Last publication

OJ C 314, 4.9.2023

Past publications

OJ C 304, 28.8.2023

OJ C 296, 21.8.2023

OJ C 286, 14.8.2023

OJ C 278, 7.8.2023

OJ C 271, 31.7.2023

OJ C 261, 24.7.2023

These texts are available on:

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

Judgment of the Court (Grand Chamber) of 13 July 2023 — European Commission v CK Telecoms UK Investments Ltd, United Kingdom of Great Britain and Northern Ireland, EE Ltd

(Case C-376/20 P) (1)

(Appeal - Competition - Regulation (EC) No 139/2004 - Control of concentrations of undertakings - Mobile telecommunications services - Decision declaring a concentration incompatible with the internal market - Oligopolistic market - Significant impediment to effective competition - Non-coordinated effects - Standard of proof - European Commission’s margin of discretion with regard to economic matters - Limits of judicial review - Guidelines on horizontal mergers - Factors relevant to demonstrating a significant impediment to effective competition - Concepts of ‘important competitive force’ and ‘close competitors’ - Closeness of competition between the parties to the concentration - Quantitative analysis of the effects of the proposed concentration on prices - Efficiencies - Distortion - Complaint raised by the General Court of the European Union of its own motion - Annulment)

(2023/C 321/02)

Language of the case: English

Parties

Appellant: European Commission, (represented initially by: G. Conte, M. Farley, J. Szczodrowski and C. Urraca Caviedes, and subsequently by F. Castillo de la Torre, G. Conte, M. Farley, J. Szczodrowski and C. Urraca Caviedes, acting as Agents)

Other parties to the proceedings: CK Telecoms UK Investments Ltd (represented initially by J. Aitken, K. Asakura, A. Coe, M. Davis, S. Prichard, Solicitors, O.W. Brouwer, advocaat, B. Kennelly, Senior Counsel, A. Müller, advocate, and T. Wessely, Rechtsanwalt and subsequently by J. Aitken, K. Asakura, A. Coe, M. Davis, Solicitors, O.W. Brouwer, advocaat, B. Kennelly, Senior Counsel, A. Müller, advocate, and T. Wessely Rechtsanwalt), United Kingdom of Great Britain and Northern Ireland (represented initially by S. Brandon, and subsequently by F. Shibli, acting as Agents), EE Ltd

Intervener in support of the applicant: EFTA Surveillance Authority (represented initially by C. Simpson, M. Sánchez Rydelski and C. Zatschler, and subsequently by C. Simpson and M. Sánchez Rydelski, acting as Agents)

Operative part of the judgment

1.	Sets aside the judgment of 28 May 2020, CK Telecoms UK Investments v Commission (T 399/16, EU:T:2020:217);

2.	Refers the case back to the General Court of the European Union;

3.	Orders that the costs be reserved.

---

(1)   OJ C 390, 16.11.20

Judgment of the Court (Grand Chamber) of 13 July 2023 (requests for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Criminal proceedings against YP and Others (C-615/20), M.M. (C-671/20)

(Joined Cases C-615/20 and C-671/20, (1) YP and Others (Lifting of a judge’s immunity and his or her suspension from duties))

(References for a preliminary ruling - Second subparagraph of Article 19(1) TEU - Rule of law - Effective legal protection in the fields covered by Union law - Independence of judges - Primacy of EU law - Article 4(3) TEU - Duty of sincere cooperation - Lifting of a judge’s immunity from prosecution and his or her suspension from duties ordered by the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) - Lack of independence and impartiality on the part of that chamber - Alteration of the composition of the court formation called on to adjudicate on a case which up to that time had been entrusted to that judge - Prohibitions on national courts calling into question the legitimacy of a court, on undermining its functioning or on assessing the legality or effectiveness of the appointment of judges or of their judicial powers, subject to disciplinary penalties - Obligation on the courts concerned and the bodies which have power to designate and modify the composition of court formations to disapply the measures lifting immunity and suspending the judge concerned - Obligation on the same courts and bodies to disapply the national provisions providing for those prohibitions)

(2023/C 321/03)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main criminal proceedings

YP and Others (C-615/20), M.M. (C-671/20)

Intervening parties: Prokuratura Okręgowa w Warszawie, Komisja Nadzoru Finansowego and Others (C-615/20)

Operative part of the judgment

1.

The second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions which confer on a body, whose independence and impartiality are not guaranteed, jurisdiction to authorise the initiation of criminal proceedings against judges of the ordinary courts and, where such authorisation is issued, to suspend the judges concerned from their duties and to reduce their remuneration during that suspension.

2.

The second subparagraph of Article 19(1) TEU, the principle of the primacy of EU law and the principle of sincere cooperation laid down in Article 4(3) TEU must be interpreted as meaning: — first, that a formation of a national court, seised of a case and composed of a single Judge — against whom a body, whose independence and impartiality are not guaranteed, has adopted a resolution authorising the initiation of criminal proceedings and ordering that that judge be suspended from his or her duties and that his or her remuneration be reduced — is justified in disapplying such a resolution which precludes the exercise of its jurisdiction in that case and, — secondly, that the judicial bodies which have power to designate and modify the composition of the formations of that national court must also disapply that resolution which precludes the exercise of that jurisdiction by that court formation.

3.

The second subparagraph of Article 19(1) TEU and the principles of the primacy of EU law and of sincere cooperation must be interpreted as meaning: — first, that a formation of a national court, to which a case which hitherto had been assigned to another formation of that court has been re-assigned — as a result of a resolution adopted by a body whose independence and impartiality are not guaranteed and which authorised the initiation of criminal proceedings against the single Judge comprising the latter formation and ordered his or her suspension from duties and a reduction in his or her remuneration — and which has decided to suspend the handling of that case pending a decision by the Court of Justice on a preliminary ruling, must disapply that resolution and refrain from continuing to examine that case and, — secondly, that the judicial bodies which have power to designate and modify the composition of the formations of that national court are required, in such a situation, to assign that case back to the formation initially hearing it.

4.

The second subparagraph of Article 19(1) TEU and the principles of the primacy of EU law and of sincere cooperation must be interpreted as precluding: — first, national provisions which prohibit a national court, subject to disciplinary sanctions being imposed on the judges who make up that court, from examining whether an act adopted by a body whose independence and impartiality are not guaranteed and which has authorised the initiation of criminal proceedings against a judge and ordered his or her suspension from duties and a reduction in his or her remuneration is binding and, if necessary, from disapplying that act and, — secondly, case-law of a constitutional court under which the acts appointing the judges who make up such a body cannot be the subject of judicial review, inasmuch as that case-law is liable to preclude that examination.

---

(1)   OJ C 44, 8.2.2021.

OJ C 79, 8.3.2021.

Judgment of the Court (First Chamber) of 13 July 2023 (requests for a preliminary ruling from the Corte dei conti — Italy) — Ferrovienord SpA v Istituto Nazionale di Statistica — ISTAT (C-363/21), Federazione Italiana Triathlon v Istituto Nazionale di Statistica — ISTAT, Ministero dell’Economia e delle Finanze (C-364/21)

(Joined Cases C-363/21 and C-364/21, (1) Ferrovienord and Others)

(References for a preliminary ruling - Second paragraph of Article 19(1) TEU - Obligation on Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law - Economic policy - Regulation (EU) No 549/2013 - European system of national and regional accounts in the European Union (ESA) - Directive 2011/85/EU - Requirements for budgetary frameworks of the Member States - National legislation limiting the jurisdiction of the audit court - Principles of effectiveness and equivalence - Article 47 of the Charter of Fundamental Rights of the European Union)

(2023/C 321/04)

Language of the case: Italian

Referring court

Corte dei conti

Parties to the main proceedings

Applicants: Ferrovienord SpA (C-363/21), Federazione Italiana Triathlon (C-364/21)

Defendants: Istituto Nazionale di Statistica — ISTAT (C-363/21), Istituto Nazionale di Statistica — ISTAT, Ministero dell’Economia e delle Finanze (C-364/21)

Intervening parties: Procura generale della Corte dei Conti, Ministero dell’Economia e delle Finanze (C-363/21), Procura generale della Corte dei Conti (C-364/21)

Operative part of the judgment

Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area, Regulation (EU) No 549/2013 of the European Parliament and of the Council of 21 May 2013 on the European system of national and regional accounts in the European Union, Council Directive 2011/85/EU of 8 November 2011 on requirements applicable for budgetary frameworks of the Member States and the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union and the principles of equivalence and effectiveness,

must be interpreted as not precluding national legislation which limits the jurisdiction of the audit court to rule on the merits of the inclusion of an entity on the list of government units, provided that the effectiveness of those regulations and of that directive and the effective judicial protection required by EU law are guaranteed.

---

(1)   OJ C 349, 30.8.2021.

Judgment of the Court (First Chamber) of 13 July 2023 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Ocilion IPTV Technologies GmbH v Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG

(Case C-426/21, (1) Ocilion IPTV Technologies)

(Reference for a preliminary ruling - Intellectual property - Copyright in the information society - Directive 2001/29/EC - Article 3 - Right of communication to the public - Article 5(2)(b) - ‘Private copying’ exception - Provider of an Internet Protocol television (IPTV) service - Access to protected content without the rightholders’ consent - Online video recorder - Replay function - De-duplication technique)

(2023/C 321/05)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Ocilion IPTV Technologies GmbH

Defendants: Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG

Operative part of the judgment

1.

Article 2 and Article 5(2)(b) 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 exception to the exclusive right of authors and broadcasting organisations to authorise or prohibit the reproduction of protected works does not cover a service offered by an operator of retransmission of online television broadcasts to commercial customers allowing, on the basis of a cloud-hosting solution or based on the necessary hardware and software made available on premises, a continuous or one-off recording of those broadcasts, on the initiative of the end users of that service, where the copy made by the first of those users to have selected a broadcast is made available, by the operator, to an indeterminate number of users who wish to view the same content.

2.

Article 3(1) of Directive 2001/29 must be interpreted as meaning that the supply by an operator of retransmission of online television broadcasts to its commercial customer of the necessary hardware and software, including technical assistance, which enables that customer to allow its own customers to replay online television broadcasts, does not constitute a ‘communication to the public’ within the meaning of that provision, even if that operator is aware that its service may be used to access protected broadcasting content without the consent of the authors.

---

(1)   OJ C 471, 22.11.2021.

Judgment of the Court (Ninth Chamber) of 13 July 2023 — Nichicon Corporation v European Commission

(Case C-757/21 P) (1)

(Appeal - Authentication of a judgment by the General Court - Article 118 of the Rules of Procedure of the General Court - Copy of the judgment to be served - Signature of the judges - Agreements, decisions and concerted practices - Article 101 TFEU - Market for tantalum and aluminium electrolytic capacitors - Agreements and concerted practices in respect of several elements of pricing - Concept of infringement ‘by object’ - European Commission’s burden of proof - Statements of undertakings - Reliability - Geographic scope of anticompetitive conduct - Single and continuous infringement - Fine - Calculation of the basic amount - Sales to be taken into account - Mitigating circumstances - Unlimited jurisdiction)

(2023/C 321/06)

Language of the case: English

Parties

Appellant: Nichicon Corporation (represented by: A. Ablasser-Neuhuber, G. Fussenegger, H. Kühnert and F. Neumayr, Rechtsanwälte)

Other party: European Commission (represented by: B. Ernst, T. Franchoo, C. Sjödin and F. van Schaik, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Nichicon Corporation to bear its own costs and to pay the costs incurred by the European Commission.

---

(1)   OJ C 64, 7.2.2022.

Judgment of the Court (Ninth Chamber) of 13 July 2023 — Nippon Chemi-Con Corporation v European Commission

(Case C-759/21 P) (1)

(Appeal - Authentication of a judgment by the General Court - Article 118 of the Rules of Procedure of the General Court - Copy of the judgment to be served - Signature of the judges - Agreements, decisions and concerted practices - Article 101 TFEU - Market for tantalum and aluminium electrolytic capacitors - Agreements and concerted practices in respect of several elements of the pricing - Concept of infringement ‘by object’ - European Commission’s burden of proof - Geographic scope of anticompetitive conduct - Single and continuous infringement - Fine - Calculation of the basic amount - Sales to be taken into account - Mitigating circumstances - Unlimited jurisdiction)

(2023/C 321/07)

Language of the case: English

Parties

Appellant: Nippon Chemi-Con Corporation (represented by: P. Neideck, H.-J. Niemeyer, M. Röhrig, Rechtsanwälte, and by I.-L. Stoicescu, avocate)

Other party: European Commission (represented by: B. Ernst, T. Franchoo, C. Sjödin and L. Wildpanner, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Nippon Chemi-Con Corporation to bear its own costs and to pay those incurred by the European Commission.

---

(1)   OJ C 64, 7.2.2022.

Judgment of the Court (Second Chamber) of 13 July 2023 (request for a preliminary ruling from the Tribunale ordinario di Padova — Italy) — D.M. v Azienda Ospedale-Università di Padova

(Case C-765/21, (1) Azienda Ospedale-Università di Padova)

(Reference for a preliminary ruling - Public health - National legislation imposing a vaccination obligation on health professionals - Suspension from duty without pay for personnel refusing the vaccine - Regulation (EC) No 726/2004 - Medicinal products for human use - Vaccines against COVID-19 - Regulation (EC) No 507/2006 - Validity of conditional marketing authorisations - Regulation (EU) 2021/953 - Prohibition of discrimination between vaccinated and unvaccinated persons - Inadmissibility)

(2023/C 321/08)

Language of the case: Italian

Referring court

Tribunale ordinario di Padova

Parties to the main proceedings

Applicant: D.M.

Defendant: Azienda Ospedale-Università di Padova,

in the presence of: C. S.

Operative part of the judgment

The reference for a preliminary ruling made by the Tribunale ordinario di Padova (District Court, Padua, Italy) by decision of 7 December 2021 is inadmissible.

---

(1)   OJ C 138, 28.3.2022.

Judgment of the Court (Fourth Chamber) of 13 July 2023 (request for a preliminary ruling from the Audiencia Provincial de Málaga — Spain) — CAJASUR Banco SA v JO, IM

(Case C-35/22, (1) CAJASUR Banco)

(Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms in consumer contracts - Article 6(1) - General conditions of a mortgage loan agreement declared null and void by national courts - Legal action - Admission prior to any dispute - National legislation requiring a consumer to take steps prior to bringing proceedings against the seller or supplier concerned in order to guarantee the award of the costs of legal proceedings - Principle of sound administration of justice - Right to effective judicial protection)

(2023/C 321/09)

Language of the case: Spanish

Referring court

Audiencia Provincial de Málaga

Parties to the main proceedings

Applicant: CAJASUR Banco SA

Defendant: JO, IM

Operative part of the judgment

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, read in the light of the principle of effectiveness,

must be interpreted as not precluding national legislation under which, where a consumer has not taken any steps prior to bringing proceedings against a seller or supplier with whom he or she has concluded a contract containing an unfair term, that consumer must bear his or her own costs relating to the legal proceedings which he or she has instituted against that seller or supplier in order to assert the rights conferred on him or her by Directive 93/13 where that seller or supplier has admitted the claim of that consumer before any dispute, even if that term has been found to be unfair, provided that the competent national court is able to take account of the existence of settled national case-law finding similar terms and the conduct of the seller or supplier to be unfair in order to conclude that that seller or supplier acted in bad faith and, if appropriate, order him or her to pay those costs.

---

(1)   OJ C 171, 25.4.2022.

