5.10.2015

Official Journal of the European Union

C 328/2

Action brought on 26 June 2015 — European Commission v Hellenic Republic

(Case C-320/15)

(2015/C 328/02)

Language of the case: Greek

Parties

Applicant: European Commission (represented by: G. Zavvos and E. Manhaeve)

Defendant: Hellenic Republic

Form of order sought

—	declare that the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (3) of Directive 91/271/EEC (1) concerning urban waste-water treatment;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission specifies the plants of particular agglomerations in the Hellenic Republic which do not comply with the directive’s requirements, either because the necessary plants have not been constructed or upgraded in an appropriate manner (agglomerations of Prosotsani, Doxato, Eleftheroupoli, Vagia and Galatista), and therefore the urban waste water of those agglomerations is not subject before discharge to secondary treatment or an equivalent treatment, or because the samples which were taken (agglomerations of Desfina, Polikhrono and Khanioti) show that the plants do not operate in accordance with the directive’s requirements.

Under Article 4(1) of Directive 91/271/EC, urban waste water (of agglomerations with a population equivalent (p.e.) of more than 2 000) entering collecting systems must before discharge be subject to secondary treatment or an equivalent treatment, whilst under Article 4(3) the discharges in question must satisfy the relevant requirements of Annex I.B (one of which is that representative samples of the incoming waste water and of treated effluent be obtained before discharge to receiving waters).

The Commission notes that, in order for a Member State to be regarded as complying with the requirements of the directive concerning urban waste-water treatment, it must provide satisfactory information relating to the quality of its waste water after treatment. Furthermore, in order for there to be a reliable assessment of the quality of an agglomeration’s effluent in accordance with the directive, and therefore treatment thereof that complies with Article 4 of the directive, the Member States must produce satisfactory results for a period of at least a year after operation of the equipment has begun, by taking samples in accordance with the methodology set out in the directive.

(Α) Agglomerations of Prosotsani (p.e. 5 882), Doxato (p.e. 3 815), Eleftheroupoli (p.e. 4 934), Vagia (p.e. 4 509) and Galatista (p.e. 2 974)

The Commission considers that, since the urban waste water of four agglomerations (Prosotsani, Doxato, Eleftheroupoli and Vagia) is not subject before discharge to secondary treatment or an equivalent treatment, Article 4 of the directive is infringed. Furthermore, the Greek authorities themselves acknowledge that those agglomerations will comply fully with the provisions of the directive only when the co-funded projects have been completed. According to the Commission, although the necessary projects have already been included in priority axis ‘02 Protection and Management of Water Resources’ of the operational programme ‘Environment and Sustainable Development’, it is not envisaged that they will be completed in good time in respect of the agglomerations of Eleftheroupoli and Prosotsani, whilst the Greek authorities did not give a clear date for the agglomerations of Vagia and Doxato. It is apparent from the Greek authorities’ responses that operation of the relevant plant of Galatitsa is problematic and that it will have to be upgraded in order to operate in accordance with the directive’s provisions.

(Β) Agglomerations of Desfina (p.e. 2 024), Polikhrono (p.e. 10 443) and Khanioti (p.e. 9 000)

In relation to the three agglomerations (Desfina, Polikhrono and Khanioti), although the Greek authorities sent the results of the various samples that were taken in the waste water treatment plants, the Commission considers that the samples show that those plants do not operate in compliance with the directive’s requirements.

Agglomeration of Polikhrono

6.	The Commission notes that the number of non-compliant samples, both for 2012 and for 2013, exceeds the permitted number and that sufficient samples were not collected for 2012 and for 2013.

Agglomeration of Khanioti

7.	The samples which were sent to the Commission for this agglomeration cannot be regarded as representative and taken at regular intervals since no sample was taken between January and April 2012 and no relevant sample was sent for 2013 in respect of the agglomeration in question.

Agglomeration of Desfina

Given that the number of samples that were collected for 2012 and 2013 was insufficient, they could not therefore have been taken at regular intervals as required by the directive; only two samples were taken in 2012 instead of 12, meaning that 10 months were not covered, and in 2013 eight samples were taken, two of which relate to the month of July, meaning that five months were not covered.

(1) OJ 1991 L 135, p. 40.

