Europe Core Sàrl v European Commission

(Case C-815/21 P) (1)

(Appeal - Competition - Article 102 TFEU - Abuse of dominant position - Online sales - Regulation (EC) No 773/2004 - Article 2(1) - European Commission decision to initiate an investigation - Territorial scope of the investigation - Exclusion of Italy - Allocation of competence between the Commission and the competition authorities of the Member States - Regulation (EC) No 1/2003 - Article 11(6) - The competition authorities of the Member States being relieved of their competence - Protection against proceedings conducted in parallel by the competition authorities of the Member States and by the Commission - Action for annulment - Act not open to challenge - Act not producing legal effects vis-à-vis third parties - Preparatory act - Inadmissibility)

(2023/C 205/12)

Language of the case: English

Parties

Appellants: Amazon.com Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl, Amazon Europe Core Sàrl (represented by: A. Komninos, dikigoros, and G. Tantulli, abogado)

Other party to the proceedings: European Commission (represented by: B. Ernst, T. Franchoo, G. Meessen and C. Sjödin, acting as Agents)

Intervener in support of the defendant: Autorità Garante della Concorrenza e del Mercato (represented by: P. Gentili, avvocato dello Stato)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Amazon.com, Inc., Amazon Services Europe Sàrl, Amazon EU Sàrl and Amazon Europe Core Sàrl to bear their own costs and to pay the costs incurred by the European Commission;

3.	Orders the Autorità Garante della Concorrenza e del Mercato (National Competition Authority, Italy) to bear its own costs in relation to the appeal proceedings.

(1) OJ C 84, 21.2.2022.

12.6.2023

Official Journal of the European Union

C 205/12

Judgment of the Court (Ninth Chamber) of 27 April 2023 (request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie — Romania) — Banca A v Agenţia Naţională de Administrare Fiscală (ANAF), Preşedintele ANAF

(Case C-827/21, (1) Banca A (Application of the Merger Directive in a domestic situation))

(Reference for a preliminary ruling - Directive 2009/133/EC - Article 7 - Merger by absorption - Purely domestic operation - Primacy of EU law outside the scope of EU law - None - Interpretation of EU law outside its scope - Jurisdiction of the Court to deliver preliminary rulings - Condition - EU law made applicable by national law directly and unconditionally)

(2023/C 205/13)

Language of the case: Romanian

Referring court

Înalta Curte de Casaţie şi Justiţie

Parties to the main proceedings

Applicant: Banca A

Defendants: Agenţia Naţională de Administrare Fiscală (ANAF), Preşedintele ANAF

Operative part of the judgment

EU law does not require a national court to interpret, in accordance with Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States, a provision of national legislation applicable to a purely domestic merger of two undertakings, each having their registered office in the same Member State, as that operation does not come within the scope of that directive.

The Court does not have jurisdiction to answer the questions referred regarding the interpretation of Directive 2009/133, as the facts of the dispute in the main proceedings do not come within its scope and, moreover, domestic law has not made it applicable to those facts directly and unconditionally.

(1) OJ C 165, 19.4.2022.

12.6.2023

Official Journal of the European Union

C 205/12

Judgment of the Court (Seventh Chamber) of 20 April 2023 (request for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — BF v Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB)

(Case C-52/22, (1) BVAEB (Adjustment of retirement pensions))

(Reference for a preliminary ruling - Social policy - Equal treatment in employment and occupation - Directive 2000/78/EC - Prohibition of discrimination on grounds of age - Article 2(1) and (2)(a) - Article 6(1) - Retirement pension - National legislation providing for a gradual alignment of the pension scheme for civil servants with the general pension scheme - First adjustment of the amount of the pension being made more quickly for one category of civil servants than for another - Justification)

(2023/C 205/14)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: BF

Defendant: Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB)

Operative part of the judgment

Article 2(1) and (2)(a) and (b) and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

must be interpreted as not precluding national legislation which, with a view to gradually aligning the pension scheme for civil servants with the general pension scheme, provides that the first adjustment of the amount of the retirement pension of one category of civil servants is to be made as from the second calendar year following the commencement of entitlement to a pension, whereas, for another category of civil servants, that adjustment is to be made from the first calendar year following the commencement of that entitlement.

(1) OJ C 158, 11.4.2022.

12.6.2023

Official Journal of the European Union

C 205/13

Judgment of the Court (Seventh Chamber) of 27 April 2023 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Viagogo AG v Autorità per le Garanzie nelle Comunicazioni, Autorità Garante della Concorrenza e del Mercato

(Case C-70/22, (1) Viagogo)

(Reference for a preliminary ruling - Electronic commerce - Directive 2000/31/EC - Article 1 - Scope - Article 2(c) - Concept of ‘established service provider’ - Article 3(1) - Provision of information society services by a provider established on the territory of a Member State - Company established on the territory of the Swiss Confederation - Inapplicability ratione personae - Article 56 TFEU - Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons - Scope - Prohibition of restrictions on the cross-frontier provision of services not exceeding 90 days per calendar year - Provision of services in Italy for a period exceeding 90 days - Inapplicability ratione personae - Article 102 TFEU - Nothing in the order for reference enabling a link to be established between the dispute in the main proceedings and any abuse of a dominant position - Inadmissibility)

(2023/C 205/15)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Viagogo AG

Defendants: Autorità per le Garanzie nelle Comunicazioni, Autorità Garante della Concorrenza e del Mercato

Intervening party: Ticketone SpA

Operative part of the judgment

The request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy), made by decision of 27 January 2022, is inadmissible.

(1) OJ C 165, 19.4.2022.

12.6.2023

Official Journal of the European Union

C 205/14

Judgment of the Court (Seventh Chamber) of 27 April 2023 — HC v European Commission

(Case C-102/22 P) (1)

(Appeal - Civil service - Recruitment - Open competition EPSO/AD/363/18 - Notice of competition - Assessment by the selection board of the candidate’s answers to the ‘Talent Screener’ - Non-admission to the next stage of the competition - Rules on languages - Limitation of the choice of the second language of the competition to English and French - Plea of illegality relating to the notice of competition - Inadmissibility)

(2023/C 205/16)

Language of the case: English

Parties

Appellant: HC (represented by: D. Rovetta and V. Villante, avvocati)

Other party to the proceedings: European Commission (represented by: M. Brauhoff and T. Lilamand, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal.

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

(1) OJ C 222, 7.6.2022.

12.6.2023

Official Journal of the European Union

C 205/14

Judgment of the Court (Fifth Chamber) of 27 April 2023 (request for a preliminary ruling from the Markkinaoikeus — Finland) — Lännen MCE Oy v Berky GmbH, Senwatec GmbH & Co. KG.

(Case C-104/22, (1) Lännen MCE)

(Reference for a preliminary ruling - EU trade mark - Regulation (EU) 2017/1001 - Article 125(5) - International jurisdiction - Infringement action - Jurisdiction of the courts of the Member State in which the act of infringement has been committed or threatened - Advertising displayed by a search engine using a national top-level domain name - Advertising not specifying the geographical area of supply - Factors to be taken into account)

(2023/C 205/17)

Language of the case: Finnish

Referring court

Markkinaoikeus

Parties to the main proceedings

Applicant: Lännen MCE Oy

Defendants: Berky GmbH, Senwatec GmbH & Co. KG.