Judgment of the Court (Fourth Chamber) of 13 July 2023 — Grupa Azoty S.A., Azomureș SA, Lipasmata Kavalas LTD Ypokatastima Allodapis v European Commission (C-73/22 P), Advansa Manufacturing GmbH, Beaulieu International Group NV and Others v Dralon GmbH, European Commission (C-77/22 P)

(Joined Cases C-73/22 P and C-77/22 P) (1)

(Appeal - State aid - Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading - Eligible economic sectors - Exclusion of the nitrogen compounds and fertilisers sector - Action for annulment - Admissibility - Right of natural or legal persons to institute proceedings - Fourth paragraph of Article 263 TFEU - Condition that the applicant must be directly concerned)

(2023/C 321/10)

Language of the case: English

Parties

(Case C - 73/22 P)

Appellants: Grupa Azoty S.A., Azomureș SA, Lipasmata Kavalas LTD Ypokatastima Allodapis (represented by: D. Haverbeke, L. Ruessmann and P. Sellar, avocats)

Other party to the proceedings: European Commission (represented initially by A. Bouchagiar, G. Braga da Cruz and J. Ringborg, and subsequently by A. Bouchagiar and J. Ringborg, acting as Agents)

(Case C-77/22 P)

Appellants: Advansa Manufacturing GmbH, Beaulieu International Group NV, Brilen SA, Cordenka GmbH & Co. KG, Dolan GmbH, Enka International GmbH & Co. KG, Glanzstoff Longlaville SAS, Infinited Fiber Company Oy, Kelheim Fibres GmbH, Nurel SA, PHP Fibers GmbH, Teijin Aramid BV, Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïonton S.A., Trevira GmbH (represented by D. Haverbeke, L. Ruessmann and P. Sellar, avocats)

Other parties to the proceedings: Dralon GmbH, European Commission (represented initially by A. Bouchagiar, G. Braga da Cruz and J. Ringborg, and subsequently by A. Bouchagiar and J. Ringborg, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeals in Cases C-73/22 P and C-77/22 P;

2.	Orders Grupa Azoty S.A., Azomureș SA and Lipasmata Kavalas LTD Ypokatastima Allodapis to bear their own costs and to pay those incurred by the European Commission, related to the appeal in Case C-73/22 P;

3.

Orders Advansa Manufacturing GmbH, Beaulieu International Group NV, Brilen SA, Cordenka GmbH & Co. KG, Dolan GmbH, Enka International GmbH & Co. KG, Glanzstoff Longlaville SAS, Infinited Fiber Company Oy, Kelheim Fibres GmbH, Nurel SA, PHP Fibers GmbH, Teijin Aramid BV, Thrace Nonwovens & Geosynthetics monoprosopi AVEE mi yfanton yfasmaton kai geosynthetikon proïonton S.A. and Trevira GmbH to bear their own costs and to pay those incurred by the Commission, related to the appeal in Case C-77/22 P.

---

(1)   OJ C 165, 19.4.2022

Judgment of the Court (Fourth Chamber) of 13 July 2023 (request for a preliminary ruling from the Landesgericht Korneuburg — Austria) — TT v AK

(Case C-87/22, (1) TT (Wrongful removal of a child))

(Reference for a preliminary ruling - Jurisdiction in matters of parental responsibility - Regulation (EC) No 2201/2003 - Articles 10 and 15 - Transfer to a court of another Member State better placed to hear the case - Conditions - Court of the Member State to which the child has been wrongfully removed - The 1980 Hague Convention - Best interests of the child)

(2023/C 321/11)

Language of the case: German

Referring court

Landesgericht Korneuburg

Parties to the main proceedings

Applicant: TT

Defendant: AK

Operative part of the judgment

1.

Article 15 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 court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents..

2.

Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980 and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents.

---

(1)   OJ C 213, 30.5.2022

Judgment of the Court (Second Chamber) of 13 July 2023 (request for a preliminary ruling from the Fővárosi Törvényszék — Hungary) — Xella Magyarország Építőanyagipari Kft. v Innovációs és Technológiai Miniszter

(Case C-106/22, (1) Xella Magyarország)

(Reference for a preliminary ruling - Free movement of capital - Freedom of establishment - Regulation (EU) 2019/452 - Legislation of a Member State establishing a mechanism for filtering foreign investment in resident companies considered to be ‘strategic’ - Decision adopted on the basis of that legislation, prohibiting the acquisition by a resident company of all the shares of another resident company - Acquired company considered to be ‘strategic’ on the ground that its primary activity concerns the extraction of certain raw materials such as gravel, sand and clay - Acquiring company considered to be a ‘foreign investor’ on the ground that it forms part of a group of companies whose ultimate parent company is established in a third country - Harm or risk of harm to a national interest, public security or public order of the Member State - Objective intended to ensure the security of supply of raw materials to the construction sector, in particular at the local level)

(2023/C 321/12)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant: Xella Magyarország Építőanyagipari Kft.

Defendant: Innovációs és Technológiai Miniszter

Intervening party: ‘JANES ÉS Társa’ Szállítmányozó, Kereskedelmi és Vendéglátó Kft

Operative part of the judgment

The provisions of the TFEU on freedom of establishment

must be interpreted as precluding a foreign investment filtering mechanism provided for by the legislation of a Member State by means of which a resident company which is a member of a group of companies established in several Member States, over which an undertaking of a third country has decisive influence, may be prohibited from acquiring ownership of another resident company regarded as strategic, on the ground that the acquisition harms or risks harming the national interest in ensuring the security of supply to the construction sector, in particular at the local level, with respect to basic raw materials such as gravel, sand and clay.

---

(1)   OJ C 207, 23.5.2022.

Judgment of the Court (Second Chamber) of 13 July 2023 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — MO v SM as liquidator of G GmbH

(Case C-134/22, (1) G GmbH)

(Reference for a preliminary ruling - Social policy - Collective redundancies - Directive 98/59/EC - Information and consultation - Second subparagraph of Article 2(3) - Obligation of employer contemplating a collective redundancy to forward to the competent public authority a copy of the information communicated to the workers’ representatives - Objective - Consequences of a failure to comply with that obligation)

(2023/C 321/13)

Language of the case: German

Referring court

Bundesarbeitsgericht

Parties to the main proceedings

Applicant: MO

Defendant: SM as liquidator of G GmbH

Operative part of the judgment

The second subparagraph of Article 2(3) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies

must be interpreted as meaning that the employer’s obligation to forward to the competent public authority a copy of, at least, the elements of the written communication which are provided for in the first subparagraph of Article 2(3), point (b), subpoints (i) to (v) of that directive is not intended to confer individual protection on the workers affected by collective redundancies.

---

(1)   OJ C 222, 7.6.2022

Judgment of the Court (Fourth Chamber) of 13 July 2023 — Debrégeas et associés Pharma SAS (D & A Pharma) v European Medicines Agency (EMA)

(Case C-136/22 P) (1)

(Appeal - Medicinal products for human use - Regulation (EC) No 726/2004 - Decision by the European Medicines Agency (EMA) not to renew a scientific advisory group - Action for annulment brought by the applicant for a marketing authorisation - Admissibility - Interest in bringing proceedings - Vested and current interest which may arise from another legal action - Conditions)

(2023/C 321/14)

Language of the case: French

Parties

Appellant: Debrégeas et associés Pharma SAS (D & A Pharma) (represented initially by E. Gouesse, D. Krzisch and N. Viguié, avocats, and subsequently by E. Gouesse and N. Viguié, avocats)

Other party to the proceedings: European Medicines Agency (EMA) (represented by: C. Bortoluzzi, S. Drosos, H. Kerr and S. Marino, acting as Agents,)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Debrégeas et associés Pharma SAS (D & A Pharma) to bear its own costs and to pay those of the European Medicines Agency (EMA) relating to the appeal.

---

(1)   OJ C 171, 25.4.2022.

Judgment of the Court (First Chamber) of 13 July 2023 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Hamm v Harry Mensing

(Case C-180/22, (1) Mensing II)

(Reference for a preliminary ruling - Taxation - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 311 et seq. - Special arrangements for works of art - Margin scheme - Taxable dealers - Supply of works of art by creators or their successors in title - Intra-Community transactions - Right to deduct input tax)

(2023/C 321/15)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Finanzamt Hamm

Defendant: Harry Mensing

Operative part of the judgment

Articles 312 and 315 and the first paragraph of Article 317 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax,

must be interpreted as meaning that the value added tax paid by a taxable dealer in respect of the intra-Community acquisition of a work of art, the subsequent supply of which is subject to the margin scheme under Article 316(1) of that directive, forms part of the taxable amount of that supply.

---

(1)   OJ C 222, 7.6.2022.

Judgment of the Court (Ninth Chamber) of 13 July 2023 (request for a preliminary ruling from the Juzgado de Primera Instancia n. 17 de Palma de Mallorca — Spain) — ZR, PI v Banco Santander, SA

(Case C-265/22, (1) Banco Santander (Reference to an official index))

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Mortgage loan agreements - Term providing for a variable interest rate - Reference index based on the annual percentage rates of charge (APRC) of mortgage loans granted by credit institutions - Index established by a regulatory or administrative act - Information contained in the preamble to that act - Check relating to the requirement of transparency - Assessment of the unfair nature of the term)

(2023/C 321/16)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia n. 17 de Palma de Mallorca

Parties to the main proceedings

Applicants: ZR, PI

Defendant: Banco Santander, SA

Operative part of the judgment

Article 3(1), Article 4 and Article 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,

must be interpreted as meaning that, in order to assess the transparency and potential unfairness of a term in a variable-rate mortgage loan agreement that designates as a reference index, for the periodic review of the interest rate applicable to that loan, an index established by a notice the subject of an official publication, to which an increase is applied, the content of the information contained in another notice — indicating the need to apply to that index, in view of its method of calculation, a negative margin in order to align that interest rate with the market rate — is relevant. It is also relevant whether that information is sufficiently accessible for an average consumer.

---

(1)   OJ C 326, 29.8.2022.

Judgment of the Court (Eighth Chamber) of 13 July 2023 (request for a preliminary ruling from the Elegktiko Synedrio — Greece) — Achilleion Anomymi Xenodocheiaki Etaireia v Elliniko Dimosio

(Case C-313/22, (1) ACHILLEION)

(Reference for a preliminary ruling - Structural Funds - European Regional Development Fund (ERDF) - Co-financing - Regulation (EC) No 1260/1999 - Articles 30(4) and 39(1) - Durability of investment operations - ‘Substantial modification’ of a co-financed investment operation - Recovery of aid in the event of transfer of the establishment which is the subject of that operation - Effect of the specific circumstances surrounding that transfer)

(2023/C 321/17)

Language of the case: Greek

Referring court

Elegktiko Synedrio

Parties to the main proceedings

Appellant on a point of law: Achilleion Anomymi Xenodocheiaki Etaireia

Respondent: Elliniko Dimosio

Operative part of the judgment

1.

Article 30(4) of Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds must be interpreted as: — meaning that the transfer of an establishment which is the subject of an investment operation co-financed by the European Union Structural Funds is capable of constituting a ‘substantial modification’ of that operation within the meaning of that provision, which it is for the referring court to ascertain, taking into account all the matters of fact and law at issue, in the light of the conditions laid down in that provision; — precluding national legislation which obliges the beneficiary of funding paid in respect of an investment operation co-financed by the European Union Structural Funds not to transfer, without exception, for a period of five years from the adoption of the completion decision for the investment in question, an establishment which is the subject of that operation, failing which a financial correction will be imposed accompanied by total or partial recovery of that funding.

2.

Article 30(4) and Article 39(1) of Regulation No 1260/1999, read in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the financial corrections provided for in Article 39(1) must be made where the transfer of an establishment which is the subject of an investment operation co-financed by the European Union Structural Funds constitutes a substantial modification of that operation within the meaning of Article 30(4).

---

(1)   OJ C 311, 16.8.2022.

Judgment of the Court (Tenth Chamber) of 13 July 2023 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Gemeinde A v Finanzamt

(Case C-344/22, (1) Gemeinde A)

(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 2(1)(c) - Supply of services for consideration - Bodies governed by public law - Municipality collecting a spa tax for the provision of spa facilities accessible to everyone)

(2023/C 321/18)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Gemeinde A

Defendant: Finanzamt

Operative part of the judgment

Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as meaning that the provision of spa facilities by a municipality does not constitute a ‘supply of services for consideration’, within the meaning of that provision, where, on the basis of municipal by-laws, that municipality imposes a spa tax of a certain amount per day’s stay on visitors staying in the municipality, when the obligation to pay that tax is linked not to the use of those facilities but to the stay in the municipal territory and those facilities are freely and gratuitously accessible to everyone.

---

(1)   OJ C 398, 17.10.2022.

Judgment of the Court (Grand Chamber) of 24 July 2023 (request for a preliminary ruling from the Curtea de Apel Brașov — Romania) — Criminal proceedings against C.I., C.O., K.A., L.N., S.P.

(Case C-107/23 PPU, (1) Lin (2))

(Reference for a preliminary ruling - Protection of the financial interests of the European Union - Article 325(1) TFEU - PFI Convention - Article 2(1) - Obligation to counter fraud affecting the financial interests of the European Union by taking effective deterrent measures - Obligation to provide for criminal penalties - Value added tax (VAT) - Directive 2006/112/EC - Serious VAT fraud - Limitation period for criminal liability - Judgment of a constitutional court invalidating a national provision governing the grounds for interrupting that period - Systemic risk of impunity - Protection of fundamental rights - Article 49(1) of the Charter of Fundamental Rights of the European Union - Principle that offences and penalties must be defined by law - Requirements of foreseeability and precision of criminal law - Principle of the retroactive application of the more lenient criminal law (lex mitior) - Principle of legal certainty - National standard of protection of fundamental rights - Duty on the courts of a Member State to disapply judgments of the constitutional court and/or the supreme court of that Member State in the event that they are incompatible with EU law - Disciplinary liability of judges in the event of non-compliance with those judgments - Principle of the primacy of EU)

(2023/C 321/19)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Party in the main proceedings

C.I., C.O., K.A., L.N., S.P.

Other party: Statul român

Operative part of the judgment

1.

Article 325(1) TFEU and Article 2(1) of the 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, signed in Brussels on 26 July 1995 and annexed to the Council Act of 26 July 1995 must be interpreted as meaning that the courts of a Member State are not required to disapply the judgments of the constitutional court of that Member State invalidating the national legislative provision governing the grounds for interrupting the limitation period in criminal matters, as a result of a breach of the principle that offences and penalties must be defined by law, as protected under national law, as to its requirements relating to the foreseeability and precision of criminal law, even if, as a consequence of those judgments, a considerable number of criminal cases, including cases relating to offences of serious fraud affecting the financial interests of the European Union, will be discontinued because of the expiry of the limitation period for criminal liability. However, those provisions of EU law must be interpreted as meaning that the courts of that Member State are required to disapply a national standard of protection relating to the principle of the retroactive application of the more lenient criminal law (lex mitior) which makes it possible, including in the context of appeals brought against final judgments, to call into question the interruption of the limitation period for criminal liability in such cases by procedural acts which took place before such a finding of invalidity.

2.

The principle of the primacy of EU law must be interpreted as precluding national legislation or a national practice under which the ordinary national courts of a Member State are bound by the decisions of the constitutional court and by those of the supreme court of that Member State and cannot, for that reason and at the risk of incurring the disciplinary liability of the judges concerned, disapply of their own motion the case-law resulting from those decisions, even if they consider, in the light of a judgment of the Court, that that case-law is contrary to provisions of EU law having direct effect.

---

(1)   OJ C 189, 30.5.2023.

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

Order of the Court (Eighth Chamber) of 10 May 2023 — MKB Multifunds BV v European Commission, Kingdom of the Netherlands

(Case C-665/21 P) (1)

(Appeal - Article 181 of the Rules of Procedure of the Court of Justice - State aid - Alleged State aid granted by a Member State in favour of a fund of funds - Preliminary examination of the European Commission - Decision of the Commission finding no State aid - Action for annulment - Admissibility - Regulation (EU) 2015/1589 - Article 1(h) - Concept of ‘interested party’)

(2023/C 321/20)

Language of the case: Dutch

Parties

Appellant: MKB Multifunds BV (represented initially by R. Rampersad and J. M. M. van de Hel, advocaten, and subsequently by P. Breithaupt and J. M. M. van de Hel, advocaten)

Other parties to the proceedings: European Commission (represented by: V. Bottka, C.-M. Carrega and S. Noë, acting as Agents), Kingdom of the Netherlands (represented by: M. K. Bulterman and C. S. Schillemans, acting as Agents)

Operative part of the order

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

2.	MKB Multifunds BV is ordered to bear its own costs and to pay those incurred by the European Commission.

3.	The Kingdom of the Netherlands shall bear its own costs.

---

(1)   OJ C 11, 10.1.2022.