5.10.2015

Official Journal of the European Union

C 328/3

Request for a preliminary ruling from the Bundesfinanzgericht (Austria) lodged on 7 July 2015 — Christine Nigl and Others

(Case C-340/15)

(2015/C 328/03)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Appellants: Christine Nigl, Gisela Nigl sen., Gisela Nigl jun., Josef Nigl jun., Martin Nigl

Authority concerned: Finanzamt Waldviertel

Questions referred (1) (2)

Do three associations of persons constitute three independent traders (taxable persons) where those associations consist of different members of one family, conduct themselves outwardly as such independently in relation to their suppliers and to public authorities, possess their own production facilities, with the exception of two business assets, but market under a common trade mark the greater part of their products through a limited company whose shares are held by the members of the associations of persons and other members of the family?

If the three associations of persons are not to be regarded as three independent traders (taxable persons), is any of the following to be regarded as an independent trader (taxable person):

a)	the marketing company, or

b)	an association of persons consisting of the members of the three associations of persons, which does not conduct itself as such on the market in relation either to suppliers or to customers, or

c)	an association of persons consisting of the three associations of persons and the limited company, which does not conduct itself as such on the market in relation either to suppliers or to customers?

If the three associations of persons are not to be regarded as three independent traders (taxable persons), is the refusal of the status of a trader (taxable person)

a)	retrospective,

b)	only for the future,

c)	not permissible at all if the associations of persons were at first, after investigations by the tax authorities, recognised by the Tax Office as independent traders (taxable persons)?

If the three associations of persons are to be regarded as three independent traders (taxable persons), are they, as wine growers and therefore farmers, flat-rate farmers if each of those associations of persons which cooperate in practice is in itself covered by the flat-rate scheme for farmers, but the limited company, an association of persons formed of the members of the three associations of persons or an association of persons formed of the limited company and the members of the three associations of persons is, under national law, not covered by the flat-rate scheme on account of the size of the business or its legal form?

If the flat-rate scheme for farmers is in principle excluded for the three associations of persons, is that exclusion:

a)	retrospective,

b)	only for the future, or

c)	not effective at all?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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

5.10.2015

Official Journal of the European Union

C 328/5

Appeal brought on 24 July 2015 by Ackermann Saatzucht GmbH & Co.KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P. H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG against the order of the General Court (Fifth Chamber) delivered on 18 May 2015 in Case T-559/14: Ackermann Saatzucht GmbH & Co. KG and others v European Parliament, Council of the European Union

(Case C-408/15 P)

(2015/C 328/05)

Language of the case: English

Parties

Appellants: Ackermann Saatzucht GmbH & Co.KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P. H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG (represented by: P. de Jong, avocat, P. Vlaemminck, B. Van Vooren, advocaten)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought

The applicants claim that the Court should:

—

Find that the General Court, in its Order in Case T-559/14, erred in law when it found that the appellants are not individually concerned by Regulation (EU) No 511/2014 (1) of the European Parliament and of the Council of 16 April 2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation in the Union;

—	Set aside in whole the Order of the General Court in Case T-559/14, and to declare that the appellants are directly and individually concerned by the contested Regulation, and therefore declare the application for annulment admissible;

—	Refer the case back to the General Court for Judgment on the merits.

Pleas in law and main arguments

First ground of appeal — The appellants submit that the General Court erred in law when it found that they are not individually concerned by the contested Regulation. They submit that they are individually concerned within the meaning of Article 263(4) TFEU because a legal conflict exists between two international treaties to which the EU is a party (the International Convention for the Protection of New Varieties of Plants, and the Nagoya Protocol to the Convention on Biological Diversity), the first of which implements Article 13 EU Charter on freedom of scientific research. Subsequently, both international treaties were implemented by the EU in two directly effective Regulations: the earlier Regulation 2100/94 recognizing that fundamental right of freedom of research to the benefit of the appellants, the later contested Regulation 511/2014 severely curtailing it. ln each Regulation, no legislative intervention at Member State level is required or even permitted under EU law, and no implementing or delegated acts are to be adopted at EU level.