Operative part of the judgment

Article 125(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark,

must be interpreted as meaning that the proprietor of an EU trade mark who considers that he or she has been prejudiced by the use, without his or her consent, by a third party, of a sign identical with that mark in online advertisements and offers for sale in respect of goods identical with, or similar to, those for which that mark is registered, may bring an infringement action against that third party before an EU trade mark court of the Member State in which consumers and traders targeted by those advertisements or offers for sale are located, notwithstanding the fact that the third party does not expressly and unambiguously list that Member State among the territories to which a supply of the goods in question might be made, if that third party has made use of that sign by means of paid referencing on a search engine website which uses a national top-level domain name of that Member State. By contrast, that is not the case simply because the third party concerned has used the natural referencing of images of its goods on an online photo-sharing service under a generic top-level domain, having recourse to meta tags using the trade mark concerned as a keyword.

(1) OJ C 171, 25.4.2022.

12.6.2023

Official Journal of the European Union

C 205/15

Judgment of the Court (Sixth Chamber) of 27 April 2023 (request for a preliminary ruling from the Gerechtshof Amsterdam — Netherlands) — X BV, Inspecteur van de Belastingdienst/Douane district Rotterdam

(Case C-107/22, (1) X and Inspecteur van de Belastingdienst Douane)

(Reference for a preliminary ruling - Common Customs Tariff - Classification of goods - Combined Nomenclature - Interpretation - General rules - General rule 2(a) - Article presented unassembled or disassembled - Components intended to make up, after assembly, satellite receivers - Classification as a complete receiver)

(2023/C 205/18)

Language of the case: Dutch

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Applicant: X BV

Other party: Inspecteur van de Belastingdienst/Douane district Rotterdam

Operative part of the judgment

General Rule 2(a) of the General rules for the interpretation of the combined nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1549/2006 of 17 October 2006,

must be interpreted as meaning that components of a satellite receiver which are intended, after their release for free circulation, to be assembled into a complete satellite receiver, which components are transported in a single container and are declared for release for free circulation on the same day at the same customs office by the same declarant, in its own name and on its own behalf, by means of two separate declarations for release for free circulation, and which, at the time of their release for free circulation, are owned by two associated undertakings, must be regarded as constituting such a receiver, presented unassembled or disassembled, within the meaning of that rule, and therefore come under a single tariff heading, in so far as it is established in the light of objective factors that those components belong together as a unit and include all the component parts of that receiver.

General Rule 2(a) of the General rules for the interpretation of the combined nomenclature in Annex I to Regulation No 2658/87, as amended by Regulation No 1549/2006,

must be interpreted as also applying where some of the goods at issue are declared for release for free circulation while others are placed under the external Community transit procedure.

(1) OJ C 207, 23.5.2022.

12.6.2023

Official Journal of the European Union

C 205/16

Judgment of the Court (Sixth Chamber) of 27 April 2023 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — FI v Bayerische Motoren Werke AG

(Case C-192/22, (1) Bayerische Motoren Werke)

(Reference for a preliminary ruling - Social policy - Directive 2003/88/EC - Article 7(1) - Article 31(2) of the Charter of Fundamental Rights of the European Union - Right to paid annual leave - Lapse of that right - Progressive retirement scheme - Days of annual leave acquired under that scheme but as yet untaken - Incapacity for work)

(2023/C 205/19)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: FI

Defendant: Bayerische Motoren Werke AG

Operative part of the judgment

Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a rule of national law which provides that the right to paid annual leave acquired by a worker, by reason of his or her work in the context of a progressive retirement scheme, is to lapse at the end of the holiday year or at a later date, where the worker has been prevented from taking that leave before the work release phase due to illness, even where it is not a long-term absence.

(1) OJ C 222, 7.6.2022.

12.6.2023

Official Journal of the European Union

C 205/17

Judgment of the Court (Ninth Chamber) of 20 April 2023 (request for a preliminary ruling from the Supremo Tribunal de Justiça — Portugal) — Ocidental — Companhia Portuguesa de Seguros de Vida, SA v LP

(Case C-263/22, (1) Ocidental — Companhia Portuguesa de Seguros de Vida)

(Reference for a preliminary ruling - Unfair terms in consumer contracts - Directive 93/13/EEC - Articles 3 to 6 - Criteria for assessing the unfairness of a contractual term - Requirement of transparency - Group insurance contract - Permanent invalidity of the consumer - Duty to provide information - Non-disclosure of a term limiting or excluding cover against the insured risk)

(2023/C 205/20)

Language of the case: Portuguese

Referring court

Supremo Tribunal de Justiça

Parties to the main proceedings

Applicant: Ocidental — Companhia Portuguesa de Seguros de Vida, SA

Defendant: LP

intervening parties: Banco Comercial Português SA, Banco de Investimento Imobiliário SA

Operative part of the judgment

Article 4(2) and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the 20th recital of that directive,

must be interpreted as meaning that a consumer must always be afforded the opportunity, before the conclusion of a contract, to become acquainted with all the terms that the latter contract contains.

Article 3(1) and Articles 4 to 6 of Directive 93/13

must be interpreted as meaning that where a term of an insurance contract relating to the exclusion or limitation of cover against the insured risk, with which the consumer concerned could not have become acquainted prior to the conclusion of that contract, is found to be unfair by the national court, that court is required to exclude the application of that term in order that it may not produce binding effects with regard to that consumer.

(1) OJ C 276, 18.7.2022.

12.6.2023

Official Journal of the European Union

C 205/18

Judgment of the Court (Tenth Chamber) of 20 April 2023 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Dyrektor Krajowej Informacji Skarbowej v P. in W.

(Case C-282/22, (1) Dyrektor Krajowej Informacji Skarbowej)

(Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Articles 14, 15 and 24 - Recharging points for electric vehicles - Provision of devices for recharging electric vehicles, supply of the necessary electricity, and provision of technical support and IT services - Classification as a ‘supply of goods’ or a ‘supply of services’)

(2023/C 205/21)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant in cassation: Dyrektor Krajowej Informacji Skarbowej

Respondent in cassation: P. in W.

Interested party: Rzecznik Małych i Średnich Przedsiębiorców

Operative part of the judgment

Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009,

must be interpreted as meaning that a single complex supply which encompasses:

—	access to recharging devices for electric vehicles (including integration of the charger with the vehicle operating system);

—	the supply of electricity, within duly adjusted parameters, to the batteries of that vehicle;

—	the necessary technical support for the users concerned; and

—	the provision of IT applications enabling the user concerned to reserve a connector, view his or her transaction history, and purchase credits which are then accumulated in an e-wallet and used to pay for recharging sessions

constitutes a ‘supply of goods’ within the meaning of Article 14(1) of Directive 2006/112, as amended.