Order of the Court (Tenth Chamber) of 17 July 2023 (request for a preliminary ruling from the Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie — Poland) — PA

(Case C-55/23, (1) Jurtukała (2))

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Questions the answer to which may be clearly deduced from the Court’s existing case-law - Jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession, and creation of a European Certificate of Succession - Regulation (EU) No 650/2012 - Article 10(1)(a) - Subsidiary jurisdiction - Article 267 TFEU - Obligation to comply with the directions of a higher court)

(2023/C 321/21)

Language of the case: Polish

Referring court

Sąd Rejonowy Szczecin — Prawobrzeże i Zachód w Szczecinie

Parties to the main proceedings

Applicant: PA

Other party: MO

Operative part of the order

Article 10(1)(a) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as meaning that the rule of subsidiary jurisdiction laid down by that provision applies only where the habitual residence of the deceased at the time of death was located in a Member State not bound by that regulation or in a third State.

EU law, in particular Article 267 TFEU, must be interpreted as precluding a national court, ruling following the setting aside by a higher court of a decision which it delivered, from being bound, in accordance with national procedural law, by the legal rulings of that higher court, where those rulings are inconsistent with EU law, as interpreted by the Court.

---

(1)  Date lodged: 3.2.2023.

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

Appeal brought on 20 February 2023 by Puma SE against the judgment of the General Court (Sixth Chamber) delivered on 7 December 2022 in Case T-623/21, Puma SE v European Union Intellectual Property Office

(Case C-94/23 P)

(2023/C 321/22)

Language of the case: German

Parties

Appellant: Puma SE (represented by: M. Schunke and P. Trieb, lawyers)

Other parties to the proceedings: European Union Intellectual Property Office, Vaillant GmbH

The Court of Justice (Chamber determining whether appeals may proceed) held on 17 July 2023 that the appeal was not allowed to proceed and that Puma SE should bear its own costs.

Appeal brought on 25 April 2023 by Topcart GmbH against the judgment of the General Court (Third Chamber) delivered on 15 February 2023 in Case T-8/22, Topcart GmbH v European Union Intellectual Property Office

(Case C-270/23 P)

(2023/C 321/23)

Language of the case: German

Parties

Appellant: Topcart GmbH (represented by: M. Hoffmann, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office

By order of 17 July 2023, the Court of Justice of the European Union (Chamber determining whether appeals may proceed) did not allow the appeal to proceed and ordered the appellant to bear its own costs.

Request for a preliminary ruling from the Visoki upravni sud Republike Hrvatske (Croatia) lodged on 26 May 2023 — HP — Hrvatska pošta d.d v Povjerenik za informiranje

(Case C-336/23, HP — Hrvatska pošta)

(2023/C 321/24)

Language of the case: Croatian

Referring court

Visoki upravni sud Republike Hrvatske

Parties to the main proceedings

Applicant: HP — Hrvatska pošta d.d.

Defendant: Povjerenik za informiranje

Questions referred

1.

Is the term ‘re-use of information’ for the purposes of Article 2(11) of 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 ([OJ 2019] L 172, [p. 56]) (‘the Directive’) to be understood as meaning access to any information which a public sector body/public undertaking has produced or holds, and which a user (natural or legal person) requests from a public sector body for the first time?

2.

Can a request for information which a public sector body/public undertaking has produced or which it holds, and which was generated within the scope of its activities or in connection with its organisation and work, be regarded as a request for information to which the provisions of the Directive apply, that is to say, do the provisions of that directive apply to all requests for information held by public sector bodies?

3.

Are the entities obliged to provide information, listed in Article 2 of the Directive, only those public sector bodies to which requests for re-use of information are made, or do the new definitions concern all public sector bodies and all information held by those bodies, that is to say, are the entities listed in Article 2 of the Directive obliged to provide information they have produced or hold, or are the entities listed in Article 2 of the Directive considered to be obliged to provide information only where the information is re-used?

4.

Can the exceptions to the obligation to make information available under Article 1(2) of the Directive be regarded as exceptions by virtue of which public sector bodies may refuse to provide information produced or held by them, or are they exceptions which apply only where requests have been made to the public sector bodies for re-use of the information?

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 29 May 2023 — ‘APS beta Bulgaria’ EOOD and ‘Agentsia za kontrol na prosrocheni zadalzhenia’ AD

(Case C-337/23, APS Beta Bulgaria and Agentsia za kontrol na prosrocheni zadalzhenia)

(2023/C 321/25)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Applicants in the order for payment procedures

Applicants in the order for payment procedures: ‘APS beta Bulgaria’ EOOD and ‘Agentsia za kontrol na prosrocheni zadalzhenia’ AD

Questions referred

1.

Are Article 4(2) and Article 6(1) of Council Directive 93/13/EEC (1) on unfair terms in consumer contracts (‘Directive 93/13/EEC’) to be interpreted as meaning that, where a credit agreement imposes an obligation on the consumer to conclude a contract of guarantee with a guarantor nominated by the creditor, the content of the contract of guarantee is not the ‘main subject matter’ of the contract with that third party but forms part of the content of the credit agreement? Is it relevant in that regard whether the creditor and the guarantor are connected persons?

2.

Is point 1(i) of the Annex to Directive 93/13/EEC to be interpreted as meaning that, where the consumer is required to provide a guarantor in connection with a credit agreement which has already been concluded, and one of the options is for him or her to appoint a person nominated by the creditor, the content of the consumer’s obligation under the contract of guarantee concluded later on the day on which the credit agreement was concluded must be regarded as unclear, since it was not possible for the consumer himself or herself to select or propose the person to be nominated by the creditor as the future guarantor?

3.

If the answer to the preceding question is that the subject matter of the contract of guarantee is clear, is point 1(i), (j) and (m) of the Annex to Directive 93/13/EEC to be interpreted as meaning that, where the consumer has undertaken to provide a guarantor in connection with a credit agreement which has already been concluded, and one of the options is for him or her to appoint a person nominated by the creditor, the content of the consumer’s obligation under the credit agreement must be regarded as unclear and may lead to the nullity of the credit agreement or particular terms thereof?

4.

Is Article 4(1) of Directive 93/13/EEC, read in conjunction with Article 8 of Directive 2005/29/EC (2) concerning unfair commercial practices, to be interpreted as meaning that, where a person granting credit requires the consumer to conclude an agreement with a person nominated by the creditor to secure the creditor’s claim against the consumer, that always constitutes exploitation of the consumer’s disadvantageous position and is therefore an aggressive commercial practice?

5.

If Question 4 is answered in the negative: is Article 4(1) and Article 7 of Directive 93/13/EEC, read in conjunction with Article 8 of Directive 2005/29/EC concerning unfair commercial practices, to be interpreted as meaning that, in unilateral legal proceedings, such as the order for payment procedure, in which the consumer is not a party, the court may raise doubts that a contractual term is unfair solely on the ground that it suspects that the term was accepted by the consumer on the basis of an unfair commercial practice, or must the latter be established with certainty?

6.

Is Article 15(2) of Directive 2008/48/EC (3) on credit agreements for consumers (‘Directive 2008/48/EC’) to be interpreted as meaning that it applies in cases where the credit agreement is linked to an ancillary service, namely the provision of a guarantee by a third party in return for a fee, and allows the consumer not only to pursue his or her claims on grounds of wrongful conduct on the part of the guarantor, such as payment after the expiry of a statutory time limit, but also to rely on procedural objections which rule out the obligation to the guarantor?

7.

Does Article 15(2) of Directive 2008/48/EC, read in conjunction with the principle of effectiveness, or — on the assumption that the credit agreement and the contract of guarantee constitute related transactions — do Articles 5 and 7 of Directive 93/13/EEC, read in conjunction with point 1(b) and (c) of the Annex thereto, permit national case-law according to which the guarantor of a contract linked to a consumer credit agreement who has received a fee from the consumer for the collateralisation of the credit agreement and has paid the principal creditor in accordance with a contractual term, despite the expiry of the period laid down in Article 147 of the Zakon za zadalzheniata i dogovorite (Law on obligations and contracts), which, according to the relevant case-law, extinguishes the guarantee in its entirety, may nevertheless plead that he or she has succeeded to the rights of the original creditor and, citing contradictory case-law on the application of the law, claim payment from the principal debtor?

8.

Is Article 3(g) of Directive 2008/48/EC, read in conjunction with Article 5 of Directive 93/13/EEC, to be interpreted as meaning that in the case of an obligation under a credit agreement to conclude a linked contract of guarantee, which has the effect of increasing the total amount of the credit liability, the annual percentage rate of charge (APR) for the credit must also be calculated on the basis of the increased instalments resulting from the fee paid to the guarantor? Is it relevant in that regard who selected the guarantor and whether he or she is a person connected with the principal creditor?

9.

Is Article 10(2)(g) of Directive 2008/48/EC to be interpreted as meaning that the incorrect indication of the APR in a credit agreement concluded between a seller or supplier and a consumer-borrower must be regarded as a failure to indicate the APR in the credit agreement and that the national court must apply the consequences provided for in national law for failure to indicate the ARP in a consumer credit agreement? Is it to be assumed that those consequences must also apply to the guarantor who has paid in his or her relationship with the consumer?

10.

Is the second sentence of Article 23 of Directive 2008/48/EC to be interpreted as meaning that a penalty provided for in national law, namely the nullity of the consumer credit agreement, whereby only the principal amount granted is repayable, must be regarded as proportionate in cases where the consumer credit agreement does not contain a precise indication of the APR in that it does not indicate the cost of a commercial guarantor selected by the creditor, even though the APR is indicated in numerical form in the text of the credit agreement?

11.

Is Article 2(2) of Directive 2009/138/EC (4) on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (‘Directive 2009/138/EC’), read in conjunction with point 14 of Part A of Annex 1 to that directive, to be interpreted as meaning that, in the case of a guarantor, the professional pursuit of a remunerated activity in respect of which the guarantor company pays, in all cases of default, the total amount of the credit contracted by a consumer who is the principal debtor, and the fee is paid with each instalment of the credit, irrespective of the consumer’s default, constitutes an ‘insurance activity’ within the meaning of that directive?

12.

If Question 11 is answered in the affirmative: is Article 14(1) of Directive 2009/138/EC to be interpreted as meaning that a person pursuing the activity referred to in Question 11 is subject to an obligation to obtain authorisation from the national regulatory authorities responsible for granting authorisations to insurers?

---

(1)   OJ 1993 L 95, p. 29.

(2)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

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

(4)  Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

Appeal brought on 31 May 2023 by Jean-Marc Colombani against the judgment of the General Court (Fifth Chamber) delivered on 22 March 2023 in Case T-113/22, Colombani v EEAS

(Case C-343/23 P)

(2023/C 321/26)

Language of the case: French

Parties

Appellant: Jean-Marc Colombani (represented by: N. de Montigny, avocate)

Other party to the proceedings: European External Action Service (EEAS)

Form of order sought

The appellant claims that the Court should:

—	uphold the appeal and set aside the judgment under appeal;

—	resolve the case and, doing what the General Court should have done: — annul the decision of 15 June 2021; — order the respondent to pay a symbolic EUR 1 as compensation for non-material damage;

—	order the respondent to the appeal to pay the costs incurred by the appellant in the present proceedings and in the proceedings at first instance.

Grounds of appeal and main arguments

In support of his appeal, the appellant relies on several grounds of appeal.

As a preliminary point and in general, the appellant alleges that the General Court erred in law in examining the subject matter of his request for assistance, that it unlawfully restricted the scope of the request to include only autonomous and active individual behaviour of each of the persons concerned, excluding any concept of harassment and concerted practice, and that it undermined the unity of the case-law in the matter.

Second, the appellant also criticises the error of law committed by the General Court in examining the error of assessment committed by the EEAS, in particular the appellant alleges an unlawful reversal of the burden of proof in the analysis of the condition of ‘prima facie evidence’ of adverse behaviour, the failure to take account of the concept of co-perpetrator/participation, which does not require active behaviour, the distortion of the evidence submitted, breach of the adversarial principle, contradictions in the statement of reasons, an error of law committed in examining the ‘justifications’ for the behaviour complained of which is contrary to Articles 11, 12, 12a, 21 and 21a of the Staff Regulations and which negates the responsibilities of the most senior managers of an institution.

Third, the appellant alleges infringement by the General Court of Article 24 of the Staff Regulations in finding that the EEAS was right to refuse the appellant’s request for assistance.

Fourth, the appellant alleges failure to take account of the existence of a decision rejecting the request made and that an error of law was committed in the analysis of Articles 17 and 19 of the Staff Regulations.

Finally, the appellant seeks recognition of the existence of his non-material damage, which was dismissed by the General Court of the European Union.

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 2 June 2023 — LB, JL v Getin Noble Bank S.A.

(Case C-347/23, Zabitoń (1))

(2023/C 321/27)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicants: LB, JL

Defendant: Getin Noble Bank S.A.

Question referred

Must Article 2(b) and (c) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (2) be interpreted as meaning that a natural person who concludes a mortgage loan agreement in order to raise funds to purchase a single property to be rented for remuneration (buy-to-let) is to be regarded as a ‘consumer’ within the meaning of that directive?

---

(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 1993 L 95, p. 29.

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 5 June 2023 — KCB, MB v BNP Paribas Bank Polska S.A.

(Case C-348/23, BNP Paribas Bank Polska)

(2023/C 321/28)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicants: KCB, MB

Defendant: BNP Paribas Bank Polska S.A.

Question referred

Should Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) and the principles of effectiveness and equivalence be interpreted as precluding a judicial interpretation of national legislation according to which:

1.

the consumer may not validly pursue claims against a trader arising from the inclusion of unfair terms in an agreement until he or she has declared that he or she does not agree to the unfair terms remaining in force, agrees to exclude their application, and understands and accepts the consequences thereof, potentially including the invalidity of the entire agreement,

2.	the consumer may not validly claim recovery from the trader of sums unduly paid on the basis of the unfair terms until he or she has made the above declaration,

3.	the consumer’s claim for recovery of sums unduly paid on the basis of the unfair terms does not become payable until he or she has made the above declaration,

4.	the trader is not required to pay the consumer statutory interest for late performance until it has knowledge of the above declaration by the consumer?

---

(1)   OJ 1993 L 95, p. 29.

Request for a preliminary ruling from the Cour de cassation (France) lodged on 9 June 2023 — EA v Artemis security

(Case C-367/23, Artemis security)

(2023/C 321/29)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: EA

Defendant: Artemis security SAS

Questions referred

1.	Does Article 9(1)(a) 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 fulfil the conditions for it to have direct effect and be relied on by a worker in a dispute concerning that worker?

2.

Must Article 9(1)(a) of Directive 2003/88/EC be interpreted as precluding domestic legislation or practices under which, in the event of a failure to comply with the provisions adopted to implement the measures necessary for the free assessment of a worker’s health, the worker’s right to compensation is subject to proof of the damage which would have resulted from that breach?

Request for a preliminary ruling from the Najvyšší Správny súd Slovenskej republiky (Slovakia) lodged on 13 June 2023 — Mesto Rimavská Sobota v Ministerstvo pôdohospodárstva a rozvoja vidieka Slovenskej republiky

(Case C-370/23, Mesto Rimavská Sobota)

(2023/C 321/30)

Language of the case: Slovak

Referring court

Najvyšší Správny súd Slovenskej republiky

Parties to the main proceedings

Applicant: Mesto Rimavská Sobota

Defendant Ministerstvo pôdohospodárstva a rozvoja vidieka Slovenskej republiky

Question referred

Is Article 2(b) of Regulation (EU) No 995/2010 (1) of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market to be interpreted as meaning that the placing on the market of timber also constitutes a sale for consideration of raw timber or fuel wood within the meaning of Annex 1 to that regulation, if, under the harvest concession agreement, the purchaser harvests the timber under the direction and supervision of the seller?

---

(1)   OJ 2010 L 295, p. 23.

Request for a preliminary ruling from the Landgericht Duisburg (Germany) lodged on 13 June 2023 — HT v Mercedes-Benz Group AG

(Case C-371/23, Mercedes-Benz Group)

(2023/C 321/31)

Language of the case: German

Referring court

Landgericht Duisburg

Parties to the main proceedings

Applicant: HT

Defendant: Mercedes-Benz Group AG

Questions referred

1.

Can an element of design in a vehicle which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of modulating the parameters of the combustion process in the engine depending on the result of the sensing operation reduce the effectiveness of the emission control system within the meaning of Article 3(10) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 (1) and thus constitute a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 even where the modulation of the parameters of the combustion process effected by the element of design based on the result of the sensing operation increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide?

2.	If Question 1 is to be answered in the affirmative: Under what conditions does the element of design constitute a defeat device in such a case?