In that legal context, the appellants submit that they are individually (and directly) concerned within the meaning of Article 263(4) TFEU because the following conditions are fulfilled: they are members of a legal class of persons defined by a ‘peculiar legal attribute’ (as beneficiaries of a positive right of free access to commercial plant material, i.e. the breeders' exemption) which is not found in the contested Regulation itself but in another directly effective Regulation which requires no further implementation at national level; whereby the contested Regulation conflicts with higher rules of law, namely Article 13 of the EU Charter and an international agreement to which the EU is a party; whereby the legal class is closed and absolute, making the appellants not individually affected in socio-economic terms, but legally, since is only a single, fundamental breeders' exemption without ‘similar’ rights being affected.

Second ground of appeal — The appellants submit that the General Court erred in law where it did not rule on whether the EU legislature was obliged to take particular account of the situation of the appellants on the basis of express provisions of higher-ranking rules of law, where the contested Regulation forces the appellants into a contractual relationship that impinges upon the higher-ranking rule of law, specifically Article 13 of the EU Charter.

Third ground of appeal — The appellants submit that a finding of inadmissibility would lead to a gap in the system of EU judicial protection, impinging upon Article 47 of the EU Charter. On the one hand, plant breeders derive their right directly from the CPVR Regulation, which is the implementation by the EU of Article 13 EU Charter and international obligations of the EU under the UPOV Convention. On the other hand, the contested Regulation 511/2014 imposes a directly effective due diligence obligation, whereby the contested Regulation is itself the implementation of the Nagoya Protocol to which the EU is a contracting party. In both cases, absolutely no further implementation by either the EU institutions (in the form of regulatory EU acts), or by the Member States into their national laws, is necessary, or even legally permitted under EU law. As a consequence, Article 267 TFEU is not an actual possibility for judicial review, nor will there be regulatory acts within the meaning of Article 263(4) TFEU. The appellants submit that, when applying the criterion of paragraph 92 of the Inuit judgment (C-583/11 P) where the appropriate level of judicial review is linked to the responsibility for the implementation of the contested measure, the sole conclusion must be that, in this instance, the direct action under Article 263 TFEU is the only available and appropriate procedural avenue for judicial review.

(1) OJ L 150, p. 59.

5.10.2015

Official Journal of the European Union

C 328/7

Appeal brought on 24 July 2015 by ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV against the order of the General Court (Fifth Chamber) delivered on 18 May 2015 in Case T-560/14: ABZ Aardbeien Uit Zaad Holding BV and others v European Parliament, Council of the European Union

(Case C-409/15 P)

(2015/C 328/06)

Language of the case: English

Parties

Appellants: ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV (represented by: P. de Jong, avocat, P. Vlaemminck, B. Van Vooren, advocaten)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought

The applicants claim that the Court should:

—

Find that the General Court, in its Order in Case T-560/14, erred in law when it found that the appellants are not individually concerned by Regulation (EU) No 511/2014 (1) of the European Parliament and of the Council of 16 April 2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation in the Union;

—	Set aside in whole the Order of the General Court in Case T-560/14, and to declare that the appellants are directly and individually concerned by the contested Regulation, and therefore declare the application for annulment admissible;

—	Refer the case back to the General Court for Judgment on the merits.

Pleas in law and main arguments

First ground of appeal — The appellants submit that the General Court erred in law when it found that they are not individually concerned by the contested Regulation. They submit that they are individually concerned within the meaning of Article 263(4) TFEU because a legal conflict exists between two international treaties to which the EU is a party (the International Convention for the Protection of New Varieties of Plants, and the Nagoya Protocol to the Convention on Biological Diversity), the first of which implements Article 13 EU Charter on freedom of scientific research. Subsequently, both international treaties were implemented by the EU in two directly effective Regulations: the earlier Regulation 2100/94 recognizing that fundamental right of freedom of research to the benefit of the appellants, the later contested Regulation 511/2014 severely curtailing it. In each Regulation, no legislative intervention at Member State level is required or even permitted under EU law, and no implementing or delegated acts are to be adopted at EU level.

(1) OJ L 150, p. 59.