(1) OJ C 326, 29.8.2022.

12.6.2023

Official Journal of the European Union

C 205/19

Judgment of the Court (Third Chamber) of 20 April 2023 (request for a preliminary ruling from the Tribunale amministrativo regionale per la Puglia — Italy) — Autorità Garante della Concorrenza e del Mercato v Comune di Ginosa

(Case C-348/22, (1) Autorità Garante della Concorrenza e del Mercato (Municipality of Ginosa))

(Reference for a preliminary ruling - Services in the internal market - Directive 2006/123/EC - Assessment of validity - Legal basis - Articles 47, 55 and 94 EC - Interpretation - Article 12(1) and (2) of that directive - Direct effect - Unconditional and sufficiently precise nature of the obligation for Member States to apply an impartial and transparent selection procedure to potential candidates and of the prohibition on automatic renewal of an authorisation granted for a given activity - National legislation providing for the automatic extension of concessions for the occupation of State-owned maritime property)

(2023/C 205/22)

Language of the case: Italian

Referring court

Tribunale amministrativo regionale per la Puglia

Parties to the main proceedings

Applicant: Autorità Garante della Concorrenza e del Mercato

Defendant: Comune di Ginosa

other parties: L’Angolino Soc. coop., Lido Orsa Minore di AB, La Capannina Srl, Sud Platinum Srl, Lido Zanzibar Srl, Poseidone Srl, Lg Srls, Lido Franco di GH & C. Snc, Lido Centrale Piccola Soc. coop. arl, Bagno Cesena Srls, E.T. Edilizia e Turismo Srl, Bluserena SpA, Associazione Pro Loco ‘Luigi Strada’, M2g Raw Materials SpA, JF, D.M.D. Snc di CD & C. Snc, Ro.Mat., di MN & Co Snc, Perla dello Jonio Srl, Ditta Individuale EF, Associazione Dopolavoro Ferroviario Sez. Marina di Ginosa, Al Capricio Bis di RS, LB, Sib Sindacato Italiano Balneari, Federazione Imprese Demaniali

Operative part of the judgment

Article 12(1) and (2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

must be interpreted as meaning that it does not apply only to concessions for the occupation of State-owned maritime property which are of certain cross-border interest.

Article 12(1) of Directive 2006/123

must be interpreted as not precluding an assessment of the scarcity of natural resources and available concessions from being made by combining an abstract and general approach at national level with a case-by-case approach based on an analysis of the coastal territory of the municipality concerned.

3.	Consideration of the first question has disclosed no factor of such a kind as to affect the validity of Directive 2006/123 in the light of Article 94 EC.

Article 12(1) and (2) of Directive 2006/123

must be interpreted as meaning that the obligation for Member States to apply an impartial and transparent selection procedure to potential candidates and the prohibition on automatic renewal of an authorisation granted for a given activity are laid down unconditionally and sufficiently precisely to be regarded as having direct effect.

The third paragraph of Article 288 TFEU

must be interpreted as meaning that the assessment of the direct effect of the obligation and of the prohibition provided for in Article 12(1) and (2) of Directive 2006/123 and the obligation to disapply conflicting national provisions lie with the national courts and the administrative authorities, including municipal authorities.

(1) OJ C 318, 22.8.2022.

12.6.2023

Official Journal of the European Union

C 205/20

Judgment of the Court (Ninth Chamber) of 27 April 2023 (request for a preliminary ruling from the tribunal d’arrondissement de Luxembourg — Luxembourg) — CM v DN

(Case C-372/22, (1) CM (Right of access to a child who has moved))

(Reference for a preliminary ruling - Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility - Regulation (EC) No 2201/2003 - Articles 9 and 15 - Continuing jurisdiction of the courts of the Member State of the child’s former habitual residence following the child having moved - Concept of ‘moving’ - Application for modification of a decision relating to access rights - Calculation of the time limit within which such an application must be submitted - Transfer of the case to a court of the Member State of the child’s new habitual residence, better placed to hear the case)

(2023/C 205/23)

Language of the case: French

Referring court

Tribunal d’arrondissement de Luxembourg

Parties to the main proceedings

Applicant: CM

Defendant: DN

Operative part of the judgment

Article 9(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000,

must be interpreted as meaning that the three-month period during which, by way of derogation from Article 8(1) of Regulation No 2201/2003, the courts of the Member State of the child’s former habitual residence retain jurisdiction to hear an application for modification of a final judgment concerning rights of access, begins on the day following that on which that child actually moved to the Member State of his or her new habitual residence.

Regulation No 2201/2003

must be interpreted as meaning that the court of the Member State of the child’s former habitual residence, which has jurisdiction as to the substance of the matter under Article 9 of that regulation, may exercise the option of transferral, set out in Article 15 of that regulation, to the court of the Member State of that child’s new habitual residence provided that the conditions laid down in Article 15 are satisfied.

(1) OJ C 359, 19.9.2022.

12.6.2023

Official Journal of the European Union

C 205/21

Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 7 February 2023 — Streaming Services Srl — in liquidation, represented by the receiver Cabinet Individual de Insolvență ‘Mihai Florea’ v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Administrația Județeană a Finanțelor Publice Călărași

(Case C-69/23, Streaming Services)

(2023/C 205/25)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: Streaming Services Srl — in liquidation, represented by the receiver Cabinet Individual de Insolvență ‘Mihai Florea’

Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Administrația Județeană a Finanțelor Publice Călărași

Questions referred

For the purposes of the uniform interpretation and application of [EU] law, does the supply of digital content such as that at issue in the main proceedings, consisting in interactive erotic sessions, filmed and transmitted in real time by electronic/internet means, provided by a taxable person in one Member State of the European Union (P1, video chat studio) to another taxable person in another EU Member State (P2, online live streaming platform), constitute an intra-Community supply of services subject to the general rules laid down in Article 44 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (VAT Directive), or does it constitute the grant of admission to an entertainment event within the meaning of Article 53 of the VAT Directive?

When interpreting and applying Article 53 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (VAT Directive) and Article 32(1) of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for the VAT Directive, (2) in which place are the events to be regarded as actually taking place, in the case of activities consisting in interactive erotic sessions, filmed and transmitted in real time by electronic/internet means (used in video chat activity), such as those at issue in the main proceedings, where:

(a)	the natural person (model) and the video chat studio,

(b)	the live streaming platform and

(c)	the natural person paying a fee for access to such live streaming services (end customer)

are located in different Member States or third states?

3.	Depending on the reply given to the first two questions: in which of the three EU Member States should value added tax on the supply of services be, respectively, declared and paid?