3.

Can a circuit or controller in a vehicle, which, by modulating the parameters of the combustion process, increases emissions of a certain harmful substance, such as nitrogen oxide, while at the same time reducing emissions of one or more other harmful substances, such as particulates, hydrocarbons, carbon monoxide, methane and/or carbon dioxide, be prohibited under European law from other points of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007?

4.	If Question 3 is to be answered in the affirmative: Under what conditions is this the case?

5.

If Question 1 is to be answered in the affirmative: Under point (a) of the second sentence of Article 5(2) of Regulation No 715/2007 is a defeat device within the meaning of Article 3(10) of that regulation permitted even if, although it is not needed to protect the engine against damage or accident, it is nevertheless needed for the safe operation of the vehicle?

6.

If Question 1 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation to prove the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and, moreover, also the absence of facts on the basis of which any defeat device in the above sense that may be established is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 (2) cited in the judgment of the Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited defeat device is installed therein (see paragraphs 91 and 93 of that judgment)?

7.

If Question 6 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007 and the existence of facts on the basis of which the latter is permitted under the exception provided for in point (a) of the second sentence of Article 5(2) of Regulation No 715/2007? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?

8.

If Question 3 is to be answered in the affirmative: Are provisions of national law which, in a dispute with the manufacturer of a vehicle concerning the right to compensation, place the full burden on the purchaser of a vehicle claiming compensation, to prove the presence of a circuit or controller which, from another point of view than that of the presence of a defeat device within the meaning of Article 3(10) of Regulation No 715/2007, is prohibited, even though the vehicle manufacturer does not have to contribute information in this regard in measures of inquiry, contrary to Article 18(1), Article 26(1) and Article 46 of Directive 2007/46/EC cited in the judgment of the European Court of Justice of 21 March 2023 (Case C-100/21), in so far as it follows from the latter provisions that the purchaser of a vehicle must have a right to compensation against its manufacturer in the event that a prohibited circuit or controller is installed therein (see paragraphs 91 and 93 of that judgment)?

9.

If Question 8 is to be answered in the affirmative: What is the allocation of the burden of proof under European law in a dispute between the purchaser of a vehicle and its manufacturer concerning the right of the former to compensation against the latter in respect of the presence of a prohibited circuit or controller of the type specified in Question 8? Do the parties benefit from any relaxations of the burden of proof? If so, which ones? Or do they have any obligations? If so, which ones? If obligations apply: What are the consequences of failing to meet them?

---

(1)  Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ 2007 L 171, p. 1).

(2)  Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ 2007 L 263, p. 1).

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria), lodged on 26 June 2023 — ZD ‘BUL INS’ AD v PV

(Case C-387/23, BUL INS)

(2023/C 321/32)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: ZD ‘BUL INS’ AD

Defendant: PV

Questions referred

1.

Must Article 13 of Directive 2009/103/EC (1) of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, be interpreted as meaning that cases brought in respect of a claim for recourse on the part of an insurer concerning insurance against civil liability in respect of the use of motor vehicles provided under national law fall within the scope of EU law in relation to the prohibition on an insurer limiting its liability?

2.

If the answer to Question 1 is that EU law is applicable, must that provision and Article 38 of the Charter of Fundamental Rights [of the European Union] be interpreted as meaning that a natural person is to be regarded as a ‘consumer’ in such actions brought by or against that person, having regard to the principles of effectiveness and the requirements of consumer protection?

---

(1)   OJ 2009 L 263, p. 11.

Request for a preliminary ruling from the Amtsgericht Wedding (Germany) lodged on 27 June 2023 — Bulgarfrukt — Fruchthandels GmbH v Oranzherii Gimel II EOOD

(Case C-389/23, Bulgarfrukt)

(2023/C 321/33)

Language of the case: German

Referring court

Amtsgericht Wedding

Parties to the main proceedings

Applicant: Bulgarfrukt — Fruchthandels GmbH

Defendant: Oranzherii Gimel II EOOD

Questions referred

1.

Are Regulation (EC) No 1393/2007 (1) and Regulation (EC) No 1896/2006 (2) to be interpreted as precluding a provision of national law which provides that a European order for payment must be annulled by the court in the context of proceedings in the event of failure to serve or to effect proper service on the defendant?

2.

If Question 1 is answered in the affirmative: Must the aforementioned regulations be interpreted as precluding a provision of national law which provides that enforcement of a European order for payment must be declared inadmissible in the event of failure to serve the order for payment or to effect proper service on the defendant?

3.

If Question 1 is answered in the affirmative: Must Regulation No 1896/2006 be interpreted as meaning that a defendant who is aware that a European order for payment has been issued, but on whom that order has not yet been served or on whom service has not yet been properly effected, cannot yet effectively object to it?

---

(1)  Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

(2)  Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1).

Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 27 June 2023 — Brăila Winds SRL v Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Mijlocii București, Ministerul Finanțelor, Președintele Agenției Naționale de Administrare Fiscală, Agenția Națională de Administrare Fiscală

(Case C-391/23, Braila Winds)

(2023/C 321/34)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Appellant: Brăila Winds SRL

Respondents: Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Mijlocii București, Ministerul Finanțelor, Președintele Agenției Naționale de Administrare Fiscală, Agenția Națională de Administrare Fiscală

Questions referred

1.

Must the provisions of Articles 107 and 108 TFEU be interpreted as meaning that national legislation such as that introduced by Legea nr. 259/2021 (Law No 259/2021), which imposes a tax only on certain producers of electricity, constitutes State aid granted to exempt persons, which is subject to notification requirements? Is that legislation discriminatory if it applies only to certain producers of electricity, including those producing electricity from renewable energy sources?

2.

Must the provisions of Articles 49 and 56 TFEU and those of Article 17 of the Charter of Fundamental Rights of the European Union be interpreted as precluding national legislation, such as that introduced by Law No 259/2021, which imposes a high amount of tax only on certain producers of electricity (including those producing electricity from renewable sources), to the exclusion of other categories of producer?

3.

Prior to Regulation 2022/1854, (1) does Directive (EU) 2019/944 on common rules for the internal market for electricity and amending Directive 2012/27/EU (2) preclude national legislation which could result in the fixing of selling prices or a restriction on the freedom to set selling prices, such as the legislation introduced by Law No 259/2021?

4.

Do the provisions of Article 191(2) TFEU concerning the precautionary principle and the principles that preventive action should be taken, that pollution should be rectified at source and that the polluter should pay preclude national legislation such as that introduced by Law No 259/2021? Does that undermine the European objectives of achieving climate neutrality by 2050 and the European Union’s policy on energy taxation?

---

(1)  Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices (OJ 2022 L 261, p. 1).

(2)  Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125).

Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 29 June 2023 — LEGO Juris A/S v ‘SZOTI’ Ipari, Kereskedelmi és Szolgáltató Kft.

(Case C-396/23, LEGO Juris)

(2023/C 321/35)

Language of the case: Hungarian

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Applicant for customs intervention: LEGO Juris A/S

Party opposing customs intervention: ‘SZOTI’ Ipari, Kereskedelmi és Szolgáltató Kft.

Questions referred

1.

Is an approach taken in the national case-law of a Member State compatible with EU law where it classifies unauthorised use of a mark, such as the use at issue in the main proceedings, as an infringement of a mark that protects a quasi-photographic representation of one of the building blocks of a construction toy where that use is characterised by the fact that the closed package of the modular construction toy at issue contains a building block (‘piece’) whose shape may be confused with the representation of the block protected by the mark, and assembly instructions that represent that piece in a manner capable of being confused with the mark, whereas neither the representation of the block protected by the mark nor the sign that may be confused with that representation is shown on the outside of the closed package of the construction toy or is shown there only in part, and no other element of the packaging refers to the proprietor of the mark?

2.

If the use of the mark described above must be found to be use against which the proprietor of the mark is entitled to take action under Article 10(2)(b) of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks, (1) must that article be interpreted as meaning that the proprietor of the mark is entitled to require suspension of the importation into the country of the goods comprising the construction toy as a whole and, for that purpose, detention of those goods, even where the use of the mark takes place only through one piece or a small number of pieces of the construction toy — which can be separated from the goods and are technically equivalent to other pieces — and through the representation of a piece or those pieces in the assembly instructions?

3.

If EU law must be interpreted as meaning that the proprietor of the mark is entitled to bring claims relating to the goods as a whole, even where the use of the mark takes place only through one piece or a small number of pieces of the construction toy — which can be separated from the goods and are technically equivalent to other pieces — and by the representation of that piece or those pieces in the assembly instructions, is it compatible with EU law for the Member State courts to have discretion not to order a prohibition on the continued importation of the construction toy into the country and, accordingly, to refuse the application for interim measures seeking the detention of the construction toy, taking into consideration the fact that there is only a partial infringement where it relates to only one piece or a small number of pieces contained in a closed package; the fact that the infringement is slight and of a low level of severity in relation to the goods as a whole; and the interests of unrestricted trade in a mainly uncontroversial construction toy?

---

(1)   OJ 2015 L 336, p. 1.

Request for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 4 July 2023 — Rechtsanwältin (lawyer) and Notarin (notary) v the President of the Oberlandesgericht Hamm

(Case C-408/23, Anwaltsnotarin)

(2023/C 321/36)

Language of the case: German

Referring court

Oberlandesgericht Köln

Parties to the main proceedings

Applicant: Rechtsanwältin (lawyer) and Notarin (notary)

Defendant: the President of the Oberlandesgericht Hamm

Questions referred

1.

Are Article 21 of the Charter of Fundamental Rights of the European Union and Article 6(1) of Council Directive 2000/78/EC (1) of 27 November 2000 establishing a general framework for equal treatment in employment and occupation to be interpreted as precluding national legislation which provides in mandatory terms that a person who has reached the age of 60 on expiry of the deadline for applications to the notary post in question cannot be appointed for the first time to the role of Anwaltsnotar (lawyer commissioned as notary), even if more than one post must remain vacant because there are no suitable younger candidates in the local court district in which the application procedure took place and candidates from other local court districts are not permitted to apply?

2.	Is question 1 to be answered in the affirmative if it is to be expected that more than one advertised post of lawyer commissioned as notary will be impossible to fill with suitable candidates younger than 60 in the same local court district in the following year?

3.

Is question 1 to be answered in the affirmative in any event because it is also to be expected that, also in other local court districts outside large urban centres, it will repeatedly prove impossible to fill all advertised posts of lawyer commissioned as notary with suitable candidates younger than 60?

4.

Is no infringement of Article 21 of the Charter of Fundamental Rights of the European Union and Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 present if the supply of notarial services is assured in a local court district even though an applicant over 60 years of age has not been appointed to the post of lawyer commissioned as notary solely on account of his or her age and more than one post has remained vacant?

---

(1)  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).

Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 10 July 2023 — Secab Soc. coop. v Autorità di Regolazione per Energia Reti e Ambiente (ARERA), Gestore dei servizi energetici (GSE) SpA

(Case C-423/23, Secab)

(2023/C 321/37)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Secab Soc. coop.

Defendants: Autorità di Regolazione per Energia Reti e Ambiente (ARERA), Gestore dei servizi energetici (GSE) SpA

Questions referred

1.

Do Article 5(4) of Directive (EU) 2019/944, (1) recitals 3 and 12 of Directive (EU) 2018/2001, (2) and recitals 27, 28, 29 and 39, Article 6(1) and Article 8(2) of Regulation (EU) 2022/1854 (3) preclude a national rule which sets a cap on market revenue obtained from the sale of electricity in the manner provided for in Article 15 bis of Decree-Law No 4 of 27 January 2022, which does not guarantee that producers may retain 10 % of their revenues above that cap?

2.

Do Article 5(4) of Directive (EU) 2019/944, recitals 2, 3 and 12 of Directive (EU) 2018/2001, recitals 27, 28, 29 and 39, Article 6(1) and Article 8(2)(b) and (c) of Regulation (EU) 2022/1854 preclude a national rule which sets a cap on market revenues obtained from the sale of electricity in the manner provided for in Article 15 bis of Decree-Law No 4 of 27 January 2022, which does not preserve and incentivise investments in the renewable energy sector?

3.

Do recital 3 of Directive (EU) 2018/2001, and recitals 27 and 41, Article 7(1)(h), (i) and (j) and Article 8(1)(a) and (d) and (2) of Regulation (EU) 2022/1854 preclude a national rule which sets a cap on market revenues obtained from the sale of electricity in the manner provided for in Article 15 bis of Decree-Law No 4 of 27 January 2022, which does not provide for any specific cap on the revenues obtained from the sale of energy produced from hard coal, or a regulation differentiating between different sources of production?

---

(1)  Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (recast) (OJ 2019 L 158, p. 125).

(2)  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 (recast) (OJ 2018 L 328, p. 82).

(3)  Council Regulation (EU) 2022/1854 of 6 October 2022 on an emergency intervention to address high energy prices (OJ 2022 L 261, p. 1).

Action brought on 12 July 2023 — European Commission v Kingdom of Spain

(Case C-433/23)

(2023/C 321/38)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: C. Hermes and E. Sanfrutos Cano, acting as Agent)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court of Justice should:

(1)

declare that — by failing to adopt the necessary measures in relation to the collection of urban waste water from the agglomerations of Acorán; Adeje-Arona; Añaza; Candelaria-Casco; Candelaria-Punta Larga; Golf del Sur; Guía de Isora Litoral; La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz); Puerto de Santiago-Playa la Arena; San Isidro-Litoral; Sueño Azul; and Valle de la Orotava in the Canary Islands, and in Medio-Andarax in Andalucía, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of Directive 91/271/EEC; (1) — by failing to adopt the necessary measures in relation to the treatment of urban waste water from the agglomerations of de Acantilado de los Gigantes; Adeje-Arona; Almansa; Almodóvar del Campo; Almodóvar del Río; Alto Nerbioi-Amurrio; Alto Nerbioi-Laudio; Candelaria-Casco; Candelaria-Punta Larga; Consuegra; Donostia-San Sebastián; Estepa; Genil-Cubillas; Golf del Sur; Guareña-Oliva de Mérida-Cristina; Guía de Isora Litoral; Jódar; La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz); Lora del Río; Los Yébenes; Martos; Medio-Andarax; Posadas; Puerto de Santiago-Playa la Arena; Quintanar de la Orden; Rambla (La)-Montalbán; San Isidro-Litoral; San Roque; Santoña; Sueño Azul; Torredonjimeno; Trebujena; Trujillo; Valle de la Orotava; Venta de Baños, and Villanueva del Río-Alcolea del Río, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (3) of Directive 91/271/EEC; — by failing to adopt the necessary measures in relation to the treatment of urban waste water from the agglomerations of Almodóvar del Campo; Argamasilla de Alba; Cáceres; Condado de Huelva II (Chucena-Escacena-Paterna-Manzanilla); Consuegra; Don Benito-Villanueva de la Serena; Guareña-Oliva de Mérida-Cristina; Guillena; Los Yébenes; Madridejos; Mérida; Montcada; Montijo-Puebla Calzada; Palma del Condado; Quintanar de la Orden; Rubí; Sonseca; Soria; Trujillo; Venta de Baños, and Villafranca de los Barros, the Kingdom of Spain has failed to fulfil its obligations under Article 5 and Annex I.B to Directive 91/271/EEC; — the Kingdom of Spain has failed to fulfil its obligations under Article 15 of Directive 91/271/EEC, read in conjunction with Annex I.D to that directive, with regard to the agglomerations of Acantilado de los Gigantes, Adeje-Arona, Almansa, Almodóvar del Campo, Almodóvar del Río, Alto Nerbioi-Amurrio, Alto Nerbioi-Laudio, Argamasilla de Alba, Bargas-Cabañas-Mocejón-Olías-Magán-Villaseca, Cáceres, Candelaria-Casco, Candelaria-Punta Larga, Condado de Huelva II (Chucena-Escacena-Paterna-Manzanilla), Consuegra, Don Benito-Villanueva de la Serena, Donostia-San Sebastián, Estepa, Genil-Cubillas, Golf del Sur, Guareña-Oliva de Mérida-Cristina, Guía de Isora Litoral, Guillena, Jódar, La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz), Lora del Río, Los Yébenes, Madridejos, 77 Martos, Medio-Andarax, Mérida, Montijo-Puebla Calzada, Montcada, Palma del Condado, Posadas, Puerto de Santiago-Playa la Arena, Quintanar de la Orden, Rambla (La)-Montalbán, Rubí, San Isidro-Litoral, San Roque, Santoña, Sonseca, Soria, Sueño Azul, Torredonjimeno, Trebujena, Trujillo, Valle de la Orotava, Villanueva del Río-Alcolea del Río, Venta de Baños, and Villafranca de los Barros;

(2)	order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In support of its action, the Commission relies on four pleas in law alleging failure to fulfil obligations under Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, as amended by Council Directive 2013/64/EU (2) of 17 December 2013.