5.10.2015

Official Journal of the European Union

C 328/10

Action brought on 29 June 2015 — DEI v Commission

(Case T-352/15)

(2015/C 328/09)

Language of the case: Greek

Parties

Applicant: Dimosia Epikhirisi Ilektrismou SA (DEI) (Athens, Greece) (represented by: E. Bourtzalas, D. Waelbroeck, K. Tagaras, K. Sinodinos, and E. Salaka, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—

annul the decision (C(2015)1942 final) of 25 March 2015 of the European Commission in Case SA.38101, in so far as that decision finds that State aid was not granted to Aluminium SA and, consequently, the Commission should not open the formal investigation procedure provided for by Article 108(2) TFEU;

—

annul the decision (C(2015)1942 final) of 25 March 2015 of the European Commission in Case SA.34991, in so far as that decision finds that DEI’s complaint concerning State Aid which was created by means of Decision 346/2012 of the Greek Regulatory Authority for Energy (RAE), has become without object as a result of Decision 1/2013 of the Arbitration Tribunal, and

—	order the European Commission to pay the costs.

Pleas in law and main arguments

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

1.	The first plea in law is a claim of an infringement of an essential procedural requirement, in that the contested act does not satisfy the procedural requirements which are necessary for the adoption of such a decision.

The second plea in law is a claim of absence of a sufficient statement of reasons, contradiction and breach of the obligation to examine all relevant matters of fact and law with respect to the finding that the Arbitration Agreement set ‘clear and objective parameters’ which ‘limited the discretion of the arbitrators’ and had as a ‘logical consequence’ the finally determined electricity tariff.

The third plea in law is a claim of a manifest error of law in the interpretation and application of the principle of the prudent private investor and of Article 107(1) and Article 108(2) TFEU, as concerns the finding that the electricity tariff determined by the decision of the Arbitration Tribunal is ‘the logical consequence of properly defined parameters in the Arbitration Agreement’.

The fourth plea in law is a claim of a manifest error of law in the interpretation and application of Articles 107 and 108 TFEU with respect to the finding that the Commission did not have to engage in complex economic assessments and a manifest error of law and a manifest error of assessment of the factual circumstances in so far as the Commission failed to examine crucial issues with respect to finding whether or not there was State Aid.

5.	The fifth plea in law is a claim of a manifest error of law in the application of Article 107(1) and Article 108(2) TFEU, and a manifest error of assessment of the factual circumstances as concerns the application of the test of the prudent private market economy operator.

The sixth plea in law is a claim of a manifest error of law in the interpretation and application of Article 107(1) TFEU, infringement of the obligation to state sufficient reasons and a manifest error of assessment of the factual circumstances as regards the decision by the Commission not to further investigate the complaint made by DEI in 2012 pursuant to Article 108(2) TFEU, on the basis of the finding that that complaint ‘has become without object’ following the delivery of Decision 1/2013 of the Arbitration Tribunal.

5.10.2015

Official Journal of the European Union

C 328/11

Action brought on 2 July 2015 — Allergopharma v Commission

(Case T-354/15)

(2015/C 328/10)

Language of the case: German

Parties

Applicant: Allergopharma GmbH & Co. KG (Reinbek, Germany) (represented by: T. Müller-Ibold and F.-C. Laprévote, lawyers)

Defendant: European Commission

Form of order sought

—	Annul the Commission’s decision of 27 March 2015 authorising an aid scheme for German pharmaceutical companies in financial difficulties through the exemptions from mandatory rebates (SA.34881 (2013/C) (ex 2013/NN) (ex 2012/CP));

—	Order the European Commission to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging errors of law, infringement of the Treaty and breach of the principles of non-discrimination and protection of legitimate expectations in consequence of the failure to have regard to the rescuing and restructuring guidelines (1)

—

By the first plea in law, the applicant claims that the decision breaches the general principles of equal treatment and protection of legitimate expectations and errs in law in departing unlawfully from the binding Guidelines, even though the Guidelines make no provision for any such departure. The reasons given, that the exemptions are not aimed at keeping inefficient firms artificially on the market, are erroneous because (i) they distinguish between efficient and inefficient undertakings, even though the Guidelines do not do so, and (ii) the Commission’s interpretation of ‘efficiency’ is incompatible with fundamental principles of the law on State aid.

Second plea in law, alleging errors of law, errors of fact and manifest errors of assessment in the application of Article 107(3)(c) TFEU

—

By the second plea in law, the applicant claims that, even on the assumption that the Commission can measure the exemptions directly against Article 107(3)(c) TFEU, the decision is vitiated by a number of errors of law and manifest errors of assessment because it does not clearly define the objective of the aid and thus fails to explain why the aid is necessary for achieving the objective. In particular, in the applicant’s view, the Commission has failed to take into account the fact that the authorised operating aid to firms in difficulty is, according to the case-law, fundamentally unsuited to achieving objectives of common interest, and that the exemptions have no incentive effect.