Do the VAT Directive and the principle of the prevention of double taxation preclude national tax legislation, such as Article 307 of Legea nr. 227/2015 (Law No 227/2015), under which:

(a)

the national tax authorities of the State of the provider may classify cross-border services provided by a taxable person in one EU Member State (P1 — video chat studio), consisting in the supply (transfer) of digital content such as that at issue in the main proceedings to a taxable person in another Member State (P2), by means of an online live streaming platform in another State (P3), as services giving admission to an entertainment event, pursuant to Article 53 of the VAT Directive, with the result that the VAT relating to those services must be collected and paid to the Treasury of the State in which the provider’s registered office is situated, whereas, at an earlier point in time, the same services were classified by the tax authorities of the State in which the recipient of the services is established (P2), by way of a fiscal administrative act which became final in the absence of any judicial challenge, as intra-Community supplies of services covered by the general rule laid down in Article 44 of the VAT Directive? Is it possible for the tax authorities of a State to which the matter is subsequently referred or which are acting on their own initiative to make a legal classification of the cross-border services that are subject to a tax inspection in that State that differs from the legal classification already adopted for the same services, under a fiscal administrative act that has become final in the absence of any judicial challenge, by the tax authorities of the other State to which the matter was originally referred or which acted on their own initiative, thereby giving rise to the double taxation of VAT, or are the tax authorities to which the matter is subsequently referred or which act on their own initiative bound by the legal classification of the cross-border services in question by the tax authorities to which the matter was originally referred, which has become final as a result of the absence of any challenge and is [therefore] not open to judicial review?

(b)	In the light of the answer given to the above questions, in a case such as that at issue in the main proceedings, pursuant to the VAT Directive and the principle of the prevention of double taxation, which place is to be regarded as the place of supply of services?

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

(2) Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ 2011 L 77, p. 1).

12.6.2023

Official Journal of the European Union

C 205/22

Request for a preliminary ruling from the Curtea de Apel Ploieşti (Romania) lodged on 10 February 2023 — Criminal proceedings against C.A.A., C.F.G., C.G.C., C.D.R., G.L.C., G.S., L.C.I., M.G., M.C.G., N.A.S., P.C., U.V., S.O., Ş.V.O., C.V., I.R.P., B.I.I.

(Case C-74/23, Parchetul de pe lângă Înalta Curte de Casație și Justiție — D.N.A. Serviciul Teritorial Brașov)

(2023/C 205/26)

Language of the case: Romanian

Referring court

Curtea de Apel Ploieşti

Appellant

Parchetul de pe lângă Înalta Curte de Casație și Justiție — Direcția Națională Anticorupție — Serviciul Teritorial Brașov

Defendants

C.A.A., C.F.G., C.G.C., C.D.R., G.L.C., G.S., L.C.I., M.G., M.C.G., N.A.S., P.C., U.V., S.O., Ş.V.O., C.V., I.R.P., B.I.I.

Civil party

Unitatea Administrativ Teritorială Județul Brașov

Interested persons

C.M., C.A., C.Al.

Questions referred

Are Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4[(3)] TEU, read in conjunction with Article 325(1) TFEU, Article 2(1) of the PFI Convention, (1) Articles 2 and 12 of the PFI Directive (2) and Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, (3) and in application of Commission Decision 2006/928/EC, (4) with reference to the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same constitutional court delivered four years earlier (decision of 2018) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following the first decision of the constitutional court — with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the constitutional court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

Are Article 2 TEU, on the values of the rule of law and respect for human rights in a society in which justice prevails, and Article 4[(3)] TEU, on the principle of sincere cooperation between the European Union and the Member States, in application of Commission Decision 2006/928/EC, in so far as concerns the commitment to ensuring the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, which enshrines the principle of the more lenient criminal law, to be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same constitutional court delivered four years earlier (decision of 2018) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following the first decision of the constitutional court — with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the constitutional court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

If that is so, and only if it is impossible to provide an interpretation in conformity with EU law, is the principle of the primacy of EU law to be interpreted as precluding national legislation or a national practice pursuant to which the ordinary national courts are bound by decisions of the national constitutional court and binding decisions of the national supreme court and, for that reason, cannot, without committing a disciplinary offence, of their own motion disapply the case-law resulting from those decisions, even if, in light of a judgment of the Court of Justice, they take the view that that case-law is contrary to Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4[(3)] TEU, read in conjunction with Article 325(1) TFEU, in application of Commission Decision 2006/928/EC, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, as in the situation in the main proceedings?

(1) Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (OJ 1995 C 316, p. 49).

(2) Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ 2017 L 198, p. 29).

(3) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

(4) Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).

12.6.2023

Official Journal of the European Union

C 205/24

Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 10 February 2023 — Criminal proceedings against M.A.sr, S.A.C.S., S.A.S.

(Case C-75/23, Parchetul de pe lângă Tribunalul Brașov)

(2023/C 205/27)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Appellant

Parchetul de pe lângă Tribunalul Brașov

Defendants

M.A.sr, S.A.C.S., S.A.S.

Civil party

Romanian State

Questions referred

Are Article 2 TEU, the second paragraph of Article 19(1) TEU and Article 4[(3)] TEU, read in conjunction with Article 325(1) TFEU, Article 2(1) of the PFI Convention, (1) Articles 2 and 12 of the PFI Directive (2) and Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (3) with reference to the principle of effective and dissuasive penalties in cases of serious fraud affecting the financial interests of the European Union, and in application of Commission Decision 2006/928/EC, (4) with reference to the last sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same constitutional court delivered four years earlier (decision of 2018) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following the first decision of the constitutional court — with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the constitutional court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

Are Article 2 TEU, on the values of the rule of law and respect for human rights in a society in which justice prevails, and Article 4[(3)] TEU, on the principle of sincere cooperation between the European Union and the Member States, in application of Commission Decision 2006/928/EC in so far as it concerns the commitment to ensuring the efficiency of the Romanian judicial system, with reference to the last sentence of Article 49[(1)] of the Charter of Fundamental Rights of the European Union, which enshrines the principle of the more lenient criminal law, to be interpreted, in relation to the national judicial system as a whole, as precluding a legal situation, such as that in the case in the main proceedings, in which defendants request the application of the principle of the more lenient criminal law, in a context in which a national constitutional court decision has declared as unconstitutional legislation on the interruption of the limitation period for criminal liability (decision of 2022), on the ground that the legislature had failed to act to bring the legislation in question into line with another decision of the same constitutional court delivered four years earlier (decision of 2018) — and in the interim the case-law of the ordinary courts applying the first decision had become settled in the sense that the legislation in question continued to exist, in the form understood following the first decision of the constitutional court — with the practical consequence that the limitation period for all the offences in relation to which no final conviction had been handed down prior to the first decision of the constitutional court was reduced by half and the criminal proceedings against the defendants in question were consequently discontinued?

(1) Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (OJ 1995 C 316, p. 49).

(3) OJ 2006 L 347, p. l.