By its first plea in law, the Commission claims that, by failing to adopt the necessary measures in relation to the collection of urban waste water from the agglomerations of Acorán; Adeje-Arona; Añaza; Candelaria-Casco; Candelaria-Punta Larga; Golf del Sur; Guía de Isora Litoral; La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz); Puerto de Santiago-Playa la Arena; San Isidro-Litoral; Sueño Azul; and Valle de la Orotava in the Canary Islands, and in Medio-Andarax in Andalucía, the Kingdom of Spain has failed to fulfil its obligations under Article 3 of Directive 91/271/EEC.

As regards the 12 agglomerations in the Canary Islands, the Commission claims in essence that those agglomerations use individual systems without, however, satisfying the conditions under the third subparagraph of Article 3(1) of Directive 91/271/EEC, which makes that exception to the rule on collecting systems subject to two cumulative conditions being met. First, the authorities are required to justify, on a case-by-case basis, that the establishment of a collecting system is not justified either because it would produce no environmental benefit or because it would involve excessive cost. Second, individual systems or other appropriate systems are required to achieve the same level of environmental protection. As regards the agglomeration of Medio Andarax in Andalucía, the Commission claims that that agglomeration does not have a collecting system for all its waste water.

By its second plea in law, the Commission claims that by failing to adopt the necessary measures in relation to the treatment of urban waste water from the agglomerations of de Acantilado de los Gigantes; Adeje-Arona; Almansa; Almodóvar del Campo; Almodóvar del Río; Alto Nerbioi-Amurrio; Alto Nerbioi-Laudio; Candelaria-Casco; Candelaria-Punta Larga; Consuegra; Donostia-San Sebastián; Estepa; Genil-Cubillas; Golf del Sur; Guareña-Oliva de Mérida-Cristina; Guía de Isora Litoral; Jódar; La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz); Lora del Río; Los Yébenes; Martos; Medio-Andarax; Posadas; Puerto de Santiago-Playa la Arena; Quintanar de la Orden; Rambla (La)-Montalbán; San Isidro-Litoral; San Roque; Santoña; Sueño Azul; Torredonjimeno; Trebujena; Trujillo; Valle de la Orotava; Venta de Baños, and Villanueva del Río-Alcolea del Río, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (3) of Directive 91/271/EEC.

According to the provisions of Article 4(1) of Directive 91/271/EEC, Member States are to ensure that urban waste water entering collecting systems is before discharge to be subject to secondary treatment or an equivalent treatment. Article 4(3) requires that discharges from urban waste water treatment plants satisfy the relevant requirements of Annex I.B of Directive 91/271/EEC. The Commission takes the view that there has been failure to fulfil those obligations in the agglomerations referred to in the preceding paragraph, either because waste water is not collected in accordance with Article 3 of that directive and hence cannot be treated, or because not all the waste water collected is subject to the level of treatment required under Article 4 Directive 91/271/EEC, and discharges also do not satisfy the requirements laid down in Annex I.B to that directive, as required by Article 4(3).

By its third plea in law, the Commission requests that the Court declare that, by failing to adopt the necessary measures in relation to the treatment of urban waste water from the agglomerations of Almodóvar del Campo; Argamasilla de Alba; Cáceres; Condado de Huelva II (Chucena-Escacena-Paterna-Manzanilla); Consuegra; Don Benito-Villanueva de la Serena; Guareña-Oliva de Mérida-Cristina; Guillena; Los Yébenes; Madridejos; Mérida; Montcada; Montijo-Puebla Calzada; Palma del Condado; Quintanar de la Orden; Rubí; Sonseca; Soria; Trujillo; Venta de Baños, and Villafranca de los Barros, the Kingdom of Spain has failed to fulfil its obligations under Article 5 and Annex I.B to Directive 91/271/EEC.

The Commission claims, in essence, that those urban agglomerations of more than 10 000 population equivalents which discharge into sensitive areas do not ensure, in respect of all their waste water, more stringent treatment than that described in Article 4 of Directive 91/271/EEC, as required under Article 5(2) of that directive, or that the discharges in sensitive areas from plants treating waste water from those agglomerations satisfy the relevant requirements under Annex I.B to that directive.

By its fourth plea in law, the Commission claims that the Kingdom of Spain has failed to fulfil its obligations under Article 15 of Directive 91/271/EEC, read in conjunction with Annex I.D to that directive, with regard to the agglomerations of Acantilado de los Gigantes, Adeje-Arona, Almansa, Almodóvar del Campo, Almodóvar del Río, Alto Nerbioi-Amurrio, Alto Nerbioi-Laudio, Argamasilla de Alba, Bargas-Cabañas-Mocejón-Olías-Magán-Villaseca, Cáceres, Candelaria-Casco, Candelaria-Punta Larga, Condado de Huelva II (Chucena-Escacena-Paterna-Manzanilla), Consuegra, Don Benito-Villanueva de la Serena, Donostia-San Sebastián, Estepa, Genil-Cubillas, Golf del Sur, Guareña-Oliva de Mérida-Cristina, Guía de Isora Litoral, Guillena, Jódar, La Esperanza-La Laguna Sur-Santa Cruz-Valles (La Laguna, El Rosario, Santa Cruz), Lora del Río, Los Yébenes, Madridejos, 77 Martos, Medio-Andarax, Mérida, Montijo-Puebla Calzada, Montcada, Palma del Condado, Posadas, Puerto de Santiago-Playa la Arena, Quintanar de la Orden, Rambla (La)-Montalbán, Rubí, San Isidro-Litoral, San Roque, Santoña, Sonseca, Soria, Sueño Azul, Torredonjimeno, Trebujena, Trujillo, Valle de la Orotava, Villanueva del Río-Alcolea del Río, Venta de Baños, and Villafranca de los Barros. Valle de la Orotava, Villanueva del Río-Alcolea del Río, Venta de Baños and Villafranca de los Barros.

---

(1)  Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40).

(2)  Council Directive 2013/64/EU of 17 December 2013 amending Council Directives 91/271/EEC and 1999/74/EC, and Directives 2000/60/EC, 2006/7/EC, 2006/25/EC and 2011/24/EU of the European Parliament and of the Council, following the amendment of the status of Mayotte with regard to the European Union (OJ 2013 L 353, p. 8).

Action brought on 24 July 2023 — European Commission v Republic of Bulgaria

(Case C-462/23)

(2023/C 321/39)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: N. Nikolova and B. Rous Demiri, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The applicant claims that the Court should:

—

find that, (i) by failing to prohibit the marketing of natural mineral water and spring water from one and the same spring under more than one trade description, (ii) by failing to require that the labels of natural mineral waters and spring waters indicate the name of the spring, and (iii) by allowing the use of the term ‘spring water’ for water that does not satisfy the conditions for using the term ‘spring water’, the Republic of Bulgaria has failed to fulfil its obligations under Article 8(2), Article 7(2)(b) and Article 9(4)(c) of Directive 2009/54/EC (1) of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters;

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

Pleas in law and main arguments

Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters introduces the rule ‘one spring — one trade description’ in Article 8(2) thereof, which prohibits the marketing of natural mineral waters and spring waters from one and the same spring under more than one trade description. Furthermore, in accordance with Article 7(2)(b), read in conjunction with Article 9(4)(c) of the directive, the labels of natural mineral waters and spring waters are to include an indication of the place where the spring is exploited and an indication of the name of the spring.

Bulgarian law, however, allows the marketing of natural mineral water and spring water originating from one and the same spring under more than one trade description and allows the marketing under different trade descriptions of mineral and natural water originating from one and the same water table or one and the same underground deposit and having identical characteristics, in breach of Article 8(2) of Directive 2009/54/EC. Moreover, Bulgarian law does not require the name of the spring, for the purposes of the directive, to be part of the mandatory indications to be provided on the labels of natural mineral waters, and, consequently, is incompatible with Article 7(2)(b) of the directive. The Republic of Bulgaria has also failed to comply with its obligation under Article 9(4)(c) of the directive, since national law allows the marketing of spring water that does not meet the labelling requirements.

The Commission sent a letter of formal notice to the Republic of Bulgaria on 2 July 2020. On 23 September 2021, the Commission sent a reasoned opinion to the Republic of Bulgaria. Despite this, the measures transposing the directive have not yet been adopted by the Republic of Bulgaria or notified to the Commission.

---

(1)   OJ 2009 L 164, p. 45.

Appeal brought on 21 July 2023 by EVH GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-312/20, EVH GmbH v European Commission

(Case C-464/23 P)

(2023/C 321/40)

Language of the case: German

Parties

Appellant: EVH GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, EVH v Commission (T-312/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-312/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-312/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment under appeal).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment under appeal).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment under appeal).

By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment under appeal).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment under appeal).

The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment under appeal).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment under appeal).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment under appeal).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 337 et seq. of the judgment under appeal).

Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 273, 278 et seq., 328, 341, 344 and 382).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by Stadtwerke Leipzig GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-313/20, Stadtwerke Leipzig GmbH v European Commission

(Case C-465/23 P)

(2023/C 321/41)

Language of the case: German

Parties

Appellant: Stadtwerke Leipzig GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, Stadtwerke Leipzig v Commission (T-313/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-313/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-313/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment under appeal).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment under appeal).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment under appeal).

By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment under appeal).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment under appeal).

The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment under appeal).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment under appeal).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment under appeal).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 337 et seq. of the judgment under appeal).

Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 273, 278 et seq., 328, 341, 344 and 382).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by Stadtwerke Hameln Weserbergland GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-314/20, Stadtwerke Hameln Weserbergland GmbH v European Commission

(Case C-466/23 P)

(2023/C 321/42)

Language of the case: German

Parties

Appellant: Stadtwerke Hameln Weserbergland GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, Stadtwerke Hameln Weserbergland v Commission (T-314/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-314/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-314/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant alleges a failure to state reasons, a distortion of the facts and an infringement of procedural rights.

First, inadequate reasons were given in the judgment under appeal because it is not apparent from it whether or how the General Court assessed the effect on the applicant’s market position (paragraphs 23 et seq. of the judgment under appeal).

Secondly, the General Court distorts the appellant’s arguments in stating that there are no specific circumstances relating to an effect on its market position (paragraph 31 of the judgment under appeal).

Thirdly, the General Court infringed the appellant’s procedural rights in not examining whether it is materially affected.

In the second ground of appeal, the General Court is alleged to have misapplied the fourth paragraph of Article 263 TFEU. The judgment errs in ruling that the appellant is not individually concerned under that provision.

First, the General Court incorrectly takes the view that formal participation in merger control proceedings M.8871 is a condition for establishing that the appellant is individually concerned.

Secondly, the General Court’s requirements relating to the existence of other specific circumstances in order for the view to be taken that the appellant is individually concerned are excessive.

By its third ground of appeal, the appellant complains that the General Court failed to examine its substantive pleas. Referring to the judgment in Case T-312/20, it submits that the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment in Case T-312/20).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment in Case T-312/20).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment in Case T-312/20).

By its fourth ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment in Case T-312/20).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment in Case T-312/20).

The fifth ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment in Case T-312/20).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment in Case T-312/20).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment in Case T-312/20).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 339 et seq. of the judgment in Case T-312/20).

Lastly, in the sixth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by applying an excessive standard of proof in the judgment in Case T-312/20 (paragraphs 273, 278 et seq., 328, 341, 344 and 382 of that judgment).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by TEAG Thüringer Energie AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-315/20, TEAG Thüringer Energie AG v European Commission

(Case C-467/23 P)

(2023/C 321/43)

Language of the case: German

Parties

Appellant: TEAG Thüringer Energie AG (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, TEAG v Commission (T-315/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-315/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-315/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment under appeal).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment under appeal).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment under appeal).

By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment under appeal).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment under appeal).

The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment under appeal).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment under appeal).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment under appeal).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 337 et seq. of the judgment under appeal).

Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 273, 278 et seq., 328, 341, 344 and 382).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by EnergieVerbund Dresden GmbH against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-317/20, EnergieVerbund Dresden GmbH v European Commission

(Case C-468/23 P)

(2023/C 321/44)

Language of the case: German

Parties

Appellant: EnergieVerbund Dresden GmbH (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, EnergieVerbund Dresden v Commission (T-317/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-317/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-317/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 391 et seq. of the judgment under appeal).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 391 et seq. of the judgment under appeal).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 392, 393 and 405 et seq. of the judgment under appeal).

By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 64 et seq. of the judgment under appeal).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 73 et seq. of the judgment under appeal).

The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 219 et seq. of the judgment under appeal).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 228 et seq. of the judgment under appeal).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 259 et seq. of the judgment under appeal).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 336 et seq. of the judgment under appeal).

Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 272, 277 et seq., 327, 340, 343 and 381).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by eins energie in sachsen GmbH & Co. KG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-318/20, eins energie in sachsen GmbH & Co. KG v European Commission

(Case C-469/23 P)

(2023/C 321/45)

Language of the case: German

Parties

Appellant: eins energie in sachsen GmbH & Co. KG (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, energie in sachsen v Commission (T-318/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-318/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-318/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant alleges a failure to state reasons, a distortion of the facts and an infringement of procedural rights.

First, inadequate reasons were given in the judgment under appeal because it is not apparent from it whether or how the General Court assessed the effect on the applicant’s market position (paragraphs 23 et seq. of the judgment under appeal).

Secondly, the General Court distorts the appellant’s arguments in stating that there are no specific circumstances relating to an effect on its market position (paragraph 31 of the judgment under appeal).

Thirdly, the General Court infringed the appellant’s procedural rights in not examining whether it is materially affected.

In the second ground of appeal, the General Court is alleged to have misapplied the fourth paragraph of Article 263 TFEU. The judgment errs in ruling that the appellant is not individually concerned under that provision.

First, the General Court incorrectly takes the view that formal participation in merger control proceedings M.8871 is a condition for establishing that the appellant is individually concerned.

Secondly, the General Court’s requirements relating to the existence of other specific circumstances in order for the view to be taken that the appellant is individually concerned are excessive.

By its third ground of appeal, the appellant complains that the General Court failed to examine its substantive pleas. Referring to the judgment in Case T-312/20, it submits that the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 392 et seq. of the judgment in Case T-312/20).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 392 et seq. of the judgment in Case T-312/20).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 393, 394 and 406 et seq. of the judgment in Case T-312/20).

By its fourth ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment in Case T-312/20).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment in Case T-312/20).

The fifth ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 220 et seq. of the judgment in Case T-312/20).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 229 et seq. of the judgment in Case T-312/20).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 260 et seq. of the judgment in Case T-312/20).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 339 et seq. of the judgment in Case T-312/20).

Lastly, in the sixth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by applying an excessive standard of proof in the judgment in Case T-312/20 (paragraphs 273, 278 et seq., 328, 341, 344 and 382 of that judgment).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 21 July 2023 by GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-319/20, GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG v European Commission

(Case C-470/23 P)

(2023/C 321/46)

Language of the case: German

Parties

Appellant: GGEW, Gruppen-Gas- und Elektrizitätswerk Bergstraße AG (represented by: I. Zenke, Rechtsanwältin, and T. Heymann, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

1.

set aside the judgment of the General Court of the European Union of 17 May 2023, GGEW v Commission (T-319/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1); 1a. in the alternative, and in any event, refer Case T-319/20 back to the General Court for it to make all necessary decisions;

2.	order the Commission to pay the costs, including lawyers’ fees and travel expenses incurred by the appellant in proceedings T-319/20.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant complains that, in the judgment under appeal, the General Court misinterpreted EU law — namely Article 101 TFEU and Article 21(1) of Regulation (EC) 139/2004. (1)

First, EU law was infringed on account of the failure to apply Article 101 TFEU because of an alleged blocking effect of Article 21 of the EC Merger Regulation (paragraphs 391 et seq. of the judgment under appeal).