Third plea in law, alleging infringement of essential procedural safeguards and of the right to a hearing

—

By the third plea in law, the applicant claims that — in breach of the right to a hearing and the procedural safeguards under Article 6(1) of Regulation (EC) No 659/1999 (2) — the disputed decision goes far beyond clarification of the issues raised in the initiation decision. First, the contested decision concludes that it is inappropriate to measure the aid against the Guidelines, whereas the initiation decision emphasises that that is ‘the only legal basis for compatibility’. Secondly, the contested decision concludes that it is — exceptionally — appropriate for the aid to be measured against Article 107(3)(c) TFEU, even though there is nothing in the initiation decision that would indicate such a possibility. As a result the applicant was deprived of the opportunity to comment on those issues which, so far as the Commission was concerned, were ultimately decisive.

Fourth plea in law, alleging infringement of the obligation to state reasons

—

By the fourth plea in law, the applicant claims that the contested decision is vitiated by serious defects of reasoning, in that the Commission failed to put forward any reasonable considerations in relation to numerous points. In particular, no reasonable grounds have been put forward (i) as regards the application of the derogation provided for by Article 107(3)(c) TFEU and (ii) as regards the exceptional circumstances that would justify the authorisation of operating aid as in the present case.

(1) Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2) (‘the Guidelines’).

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

5.10.2015

Official Journal of the European Union

C 328/13

Action brought on 17 July 2015 — European Dynamics Luxembourg and Others v European Railway Agency

(Case T-392/15)

(2015/C 328/12)

Language of the case: Greek

Parties

Applicants: European Dynamics Luxembourg SA (Luxembourg, Luxembourg), Evropaiki Dinamiki — Proigmena Sistimata Tilepikinonion Pliroforikis kai Tilematikis AE (Αthens, Greece), European Dynamics Belgium SA (Βrussels, Βelgium) (represented by: I. Ambazis and M. Sfyri, lawyers)

Defendant: European Railway Agency (ERA)

Form of order sought

The applicants claim that the General Court should:

—

annul the decision of the European Railway Agency which was communicated to the applicants by letter dated 08/05/2015 from the Head of Resources and Support Unit and whereby ERA ranked in second place the applicant’s tender for one of three individual lots and specifically for Lot 1 ‘On-site time and means information system development, support and assistance’, in the framework of the open procurement procedure No 2015/S 019-029728 titled ‘ΕRA/2015/01/OP ESPEISD 5 — External Service Provision for ERA Information System’·

—

annul the decision of the European Railway Agency which was communicated to the applicants by letter dated 01/07/2015 from the Head of Resources and Support Unit and whereby ERA ranked in second place the applicant’s tender for one of three individual lots and specifically for Lot 2 ‘Off-site information system development, support and assistance’, in the framework of the open procurement procedure No 2015/S 019-029728 titled ‘ΕRA/2015/01/OP ESP-EISD 5 — External Service Provision for ERA Information System’, and

—	order the European Railway Agency to pay all the costs of the applicants.

Pleas in law and main arguments

In the opinion of the applicants, the contested decisions should be annulled, under Article 263 TFEU, due to a breach by ERA of the obligation to state reasons, since it provided an inadequate statement of reasons with regard to the assessment of the applicants’ technical tender with respect to the existence of excessively low tenders.

5.10.2015

Official Journal of the European Union

C 328/14

Action brought on 28 July 2015 — Gappol Marzena Porczyńska v OHIM — GAP (ITM) (GAPPoL)

(Case T-411/15)

(2015/C 328/13)

Language in which the application was lodged: Polish

Parties

Applicant: PP Gappol Marzena Porczyńska (Łódź, Poland) (represented by: J. Gwiazdowska, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: GAP (ITM), Inc. (San Francisco, United States of America)

Details of the proceedings before OHIM

Applicant for the Community trade mark: The applicant

Trade mark at issue: Community figurative mark containing the word element ‘GAPPoL’ — Application No 8 346 165

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 13 May 2015 in Case R 686/2013-1

Form of order sought

The applicant claims that the Court should:

—	set aside the contested decision;

—	give a final decision by amending the decision of the Board of Appeal by rejecting the opposition also in regard to the goods in Classes 20 and 25;

—	order OHIM to pay the costs of the proceedings.