12.6.2023

Official Journal of the European Union

C 205/25

Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 February 2023 — H GmbH v Tax office of M

(Case C-83/23, H GmbH)

(2023/C 205/28)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: H GmbH

Defendant: Tax office of M

Questions referred

Questions referred for a preliminary ruling on the interpretation of Directive 2006/112/EC: (1)

Does the recipient of a service, who is domiciled in the national territory, have a so-called direct claim against the national tax administration by virtue of the judgment of the Court of 15 March 2007, Reemtsma Cigarettenfabriken — C-35/05 (EU:C:2007:167) if:

(a)	the service provider, who is also domiciled within the national territory, issues the service recipient with an invoice that shows the tax incurred at a national level and the service recipient pays the invoice, with the provider then duly paying the tax shown in the invoice,

(b)	the invoiced service is provided in another Member State,

(c)	the service recipient is therefore denied an input VAT deduction in its country of domicile because no tax is owed under the laws of that country,

(d)	the provider then corrects the invoice by removing any reference to the tax incurred at a national level, thereby reducing the invoice amount by the amount of the tax,

(e)	the service recipient proves unable to assert any payment claims against the provider because insolvency proceedings were opened in respect of the provider’s assets, and

(f)

the provider, who is not yet registered in the other Member State, has the option to register for VAT purposes in that Member State in order to be able to issue the service recipient with an invoice bearing the relevant tax number in that Member State and showing the tax payable in said Member State, which would entitle the service recipient to an input VAT deduction in said Member State under the special procedure set out in Directive 2008/9/EC (2) of 12 February 2008?

2.	Does the answer to that question depend on whether the national tax administration has refunded the tax paid to the provider merely by virtue of the corrected invoice, even though the provider did not repay anything to the service recipient following the opening of insolvency proceedings?

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

(2) Council Directive 2008/9/EC of 12 February 2008 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 (OJ 2008 L 44, p. 23).

12.6.2023

Official Journal of the European Union

C 205/26

Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Warszawie (Poland) lodged on 21 February 2023 — Rada nadzorcza Getin Noble Bank and Others v Bankowy Fundusz Gwarancyjny

(Case C-118/23, Getin Holding and Others)

(2023/C 205/29)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Warszawie

Parties to the main proceedings

Applicants: Rada nadzorcza Getin Noble Bank and Others

Defendant: Bankowy Fundusz Gwarancyjny

Questions referred

Is Article 85(2) and (3) of 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, (1) of the European Parliament and of the Council (OJ 2014 L 173, p. 190, as amended), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1), and the second paragraph of Article 19(1) of the Treaty on European Union (Dz. U. of 2004, No 90, item 864/30, as amended), to be interpreted as meaning that, when the supervisory board of an entity undergoing restructuring brings an action before a national administrative court against a decision concerning compulsory restructuring, an effective legal remedy is deemed to be available also to persons who, in bringing an action against that decision, seek protection of their legal interest, where the court, in reviewing the contested decision, is not bound by the pleas in law and conclusions of the action or the legal basis relied on, a final judgment, given as a result of hearing that action, is effective erga omnes, and the possibility for those persons obtaining protection of their legal interest is not conditional on them bringing a separate action before an administrative court against that decision?

Is Article 85(3) of Directive 2014/59/EU, which requires effective judicial review, and Article 47 of the Charter of Fundamental Rights of the European Union, and the second subparagraph of Article 19(1) of the Treaty on European Union, which provide for effective legal protection, to be interpreted as precluding the application of a procedural rule of a Member State which requires a national administrative court to hear jointly all actions brought before it against a decision of a resolution authority where the application of that rule, together with other national procedural requirements relating to administrative courts, makes it excessively difficult, if not impossible, to give judgment in the case within a reasonable period, in view of the large number of such actions?

Is Article 3(3) of Directive 2014/59/EU be interpreted as permitting a Member State — in order to ensure operational independence and avoid conflicts of interest — not to separate structurally the functions of the resolution authority from the other functions of that authority as statutory guarantor of bank deposits or bank insolvency administrator (temporary administrator) appointed pursuant to a decision of the competent national authority for supervision for the purposes of Regulation (EU) No 575/2013 (2) and Directive 2013/36/EU? (3)

Is Article 3(3) of Directive 2014/59/EU to be interpreted as meaning that, where a Member State fails to fulfil its obligation to put in place adequate structural arrangements to ensure operational independence and avoid conflicts of interest between the functions of supervision under Regulation (EU) No 575/2013 and Directive 2013/36/EU or other functions of the relevant authority and the functions of the resolution authority, the condition relating operational independence and avoidance of conflicts of interest may be deemed to be satisfied if the national administrative court reviewing the decision concerning compulsory restructuring finds that the other administrative arrangements made were sufficient to achieve that effect?

(1) OJ 2014 L 173, p. 190.

(2) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

(3) 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).

12.6.2023

Official Journal of the European Union

C 205/27

Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 3 March 2023 — Criminal proceedings against C.A.A. and C.V.

(Case C-131/23, Unitatea Administrativ Teritorială Judeţul Braşov)

(2023/C 205/30)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Parties to the main proceedings

Appellants: C.A.A., C.V.

Respondent: Unitatea Administrativ Teritorială Județul Brașov

Interested party: Parchetul de pe lângă Înalta Curte de Casație și Justiție — Direcția Națională Anticorupție — Serviciul Teritorial Brașov

Questions referred

Should the second subparagraph of Article 19(1) [TEU], Article 325[(1)] TFEU, Article 2(1) of the PFI Convention (1) and Commission Decision 2006/928/EC (2) be interpreted as precluding the application of a decision of the Constitutional Court finding, retroactively, that there were no cases of interruption of the limitation period, despite the existence of a body of generalised, long-standing case-law of the national courts, including the highest courts, where the application of that decision would entail a systemic risk of impunity as a result of the re-opening of a significant number of criminal cases in which final judgment has been given and the delivery, in extraordinary appeal proceedings, of a decision to discontinue criminal proceedings as a result of a finding that the limitation period has expired?

Does the principle of the primacy of EU law, with reference to Commission Decision 2006/928/EC and the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union (the principle of the retroactivity of the more lenient criminal law), preclude any re-examination, at the stage where a sentence is being enforced, in extraordinary appeal proceedings, of the limitation period for criminal liability, where the lodging of the extraordinary appeal is a consequence of a decision of the Constitutional Court, delivered after the judgment passing sentence has become final, which overturns a body of generalised and long-standing case-law of the national courts and where the dissuasiveness and effectiveness of the sentence and the certainty and stability of legal relations are thereby affected?

Does the principle of the primacy of EU law, with reference to Article 53 of the Charter of Fundamental Rights of the European Union, permit the application of national standards of protection, such as that at issue in the main proceedings, guaranteed by the national law of the Member State and arising from the effects attributed to decisions of the Constitutional Court, where the effective application of EU law in the Member State is thereby undermined?

(1) Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests (OJ 1995 C 316, p. 49).

(2) Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56).

12.6.2023

Official Journal of the European Union

C 205/28

Request for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 6 March 2023 — Omya CZ s.r.o. v Generální ředitelství cel

(Case C-133/23, Omya CZ)

(2023/C 205/31)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Omya CZ s.r.o.

Defendant: Generální ředitelství cel

Question referred

Should indent five of Article 2(4) of Council Directive 2003/96 (1) be interpreted to the effect that electricity used to power machines used in the processing of quarried limestone, in the form of multi-stage grinding and crushing down to specific grain size, both in the quarry where the quarrying takes place, and in nearby processing facilities, constitutes electricity used for mineralogical processes?

(1) Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51).

12.6.2023

Official Journal of the European Union

C 205/28

Request for a preliminary ruling from the Sąd Rejonowy w Białymstoku (Poland) lodged on 10 March 2023 — XL v Sąd Rejonowy w Białymstoku

(Case C-146/23, Sąd Rejonowy w Białymstoku)

(2023/C 205/32)

Language of the case: Polish

Referring court

Sąd Rejonowy w Białymstoku

Parties to the main proceedings

Applicant: XL

Defendant: Sąd Rejonowy w Białymstoku

Question referred

Should Article 2 of the Treaty on European Union, which defines the values on which the European Union is based with regard to respect for the rule of law, and the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, which requires Member States to ensure effective legal protection, which is based on the right to a fair and public hearing, be interpreted as meaning that the principle of judicial independence precludes provisions of national legislation which, for the purpose of limiting government spending, waives a mechanism for setting judges’ pay on the basis of objective criteria that are independent of arbitrary interference by the executive and legislative authorities, resulting in sustained cuts to the pay of judges, thereby infringing the constitutional guarantees by which judges are granted remuneration consistent with the dignity of their office and the scope of their duties and the administration of justice is carried out by independent courts and independent judges?

12.6.2023

Official Journal of the European Union

C 205/29

Request for a preliminary ruling from the Kúria (Hungary) lodged on 17 March 2023 — Nemzeti Adatvédelmi és Információszabadság Hatóság v UC

(Case C-169/23, Másdi (1))

(2023/C 205/33)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Appellant and defendant at first instance: Nemzeti Adatvédelmi és Információszabadság Hatóság

Respondent and applicant at first instance: UC

Questions referred

(1)

Must Article 14(5)(c) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (2) (‘the GDPR’), read in conjunction with Article 14(1) and recital 62 thereof, be interpreted as meaning that the exception laid down in Article 14(5)(c) does not refer to data generated by the controller in its own procedure but rather only to data which the controller has expressly obtained from another person?

(2)

If Article 14(5)(c) of the GDPR is also applicable to data generated by the controller in its own procedure, must the right to lodge a complaint with a supervisory authority, laid down in Article 77(1) of the GDPR, be interpreted as meaning that a natural person who alleges an infringement of the obligation to provide information is entitled, when exercising his or her right to lodge a complaint, to request an examination of whether Member State law provides appropriate measures to protect the data subject’s legitimate interests, in accordance with Article 14(5)(c) of the GDPR?

(3)

If the answer to the second question is in the affirmative, may Article 14(5)(c) of the GDPR be interpreted as meaning that the ‘appropriate measures’ referred to in that provision require the national legislature to transpose (by means of legislation) the measures relating to the security of data laid down in Article 32 of the GDPR?

(1) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

(2) OJ 2016 L 119, p. 1.

12.6.2023

Official Journal of the European Union

C 205/30

Action brought on 28 March 2023 — European Commission v Republic of Bulgaria

(Case C-198/23)

(2023/C 205/34)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: J. Samnadda and Ts. Georgieva, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (1) (‘the directive’) and by failing to communicate them to the Commission, the Republic of Bulgaria has failed to fulfil its obligations under that directive;

—

order the Republic of Bulgaria to pay to the Commission a lump sum corresponding to the higher of (i) a daily amount of EUR 1 800 multiplied by the number of days between the day following the expiry of the time limit for transposition laid down in the directive and the day on which the infringement is rectified or, in the absence of rectification, the day on which judgment is given in the present proceedings; (ii) the minimum lump sum of EUR 504 000;

—

in the event that the failure to fulfil the obligations under point 1 continues until the date of judgment in the present proceedings, order the Republic of Bulgaria to pay to the Commission a periodic penalty payment of EUR 10 800 per day for each day of delay from the date of judgment in the present proceedings until the Republic of Bulgaria has complied with its obligations under the directive;

—	order Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

The Directive aims to contribute to the proper functioning of the internal market by providing for wider distribution in the Member States of television and radio programmes originating in other Member States by facilitating the licensing of copyright and related rights in works and other protected subject matter included in the broadcasting of certain types of television and radio programmes. It extends the application of the country of origin principle to online ancillary services for radio and certain types of television programmes. It also ensures access to a wider cross-border supply of programmes and creates legal clarity on cases of direct introduction.

Article 12 of the directive sets 7 June 2021 as the deadline for Member States to transpose the directive. Under paragraph 2 of that article, ‘member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive’.

On 23 July 2021, the Commission sent the Republic of Bulgaria a letter of formal notice. On 19 May 2022, the Commission sent a reasoned opinion to the Republic of Bulgaria. However, the measures transposing the Directive have not yet been adopted or, in any event, have not yet been communicated to the Commission.

(1) OJ 2019 L 130, p. 82.

12.6.2023

Official Journal of the European Union

C 205/31

Action brought on 29 March 2023 — European Commission v Republic of Bulgaria

(Case C-206/23)

(2023/C 205/35)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: B. De Meester and E. Ruseva, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The applicant claims that the Court should:

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (1) and by failing to notify those provisions to the Commission, the Republic of Bulgaria has failed to fulfil its obligations under Article 36 of that directivе.

order the Republic of Bulgaria to pay the Commission a lump sum corresponding to the higher of the following two amounts: (i) a daily sum of EUR 1 800, multiplied by the number of days between the day following the expiry of the time limit for transposition, laid down in the directive, and the day on which the infringement was resolved, or, if the infringement has not been resolved, the day on which the ruling is handed down in the present proceedings; (ii) a minimum lump sum payment of EUR 504 000.

in the event that the failure to fulfil the obligations referred to in point 1 continues up to the date of delivery of the ruling in the present proceedings, order the Republic of Bulgaria to make a periodic penalty payment to the Commission in the amount of EUR 10 800 per day for each day of delay from the date of the ruling in the present proceedings until that Member State has fulfilled its obligations in accordance with the directive, and

4.	order the Republic of Bulgaria to pay the costs of the proceedings.

Pleas in law and main arguments

Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources establishes the legal framework for the promotion of energy from renewable sources in the heating and cooling sector and in the transport sector in the European Union. The directive establishes a binding EU target of at least 32 % of energy to be provided from renewable sources by 2030. The directive prescribes measures that guarantee that the support for energy from renewable sources is cost effective and that the administrative procedures for projects concerning energy from renewable sources are less burdensome. It also facilitates citizens’ participation in the energy transition, allows renewables self-consumption and establishes renewable energy communities. The directive also sets out specific objectives to increase the share of renewable energy in the heating and cooling sector and in the transport sector by 2030, where progress concerning energy from renewable sources is slower than in the electricity sector. The directive strengthens the criteria to ensure bioenergy sustainability.

On 23 July 2021, the Commission sent the Republic of Bulgaria a letter of formal notice, in which it recalled that the time limit for transposing the Directive had expired and, moreover, that the Commission had not been notified of measures for its full transposition. On 2 December 2021, the Commission sent the Republic of Bulgaria a reasoned opinion under Article 258 of the Treaty on the Functioning of the European Union. Nevertheless, the measures transposing the directive have not yet been adopted or, in any event have not been notified to the Commission.

(1) OJ 2018 L 328, p. 82.

12.6.2023

Official Journal of the European Union

C 205/32

Action brought on 31 March 2023 — European Commission v Republic of Poland

(Case C-212/23)

(2023/C 205/36)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: U. Małecka and J. Samnadda, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The Commission claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC, (1) and by failing to inform the Commission of such measures, the Republic of Poland has failed to fulfil its obligations under Article 12(1) of that directive;

—

order the Republic of Poland to pay the Commission a lump sum equivalent to the greater of the two following amounts: (i) a daily amount of EUR 13 700 multiplied by the number of days which elapse from the day following the date of expiry of the time limit for transposition laid down in Directive 2019/789 to the date of termination of the infringement, or — in the event of non-termination of the infringement — to the date of delivery of the judgment in the present case; (ii) a minimum lump sum of EUR 3 836 000;

—

order the Republic of Poland, if the failure to fulfil obligations stated in the first indent is ongoing on the date of delivery of the judgment in the present case, to pay the Commission a periodic penalty payment of EUR 82 200 for each day of delay from the date of delivery of the judgment in the present case to the date on which the Republic of Poland complies with its obligations under Directive 2019/789; and

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The aim of Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC, is to enhance access to a greater number of television and radio programmes from different Member States by facilitating the clearance of copyright and related rights. According to Article 12(1) of Directive 2019/789, the Member States were obliged to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 7 June 2021 at the latest. The Member States were also obliged to inform the Commission immediately of the measures adopted.

The Commission sent a letter of formal notice to the Republic of Poland on 23 July 2021. On 19 May 2022, the Commission submitted a reasoned opinion to the Republic of Poland. In spite of this, no transposing measures have yet been adopted by the Republic of Poland; nor have they been notified to the Commission. The measures which the Republic of Poland had indicated as partially transposing Directive 2019/789 into the Polish legal order existed prior to the adoption of the directive and do not contain any reference to that directive (interconnecting clause).

(1) OJ 2019 L 130, p. 82.

12.6.2023

Official Journal of the European Union

C 205/33

Action brought on 14 April 2023 — European Commission v Republic of Bulgaria

(Case C-237/23)

(2023/C 205/37)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: U. Małecka, L. Malferrari and N. Nikolova, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/1024 (1) of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, or in any event by failing to communicate them to the Commission, the Republic of Bulgaria has failed to fulfil its obligations under Article 17(1) of that Directive;

—

order the Republic of Bulgaria to pay to the Commission a lump sum corresponding to the higher of (i) the sum of EUR 1 800 per day multiplied by the number of days elapsed from the day following the expiry of the period for transposition laid down in that directive until the day on which the infringement is brought to an end or, if the infringement continues, until the day on which the judgment is delivered; or (ii) the minimum lump sum of EUR 504 000;

—

order the Republic of Bulgaria to pay to the Commission a periodic penalty payment of EUR 9 720 per day from the date of the Court’s judgment in the present proceedings until that State has complied with its obligations under this Directive, in the event that the failure to fulfil the obligations referred to in paragraph 1 continues until the date of judgment in the present proceedings;

—	order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information establishes a set of minimum rules governing the re-use and practical mechanisms to facilitate the re-use of existing public sector documents and research data in order to promote the use of open data and stimulate innovation in products and services. Under Article 17(1) of the directive, Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with it by 17 July 2021 at the latest. Member States were also required to communicate to the Commission without delay the text of the measures adopted.

The Commission sent a formal letter of notification to the Republic of Bulgaria on 29 September 2021. On 6 April 2022, the Commission sent a reasoned opinion to the Republic of Bulgaria. However, the transposition measures have not yet been adopted by the Republic of Bulgaria nor communicated to the Commission.

(1) OJ 2019 L 172, p. 56.

12.6.2023

Official Journal of the European Union

C 205/34

Action brought on 14 April 2023 — European Commission v Republic of Latvia

(Case C-238/23)

(2023/C 205/38)

Language of the case: Latvian

Parties

Applicant: European Commission (represented by: U. Małecka, L. Malferrari and I. Naglis, acting as Agents)

Defendant: Republic of Latvia

Form of order sought

The Commission claims that the Court should:

—

declare that, by failing to adopt and publish all the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, (1) or in any event by failing to communicate those acts to the Commission, the Republic of Latvia has failed to fulfil its obligations under that directive;

—	order the Republic of Latvia to pay a lump sum of EUR 490 per day, with a minimum lump sum of EUR 196 000;

—

if the failure to fulfil the obligations established in point 1 continues until judgment has been delivered in the present case, order the Republic of Latvia to pay to the Commission a penalty payment of EUR 2 646 for each day of delay from the date of delivery of judgment in the present case until the date on which the Republic of Latvia has fulfilled its obligations under Directive 2019/1024;

—	order the Republic of Latvia to pay the costs of the proceedings.

Pleas in law and main arguments

In accordance with Article 17(1) of Directive (EU) 2019/1024, by 17 July 2021 at the latest, Member States should have adopted the laws, regulations and administrative provisions necessary to comply with that directive and should have communicated them to the Commission.

The Republic of Latvia has communicated several legislative acts, however, with the exception of amendments to the Informācijas atklātības likums (Law on Freedom of Information), none of the communicated acts contains a reference to Directive 2019/1024 and several of those acts were last amended before the adoption of that directive.

The legislative acts communicated to the Commission only partially transpose Directive 2019/1024.

(1) JO 2019 L 172, p. 56.

12.6.2023

Official Journal of the European Union

C 205/35

Judgment of the General Court of 8 March 2023 — Campine and Campine Recycling v Commission

(Case T-94/20) (1)

(Non-contractual liability - Competition - Agreements, decisions and concerted practices - Market for car battery recycling - Decision finding an infringement of Article 101 TFEU - Judgment partially annulling the decision and reducing the amount of the fine imposed - Refusal of the Commission to pay default interest - Article 266 TFEU - Article 90(4) of Delegated Regulation (EU) No 1268/2012 - Sufficiently serious breach of a rule of law conferring rights on individuals - Rate of default interest)

(2023/C 205/39)

Language of the case: English

Parties

Applicants: Campine (Beerse, Belgium), Campine Recycling (Beerse) (represented by: C. Verdonck and B. Gielen, lawyers)

Defendant: European Commission (represented by: P. Rossi, G. Wilms and L. Wildpanner, acting as Agents)

Re:

By their action, the applicants request, principally, on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU, read in conjunction with the second paragraph of Article 266 TFEU, first, compensation for the damage which they claim to have suffered as a result of the failure of the European Commission to pay the default interest that was due following the judgment of 7 November 2019, Campine and Campine Recycling v Commission (T-240/17, not published, EU:T:2019:778), and, second, payment of default interest on that compensation and, in the alternative, on the basis of the fourth paragraph of Article 263 TFEU, annulment of the decision contained in the Commission’s letter of 13 January 2020, or, in the further alternative, in its email of 10 December 2019 refusing to pay the said default interest and an order that the Commission pay compensation under Article 340 TFEU or adopt appropriate measures in order to comply fully with the said judgment, in accordance with the requirements provided for in the first paragraph of Article 266 TFEU.

Operative part of the judgment

The Court:

1.	Orders the European Commission to pay Campine and Campine Recycling compensation in the amount of EUR 300 637,32 for the damage suffered;

2.	Increases the compensation referred to in point 1 by default interest, starting from 11 December 2019 and continuing until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by 3,5 percentage points;

3.	Orders the Commission to bear its own costs and to pay the costs incurred by Campine and Campine Recycling.

(1) OJ C 137, 27.4.2020.

12.6.2023

Official Journal of the European Union

C 205/36

Action brought on 4 April 2023 — Ben Ali v Council

(Case T-178/23)

(2023/C 205/40)

Language of the case: French

Parties

Applicant: Halima Bent Zine El Abidine Ben Haj Hamda Ben Ali (Abu Dhabi, United Arab Emirates) (represented by: É. Deprez, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the General Court should:

—	declare the applicant’s requests in the present application admissible;

—	annul the Annex to Council Decision 2011/72/CFSP of 31 January 2011 on restrictive measures to the extent that it concerns the applicant, in so far as that annex was extended by Council Decision 2023/159 of 23 January 2023 and its effects;

—	order the Council to pay the applicant the amount of EUR 20 000 to meet the costs of her defence;

—	order the Council to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging that the applicant was a minor at the time of the alleged facts relied upon in support of her inclusion on the sanctions list.

Second plea in law, alleging manifest error of assessment on the part of the Council. The applicant submits in that regard that, before relying on a decision of an authority in a third State, the Council must verify whether that decision was adopted in compliance with the rights of the defence. According to the applicant, it is apparent from the judgment of the Court of Appeal of Tunis of 30 September 2021 that the applicant’s rights of defence were not respected by the court of first instance.

3.	Third plea in law, alleging infringement of the presumption of innocence, on the ground that no final conviction has been handed down against her.

4.	Fourth plea in law, alleging infringement of the freedom to conduct a business, on the ground that the contested measure may have substantial negative consequences for the applicant’s professional life.

5.	Fifth plea in law, alleging infringement of the right to engage in work, in so far as the contested decision places the applicant in a situation that prevents her from working.

12.6.2023

Official Journal of the European Union

C 205/36

Action brought on 14 April 2023 — Mindspa v EUIPO — Mind Solutions (MINDSPA)

(Case T-196/23)

(2023/C 205/41)

Language in which the application was lodged: English

Parties

Applicant: Mindspa OÜ (Tallinn, Estonia) (represented by: A. Pavelts, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mind Solutions Ltd (Sofia, Bulgaria)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark MINDSPA — Application for registration No 18 306 780

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 9 February 2023 in Case R 374/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision partially, namely to the extent the Board of Appeal of EUIPO upheld the opposition and rejected the European Union trade mark application MINDSPA (No. 18 306 780);

—	to order protection to be granted to the trade mark at issue in its entirety;

—	order EUIPO to bear the costs.

Plea in law

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

12.6.2023

Official Journal of the European Union

C 205/37

Action brought on 14 April 2023 — Mindspa/EUIPO — Mind Solutions (SYNCTUITION MINDSPA)

(Case T-197/23)

(2023/C 205/42)

Language in which the application was lodged: English

Parties

Applicant: Mindspa OÜ (Tallinn, Estonia) (represented by: A. Pavelts, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mind Solutions Ltd (Sofia, Bulgaria)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark SYNCTUITION MINDSPA — Application for registration No 18 306 782

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 9 February 2023 in Case R 375/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision partially, namely to the extent the Board of Appeal of EUIPO upheld the opposition and rejected the European Union trade mark application SYNCTUITION MINDSPA (No. 18 306 782);

—	to order protection to be granted to the trade mark at issue in its entirety;

—	order EUIPO to bear the costs.

Plea in law

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

12.6.2023

Official Journal of the European Union

C 205/38

Action brought on 17 April 2023 — USF/EPSU-CJ v Court of Justice of the European Union

(Case T-198/23)

(2023/C 205/43)

Language of the case: French

Parties

Applicant: Union Syndicale Fédérale/European Public Service Union — Court of Justice (Luxembourg, Luxembourg) (represented by: J. N. Louis and M. Maes, lawyers)

Defendant: Court of Justice of the European Union

Form of order sought

The applicant claims that the Court should:

hereby order:

—	the action admissible and well-founded,

—	the decision to remove the applicant from the list of recipients of the publication of individual decisions disseminated from the address ‘Distribution décisions URC’ and from the IN-OUT Lists, non-existent or, at the very least, cancelled;

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging the lack of competence of the authority which took the contested decision;

2.	Second plea in law, alleging infringment of the right to good administration conferred by Article 41 of the Charter of Fundamental Rights of the European Union, which includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

Third plea in law, alleging infringement of Article 25 of the Staff Regulations of Officials of the European Union which requires any institution of the European Union to publish within it all individual decisions relating to the appointment, establishment, the promotion, transfer, determination of the administrative position and termination of service of an official;

Fourth plea in law, alleging breach of the framework agreement signed between the appointing authority of the Court and the applicant, which provides that the decisions of the appointing authority concerning a trade union or professional organisation which is representative and signatory of that agreement cannot be taken without the knowledge of the Registrar, as has happened in the present case.

12.6.2023

Official Journal of the European Union

C 205/39

Action brought on 18 April 2023 — Kivikoski and Others v Council

(Case T-202/23)

(2023/C 205/44)

Language of the case: French

Parties

Applicants: Ville Kivikoski (Wezembeek-Oppem, Belgium), Ottavia Maffia (Brussels, Belgium), Peter Pristovnik (Brussels) (represented by: N. de Montigny, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicants claim that the Court should:

—	annul the decision of 13 July 2022;

—	annul, in so far as necessary, to the extent that it states the reasons on which the decision of 13 July 2022 is based, the decision to reject the complaint dated 2 February 2023;

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action against the decision of the Secretary General of the Council of 13 July 2022 not to promote them for the 2022 promotion exercise, the applicants rely on two pleas in law.

First plea in law, alleging the unlawfulness of the contested decision in so far as it is based on an incorrect application of the statutory rules and rates applicable to promotion, which infringes the Staff Regulations of Officials of the European Union and caused a reasonable loss of opportunity for them to be eligible to promotion to grade AST 8.

2.	Second plea in law, alleging a breach of the principles of foreseeability and legal certainty, and due to the fact that they have suffered unlawful unequal treatment, based on their classification to grade AST 7, not provided for by the legislature.

		ISSN 1977-091X
Official Journal of the European Union		C 205

English edition	Information and Notices	Volume 66 12 June 2023

Contents		page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2023/C 205/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1