Secondly, account was not taken of the evidence submitted by the appellant of a cartel agreement between RWE and E.ON for the purposes of Article 101 TFEU (paragraphs 391 et seq. of the judgment under appeal).

Thirdly, the failure to take account of the facts submitted by the appellant on formal grounds is regarded as an infringement of procedural rights (paragraphs 392, 393 and 405 et seq. of the judgment under appeal).

By its second ground of appeal, the appellant submits that the General Court erred in not regarding the merger control proceedings of the Commission in Cases M.8871 and M.8870 and the merger control proceedings of the Bundeskartellamt (Federal Cartel Office) in Case B8-28/19 as integral parts of a single concentration, which were to be examined in merger proceedings.

In that context, first, the General Court is criticised for having excluded RWE’s investment in E.ON of 16,67 % in Case B8-28/19 (paragraphs 65 et seq. of the judgment under appeal).

Secondly, the interpretation of the definition of a ‘single concentration’ under Article 3, read in conjunction with recital 20, of the EC Merger Regulation is criticised (paragraphs 74 et seq. of the judgment under appeal).

The third ground of appeal maintains that the General Court also infringed and incorrectly applied Article 2 of the EC Merger Regulation on account of an erroneous assessment of the market in Case M.8871.

First, the General Court erred in approving the fact that the Commission left open the definition of the market (paragraphs 219 et seq. of the judgment under appeal).

Secondly, the General Court failed to challenge the Commission’s inadequate forecast of market developments (paragraphs 228 et seq. of the judgment under appeal).

Thirdly, the appellant challenges the allegedly inadequate assessment of RWE’s increasing market power (paragraphs 259 et seq. of the judgment under appeal).

Fourthly, the General Court is alleged to have inadequately assessed the competitive relationship between RWE and E.ON and the elimination of E.ON (paragraphs 336 et seq. of the judgment under appeal).

Lastly, in the fourth ground of appeal, the appellant alleges that the General Court infringed the principles of the allocation of the burden of proof by imposing an excessive standard of proof on the appellant in the judgment under appeal (paragraphs 272, 277 et seq., 327, 340, 343 and 381).

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Action brought on 26 July 2023 — European Commission v Republic of Bulgaria

(Case C-479/23)

(2023/C 321/47)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: M. Ilkova and P. Messina, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The Commission claims that the Court should:

—

find that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/520 (1) of the European Parliament and of the Council of 19 March 2019 on the interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay road fees in the Union, or, in any event, by failing to notify them to the Commission, the Republic of Bulgaria has failed to fulfil its obligations under Article 32(1) of that directive;

—

order the Republic of Bulgaria to pay the Commission a lump sum payment 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 that directive, and the day on which the infringement ceased, or, if the infringement has not ceased, the day on which the judgment is handed down, or (ii) a minimum lump sum payment of EUR 504 000;

—

in the event that the failure to fulfil the obligations referred to in the first indent continues up to the date of delivery of the judgment in the present proceedings, order the Republic of Bulgaria to make a periodic penalty payment to the Commission in the amount of EUR 9 720 per day, from the date on which the Court gives judgment in the present proceedings until that State has fulfilled its obligations under the directive;

—	order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

Directive (EU) 2019/520 of the European Parliament and of the Council of 19 March 2019 on the interoperability of electronic road toll systems and facilitating cross-border exchange of information on the failure to pay road fees in the Union establishes a set of rules, with the aim of achieving interoperability as regards road tolls and establishing a legal basis for the cross-border exchange of information in respect of vehicles and their owners or holders who have failed to pay road fees in the Union.

In accordance with Article 32(1) of the directive, the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with it by 19 October 2021 at the latest. The Member States were also required immediately to notify to the Commission the text of the adopted measures.

The Commission sent a letter of formal notice to the Republic of Bulgaria on 19 October 2021. On 19 May 2022, the Commission sent a reasoned opinion to the Republic of Bulgaria. Despite this, the transposing measures have not yet been adopted by the Republic of Bulgaria or notified to the Commission.

---

(1)   OJ 2019 L 91, p. 45.

Action brought on 26 July 2023 — European Commission v Republic of Bulgaria

(Case C-480/23)

(2023/C 321/48)

Language of the case: Bulgarian

Parties

Applicant: European Commission (represented by: E. Ruseva and P. Messina, acting as Agents)

Defendant: Republic of Bulgaria

Form of order sought

The Commission claims that the Court should:

—

find that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive (EU) 2019/1161 (1) of the European Parliament and of the Council of 20 June 2019 amending Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles, or, in any event, by failing to notify them to the Commission, the Republic of Bulgaria has failed to fulfil its obligations under Article 2(1) of that directive;

—

order the Republic of Bulgaria to pay the Commission a lump sum payment 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 that directive, and the day on which the infringement ceased, or, if the infringement has not ceased, the day on which the judgment is handed down, or (ii) a minimum lump sum payment of EUR 504 000;

—

in the event that the failure to fulfil the obligations referred to in the first indent continues up to the date of delivery of the judgment 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, from the date on which the Court gives judgment in the present proceedings until that State has fulfilled its obligations under the directive;

—	order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

Directive (EU) 2019/1161 of the European Parliament and of the Council of 20 June 2019 amending Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles aims to promote and stimulate the market for clean and energy-efficient road transport vehicles and improve the contribution of the transport sector to the environment, climate and energy policies of the Union. In order to achieve those objectives, the directive requires Member States to ensure that, when procuring certain road transport vehicles, contracting authorities and contracting entities take into account energy and environmental impacts over the entire lifetime of the road transport vehicles, including energy consumption and emissions of CO2 and of certain pollutants.

In accordance with Article 2(1) of the directive, the Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with it by 2 August 2021 at the latest, and to inform the Commission thereof immediately. When adopting the provisions transposing the directive, the Member States must also ensure that those provisions contain a reference to the directive or are accompanied by such a reference on the occasion of their official publication.

The Commission sent a letter of formal notice to the Republic of Bulgaria on 29 September 2021. On 6 April 2022, the Commission sent a reasoned opinion to the Republic of Bulgaria. Despite this, the transposing measures have not yet been adopted by the Republic of Bulgaria or notified to the Commission.

---

(1)   OJ 2019 L 188, p. 116.

Appeal brought on 27 July 2023 by Mainova AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-320/20, Mainova AG v European Commission

(Case C-484/23 P)

(2023/C 321/49)

Language of the case: German

Parties

Appellant: Mainova AG (represented by: C. Schalast, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of the European Union of 17 May 2023, Mainova v Commission (T-320/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);

—	in the alternative, set aside the judgment under appeal and refer the case back to the General Court;

—	order the Commission to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU. In the judgment under appeal, the General Court defined the conditions for standing under the fourth paragraph of Article 263 TFEU too narrowly and contrary to its own case-law and that of the Court of Justice. It referred exclusively to the judgment of 4 July 2006, easyJet v Commission (T-177/04), without taking into account the circumstances of the case at hand. Those circumstances included, in particular, the appellant’s active participation in the context of, inter alia, the overall transaction, the appellant’s specific participation in a personal meeting with the Commission and its recognition as an interested third party by the Commission’s hearing officer. As a result, the legal position adopted in the judgment under appeal will significantly compromise legal protection against merger control decisions in the future.

In the second ground of appeal, the General Court is alleged to have failed to meet the requirements of loyalty to the law and the rule of law. In its decision on standing, the General Court disregarded the recognition of the appellant’s status and the hearing officer’s assurance to inform the appellant of further opportunities to comment in the procedure. Instead, the General Court considers that the appellant could have participated more actively in the procedure. The appellant contends that it relied on the assurance of the hearing officer as an organ of the Commission. The General Court thus failed to observe the principles of loyalty to the law and the protection of legitimate expectations. As a result, the judgment under appeal means that the Commission will in future be free to decide on the possibilities for bringing an action against transactions.

By its third ground of appeal, the appellant submits that the General Court, in its decision on the erroneous division of the overall transaction of RWE and E.ON, misinterpreted Article 3(1) of Regulation (EC) No 139/2004 (1) (‘ECMR’) in that it referred exclusively to the Commission’s Consolidated Jurisdictional Notice and disregarded its own case-law from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T-282/02), as well as recital 20 of the ECMR. The General Court thereby failed to observe the principles of the hierarchy of norms, the primacy of law and the separation of powers.

Lastly, the fourth ground of appeal concerns an erroneous assessment of the ‘Investor Relationship Agreement’ submitted by RWE and E.ON. The General Court disregarded the fact that that agreement was invalid under German company law. The General Court thus left essential issues unexamined and, as a result, reached a decision which erred in law.

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Appeal brought on 27 July 2023 by enercity AG against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 17 May 2023 in Case T-321/20, enercity AG v European Commission

(Case C-485/23 P)

(2023/C 321/50)

Language of the case: German

Parties

Appellant: enercity AG (represented by: C. Schalast, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, E.ON SE, RWE AG

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of the European Union of 17 May 2023, enercity v Commission (T-321/20), and annul the decision of the European Commission of 26 February 2019 on the merger of ‘RWE/E.ON Assets’ (Case M.8871, OJ 2000 C 111, p. 1);

—	in the alternative, set aside the judgment under appeal and refer the case back to the General Court;

—	order the Commission to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

By its first ground of appeal, the appellant alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU. In the judgment under appeal, the General Court defined the conditions for standing under the fourth paragraph of Article 263 TFEU too narrowly and contrary to its own case-law and that of the Court of Justice. It referred exclusively to the judgment of 4 July 2006, easyJet v Commission (T-177/04), without taking into account the circumstances of the case at hand. Those circumstances included, in particular, the appellant’s active participation in the context of, inter alia, the overall transaction, the appellant’s specific participation in a personal meeting with the Commission and its recognition as an interested third party by the Commission’s hearing officer. As a result, the legal position adopted in the judgment under appeal will significantly compromise legal protection against merger control decisions in the future.

In the second ground of appeal, the General Court is alleged to have failed to meet the requirements of loyalty to the law and the rule of law. In its decision on standing, the General Court disregarded the recognition of the appellant’s status and the hearing officer’s assurance to inform the appellant of further opportunities to comment in the procedure. Instead, the General Court considers that the appellant could have participated more actively in the procedure. The appellant contends that it relied on the assurance of the hearing officer as an organ of the Commission. The General Court thus failed to observe the principles of loyalty to the law and the protection of legitimate expectations. As a result, the judgment under appeal means that the Commission will in future be free to decide on the possibilities for bringing an action against transactions.

By its third ground of appeal, the appellant submits that, in its decision on the erroneous division of the overall transaction of RWE and E.ON, the General Court misinterpreted Article 3(1) of Regulation (EC) No 139/2004 (1) (‘ECMR’) in that it referred exclusively to the Commission’s Consolidated Jurisdictional Notice and disregarded its own case-law from the judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission (T-282/02), as well as recital 20 of the ECMR. The General Court thereby failed to observe the principles of the hierarchy of norms, the primacy of law and the separation of powers.

Lastly, the fourth ground of appeal concerns an erroneous assessment of the ‘Investor Relationship Agreement’ submitted by RWE and E.ON. The General Court disregarded the fact that that agreement was invalid under German company law. The General Court thus left essential issues unexamined and, as a result, reached a decision which erred in law.

---

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).

Action brought on 28 July 2023 — European Commission v Portuguese Republic

(Case C-487/23)

(2023/C 321/51)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: L. Santiago de Albuquerque and G. Gattinara, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court should:

1.

Declare that the Portuguese Republic has failed to fulfil its obligations under Article 4(3) and (4)(b) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, (1) by failing to ensure and to ensure that: — local government, in 2013, 2014, 2015, 2016, 2017 and 2018, — Portuguese public entities providing healthcare (health sub-sector), from 2013 to 2022, — the Autonomous Region of Madeira, from 2013 to 2022, — the Autonomous Region of Azores, in 2013 and from 2015 to 2022, pay their commercial debts within the periods laid down in that article.

2.	Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The cause of action is the failure by the Portuguese Republic to comply with Article 4(3) and (4)(b) of Directive 2011/7/EU, from 2012 until present. Under those provisions, Member States are to ensure that, in commercial transactions where the debtor is a public authority, the payment period does not exceed 30 days. This period may be extended to 60 days for public entities providing healthcare duly recognised for this purpose. Directive 2011/7/EU provides that Member States had to transpose its provisions by 16 March 2013 at the latest.

After drawing the attention of the Portuguese Republic to the systematic and persistent non-compliance, by several Portuguese public authorities, with the terms established for payment of commercial debts set out in Article 4(3) and (4)(b) of Directive 2011/7/EU, the European Commission initiated the pre-litigation stage of the non-compliance procedure against that Member State. That non-compliance persisted at the end of the period set out in the reasoned opinion (5 December 2017).

A set of monitoring reports with data on the average payment periods of public authorities in the various sectors of Portuguese public administration, sent by the Portuguese Republic to the Commission services at their request, show that, after the expiry of the period established in the reasoned opinion and until the date when the action was brought, Portuguese public authorities in various sectors of Portuguese public administration continued to pay their commercial debts within periods longer than those provided for in Article 4(3) and (4)(b) of Directive 2011/7/EU. These are, specifically, the following public authorities:

—	local government, in 2013, 2014, 2015, 2016, 2017 and 2018,

—	Portuguese public entities providing healthcare (health sub-sector), from 2013 to 2022,

—	the Autonomous Region of Madeira, from 2013 to 2022,

—	the Autonomous Region of Azores, in 2013 and from 2015 to 2022.

Furthermore, the Portuguese Republic, in the reports for 2020, 2021 and 2022, included only incomplete data, allegedly because it did not have data for local government for those years due to a change in the accounting system for local government. Up to the date when the action was brought, the Portuguese Republic had not completed the data in the said reports nor sent updated data.

Thus, the Commission concludes that the Portuguese Republic has failed to fulfil its obligations under Article 4(3) and (4)(b) of Directive 2011/7/EU, as it has not ensured nor does it ensure, that the public authorities mentioned above pay their commercial debts within the periods provided for in that article.

---

(1)   OJ 2011 L 48, p. 1.

Order of the President of the Court of 5 June 2023 (request for a preliminary ruling from the Landgericht Stuttgart — Germany) — S. v AD GmbH

(Case C-440/20, (1) AD)

(2023/C 321/52)

Language of the case: German

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

---

(1)   OJ C 443, 21.12.2020.

Order of the President of the Court of 16 May 2023 (request for a preliminary ruling from the Tribunalul Bihor — Romania) — P.C.H. v Parchetul de pe lângă Tribunalul Bihor, Parchetul de pe lângă Curtea de Apel Oradea, Ministerul Public — Parchetul de pe lângă Înalta Curte de Casaţie şi Justitie, in the presence of: Consiliul Naţional pentru Combaterea Discriminării

(Case C-642/21, (1) Parchetul de pe lângă Tribunalul Bihor and Others)

(2023/C 321/53)

Language of the case: Romanian

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

---

(1)   OJ C 95, 28.2.2022.

Order of the President of the Sixth Chamber of the Court of 15 May 2023 — European Commission v Romania

(Case C-69/22) (1)

(2023/C 321/54)

Language of the case: Romanian

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

---

(1)   OJ C 171, 25.4.2022

Order of the President of the Court of 23 May 2023 (request for a preliminary ruling from the Amtsgericht Frankfurt am Main — Germany) — flightright GmbH v TAP Portugal

(Case C-52/23, (1) flightright)

(2023/C 321/55)

Language of the case: German

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

---

(1)   OJ C 164. 8.5.2023.

Order of the President of the General Court of 14 July 2023 — VC v EU-OSHA

(Case T-126/23 R)

(Interim relief - Public supply contracts - Exclusion from procurement procedures and from the award of grants financed by the general budget of the European Union and by the EDF for a period of two years - Publication of information relating to that exclusion - Application for suspension of operation of a measure - Urgency - Prima facie case - Weighing up of interests)

(2023/C 321/56)

Language of the case: Spanish

Parties

Applicant: VC (represented by: J. Rodríguez Cárcamo and S. Centeno Huerta, lawyers)

Defendant: European Agency for Safety and Health at Work

Re:

By its application under Articles 278 and 279 TFEU, the applicant seeks suspension of the operation of Decision 2023/01 of the European Agency for Safety and Health at Work (EU-OSHA) of 13 January 2023 on the exclusion of the applicant from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the European Development Fund (EDF) on the basis of Council Regulation (EU) 2018/1877

Operative part of the order

1.

The operation of Decision 2023/01 of the European Agency for Safety and Health at Work (EU-OSHA) of 13 January 2023 on the exclusion of VC from participation in procedures for public procurement, grants, prizes, awards and financial instruments covered by the general budget of the European Union and from participation in award procedures covered by the European Development Fund on the basis of Council Regulation (EU) 2018/1877 is suspended in so far as that decision provides for, in Article 4 thereto, the publication of certain information relating to the exclusion of VC’s participation in those procedures.

2.	The application is dismissed as to the remainder.

3.	The order of 13 March 2023, VC v EU-OSHA (T-126/23 R) is cancelled.

4.	The costs are reserved.

Action brought on 27 June 2023 — Semedo v Parliament

(Case T-349/23)

(2023/C 321/57)

Language of the case: French

Parties

Applicant: Monica Semedo (Grevenmacher, Luxembourg) (represented by: T. Bontinck, A. Guillerme, L. Burguin and L. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

—	annul the decision of 17 April 2023 finding that the acts alleged by [confidential] (1) against Ms Semedo constituted psychological harassment within the meaning of Article 12a(3) of the Staff Regulations of Officials of the European Union;

—	annul the decision of 17 April 2023 imposing on Ms Semedo a penalty consisting in the forfeiture of entitlement to the daily subsistence allowance for a period of ten days taken on the basis of the abovementioned decision;

—

declare that Article 9(5) of the Bureau’s decision of 2 July 2018 on the functioning of the Advisory Committee dealing with harassment complaints concerning Members of the European Parliament and its procedures for dealing with complaints is unlawful in so far as it does not allow the person concerned by an investigation to be heard in the presence of a person of his or her choice or even his or her lawyer;

—	order the European Parliament to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging infringement of the right to be heard and the rights of the defence. The applicant claims that the contested decisions were not adopted by the President of European Parliament under conditions guaranteeing that she would be heard and be able to exercise her rights of defence during the procedure before the Advisory Committee dealing with harassment complaints concerning Members of the European Parliament (‘the Advisory Committee’) and before the President of the Parliament. The applicant further submits that Article 9(5) of the decision of 2 July 2018 on the functioning of the Advisory Committee and its procedures for dealing with complaints is unlawful in so far as it does not allow the person concerned by an investigation to be heard in the presence of a person of his or her choice or even his or her lawyer.

2.

Second plea in law, alleging a manifest error of assessment, on the ground that the decision finding that the acts of Ms Semedo constituted psychological harassment is vitiated by a manifest error of assessment, since the acts complained of did not fulfil the criteria set out by Article 12a(3) of the of the Staff Regulations of Officials of the European Union.

---

(1)  Confidential data omitted.

Action brought on 2 July 2023 — Verdeja Muñiz v ECB

(Case T-352/23)

(2023/C 321/58)

Language of the case: Spanish

Parties

Applicant: Pedro Verdeja Muñiz (Madrid, Spain) (represented by: F. Verdeja González, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—	annul all the decisions of the European Central Bank (‘the ECB’) from 21 July 2022 until 15 September 2023 raising the Euribor and intervening in the finance and mortgage market without protecting the applicant as a debtor;

—	order the ECB to adopt fiscal measures so that the Euribor applicable to the applicant’s mortgage debt is maintained at its level before the decision of 14 April 2022, and 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, based on the legal premiss that the applicant cannot and must not challenge the decisions of the ECB.

2.	Second plea in law, based on the legal premiss that the ECB must not cause price rises, contrary to Article 282(2) TFEU.

3.	Third plea in law, based on the legal premiss that the ECB must not obstruct market freedom, pursuant to Article 127(1) TFEU.

4.	Fourth plea in law based on the legal premiss that the ECB must take effective measures to protect against increases in the Euribor.

Action brought on 4 July 2023 — YH v ECB

(Case T-366/23)

(2023/C 321/59)

Language of the case: English

Parties

Applicant: YH (represented by: J. Lehnhardt, R. Hübner and A. Walter, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

—

annul the ECB’s decision dated 5 May 2023 (ECB-SSM-2023-DE-12 QLF-2022-0054, QLF-2023-0020, QLF-2023-0021), which opposes the acquisition by the applicant of a qualifying holding in M.M. Warburg & Co (AG & Co.) Kommanditgesellschaft auf Aktien, M.M. Warburg & CO Hypothekenbank Aktiengesellschaft and Marcard, Stein & Co AG;

—	order the ECB 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 in law, alleging infringements of the qualifying holding assessment procedure rules.

2.

Second plea in law, alleging infringements of essential procedural requirements by the ECB, i.e. (i) the right to be heard by taking into account facts on which the applicant could not comment prior to the decision and (ii) the obligation to give reasons for a negative decision (Article 41(2)(a) of the Charter of Fundamental Rights, Articles 31, 33(1) and (2) of Regulation (EU) No 468/2014 of the European Central Bank (1) and Article 22(1) sub-paragraph 1 and (2) sub-paragraph 2 of Council Regulation EU No 1024/2013. (2)

3.	Third plea in law, alleging a failure to examine relevant facts and to adopt only the decision on a sufficiently solid factual basis.

4.	Fourth plea in law, alleging the incorrect interpretation and application by the ECB of the concept of a ‘qualifying holding’ by incorrectly calculating and attributing voting rights and capital share and misjudging the facts relating thereto.

5.

Fifth plea in law, alleging incorrect interpretation and misapplication by the ECB of the assessment criteria in Article 23(1), (2) of Directive 2013/36/EU of the European Parliament and of the Council (3) and the transposing German legislation in Section 2c(1b) sentence 1 of the German Banking Act (Kreditwesengesetz).

6.	Sixth plea in law, alleging infringements of the Charter of Fundamental Rights of the EU, in particular the applicant’s rights to family life and marriage (Articles 7, 9 and 33), non-discrimination (Article 21), the presumption of innocence (Article 48) and the right to property (Article 17).

7.	Seventh plea in law, alleging infringement of the principle of proportionality.

---

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

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

(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).

Action brought on 7 July 2023 — Mincu Pătrașcu Brâncuși v European Public Prosecutor’s Office

(Case T-385/23)

(2023/C 321/60)

Language of the case: Romanian

Parties

Applicant: Constantin Mincu Pătrașcu Brâncuși (Bucharest, Romania) (represented by: A. Şandru, lawyer)

Defendant: European Public Prosecutor’s Office

Form of order sought

The applicant claims that the Court should:

—

annul the decision to bring a case to judgment and to dismiss that case in part, issued by the Permanent Chamber of the European Public Prosecutor’s Office on 8 December 2022, in case file EPPO No. I.130/2021, by which the European Public Prosecutor’s Office decided to bring to judgment the case in which the applicant is accused, since the Permanent Chamber was not constituted by the minimum number of European Prosecutors required under the EU legislation, thereby infringing the rules on the composition of Permanent Chambers, governed by Article 10(1) of Council Regulation (EU) 2017/1939 of 12 October 2017;

—

[and the applicant] advances the plea of illegality concerning the internal rules of procedure of the European Public Prosecutor’s Office since they are contrary to Article 10 of the EPPO Regulation, and the plea of illegality concerning the provisions of those rules which are contrary to the TFEU and the Charter of Fundamental Rights of the European Union.

Pleas in law and main arguments

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

1.

First plea in law, alleging infringement of Article 10(1) of the EPPO Regulation, through the issuance of the contested decision. In essence, the contested decision of Permanent Chamber No 10 was issued in breach of Article 10 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), which requires the Permanent Chambers to be composed of two permanent Members in addition to the Chair.

2.

Second plea in law, raising a plea of illegality in respect of the internal rules of procedure of the European Public Prosecutor’s Office. Given that the EPPO considers that it was sufficient that the provisions of Article 23(5) of the internal rules of procedure of the European Public Prosecutor’s Office were complied with in adopting the contested decision of the Permanent Chamber, the applicant put forward, on the basis of Article 277 TFEU, the plea of illegality concerning the abovementioned provision on the ground that it is contrary to Article 10(1) of the EPPO Regulation, which may not be derogated from.

Action brought on 13 July 2023 — Teva v Commission

(Case T-393/23)

(2023/C 321/61)

Language of the case: English

Parties

Applicant: Teva GmbH (Ulm, Germany) (represented by: Z. West, S. Love and G. Morgan, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	declare the applicant’s request for annulment admissible and well- founded;

—

annul the Contested Decision of 2 May 2023 (published on May 2023) amending the marketing authorisation granted by Decision C(2014)601(final) for ‘Tecfidera — Dimethyl fumarate’, a medicinal product for human use, as well as any later decision, to the extent that they perpetuate and/or replace that decision including any follow-up regulatory actions, in so far as they relate to the applicant;

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

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law alleging that the European Commission failed to observe the simple time limit for meeting the substantive requirement that is necessary to obtain an extension of market protection as required by Article 14(11) of Regulation (EC) No 726/2004 of the European Parliament and of the Council: (1)

—	An extension of the marketing protection to eleven years may only be granted if an authorisation for a new therapeutic indication is obtained within the first eight years of the marketing authorisation being granted;

—	Biogen was required to obtain an authorisation for the new indication during the first eight years following the grant of Tecfidera’s marketing authorisation;

—

The marketing authorisation for Tecfidera was granted on 30 January 2014 and took effect on 3 February 2014. However, the Commission decision to grant an authorisation for the new therapeutic indication was not issued until 13 May 2022 (over three months after the end of the initial eight year period);

—	Tecfidera therefore should not be granted an additional year of market exclusivity since Biogen failed to meet the statutory requirements of Article 14(11).

---

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

Action brought on 7 July 2023 — Klein v Commission

(Case T-394/23)

(2023/C 321/62)

Language of the case: German

Parties

Applicant: Christoph Klein (Großgmain, Austria) (represented by: H.-J. Ahlt, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul Commission Implementing Decision C(2023)2961 final of 28 April 2023, entitled ‘Commission Implementing Decision on a measure prohibiting the placing on the market of the medical device “Inhaler Broncho-Air”, manufactured by Primed Halberstadt Medizintechnik GmbH on behalf of Broncho-Air Medizintechnik AG’;

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

Pleas in law and main arguments

The action is based on the following three pleas in law.

1.

First plea in law, alleging that the decision infringes essential procedural requirements, namely — those requirements relating to informing the Member States under Article 8(3) and (4) of Directive 93/42/EEC, (1) since no involvement of the Member States has ever taken place over the course of the 25-year duration of the safeguard clause procedure; — the obligation to state reasons under Article 296 TFEU.

2.

Second plea in law, alleging that the decision infringes the Treaties or rules of law relating to their application, namely — Article 41 of the Charter of Fundamental Rights of the European Union, (2) since the decision infringes the right to be heard by disregarding the submissions made by the applicant in the safeguard clause procedure and, accordingly, is not well-founded; — the principle of proportionality, since the defendant did not carry out any assessment of the prohibition measure and disregarded the submissions made by the applicant in relation to its product. The applicant maintains that the measure is neither suitable nor necessary.

3.	Third plea in law, alleging misuse of powers since the defendant, by its decision, does not pursue any legitimate aim.

---

(1)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ 1993 L 169, p. 1).

(2)   OJ 2012 C 326, p. 391.

Action brought on 18 July 2023 — BAWAG PSK v SRB

(Case T-410/23)

(2023/C 321/63)

Language of the case: German

Parties

Applicant: BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG (Vienna, Austria) (represented by: F. Kruis and N. Bartmann, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Single Resolution Board of 2 May 2023 on the calculation of the 2023 ex-ante contributions to the Single Resolution Fund (SRB/ES/2023/23) together with annexes, at least in so far as it concerns the applicant;

—	order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the decision of 2 May 2023 and annexes thereto infringe Article 70(2) of Regulation (EU) No 806/2014 (1) on account of not complying with the limits provided for in that provision whereby the contributions to be paid by all institutions are not to exceed 12,5 % of the annual target level.

2.

Second plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful in that they infringe Articles 6, 7 and 20(1) of Delegated Regulation (EU) 2015/63 (2) in that the defendant did not take account of the risk indicator Minimum Requirements for Own Funds and Eligible Liabilities (‘MREL’) or the risk indicators ‘complexity’ and ‘resolvability’.

3.

Third plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful, if Article 20 of Delegated Regulation (EU) 2015/63 should be interpreted as meaning that failing to take into account the (sub-) risk indicators of complexity and resolvability is permissible. In that case Article 20 of Delegated Regulation (EU) 2015/63 infringes Article 103(7) of Directive 2014/59/EU (3) and point (b) of the second subparagraph of Article 70(2) of Regulation (EU) 806/2014. The decision of 2 May 2023 would therefore be based on that infringement also.

4.

Fourth plea in law, alleging infringement of Articles 6(4), 9(1) and (2) in conjunction with Annex I to Delegated Regulation (EU) 2015/63 since, contrary to Article 6(4) of that regulation, interbank loans and deposits in the EU and not in the Member States of the banking union were taken into account.

5.	Fifth plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful because the defendant’s calculation of the applicant’s contribution is substantively incorrect.

6.

Sixth plea in law, alleging the decision of 2 May 2023 and annexes thereto infringe essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU and the right to good administration in that they do not contain an adequate statement of reasons within the meaning of the second paragraph of Article 296 TFEU.

7.

Seventh plea in law, alleging that the decision of 2 May 2023 and annexes thereto infringe the right to an effective legal remedy under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (4) since the failure to state adequate reasons meeting the requirements laid down in Article 41(2)(c) of the Charter makes it practically impossible to subject the accuracy of the decision to effective judicial review.

8.

Eighth plea in law, alleging that the decision of 2 May 2023 and annexes thereto are unlawful and infringe the applicant’s rights since the legal provisions forming the basis for that decision, the second subparagraph of Article 70(2) of Regulation (EU) 806/2014 and Article 103(2) of Directive 2014/59/EU, are in themselves unlawful, as they require a comparative assessment of the institution concerned which is based on the commercial confidentiality of the institution concerned and thus hindering effective judicial protection of the institution concerned from the outset.

---

(1)  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).

(2)  Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

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

(4)   OJ 2012, C 326, p. 391.

Action brought on 14 July 2023 — Nordea Bank v SRB

(Case T-412/23)

(2023/C 321/64)

Language of the case: English

Parties

Applicant: Nordea Bank Oyj (Helsinki, Finland) (represented by: H. Berger, M. Weber and D. Schoo, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the Decision of the SRB of 2 May 2023, document no. SRB/ES/2023/23, including Annexes I, II and III, as far as it concerns the ex-ante contribution of the applicant;

—	order the SRB to pay the costs.

Plea in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the SRB has infringed Article 70(2) of Regulation (EU) No 806/2014 (1) by not applying the binding 12,5 % cap to the target level when determining the 2023 annual target level.

---

(1)  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 14 July 2023 — Nordea Kiinnitysluottopankki v SRB

(Case T-413/23)

(2023/C 321/65)

Language of the case: English

Parties

Applicant: Nordea Kiinnitysluottopankki Oyj (Helsinki, Finland) (represented by: H. Berger, M. Weber and D. Schoo, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the Decision of the SRB of 2 May 2023, document no. SRB/ES/2023/23, including Annexes I, II and III, as far as it concerns the ex-ante contribution of the applicant;

—	order the SRB to pay the costs.

Plea in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the SRB has infringed Article 70(2) of Regulation (EU) No 806/2014 (1) by not applying the binding 12,5 % cap to the target level when determining the 2023 annual target level.

---

(1)  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 14 July 2023 — Nordea Rahoitus Suomi v SRB

(Case T-414/23)

(2023/C 321/66)

Language of the case: English

Parties

Applicant: Nordea Rahoitus Suomi Oy (Helsinki, Finland) (represented by: H. Berger, M. Weber and D. Schoo, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the Decision of the SRB of 2 May 2023, document no. SRB/ES/2023/23, including Annexes I, II and III, as far as it concerns the ex-ante contribution of the applicant;

—	order the SRB to pay the costs.

Plea in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the SRB has infringed Article 70(2) of Regulation (EU) No 806/2014 (1) by not applying the binding 12,5 % cap to the target level when determining the 2023 annual target level.

---

(1)  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 19 July 2023 — Kiene and Others v Parliament and Council

(Case T-419/23)

(2023/C 321/67)

Language of the case: German

Parties

Applicants: Lorenz Kiene (Hoya, Germany), Classic Tankstellen GmbH & Co. KG (Hoya), eFuel GmbH (Hoya), eFuel Projektentwicklung GmbH (Hoya) (represented by: A. Dlouhy, E. Macher and M. Soppe, lawyers)

Defendants: European Parliament, Council of the European Union

Form of order sought

The applicants claim that the Court should:

—	declare points (a) to (d) of Art. 1(1) of Regulation (EU) 2023/851 null and void;

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

Pleas in law and main arguments

As background to their application, the applicants, which are undertakings in the development, production and sale of carbon-neutral synthetic fuels for road traffic, claim that the contested regulations, which reduce the carbon emission values for new passenger cars and new light commercial vehicles in the European Union until 2035, were based on a measurement of carbon emissions only at the tailpipe of the vehicle in operation. All emissions occurring during the manufacture, sale, use and disposal of a product outside of the operation of the vehicle were therefore disregarded, without any justification. First, this fails to consider the occasionally high emission values, in particular in the production of battery electric vehicles and, secondly, fails to take account of the fact that the production of carbon-neutral synthetic fuels relies on carbon from the atmosphere or from unavoidable exhaust gases that would otherwise have gone into the atmosphere, and that the combustion merely releases the carbon bound during production again.

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

1.	First plea in law, alleging a breach of the applicants’ fundamental right to freedom to conduct a business (Art. 16 of the Charter of Fundamental Rights of the European Union (1) (the Charter));

2.	Second plea in law, alleging a breach of the applicants’ fundamental right to property (Art. 17 of the Charter) by de facto devaluing their previous investments;

3.

Third plea in law, alleging a breach of the applicants’ fundamental right to equality before the law (Art. 20 of the Charter) by treating, without any objective reason, carbon-neutral fuels (i) differently to electrical charging energy for battery electric vehicles and (ii) similarly to fossil fuels;

4.	Fourth plea in law, alleging infringement of environmental protection under Art. 37 of the Charter because environmental pollution over the life cycle of the vehicles would not be taken into account and because the lack of openness to technology would lead to increased environmental pollution;

5.	Fifth plea in law, alleging a breach of principle of proportionality under Art. 5(4) TEU because the contested regulations are not adequate, not necessary, and exceed what is necessary to achieve the carbon reduction aimed for by the European Union;

6.

Sixth plea in law, alleging infringement of the requirements of the Union policy on the environment under Art. 191 TFEU because environmental pollution over the life cycle of the vehicles is not taken into account, without any justification, is not dealt with at its source, and is not based on the principle that the polluter should pay, but is ultimately transferred to other EU countries;

7.	Seventh plea in law, alleging infringement of the duty to state reasons under Art. 296(2) TFEU because the regulatory approach of the contested provisions, which deviates from other EU regulations, is not justified by the legislature.

---

(1)   OJ 2012 C 326, p. 391.

Action brought on 25 July 2023 — PlanetArt v EUIPO — Free (FreePrints)

(Case T-424/23)

(2023/C 321/68)

Language in which the application was lodged: French

Parties

Applicant: PlanetArt LLC (Wilmington, Delaware, United States) (represented by: M. Schaffner, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Free (Paris, France)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant

Trade mark at issue: Application for EU figurative mark in colour Freeprints — Application No 18 084 906

Proceedings before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 25 May 2023 in Case R 407/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	reject opposition No B 3 101 722 which the Opposition Division of EUIPO upheld on 25 January 2022;

—	accordingly, allow registration in respect of application No 18 084 906 for the EU trade mark FreePrints;

—	order EUIPO to pay the costs of the proceedings before the Court and before EUIPO (Board of Appeal and Opposition Division), including the expenses necessarily incurred by the applicant in the context of those sets of proceedings.

Plea in law relied on

—	Infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 25 July 2023 — Consejo Regulador ‘Aceite de Jaén’ v EUIPO — Agrícola La Loma (VEGA DEL OBISPO BIO Jaén PRODUCTOS ECOLÓGICOS)

(Case T-425/23)

(2023/C 321/69)

Language in which the application was lodged: Spanish

Parties

Applicant: Consejo Regulador de la Indicación Geográfica Protegida ‘Aceite de Jaén’ (Mengíbar, Spain) (represented by: F. Muñoz Calvo, lawyer)

Defendant: European Union Intellectual Property Office

Other party to the proceedings before the Board of Appeal: Agrícola La Loma S. Coop. Andaluza (Torreblascopedro, Spain)

Details of the proceedings before EUIPO

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

Trade mark at issue: EU figurative mark VEGA DEL OBISPO BIO Jaén PRODUCTOS ECOLÓGICOS — EU trade mark No 18 326 674

Proceedings before EUIPO: Invalidity proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 1 June 2023 in the Case R 1119/2022-1

Form of order sought

The applicant claims that the Court should:

—	Annul the contested decision.

—	Refer the proceedings back to the Board of Appeal for a lawful decision declaring the partial invalidity of the mark at issue.

—	Order EUIPO to pay the costs.

Pleas in law

—	Procedural infringement of the adversarial principle and the causing of a situation of defencelessness for the applicant.

—	Infringement of Article 7(1)(f) of Regulation (EU) 2017/1001 of the European Parliament and of the Council on account of breach of EU public policy through the non-compliance with European legislation on the retail marketing of olive oils.

—	Infringement of Article 7(1)(g) of Regulation (EU) 2017/1001 of the European Parliament and of the Council as a result of the risk of deception inherent in the trade mark at issue.

—	Infringement of Article 7(1)(j) of Regulation (EU) 2017/1001 of the European Parliament and of the Council on account of infringement of the Community legal framework on protected geographical designations.

Action brought on 25 July 2023 — Chiquita Brands v EUIPO — Compagnie financière de participation (Device of blue and yellow ovaloid shape)

(Case T-426/23)

(2023/C 321/70)

Language in which the application was lodged: English

Parties

Applicant: Chiquita Brands LLC (Fort Lauderdale, Florida, United States) (represented by: R. Dissmann and L. Jones, lawyers)

Defendant: European Union Intellectual Property Office

Other party to the proceedings before the Board of Appeal: Compagnie financière de participation (Marseille, France)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union figurative mark (Device of blue and yellow ovaloid shape — European Union trade mark No 7 497 191

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 23 May 2023 in Case R 2243/2021-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision and reject the application for declaration of invalidity to the extent the trade mark at issue was declared invalid;

—	order EUIPO to pay the costs, including those incurred in the proceedings before EUIPO.

Pleas in law

—	Infringement of Articles 4 and 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council with regard to the inherent distinctiveness of the trade mark at issue;

—	Infringement of Articles 7(3) and 59(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council with regard to the acquired distinctiveness of the trade mark at issue.

Action brought on 25 July 2023 — Hofstede Insights v EUIPO — Geert Hofstede (HOFSTEDE INSIGHTS)

(Case T-429/23)

(2023/C 321/71)

Language in which the application was lodged: English

Parties

Applicant: Hofstede Insights Oy (Helsinki, Finland) (represented by: A. Sevillano Orbegozo, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Geert Hofstede BV (Meppel, Netherlands)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word trade mark HOFSTEDE INSIGHTS — European Union trade mark application No 18 338 780

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 April 2023 in Case R 2128/2022-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Plea in law

—	Infringement of Article 8(4) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 25 July 2023 — Universität Koblenz v EACEA

(Case T-432/23)

(2023/C 321/72)

Language of the case: German

Parties

Applicant: Universität Koblenz (represented by: R. Di Prato and C. von der Lühe, lawyers)

Defendant: European Education and Culture Executive Agency

Form of order sought

The applicant claims that the Court should:

—	declare that the claims for recovery in respect of Grant Agreement 2012-3028 in the amount of EUR 197 216,97 made by letter of the defendant of 12 May 2023 under reference EACEA/530181(2012-3028)23D001392 have no basis;

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

Pleas in law and main arguments

In support of the action, the applicant claims that, notwithstanding the submission of supporting evidence, reimbursable costs were not fully recognised. The evidence and observations submitted by the applicant were in part not sufficiently assessed. The requirements imposed by the defendant regarding the provision of evidence are excessive and are not covered by the spirit and purpose of the provisions of the Grant Agreement in question.

Action brought on 25 July 2023 — Webedia Gaming v EUIPO (GamePro)

(Case T-433/23)

(2023/C 321/73)

Language of the case: German

Parties

Applicant: Webedia Gaming GmbH (Munich, Germany) (represented by: O. Spieker, lawyer)

Defendant: European Union Intellectual Property Office

Details of the proceedings before EUIPO

Trade mark at issue: Application for EU figurative mark GamePro — Application No 18 181 227

Contested decision: Decision of the First Board of Appeal of EUIPO of 24 May 2023 in Case R 1246/2022-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision in so far as the appeal was dismissed;

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

—	Infringement of Article 7(3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 28 July 2023 — Almaghout v Council

(Case T-437/23)

(2023/C 321/74)

Language of the case: English

Parties

Applicant: Hala Almaghout (represented by: M. Lester and M. Birdling, Barristers and G. Symeonidis, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—

annul the Decision (CFSP) 2023/1035 of 25 May 2023  (1), maintaining the listing of the Applicant under Annex I to Council Decision 2013/255/CFSP as amended and Annex II to Council Regulation (EU) No 36/2012 of 18 January 2012 as amended (the Contested Measures), insofar as they apply to the Applicant.

—	order that the Council pay her costs.

Pleas in law and main arguments

In support of the action, the applicant contends that her inclusion in the Contested Measures is a result of manifest errors of assessment by the Council. In particular, she is no longer a member of the Makhlouf family, has no connection with the Syrian regime, has no influence over it and poses no risk of circumvention. Contrary to the reasons given for listing her on the EU’s Syria restrictive measures, there is no risk in her case that any inherited assets will be used to support the activities of the Syrian regime or will flow into the regime’s possession.

---

(1)   JO 2023, L 139, p. 49.

Action brought on 31 July 2023 — Lotum one v EUIPO — Playtika Santa Monica (WORDBLITZ)

(Case T-438/23)

(2023/C 321/75)

Language in which the application was lodged: German

Parties

Applicant: Lotum one GmbH (Bad Nauheim, Germany) (represented by: T. Hogh Holub, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Playtika Santa Monica, LLC (Henderson, Nevada, United States)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant

Trade mark at issue: Application for EU figurative mark WORDBLITZ — Application No 18 024 980

Proceedings before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 27 March 2023 in Case R 1682/2021-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	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.

Action brought on 31 July 2023 — Marcandita/EUIPO — Euronext (bnext)

(Case T-439/23)

(2023/C 321/76)

Language in which the application was lodged: English

Parties

Applicant: Marcandita, SL (Madrid, Spain) (represented by: J. Gracia Albero and E. Cebollero González, lawyers)

Defendant: European Union Intellectual Property Office

Other party to the proceedings before the Board of Appeal: Euronext NV (Amsterdam, Netherlands)

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 figurative mark bnext — Application for registration No 18 309 107

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 28 April 2023 in Case R 2111/2022-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs of the present proceedings before the General Court and order the intervener to pay the costs deriving from the proceedings before the Opposition Division and the Forth Board of Appeal EUIPO.

Plea in law

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

Action brought on 27 July 2023 — Berlin Hyp v SRB

(Case T-440/23)

(2023/C 321/77)

Language of the case: German

Parties

Applicant: Berlin Hyp AG (Berlin, Germany) (represented by: H. Berger, M. Weber and D. Schoo, lawyers)

Defendant: Single Resolution Board

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Single Resolution Board of 2 May 2023 on the calculation of the 2023 ex-ante contributions to the Single Resolution Fund (SRB/ES/2023/23) together with annexes, at least in so far as the contested decision together with Annexes I, II and III concern the applicant,

—	order the SRB to pay the costs.

In the alternative, in the event that the Court takes the view that the contested decision is legally non-existent as a result of the use of the incorrect official language by the SRB and the action for annulment would therefore be inadmissible on the ground that it would be devoid of purpose, the applicant claims that the Court should:

—	declare that the contested decision is legally non-existent;

—	order the SRB to pay the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging that the decision infringes Article 81(1) of Regulation (EU) No 806/2014 (1) in conjunction with Article 3 of Regulation No 1, (2) since it is not worded in German, which is the language chosen by the applicant.

2.

Second plea in law, alleging that the decision infringes the obligation to state reasons laid down in the second paragraph of Article 296 TFEU and Articles 41(1) and 41(2)(c) of the Charter of Fundamental Rights of the European Union (3) and the fundamental right to effective judicial protection under the first paragraph of Article 47 of the Charter, because it contains instances of failure to state reasons and a judicial review of the decision is practically impossible.

3.

Third plea in law, alleging that the decision infringes Articles 69 and 70 of Regulation (EU) No 806/2014 and Articles 16, 17, 41 and 53 of the Charter, because the defendant erroneously determined the annual target level; in the alternative, Articles 69 and 70 of Regulation (EU) No 806/2014 infringe higher-ranking law.

4.

Fourth plea in law, alleging that the second subparagraph of Article 7(4) of Delegated Regulation (EU) 2015/63 (4) infringes higher-ranking law, because it allows for an objectively inappropriate and disproportionate differentiation to be made between the members of an Institutional Protection Scheme (‘IPS’) and for the IPS indicator to be relativised.

5.	Fifth plea in law, alleging in the alternative that the decision infringes the requirements of the applicable primary and secondary law concerning the determination of the IPS indicator.

6.

Sixth plea in law, alleging that Article 6 and Step 2 of Annex I to Delegated Regulation (EU) 2015/63 infringe higher-ranking law because they fail to observe the principles of the Meroni (5) case-law, in that the Commission exceeded the areas of competence conferred on it and that they infringe the requirement to assess contributions in a risk-appropriate manner, the principle of proportionality and the requirement to take full account of the facts.

7.	Seventh plea in law, alleging in the alternative that the decision infringes Articles 16, 20 and 52 of the Charter and the principle of proportionality, because it is based on clear errors of assessment concerning the determination of the risk indicators in Risk Pillar IV.

8.	Eighth plea in law, alleging that the decision infringes Articles 16, 20, 41 and 52 of the Charter and the principle of proportionality and the right to good administration, because the risk adjustment was erroneous.

9.

Ninth plea in law, alleging that the first and second sentences of Article 20(1) of Delegated Regulation (EU) 2015/63 infringe higher-ranking law, because the regulation provides for the non-application of one or more risk indicators for an indefinite period where the information required therefor is not subject to a supervisory reporting requirement.

---

(1)  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).

(2)  Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59)

(3)   OJ 2012 C 326, p. 391.

(4)  Commission Delegated Regulation (EU) 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements (OJ 2015 L 11, p. 44).

(5)  Judgment of 13 June 1958, Meroni v High Authority, 10/56, EU:C:1958:8.

Action brought on 31 July 2023 — Certinvest v EUIPO — Kiddinx Studios (Tina)

(Case T-444/23)

(2023/C 321/78)

Language in which the application was lodged: English

Parties

Applicant: Certinvest SRL (Păntăşeşti, Romania) (represented by: I. Speciac, lawyer)

Defendant: European Union Intellectual Property Office

Other party to the proceedings before the Board of Appeal: Kiddinx Studios GmbH (Berlin, Germany)

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 figurative mark Tina — Application for registration No 18 271 155

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 17 May 2023 in Case R 1979/2022-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision in the sense of allowing the appeal filed by the applicant against the decision of the Opposition Division and, consequently, oblige EUIPO to continue the registration proceedings for the trade mark at issue for all goods and services.

Plea in law

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

Action brought on 27 July 2023 — UniCredit Bank v SRB

(Case T-446/23)

(2023/C 321/79)

Language of the case: German

Parties

Applicant: UniCredit Bank AG (Munich, Germany) (represented by: F. Kruis and N. Bartmann, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Single Resolution Board of 2 May 2023 on the calculation of the 2023 ex-ante contributions to the Single Resolution Fund (SRB/ES/2023/23) together with annexes, at least in so far as it concerns the applicant, and

—	order the Single Resolution Board to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on eight pleas in law which are identical to those relied on in Case T-410/23, BAWAG PSK v SRB.