Pleas in law

—	Infringement of Articles 59 and 64(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (‘Regulation No 207/2009’);

—	Infringement of Article 75 of Regulation No 207/2009 and of Rule 50(2)(h) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (‘Regulation No 2868/95’);

—	Infringement of Article 76 of Regulation No 207/2009 and of Rule 50(2)(g) of Regulation No 2868/95;

—	Infringement of Article 8(1)(b) of Regulation No 207/2009;

—	Infringement of Articles 8(5) and 9(1)(c) of Regulation No 207/2009.

5.10.2015

Official Journal of the European Union

C 328/16

Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)

(Case T-425/15)

(2015/C 328/16)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter, lawyer)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal: Jørn Hansson (Søndersø, Denmark)

Details of the proceedings before the CPVO

Proprietor of the Community plant variety right at issue: Other party to the proceedings before the Board of Appeal

Community plant variety right at issue: Community variety EU 8536 ‘SEIMORA’

Procedure before the CPVO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Board of Appeal of the CPVO of 24 February 2015 in Case A003/2010

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision and annul the plant variety right in Community variety SEIMORA with effect from 4 October 2005;

—	in the alternative, annul the contested decision;

—	order the CPVO to pay the costs.

Pleas in law

—	Infringement of Article 48(4) of Regulation No 2100/94;

—	Infringement of Article 21(1) read in conjunction with Article 65 of Regulation No 2100/94.

5.10.2015

Official Journal of the European Union

C 328/17

Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)

(Case T-426/15)

(2015/C 328/17)

Language in which the application was lodged: German

Parties

Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter, lawyer)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal: Jørn Hansson (Søndersø, Denmark)

Details of the proceedings before the CPVO

Proprietor of the Community plant variety right at issue: Other party to the proceedings before the Board of Appeal

Community plant variety right at issue: Community variety EU 8536 ‘SEIMORA’

Procedure before the CPVO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Board of Appeal of the CPVO of 24 February 2015 in Case A002/2014

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order the CPVO to pay the costs.

Pleas in law

—	Infringement of Article 75 of Regulation No 2100/94;

—	Infringement of Article 20(1)(c) of Regulation No 2100/94 read in conjunction with Articles 11(1), 54(2) and 76 of Regulation No 2100/94 and Article 51 of Regulation No 874/2009.

5.10.2015

Official Journal of the European Union

C 328/19

Action brought on 29 July 2015 — Kolachi Raj Industrial/Commission

(Case T-435/15)

(2015/C 328/20)

Language of the case: English

Parties

Applicant: Kolachi Raj Industrial (Private) Ltd (Karachi, Pakistan) (represented by: P. Bentley, QC)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul Commission Implementing Regulation (EU) 2015/776 (1) in so far as it:

—	(i) rejects the applicant’s request for an exemption from any extension of anti-dumping measures to imports of bicycles consigned from Pakistan;

—	(ii) extends the definitive anti-dumping duty imposed by Council Regulation (EU) No 502/2013 (2) on imports of bicycles originating in the People’s Republic of China to imports of bicycles consigned by the Applicant from Pakistan; and

—	(iii) orders the collection of the said duty on imports consigned from Pakistan and registered in accordance with Article 2 of Regulation (EU) No 938/2014 (3).

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

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea, alleging that the defendant infringed Article 13(2)(b) of the Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51). More specifically, in the application of Article 13(2)(b) the defendant committed errors of procedure and law, and used incoherent reasoning.

(1) Commission Implementing Regulation (EU) 2015/776 of 18 May 2015 extending the definitive anti-dumping duty imposed by Council Regulation (EU) No 502/2013 on imports of bicycles originating in the People's Republic of China to imports of bicycles consigned from Cambodia, Pakistan and the Philippines, whether declared as originating in Cambodia, Pakistan and the Philippines or not (OJ 2015 L 122, p. 4).

(2) Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 153, p. 17).

(3) Commission Implementing Regulation (EU) No 938/2014 of 2 September 2014 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Regulation (EU) No 502/2013 on imports of bicycles originating in the People's Republic of China by imports of bicycles consigned from Cambodia, Pakistan and the Philippines, whether declared as originating in Cambodia, Pakistan and the Philippines or not, and making such imports subject to registration (OJ 2014 L 263, p. 5).

5.10.2015

Official Journal of the European Union

C 328/20

Action brought on 4 August 2015 — Consorzio Vivaisti viticoli pugliesi and Negro v Commission

(Case T-436/15)

(2015/C 328/21)

Language of the case: Italian

Parties

Applicants: Consorzio Vivaisti viticoli pugliesi (Otranto, Italy); and Negro Daniele (Otranto) (represented by: V. Pellegrino and A. Micolani, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	first, suspend the measure, in so far as concerns the applicants’ interest, pursuant to Article 278 TFEU;

—

find and declare that Commission Implementing Decision No 2015/789 is unlawful, in particular Article 9 thereof and Annex 1 thereto, to the extent that they classify the Vitis species among those susceptible to the European and non-European isolates of Xylella fastidiosa and therefore prohibit movement of that species ‘within the Union, within or out of the demarcated area’, and accordingly annul that decision in so far as it concerns the applicants’ interest;

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

—	order any other measures which the Court may consider necessary, such as further investigation, including by EFSA.

Pleas in law and main arguments

In support of their claims, the applicants allege infringement of the principle of proportionality and Article 5 TEU and Article 296 TFEU, as well as essential procedural requirements, in the form of failure to give reasons or incorrect reasons; they also allege misuse of powers on the grounds of incorrect assumptions in matters of fact and law, failure to conduct a proper investigation and inherent inconsistency.

The applicants submit that the action has its origins in studies carried out by researchers at the National Research Council (CNR) of Bari, which, in the light of observations, tests and experiments, in the field and in the laboratory, show that:

—	the bacterium isolated in Salento is a different subspecies and strain from that widely held to be responsible for plant diseases in grapevines on continents other than Europe;

—	since 2013, grapevine varieties grown in the province of Lecce have shown no symptoms of either Pierce’s disease or any other pathological desiccation;

—	in the same period with regard to the same grapevine varieties, no trace of the bacterium has been detected, not even in areas close to and in direct contact with infected olive trees;

—	laboratory tests on grapevines (via inoculum or contact with the vector) have all produced a negative result, both with regard to the development of the infection and the presence of the bacterium in asymptomatic forms.

The inclusion of grapevines on the list of specified plants is, in the applicants’ view, manifestly unlawful since it does not take into account the findings of the investigations which reveal that grapevines are clearly immune to the bacterium present in the infected area.

The applicants also argue that the decision is inconsistent since, following EFSA’s initial opinion of 26 November 2013, which acknowledged that little was known about the Xylella fastidiosa strain in Salento, the Commission did not include grapevines on the list of susceptible plants in the earlier decisions Nos 87 and 497 of 2014, but surprisingly went on to include them and prohibit their movement even though it had received more detailed studies from EFSA and the Italian authorities showing their immunity to the bacterium isolate in Salento.

5.10.2015

Official Journal of the European Union

C 328/22

Action brought on 4 August 2015 — Eden Green Vivai Piante di Verdesca Giuseppe and Others v Commission

(Case T-437/15)

(2015/C 328/22)

Language of the case: Italian

Parties

Applicants: Eden Green Vivai Piante di Verdesca Giuseppe (Copertino, Italy), Azienda Agricola Cairo & Doutcher di Cairo Uzi & C. Ss (Copertino, Italy), Ss Agricola Cairo Vito & Strafella Maria Rosa (Copertino, Italy), Vivai Del Salento Di Castrignano’ Carmelo Antonio (Sanarica, Italy), Società Agricola Castrignano’ Vivai Srl (Muro Leccese, Italy), Piante In Di Cipressa Carmine (Copertino, Italy), D’Elia Simone (Leverano, Italy), De Laurenzis Giuseppe (Copertino, Italy), Verde Giuranna Di Giuranna Alessio Mauro (Parabita, Italy), Maiorano Maurizio (Copertino, Italy), Vivai Mazzotta Di Mazzotta Carmine (Copertino, Italy), Società Agricola Mello Vivai di Mello Antonio Snc (Veglie, Italy), