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

(2023/C 278/01)

Last publication

OJ C 271, 31.7.2023

Past publications

OJ C 261, 24.7.2023

OJ C 252, 17.7.2023

OJ C 235, 3.7.2023

OJ C 223, 26.6.2023

OJ C 216, 19.6.2023

OJ C 205, 12.6.2023

These texts are available on:

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

Judgment of the Court (First Chamber) of 22 June 2023 (request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht — Netherlands) — X v Staatssecretaris van Justitie en Veiligheid

(Case C-459/20, (1) Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor))

(Reference for a preliminary ruling - Citizenship of the Union - Article 20 TFEU - Right to move and reside freely within the territory of the Member States - Decision of a Member State refusing residence to a third-country national parent of a minor child, who has the nationality of that Member State - Child living outside the territory of the European Union and never having resided in its territory)

(2023/C 278/02)

Language of the case: Dutch

Referring court

Rechtbank Den Haag, zittingsplaats Utrecht

Parties to the main proceedings

Applicant: X

Defendant: Staatssecretaris van Justitie en Veiligheid

Operative part of the judgment

1.

Article 20 TFEU must be interpreted as meaning that a situation in which a minor child, a Union citizen, who has the nationality of a Member State and who, since birth, has lived outside the territory of that Member State and has never resided in the territory of the European Union, does not preclude one of his or her parents, who is a third-country national, upon whom that child is dependent, from benefiting from the derived right of residence under that article, provided that it is established that that child will enter and reside in the territory of that Member State of which he or she has the nationality together with that parent.

2.

Article 20 TFEU must be interpreted as meaning that a Member State seised of an application for a derived right of residence by a third-country national upon whom a minor child, who is a citizen of the European Union and who has the nationality of that Member State, is dependent, and that child has lived since birth in that third country without ever having resided in the territory of the European Union, may not reject that application on the ground that moving to that Member State — which the exercise by that child of his or her rights as a Union citizen presupposes — is not in the real or plausible interests of that child.

3.

Article 20 TFEU must be interpreted as meaning that, for the purposes of assessing whether a minor child, who is a European Union citizen, is dependent on his or her third-country national parent, the Member State concerned is required to take into account all the relevant circumstances, without it being regarded as decisive either that the third-country national parent has not always assumed day-to-day care of that child but now has sole care of that child, or that the other parent, who is a Union citizen, could assume the actual day-to-day care of that child.

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(1)  OJ C 443, 21.12.2020.

Judgment of the Court (Third Chamber) of 22 June 2023 — Federal Republic of Germany (C-6/21 P), Republic of Estonia (C-16/21 P) v Pharma Mar SA, European Commission

(Joined Cases C-6/21 P and C-16/21 P) (1)

(Appeal - Public health - Medicinal products for human use - Regulation (EC) No 726/2004 - Refusal of a marketing authorisation for the medicinal product for human use - Aplidin — plitidepsin - European Medicines Agency (EMA) - Impartiality of experts from a scientific advisory group (SAG) - Policy of the European Medicines Agency on the handling of competing interests of scientific committees’ members and experts - Concept of ‘pharmaceutical company’ - Scope of the exclusion for ‘research organisations’ - Concept of ‘rival products’)

(2023/C 278/03)

Language of the case: English

Parties

Appellants: Federal Republic of Germany (C-6/21 P) (represented initially by J. Möller and S. Heimerl, and subsequently J. Möller and P.-L. Krüger, acting as Agents), Republic of Estonia (C-16/21 P) (represented by: N. Grünberg, acting as Agent)

Other parties to the proceedings: Pharma Mar SA (represented by: M. Merola and V. Salvatore, avvocati), European Commission (represented by: L. Haasbeek and A. Sipos, acting as Agents)

Interveners in support of the applicant (C-6/21 P): Kingdom of the Netherlands (represented by: M.K. Bulterman, J. Langer and C.S. Schillemans, acting as Agents), European Medicines Agency (EMA) (represented by: S. Drosos, H. Kerr and S. Marino, acting as Agents)

Interveners in support of the applicant (C-16/21 P): Federal Republic of Germany (represented initially by J. Möller and S. Heimerl, and subsequently J. Möller and D. Klebs, and, lastly, J. Möller and P.-L. Krüger, acting as Agents), Kingdom of the Netherlands (represented by: M.K. Bulterman, J. Langer and C.S. Schillemans, acting as Agents), European Medicines Agency (EMA) (represented by: S. Drosos, H. Kerr and S. Marino, acting as Agents)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 28 October 2020, Pharma Mar v Commission (T 594/18, not published, EU:T:2020:512);

2.	Refers Case T 594/18 back to the General Court of the European Union;

3.	Reserves the costs.

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(1)  OJ C 110, 29.3.2021.

OJ C 148, 26.4.2021.

Judgment of the Court (Sixth Chamber) of 22 June 2023 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — LD v ALB FILS Kliniken GmbH

(Case C-427/21, (1) ALB FILS KLINIKEN)

(Reference for a preliminary ruling - Social policy - Temporary agency work - Directive 2008/104/EC - Article 1 - Scope - Definition of ‘temporary assignment’ - Transfer of duties performed by a worker, from the latter’s employer to a third-party undertaking - Permanent assignment of that worker while maintaining the latter’s initial contract of employment)

(2023/C 278/04)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: LD

Defendant: ALB FILS Kliniken GmbH

Operative part of the judgment

Article 1(1) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work, read in conjunction with Article 3(1)(b) to (e) thereof,

must be interpreted as meaning that that directive does not apply to a situation in which, first, the duties performed by a worker are transferred definitively by his or her employer to a third-party undertaking and, second, that worker, whose employment relationship with that employer is maintained on account of the fact that that worker has exercised his or her right to object to the transfer of that employment relationship to that third-party undertaking, may be required, at the request of that employer, to perform, on a permanent basis, the work contractually due for that third-party undertaking and, in that context, be subject to the technical and organisational direction of the latter.

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(1)  OJ C 452, 8.11.2021.

Judgment of the Court (First Chamber) of 22 June 2023 — DI v European Central Bank

(Case C-513/21 P) (1)

(Appeal - Civil service - Staff of the European Central Bank (ECB) - Conditions of employment - Disciplinary proceedings - Competent authority - Delegation - Legal certainty - Time-barred disciplinary proceedings - Presumption of innocence - Criminal proceedings - Distortion - Absence)

(2023/C 278/05)

Language of the case: English

Parties

Appellant: DI (represented by: L. Levi, avocate)

Other party to the proceedings: European Central Bank (represented by: F. von Lindeiner, F. Malfrère and M. Van Hoecke, acting as Agents, and by B. Wägenbaur, Rechtsanwalt)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders DI to pay, in addition to his own costs, those incurred by the European Central Bank.

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(1)  OJ C 37, 24.1.2022.

Judgment of the Court (First Chamber) of 22 June 2023 (request for a preliminary ruling from the Itä-Suomen hallinto-oikeus — Finland) — proceedings brought by J.M.

(Case C-579/21, (1) Pankki S)

(Reference for a preliminary ruling - Processing of personal data - Regulation (EU) 2016/679 - Articles 4 and 15 - Scope of the right of access to information referred to in Article 15 - Information contained in log data - Article 4 - Definition of ‘personal data’ - Definition of ‘recipients’ - Temporal application)

(2023/C 278/06)

Language of the case: Finnish

Referring court

Itä-Suomen hallinto-oikeus

Parties to the main proceedings

Applicant: J.M.

intervening parties: Apulaistietosuojavaltuutettu, Pankki S

Operative part of the judgment

1.

Article 15 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), read in the light of Article 99(2) of that regulation, must be interpreted as meaning that it is applicable to a request for access to the information referred to in that provision where the processing operations which that request concerns were carried out before the date on which that regulation became applicable, but the request was submitted after that date.

2.

Article 15(1) of Regulation 2016/679 must be interpreted as meaning that information relating to consultation operations carried out on a data subject’s personal data and concerning the dates and purposes of those operations constitutes information which that person has the right to obtain from the controller under that provision. On the other hand, that provision does not lay down such a right in respect of information relating to the identity of the employees of that controller who carried out those operations under its authority and in accordance with its instructions, unless that information is essential in order to enable the person concerned effectively to exercise the rights conferred on him or her by that regulation and provided that the rights and freedoms of those employees are taken into account.

3.

Article 15(1) of Regulation 2016/679 must be interpreted as meaning that the fact that the controller is engaged in the business of banking and acts within the framework of a regulated activity and that the data subject whose personal data has been processed in his or her capacity as a customer of the controller was also an employee of that controller has, in principle, no effect on the scope of the right of access conferred on that data subject by that provision.

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(1)  OJ C 481, 29.11.2021.

Judgment of the Court (Grand Chamber) of 22 June 2023 (request for a preliminary ruling from the Tribunal correctionnel de Villefranche-sur-Saône — France) — Criminal proceedings against K.B., F.S.

(Case C-660/21, (1) K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings))

(Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in criminal matters - Directive 2012/13/EU - Articles 3 and 4 - Obligation for the competent authorities to inform suspects and accused persons promptly of their right to remain silent - Article 8(2) - Right to invoke a breach of that obligation - National legislation prohibiting the trial court from raising such a breach of its own motion - Articles 47 and 48 of the Charter of Fundamental Rights of the European Union)

(2023/C 278/07)

Language of the case: French

Referring court

Tribunal correctionnel de Villefranche-sur-Saône

Parties in the main proceedings

K.B., F.S.

Operative part of the judgment

Articles 3 and 4 and Article 8(2) of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, read in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that they do not preclude national legislation which prohibits the trial court in a criminal case from raising of its own motion, with a view to the annulment of the procedure, a breach of the obligation imposed on the competent authorities, under Articles 3 and 4 of that directive, to inform suspects or accused persons promptly of their right to remain silent, where those suspects or accused persons have not been deprived of a practical and effective opportunity to have access to a lawyer in accordance with Article 3 of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, if necessary having obtained legal aid as provided in Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, and where they, like their lawyers, if any, have had a right of access to their file and the right to invoke that breach within a reasonable period of time, in accordance with Article 8(2) of Directive 2012/13.

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(1)  OJ C 24, 17.1.2022.

Judgment of the Court (Fourth Chamber) of 22 June 2023 (requests for a preliminary ruling from the Conseil d’État — Belgium) — XXX (C-711/21), XXX (C-712/21) v État belge, represented by the Secrétaire d’État à l’Asile et la Migration

(Joined Cases C-711/21 and C-712/21, (1) État belge (Circumstances subsequent to a return decision) and Others)

(Reference for a preliminary ruling - Article 267 TFEU - Admissibility - Continued interest in bringing proceedings in the dispute in the main proceedings - Obligation of the referring court to verify)

(2023/C 278/08)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: XXX (C-711/21), XXX (C-712/21)

Defendant: État belge, represented by the Secrétaire d’État à l’Asile et la Migration

Operative part of the judgment

The requests for a preliminary ruling from the Conseil d’État (Council of State, Belgium), made by decisions of 4 November 2021, are inadmissible.

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(1)  OJ C 64, 7.2.2022.

Judgment of the Court (Eighth Chamber) of 22 June 2023 — YG v European Commission

(Case C-818/21 P) (1)

(Appeal - Civil service - Official - Promotion - 2019 promotion exercise - Decision not to promote the appellant to grade AST 9 - Article 45(1) of the Staff Regulations of Officials of the European Union - Comparison of merits - Distortion of the evidence - Disregard for and distortion of the pleas in the application at first instance - Infringement of the rights of the defence - Failure to fulfil the duty to state reasons)

(2023/C 278/09)

Language of the case: English

Parties

Appellant: YG (represented by: A. Champetier and S. Rodrigues, avocats)

Other party to the proceedings: European Commission (represented by: L. Radu Bouyon and L. Vernier, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

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

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(1)  OJ C 191, 10.5.2022.

Judgment of the Court (Fourth Chamber) of 22 June 2023 — European Commission v Hungary

(Case C-823/21) (1)

(Failure of a Member State to fulfil obligations - Area of freedom, security and justice - Policies on border checks, asylum and immigration - Procedures for granting international protection - Directive 2013/32/EU - Article 6 - Effective access - The making of an application - National legislation laying down prior administrative steps to be carried out outside the territory of the Member State - Public health objective)

(2023/C 278/10)

Language of the case: Hungarian

Parties

Applicant: European Commission (represented by: A. Azéma, L. Grønfeldt, A. Tokár and J. Tomkin, acting as Agents)

Defendant: Hungary (represented by: M. Z. Fehér and M. M. Tátrai, acting as Agents.)

Operative part of the judgment

The Court:

1.

Declares that by making the possibility, for certain third-country nationals or stateless persons present in the territory of Hungary or at the borders of that Member State, of making an application for international protection subject to the prior lodging of a declaration of intent at a Hungarian embassy located in a third country and to the granting of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under Article 6 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection;

2.	Orders Hungary to bear its own costs and to pay those incurred by the European Commission

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(1)  OJ C 128, 21.3.2022.

Judgment of the Court (Fifth Chamber) of 22 June 2023 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Endesa Generación SAU v Tribunal Económico Administrativo Central

(Case C-833/21, (1) Endesa Generación)

(Reference for a preliminary ruling - Taxation of energy products and electricity - Directive 2003/96/EC - Article 14(1)(a) - Exemption of energy products used to produce electricity - Derogation - Taxation of energy products for ‘reasons of environmental policy’ - Scope)

(2023/C 278/11)

Language of the case: Spanish

Referring court

Audiencia Nacional

Parties to the main proceedings

Applicant: Endesa Generación SAU

Defendant: Tribunal Económico Administrativo Central

Operative part of the judgment

The second sentence of Article 14(1)(a) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity

must be interpreted as meaning that national legislation providing for the taxation of coal used for the production of electricity meets the condition, set out in that provision, that the tax must be introduced ‘for reasons of environmental policy’, where there is a direct link between the use of the revenue and the purpose of the tax in question or where that tax, without pursuing a purely budgetary purpose, in terms of its structure, including in particular the taxable item or the tax rate, is designed in such a way that it influences the behaviour of taxpayers in a manner that facilitates ensuring better protection of the environment.

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(1)  OJ C 138, 28.3.2022.

Judgment of the Court (Seventh Chamber) of 22 June 2023 (request for a preliminary ruling from the Rechtbank Noord-Holland — Netherlands) — PR Pet BV v Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven

(Case C-24/22, (1) PR Pet)

(Reference for a preliminary ruling - Common Customs Tariff - Classification of goods - Combined Nomenclature - Heading 9403 - Articles consisting of a structure, intended for cats, referred to as ‘cat scratching posts’ - Goods consisting of a variety of materials - Implementing Regulations (EU) No 1229/2013 and (EU) No 350/2014)

(2023/C 278/12)

Language of the case: Dutch

Referring court

Rechtbank Noord-Holland

Parties to the main proceedings

Applicant: PR Pet BV

Defendant: Inspecteur van de Belastingdienst/Douane, kantoor Eindhoven

Operative part of the judgment

The Combined Nomenclature set out 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 Implementing Regulation (EU) 2016/1821 of 6 October 2016,

must be interpreted as meaning that:

an article consisting in a structure, covered with different materials depending on the case, intended to give cats a place of their own which they can occupy, play in or scratch, referred to as a ‘cat scratching post’, does not fall under heading 9403 of that nomenclature. Such an article must be classified under the heading of that nomenclature corresponding to the material which, among those covering it, is present to the greatest degree, which it is for the referring court to determine. If those materials are present in equal proportions, that article should be classified under the heading which occurs last in numerical order among those which equally merit consideration.

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(1)  OJ C 158, 11.4.2022.

Judgment of the Court (Ninth Chamber) of 22 June 2023 — Gmina Miasto Gdynia, Port Lotniczy Gdynia-Kosakowo sp. z o.o. w likwidacji v European Commission, Republic of Poland

(Case C-163/22 P) (1)

(Appeal - State aid - Airport infrastructure - Public funding granted to the Gdynia-Kosakowo Airport - Decision declaring the aid measure incompatible with the internal market and ordering its recovery - Identification of the advantage and determination of the amount of the aid to be repaid - Principles of the protection of legitimate expectations, legal certainty, effective judicial protection, sound administration and sincere cooperation - Procedural rights of the appellants)

(2023/C 278/13)

Language of the case: Polish

Parties

Appellants: Gmina Miasto Gdynia, Port Lotniczy Gdynia-Kosakowo sp. z o.o. w likwidacji (represented by: K. Gruszecka-Spychała and P.K. Rosiak, radcowie prawni)

Other parties to the proceedings: European Commission (represented by: K. Herrmann, S. Noë and J. Zieliński, acting as Agents), Republic of Poland (represented by: B. Majczyna, acting as Agent)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Gmina Miasto Gdynia and Port Lotniczy Gdynia-Kosakowo sp. z o.o. w likwidacji to bear their own costs and to pay those incurred by the European Commission;

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

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(1)  OJ C 191, 10.5.2022.

Judgment of the Court (Sixth Chamber) of 22 June 2023 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Hannover-Nord v H Lebensversicherung

(Case C-258/22, (1) H Lebensversicherung)

(Reference for a preliminary ruling - Free movement of capital - Article 63 TFEU - Business tax - Calculation of the basis of assessment for that tax - Rules for calculation - Dividends from holdings of less than 10 % in the capital of resident and non-resident capital companies - Inclusion in the basis of assessment for business tax - Time of the inclusion - Difference in treatment - Restriction - None)

(2023/C 278/14)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant in the appeal on a point of law: Finanzamt Hannover-Nord

Respondent in the appeal on a point of law: H Lebensversicherung

Operative part of the judgment

Article 63 TFEU must be interpreted as not precluding legislation of a Member State under which, when calculating the basis of assessment for a company’s business tax, dividends from holdings of less than 10 % in non-resident capital companies are to be added back to that basis of assessment, if and to the extent that those dividends were deducted from that basis of assessment at a previous stage of that calculation, whereas dividends from comparable holdings in resident capital companies are included from the outset in the abovementioned basis of assessment, without being deducted from or, consequently, added back to that basis of assessment.

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(1)  OJ C 284, 25.7.2022.

Judgment of the Court (Eighth Chamber) of 22 June 2023 — Arysta LifeScience Great Britain Ltd v European Commission, Taminco BVBA

(Case C-259/22 P) (1)

(Appeal - Plant protection products - Active substance - Regulation (EC) No 1107/2009 - Article 4(5) - Article 14(1) - Article 20(1) - Implementing Regulation (EU) No 844/2012 - Article 12(3) - Article 14(1) - Non-renewal of the approval of the active substance thiram for the purpose of placing it on the market - Rights of the defence - Precautionary principle - Equal treatment)

(2023/C 278/15)

Language of the case: English

Parties

Appellant: Arysta LifeScience Great Britain Ltd (represented by: C. Mereu, avocat)

Other parties to the proceedings: European Commission, (represented by G. Koleva and M. ter Haar, acting as Agents), Taminco BVBA (represented by: C. Mereu, avocat)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Arysta LifeScience Great Britain Ltd to pay the costs.

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(1)  OJ C 222, 7.6.2022.

Judgment of the Court (Seventh Chamber) of 22 June 2023 (request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel — Belgium) — Vitol SA v Belgische Staat

(Case C-268/22, (1) VITOL)

(Reference for a preliminary ruling - Commercial policy - Protection against dumping - Imports of biodiesel originating in Argentina and Indonesia - Validity of Implementing Regulation (EU) No 1194/2013 - Admissibility - No action for annulment brought by the applicant in the main proceedings - Importer - Determination of dumping - Factors to be taken into consideration)

(2023/C 278/16)

Language of the case: Dutch

Referring court

Nederlandstalige rechtbank van eerste aanleg Brussel

Parties to the main proceedings

Applicant: Vitol SA

Defendant: Belgische Staat

Operative part of the judgment

Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, as amended by Commission Implementing Regulation (EU) 2017/1578 of 18 September 2017, is invalid inasmuch as it infringes the requirements under Article 2(5) and Article 3(4), (6) and (7) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European [Union].

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(1)  OJ C 318, 22.8.2022.

Appeal brought on 23 November 2022 by QN against the judgment of the General Court (Eighth Chamber) delivered on 14 September 2022 in Case T-179/21, QN v Commission

(Case C-720/22 P)

(2023/C 278/17)

Language of the case: English

Parties

Appellant: QN (represented by: N. Flandin and L. Levi, avocates)

Other party to the proceedings: European Commission

By order of 27 Juin 2023, the Court of Justice (Eight Chamber) held that the appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded and that QN shall bear his own costs.

Appeal brought on 25 January 2023 by Grupa ‘Lew’ S.A. against the order of the General Court (Sixth Chamber) delivered on 8 November 2022 in Case T-672/21, Grupa ‘Lew’ S.A. v European Union Intellectual Property Office

(Case C-38/23 P)

(2023/C 278/18)

Language of the case: German

Parties

Appellant: Grupa ‘Lew’ S.A. (represented by: A. Korbela, Radca prawny, M. Besler, Rzecznik patentowy)

Other parties to the proceedings: European Union Intellectual Property Office, Lechwerke AG

By order of 13 June 2023, the Court of Justice of the European Union (Chamber determining whether appeals may proceed) decided that the appeal should not be allowed to proceed and ordered the appellant to bear its own costs.

Appeal brought on 13 February 2023 by Haskovo Chamber of Commerce and Industry against the judgment of the General Court (Ninth Chamber) delivered on 14 December 2022 in Case T-526/20, Devin v EUIPO — Haskovo Chamber of Commerce and Industry

(Case C-77/23 P)

(2023/C 278/19)

Language of the case: English

Parties

Appellant: Haskovo Chamber of Commerce and Industry (represented by: D. Dimitrova, and I. Pakidanska, lawyers)

Other parties to the proceedings: European Union Intellectual Property Office, Devin EAD

By order of 27 June 2023, the Court of Justice (Chamber determining whether appeals may proceed) held that the appeal was not allowed to proceed and that Haskovo Chamber of Commerce and Industry should bear its own costs.

Request for a preliminary ruling from the Tribunalul Olt (Romania) lodged on 17 March 2023 — Prysmian Cabluri și Sisteme SA v Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Craiova — Direcția Regională Vamală Craiova, Autoritatea Vamală Română, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

(Case C-168/23, Prysmian Cabluri și Sisteme)

(2023/C 278/20)

Language of the case: Romanian

Referring court

Tribunalul Olt

Parties to the main proceedings

Appellant: Prysmian Cabluri și Sisteme SA

Respondents: Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice Craiova — Direcția Regională Vamală Craiova, Autoritatea Vamală Română, Agenția Națională de Administrare Fiscală — Direcția Generală de Administrare a Marilor Contribuabili

Questions referred

1.

When interpreting the [Combined Nomenclature] in Annex I to [Regulation (EEC) No 2658/87] (1) on the tariff and statistical nomenclature and on the Common Customs Tariff, with reference to the Explanatory Notes to the [Combined Nomenclature of the European Communities], in the version in force since the date of the European Commission communication [on the Explanatory Notes to the Combined Nomenclature of the European Communities (2007/C 296/02)], published in the Official Journal of the European Union on 8 December 2007, may a product consisting of an optical core and optical cladding, covered with a first soft inner acrylate coating and a second coloured hard outer acrylate sheathing, a sheathing system (known as ColorLock), be classified under heading 8544 70 00 of that nomenclature?

2.

If the answer to the first question is in the negative, may the national customs authorities, when interpreting the principles of legal certainty and the protection of legitimate expectations, disregard the existence of decisions of the customs authority of that State that have not brought the classification of that product under heading 8544 70 00 into question, and also of BTI decisions (guaranteeing exemption from customs duties and VAT) issued by other customs authorities or by courts of other Member States of the European Union in favour of such a tariff classification, without such conduct infringing the principles of uniform application of tariff classification under Article 28 [TFEU], read in conjunction with the principles of legal certainty and the protection of legitimate expectations recognised by the [Court], relevant to the application of EU law?

3.

If the answer to the second question is in the negative, when interpreting Article 114 of]Regulation (EU) No 952/2013], (2) having regard to the principles of legal certainty and the protection of legitimate expectations, is it possible that a lack of clarity in the Explanatory Notes to the [Combined Nomenclature of the European Communities], in the version in force since the date of the Commission communication on the [Explanatory Notes to the Combined Nomenclature of the [European Communities] (2007/C 296/02) (OJ 2007 C 296, p. 4)], followed by a subsequent clarification which entered into force, imposes an additional tax liability on a taxpayer in a Member State, especially where, over time, decisions have been made by the customs authority of that State that have not brought the classification of that product under heading 8544 70 00 into question, and BTI decisions have also been issued by other customs authorities or by courts of other Member States of the European Union in favour of such a tariff classification?

---

(1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

(2)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (recast) (OJ 2013 L 269, p. 1).

Request for a preliminary ruling from the Tribunalul Specializat Mureş (Romania) lodged on 21 March 2023 — UG v SC Raiffeisen Bank SA

(Case C-176/23, Raiffeisen Bank)

(2023/C 278/21)

Language of the case: Romanian

Referring court

Tribunalul Specializat Mureş

Parties to the main proceedings

Appellant and applicant at first instance: UG

Respondent and defendant at first instance: SC Raiffeisen Bank SA

Questions referred

(1)

When applying the provisions of Article 1(2) of Directive 93/13/EEC, (1) transposed into national law by the provisions of Article 3(2) of Legea nr. 193/2000, republicată, privind clauzele abuzive în contractele încheiate între profesioniști și consumatori (Law No 193/2000, republished, on unfair terms in contracts concluded between sellers or suppliers and consumers), in the light of, in particular, the twelfth and thirteenth recitals of that directive, but also taking into account the provisions of Articles 80 and 81 of Ordonanța de urgență a Guvernului (OUG) nr. 50/2010 privind contractele de credit pentru consumatori (Government Emergency Order No 50/2010 concerning consumer credit agreements; ‘OUG No 50/2010’), must those provisions be interpreted as not precluding national courts from also examining suspicions concerning the unfair nature of contractual terms stipulated in supplementary agreements to credit agreements concluded between sellers or suppliers and consumers before the aforementioned act having the force of law came into effect, that is to say, pursuant to the provisions of Article 95 of OUG No 50/2010, regardless of whether those terms have been expressly accepted by the consumer in the manner provided for by the provisions of Article 40(1) of OUG No 50/2010 or whether they have been considered tacitly accepted by law in the manner provided for by the provisions of Article 40(3) of OUG No 50/2010?

(2)

If the first question is answered in the affirmative, the [referring] court also asks: would it be at odds [with the possibility referred to in Question 1], in light of the background set out above and the circumstances of the dispute pending before it, for there to be a line of case-law of the national courts establishing that express acceptance of a supplementary agreement drawn up in the manner provided for by Article 40(1) of OUG No 50/2010 and pursuant to the provisions of Article 95 thereof automatically leads to the conclusion that [that supplementary agreement] has been negotiated and, consequently, there can be no examination of any suspicions that the terms stipulated within it are unfair?

---

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

Request for a preliminary ruling from the Tribunalul Specializat Mureș (Romania) lodged on 21 March 2023 — ERB New Europe Funding II v YI

(Case C-178/23, ERB New Europe Funding II)

(2023/C 278/22)

Language of the case: Romanian

Referring court

Tribunalul Specializat Mureș

Parties to the main proceedings

Applicant for revision: ERB New Europe Funding II

Respondent: YI

Question referred

When applying the provisions of Article 7(1) of Directive 93/13/EEC, (1) in the light of, in particular, the twenty-third recital of that directive and the principle of effectiveness, must those provisions be interpreted as not precluding the possibility for a national court to examine suspicions concerning the unfair nature of contractual terms stipulated in an agreement concluded between a seller or supplier and a consumer, even when they have previously been examined by another national court in judicial proceedings at first instance at the request of the consumer, who did not attend the related hearing and was not properly assisted or represented by a lawyer, and have been rejected by a judicial decision which has never been challenged by the consumer — [and] which has, therefore, acquired, in the domestic procedural order, the force of res judicata — if, from the particular circumstances of the case, it appears, in a plausible and reasonable manner, that that consumer did not make use of the legal remedy in those first judicial proceedings because of his or her limited knowledge or information?

---

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

Appeal brought on 27 March 2023 by Zielonogórski Klub Żużlowy Sportowa S.A. against the judgment of the General Court (Third Chamber) delivered on 25 January 2023 in Case T-703/21, Zielonogórski Klub Żużlowy Sportowa v EUIPO — Falubaz Polska (FALUBAZ)

(Case C-199/23 P)

(2023/C 278/23)

Language of the case: Polish

Parties

Appellant: Zielonogórski Klub Żużlowy Sportowa S.A. (represented by: T. Grucelski, adwokat)

Other party to the proceedings: European Union Intellectual Property Office

By order of 15 June 2023, the General Court (Chamber determining whether appeals may proceed) ordered that the appeal is not allowed to proceed and that the appellant shall bear its own costs.

Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 26 April 2023 — A. S.A. v Dyrektor Izby Administracji Skarbowej w Bydgoszczy

(Case C-266/23, Dyrektor Izby Administracji Skarbowej w Bydgoszczy)

(2023/C 278/24)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: A. S.A.

Respondent: Dyrektor Izby Administracji Skarbowej w Bydgoszczy

Questions referred

1.

Can Article 17(1)(a) of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (1) be understood as meaning that only the purchase price of the electricity itself, to the exclusion of any additional charges, for example a distribution charge, which must be borne under the legislation in force in a Member State in order to purchase electricity, must be included in the actual cost of the energy purchased?

2.

Must Article 17(1)(a) of Directive 2003/96 be interpreted as precluding the exclusion of an exemption from excise duty on the purchase of electricity for an energy-intensive business [Article 31d(1) of the Ustawa z 6 grudnia 2008 r. o podatku akcyzowym (Law of 6 December 2008 on excise duty (Dz. U. of 2022, item 143)] in the event that that business benefits from an object-specific exemption from excise duty under national legislation (Article 30(7a) of the Law on excise duty), when that business demonstrates that, in relation to the same energy, it does not benefit from those two exemptions simultaneously, and assuming that the total amount of the exemptions does not exceed the amount of excise duty paid for the same period of time?

---

(1)  OJ 2003 L 283, p. 51.

Request for a preliminary ruling from the Cour de cassation (Belgium) lodged on 2 May 2023 — FB, JL v Procureur du Roi près du Tribunal de Première Instance d’Eupen

(Case C-283/23, Marhon (1))

(2023/C 278/25)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: FB, JL

Defendant: Procureur du Roi près du Tribunal de Première Instance d’Eupen

Question referred

Are Articles 1, 2(3) and 3 of Directive 2014/31/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of non-automatic weighing instruments (2) applicable to the use, by judicial or police authorities, of non-automatic weighing instruments for the purposes of determining the mass of vehicles for the application of national legislation or regulations, which are subject to criminal penalties, and which — such as (i) Articles 41(3)(1) and 43(3)(1) of the Law of 15 July 2013 on road haulage and implementing Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (3) and implementing Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (4) and (ii) Articles 21, first paragraph, point 5 and 35(4) of the Royal Decree of 22 May 2014 on road haulage — prohibit the use on the road of vehicles whose measured mass exceeds the maximum authorised mass?

---

(1)  The name of this case is fictitious. It is not the name of any of the parties to the proceedings.

(2)  OJ 2014 L 96, p 107.

(3)  OJ 2009 L 300, p. 51.

(4)  OJ 2009 L 300, p. 72.

Request for a preliminary ruling from the Verwaltungsgericht Gießen (Germany) lodged on 26 May 2023 — GM v Federal Republic of Germany

(Case C-333/23, Habonov (1))

(2023/C 278/26)

Language of the case: German

Referring court

Verwaltungsgericht Gießen

Parties to the main proceedings

Applicant: GM

Defendant: Federal Republic of Germany

Questions referred

1.

Are Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that they preclude the provisions on the remuneration of judges in force in the Member State of the referring court, such as follow from the Gesetz zur weiteren Anpassung der Besoldung und Versorgung im Jahr 2023 sowie im Jahr 2024 (Law on the further adjustment of remuneration and pensions of civil servants in 2023 and 2024) of the Land Hesse (Drucksache20/9499 of the Landtag of Hesse), if, at the end of a period to be determined by the Court of Justice which begins on notification of the decision of the Court, the Land of Hesse has not adopted legislation on the remuneration of judges which complies with European standards?

2.

Are Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Articles 2, 3 and 6 of Council Directive 2000/78/EC (2) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as meaning that they preclude that the remuneration of judges in Grade R 6 of the Bundesbesoldungsgesetz (Federal Law on remuneration of civil servants) in the Member State of the referring court be linked to the condition of having reached the age of 35, with the result that the judges of that Member State who have hitherto received a remuneration that is lower than that of Grade R 6 of the Federal Law on remuneration of civil servants, must be paid at the level of the amount laid down for Grade R 6 of the Federal Law on remuneration of civil servants, and that those judges of the Member State of the referring court, who, under national legislation, have applied for remuneration appropriate to their role for previous financial years or have brought an action against their inappropriate remuneration for the previous financial years, may claim the difference in remuneration compared to Grade R 6 of the Federal Law on remuneration of civil servants for the previous years in which they were active?

---

(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)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

Judgment of the General Court of 28 June 2023 — IMG v Commission

(Case T-752/20) (1)

(Non-contractual liability - OLAF investigations - Press leaks - Material and non-material damage - Causal link - Imputability of the leaks - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Confidentiality of legal advice)

(2023/C 278/27)

Language of the case: French

Parties

Applicant: International Management Group (IMG) (Brussels, Belgium) (represented by: L. Levi and J.-Y. de Cara, lawyers)

Defendant: European Commission (represented by: J. Baquero Cruz, J.-F. Brakeland and S. Delaude, acting as Agents)

Re:

By its action under Article 268 TFEU, the applicant seeks compensation for the material and non-material damage which it claims to have suffered as a result of the unlawfulness of the conduct of the European Commission and of the European Anti-Fraud Office (OLAF) following a report concerning the applicant drawn up by OLAF.

Operative part of the judgment

The Court:

1.	Orders that the document produced by International Management Group (IMG) as Annex A.21 to the application be removed from the case file;

2.	Dismisses the action;

3.	Orders IMG to pay the costs.

---

(1)  OJ C 53, 15.2.2021.

Judgment of the General Court of 21 June 2023 — Região Autónoma da Madeira v Commission

(Case T-131/21) (1)

(State aid - Aid scheme implemented by Portugal - Madeira Free Zone - Decision finding that the scheme does not comply with Decisions C(2007) 3037 final and C(2013) 4043 final, declaring it to be incompatible with the internal market and ordering the recovery of aid paid under that scheme - Action for annulment - Standing to bring proceedings - Admissibility - Meaning of ‘State aid’ - Existing aid within the meaning of Article 1(b)(ii) of Regulation (EU) 2015/1589 - Recovery - Legitimate expectations - Legal certainty - Principle of sound administration - Absolute impossibility of implementation - Limitation - Article 17 of Regulation 2015/1589)

(2023/C 278/28)

Language of the case: Portuguese

Parties

Applicant: Região Autónoma da Madeira (represented by: M. Gorjão-Henriques and A. Saavedra, lawyers)

Defendant: European Commission (represented by: I. Barcew and P. Caro de Sousa, acting as Agents)

Re:

By its action under Article 263 TFEU, the applicant seeks annulment of Articles 1 and 4 to 6 of Commission Decision (EU) 2022/1414 of 4 December 2020 on aid scheme SA.21259 (2018/C) (ex 2018/NN) implemented by Portugal for Zona Franca da Madeira (ZFM) — Regime III (OJ 2022 L 217, p. 49).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Região Autónoma da Madeira to pay the costs.

---

(1)  OJ C 206, 31.5.2021.

Judgment of the General Court of 28 June 2023 — Polynt v ECHA

(Case T-207/21) (1)

(REACH - Evaluation of substances - Hexahydro-4-methylphthalic anhydride - ECHA decision requesting one or more additional tests - Article 40 of Regulation (EC) No 1907/2006 - Appeal brought before the Board of Appeal - Error of law)

(2023/C 278/29)

Language of the case: English

Parties

Applicant: Polynt SpA (Scanzorosciate, Italy) (represented by: C. Mereu, P. Sellar and I. Zonca, lawyers)

Defendant: European Chemicals Agency (represented by: N. Herbatschek, T. Basmatzi and M. Goodacre, acting as Agents)

Re:

By its action brought under Article 263 TFEU, the applicant seeks annulment of Decision A-015-2019 of the Board of Appeal of the European Chemicals Agency (ECHA) of 9 February 2021, by way of which the latter dismissed the appeal brought by Polynt SpA against the decision relating to a testing proposal submitted in the applicant’s registration dossier for the substance hexahydro-4-methylphthalic anhydride.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Polynt SpA to pay the costs, including those relating to the interim proceedings.

---

(1)  OJ C 228, 14.6.2021.

Judgment of the General Court of 28 June 2023 — Dana Astra v Council

(Case T-239/21) (1)

(Common foreign and security policy - Restrictive measures adopted in view of the situation in Belarus - Freezing of funds - Maintaining of the applicant’s name on the lists of persons, entities and bodies concerned - Error of assessment)

(2023/C 278/30)

Language of the case: English

Parties

Applicant: Dana Astra IOOO (Minsk, Belarus) (represented by M. Lester, Barrister-at-Law, P. Sellar and J. Beck, lawyers)

Defendant: Council of the European Union (represented by S. Van Overmeire and T. Haas, acting as Agents

Re:

By its action based on Article 263 TFEU, the applicant seeks annulment

—

of Council Decision (CFSP) 2021/353 of 25 February 2021 amending Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2021 L 68, p. 189) and of Council Implementing Regulation (EU) 2021/339 of 25 February 2021 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 68, p. 29),

—

of Council Decision (CFSP) 2022/307 of 24 February 2022 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 97), and of Council Implementing Regulation (EU) 2022/300 of 24 February 2022 implementing Article 8a of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus (OJ 2022 L 46, p. 3), in so far as those acts concern the applicant.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Dana Astra IOOO to bear its own costs and to pay those incurred by the Council of the European Union.

---

(1)  OJ C 242, 21.6.2021.

Judgment of the General Court of 21 June 2023 — Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology v Commission

(Case T-326/21) (1)

(Dumping - Import of aluminium extrusions originating in China - Implementing Regulation (EU) 2021/546 - Imposition of a definitive anti-dumping duty - Article 1(4) of Regulation (EU) 2016/1036 - Definition of the product concerned - Determination of the normal value - Article 2(6a) of Regulation 2016/1036 - Report establishing significant distortions in the exporting country - Burden of proof - Reference to a representative country - Article 3(1), (2), (3), (5) and (6) of Regulation 2016/1036 - Injury - Economic factors and incices having a bearing on the state of the Union industry - Rights of the defence - Principle of good administration)

(2023/C 278/31)

Language of the case: Italian

Parties

Applicants: Guangdong Haomei New Materials Co. Ltd (Qingyuan, China), Guangdong King Metal Light Alloy Technology Co. Ltd (Yuan Tan Town, China) (represented by: M. Maresca, C. Malinconico, D. Guardamagna, M. Guardamagna, D. Maresca, A. Cerruti, A. Malinconico and G. Falla, lawyers)

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

Intervener in support of the applicants: Airoldi Metalli SpA (Molteno, Italy) (represented by: M. Campa, M. Pirovano, D. Rovetta and V. Villante, lawyers)

Intervener in support of the defendant: European Parliament (represented by: A. Neergaard, M. Peternel and L. Stefani, acting as Agents)

Re:

By their action the applicants seek, first, under Article 263 TFEU, the annulment, principally, of Commission Implementing Regulation (EU) 2021/546 of 29 March 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of aluminium extrusions originating in the People’s Republic of China (OJ 2021 L 109, p. 1), in so far as it concerns them and, in the alternative, of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), and, second, under Article 268 TFEU, compensation for the harm it claims to have suffered as a result of the application of the contested regulation and the basic regulation.

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders Guangdong Haomei New Materials Co. Ltd and Guangdong King Metal Light Alloy Technology Co. Ltd. to bear their own costs and to pay those incurred by the European Commission;

3.	Declares that the European Parliament and Airoldi Metalli SpA are to bear their own costs.

---

(1)  OJ C 297, 26.7.2021.

Order of the General Court of 19 June 2023 — PS v EEAS

(Case T-327/22) (1)

(Civil service - Members of the contract staff - Change of place of employment - Addendum to the contract of employment - Purely confirmatory measure - Inadmissibility)

(2023/C 278/32)

Language of the case: English

Parties

Applicant: PS (represented by: S. Rodrigues and A. Champetier, lawyers)

Defendant: European External Action Service (represented by: A. Ireland and S. Falek, acting as Agents)

Re:

By his action based on Article 270 TFEU, the applicant seeks annulment of the addendum to his contract of employment signed on 23 July 2021 and, so far as necessary, annulment of the decision of the European External Action Service (EEAS) of 22 February 2022 rejecting his complaint of 20 October 2021.

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	PS shall pay the costs.

---

(1)  OJ C 284, 25.7.2022.

Order of the General Court of 21 June 2023 — Repasi v Commission

(Case T-628/22) (1)

(Action for annulment - Environment - Commission Delegated Regulation (EU) 2022/1214 - Taxonomy - Economic activities relating to fossil gas and nuclear energy - Inclusion in sustainable economic activities - Member of the European Parliament - Lack of direct concern - Inadmissibility)

(2023/C 278/33)

Language of the case: German

Parties

Applicant: René Repasi (Karlsruhe, Germany) (represented by: H.-G. Kamann, D. Fouquet, lawyers, F. Kainer and M. Nettesheim, professors)

Defendant: European Commission (represented by: F. Erlbacher, A. Nijenhuis and G. von Rintelen, acting as Agents)

Re:

By his action under Article 263 TFEU, the applicant seeks the annulment of Commission Delegated Regulation (EU) 2022/1214 of 9 March 2022 amending Delegated Regulation (EU) 2021/2139 as regards economic activities in certain energy sectors and Delegated Regulation (EU) 2021/2178 as regards specific public disclosures for those economic activities (OJ 2022 L 188, p. 1).

Operative part of the order

1.	The action is dismissed as inadmissible.

2.	There is no longer any need to rule on the application for leave to intervene submitted by the French Republic.

3.	The applicant shall bear his own costs and pay those incurred by the European Commission.

4.	The French Republic shall bear its own costs.

---

(1)  OJ C 24, 23.1.2023.

Order of the General Court of 20 June 2023 — NO v Commission

(Case T-771/22) (1)

(Action for annulment - State aid - Irish legal sector - Payment of the fees of a client’s former solicitor by that client’s new solicitor - Rejection of a complaint - Decision finding that there is no State aid - State resources - Manifest inadmissibility in part - Action in part manifestly lacking any foundation in law)

(2023/C 278/34)

Language of the case: English

Parties

Applicant: NO (represented by: E. Smartt, Solicitor)

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

Re:

By his action based on Article 263 TFEU, the applicant asks the General Court to annul the decision of the European Commission of 27 September 2022 rejecting his complaint of 12 September 2022.

Operative part of the order

1.	The action is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2.	NO is ordered to pay the costs.

---

(1)  OJ C 104, 20.3.2023.

Action brought on 24 May 2023 — Sber v SRB

(Case T-291/23)

(2023/C 278/35)

Language of the case: English

Parties

Applicant: Sber Vermögensverwaltungs AG (Vienna, Austria) (represented by: O. Behrends, lawyer)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul, first, the SRB’s decision of 19 August 2022 with respect to the applicant’s request for access to documents;

—	annul, second, the decision of 8 March 2023 of the SRB’s Appeal Panel in case 6/2022, to the extent that this decision contains adverse findings for the applicant;

—	annul, third, the negative reply, pursuant to Article 8(3) of Regulation (EC) 1049/2001, (1) fifteen working days after the Appeal Panel Decision.

—	order the SRB to bear the applicant’s costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the SRB’s decision dated 19 August 2022 with respect to the applicant’s request for access to documents (‘the original decision’) is illegal. — The illegality of the original decision has been determined by the Appeal Panel decision in a manner that is binding for the SRB. It is also illegal because of the further grounds set out below.

2.

Second plea in law, alleging that the Appeal Panel Decision is illegal for the following reasons. — The Appeal Panel exceeds its competence and violates Article 85(8) of Regulation (EU) 806/2014 (2) because it purports to be able to uphold parts of the SRB’s original decision in a binding and final manner despite its decision to remit the case to the SRB; — The Appeal Panel erroneously failed to grant access to the file and disclosure of documents by means of a procedural order because of its erroneous view that such steps would circumvent the rules on public access; — The SRB Appeal Panel errs by not excluding categorically any reliance on Article 4(1)(a), fourth indent, of Regulation (EC) 1049/2001; — The SRB Appeal Panel errs by not excluding categorically any reliance on the exception under Article 4(2) of Regulation (EC) 1049/2001; — The SRB Appeal Panel inaccurately interprets Article 4(1)(b) of Regulation 1049/2001 in an excessively broad manner.

3.

Third plea in law, alleging the illegality of the implied negative reply. — The SRB failed to comply with its obligation to take a decision within the time limit prescribed in Article 8(1) of Regulation (EC) 1049/2001. This constitutes a denial of access pursuant to Article 8(3) of Regulation (EC) 1049/2001. The denial is illegal because of the binding nature of the SRB’s Appeal Panel Decision. It is illegal, moreover, because of the failure to provide any reasoning. The applicant also submits pleas of illegality with respect to Articles 20 and 21(4) of the Rules of Procedure of the Appeal Panel and Articles 85(8) and 86(1) of Regulation (EU) No 806/2014, as interpreted by the SRB.

---

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

(2)  Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

Action brought on 15 June 2023 — D’Agostino v ECB

(Case T-326/23)

(2023/C 278/36)

Language of the case: Italian

Parties

Applicant: Aldo D’Agostino (Naples, Italy) (represented by: M. De Siena, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—

find and declare that the European Central Bank (ECB), represented by President Christine Lagarde, is non-contractually liable: (a) for having caused a collapse in the value of the securities SI FTSE.COPERP belonging to Mr Aldo D’Agostino, as documented and described in the application, with a depreciation in the amount of EUR 626 134,29, registering a loss of 90,84 % in the overall value of the capital invested in the amount of EUR 689 259,96, as the famous statement made by Ms Christine Lagarde, as President of the ECB, on 12 March 2020 that ‘we are not here to close spreads. This is not the function … of the ECB’ caused a significant fall in the value of securities in all markets worldwide, including a fall of 16,92 % at the Borsa di Milano, quantified in a percentage that has never been seen before in the history of that institution; by that sentence, spoken during a press conference to the entire world, she communicated that the ECB would no longer support the value of securities issued by distressed countries and, therefore, communicated a complete shift in the monetary policy adopted by the ECB while headed by the previous President, whose mandate ended in November 2019; (b) for having caused, by that conduct and therefore by having spread inaccurate information resulting in the sharp drop in the Borsa di Milano index referred to above, a decrease in the value of the applicant’s assets; (c) for having caused economic loss to the applicant in the amount of EUR 626 134,29 in consequential damage and EUR 813 464,61 in loss of earnings; (d) for therefore having caused economic loss to the applicant in the overall amount of EUR 1 439 598,90; (e) for having caused non-material damage in the form of psychological harm to the applicant and the applicant’s family, damage to honour and reputation, and to personal and professional identity, quantified at EUR 500 000; (f) for having caused damage in the form of loss of chance; and therefore: — order the ECB, represented by the President pro tempore, to pay compensation to the applicant, Mr Aldo D’Agostino, for the material damage made up of the consequential damage and the loss of earnings, for the non-material damage set out above and for the damage resulting from loss of chance, assessed according to the criteria set out in the relevant sections and paragraphs of the present application, by the payment to the applicant of the following amounts: — EUR 1 439 598,90 for material damage; — EUR 500 000 for non-material damage; therefore, the overall amount of EUR 1 939 598,90, and an amount for damage in the form of loss of chance, to be determined by the Court on the basis of an equitable assessment, and — payment of statutory interest calculated from 12 March 2020, date of the event giving rise to damage, until effective compensation.

—

In the alternative, compensate the applicant by ordering the ECB, represented by the President pro tempore, to pay Mr Aldo D’Agostino, in respect of the categories of damage listed above, different amounts to be determined during the proceedings as decided by the Court, also by way of an expert opinion to be made available to the Court under Article 70 of the Rules of Procedure of the General Court of the European Union. Statutory interest should also be applied, calculated from 12 March 2020, date of the harmful event and until effective compensation;

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

1.	First plea, alleging that the ECB is liable under the third paragraph of Article 340 TFEU and Article 2043 of the Italian Civil Code for the material and non-material damage suffered by the applicant and stating the amounts of the heads of damage suffered;

2.	Second plea, concerning the scope of the material and non-material damage and the loss of chance that the applicant asserts he has suffered and explaining the principles applied in order to determine them;

3.

Third plea, based on the principles set out in the case-law of the European Union, particularly in the judgments of 28 October 2021, Vialto Consulting v Commission, C-650/19 P, of 9 February 2022, QI and Others v Commission and ECB, T-868/16, and of 21 January 2014, Klein v Commission, T-309/10. The plea sets out the conditions to be met for a European institution to be non-contractually liable in respect of a Union citizen and sets out the positive test for the existence of those conditions, also carried out by the technical consultant in the sworn expert opinion attached to the application, comparing the EU legislation governing the ECB, bodies and corresponding duties. The plea emphasises the ECB’s infringements of EU primary and secondary law and infringements and abuse of powers by the President of the ECB. By that plea, the applicant also claims infringement by the ECB, represented by its President, on 12 March 2020 of Article 127 TFEU in Chapter 2 thereof, entitled ‘Monetary Policy’, Articles 3, 10 to 13 and 38 of the Statute of the European System of Central Banks and of the European Central Bank and Article 17 points 17.2 and 17.3 of the Rules of Procedure adopted by decision of the ECB of 19 February 2004; (1)

4.	The fourth plea quantifies, gives reasons for and documents the material damage suffered by the applicant (consequential damage and loss of earnings);

5.	The fifth plea illustrates, gives reasons for and documents the psychological harm and damage to reputation and to personal and professional identity;

6.	The sixth plea illustrates, gives reasons for and proves, by presumption and by the calculation of probabilities, the damage in the form of loss of chance on which the claim for equitable settlement is based;

7.	Seventh plea, based on the principles set out in the case-law of the European Union regarding non-material damage caused by the European institutions in respect of Union citizens, particularly in the judgment of the General Court of 12 September 2007, Combescot v Commission, T-250/04.

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(1)  Decision 2004/257/EC of the European Central Bank of 19 February 2004 adopting the Rules of Procedure of the European Central Bank (ECB/2004/2) (OJ 2004 L 80, p. 33), as amended by Decision ECB/2014/1 of the European Central Bank of 22 January 2014 (OJ 2014 L 95, p. 56).

Action brought on 16 June 2023 — Aquind v ACER

(Case T-342/23)

(2023/C 278/37)

Language of the case: English

Parties

Applicant: Aquind Ltd (London, United Kingdom) (represented by: S. Goldberg, Solicitor, E. White and J. Bille, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

—

hold that (i) certain acts of the Agency were unlawful and such acts have caused damage to the applicant that the Agency is obliged to compensate; or (ii) in the alternative, that the Agency’s decision has caused damage to the applicant that the Agency is obliged to compensate; as a result, find the Agency liable to compensate the applicant for the damage caused to AQUIND Interconnector by the unlawful conduct of the Agency, which includes: — wasted costs incurred since the unlawful conduct began; — loss of a Connecting Europe Facility grant; — costs of ongoing regulatory engagement; and — loss of profit resulting from delays;

—	order the parties to seek agreement on the precise amount of damages within three months or to return to the Court with their respective estimates, to allow the Court to establish the amount of compensation to be paid by the Agency; and

—	order the Agency to pay the costs of the present procedure.

Pleas in law and main arguments

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

1.

First plea in law, alleging unlawfulness of the refusal to grant an exemption to AQUIND Interconnector in the Agency decision (Decision No 05/2018 of 19 June 2018). The applicant submits that unlawfulness is established by the fourth ground for annulment in the judgment of the General Court in Case T-735/18, (1) as upheld by the Court of Justice in Case C-46/21 P (2). The Agency deliberately exceeded the limits of its discretion by imposing an additional condition for the grant of an exemption pursuant to Regulation (EC) 714/2009 of the European Parliament and of the Council. (3) The Agency’s conduct also violated the principles of legitimate expectations, legal certainty, and equal treatment.

2.	Second plea in law, alleging unlawfulness of the Board of Appeal’s decision (Decision A-001-2018 of 17 October 2018) to uphold the Agency decision.

3.	Third plea in law, alleging unlawfulness of the Agency’s failure of review the Agency decision once AQUIND Interconnector lost its status of a Project of Common Interest, in a breach of the principle of good administration guaranteed by Article 41 of the Charter of Fundamental Rights.

4.	Fourth plea in law, alleging the Agency’s failure to comply promptly with the judgment of the General Court in Case T-735/18 in violation of Article 266 of the Treaty on the Functioning of the European Union and Article 29 of Regulation 2019/943 of the European Parliament and of the Council. (4)

5.	Fifth plea in law, alleging illegality of the deliberate and unjustified delay in re-opening proceedings following the judgment of the General Court. The applicant alleges that this series of unlawful conduct has caused the applicant to suffer certain, specific and quantifiable damage.

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(1)  Judgment of 18 November 2020, Aquind v ACER (T-735/18, EU:T:2020:542).

(2)  Judgment of 9 March 2023, ACER v Aquind (C-46/21 P, EU:C:2023:182).

(3)  Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ 2009 L 211, p. 15).

(4)  Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ 2019 L 158, p. 54).

Action brought on 23 June 2023 — Katjes Fassin v EUIPO (Beyond Chocolate)

(Case T-343/23)

(2023/C 278/38)

Language of the case: German

Parties

Applicant: Katjes Fassin GmbH & Co. KG (Emmerich am Rhein, Germany) (represented by: A. Renck and C. Stöber)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for EU word mark ‘Beyond Chocolate’ — Application No 18 578 274

Contested decision: Decision of the First Board of Appeal of EUIPO of 11 April 2023 in Case R 2352/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Pleas in law

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

—	Infringement of Article 95(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 22 June 2023 — Finastra International v EUIPO — Fenestrae (FINASTRA)

(Case T-346/23)

(2023/C 278/39)

Language in which the application was lodged: English

Parties

Applicant: Finastra International Ltd (London, United Kingdom) (represented by: S. Malynicz, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Fenestrae BV (‘s-Gravenhage, Netherlands)

Details of the proceedings before EUIPO

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

Trade mark at issue: International registration designating the European Union in respect of the European Union word mark FINASTRA — International registration designating the European Union No 1 405 804

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 12 April 2023 in Case R 1296/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO (and the intervener, should it take part in these proceedings) to bear its own costs and pay the costs of the applicant for annulment before this Court and before the Board of Appeal.

Pleas in law

—	Wrong interpretation of the specified goods & services;

—	Misidentification of the relevant public;

—	Failing to apply the rule of conceptual counteraction as regards a specialised public.

Action brought on 26 June 2023 — EvivaMed Distribution v EUIPO — Galencia (VIVORA)

(Case T-347/23)

(2023/C 278/40)

Language in which the application was lodged: German

Parties

Applicant: EvivaMed Distribution GmbH (Wenzenbach, Germany) (represented by: K. Landes, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Galencia AG (Berne, Switzerland)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant

Trade mark at issue: Application for the EU word mark VIVORA — Application No 18 255 604

Proceedings before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 26 April 2023 in Case R 1556/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul and, if appropriate, alter the contested decision in so far as the appeal and the opposition were upheld and the EU trade mark application VIVORA was dismissed in respect of goods and services in Classes 5, 41, 42 and 44;

—	order EUIPO to pay the costs.

Plea in law

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

Order of the General Court of 20 June 2023 — Marico v EUIPO — Regal Impex (SAFFOLA)

(Case T-611/22) (1)

(2023/C 278/41)

Language of the case: English

The President of the Third Chamber has ordered that the case be removed from the register.

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(1)  OJ C 441, 21.11.2022.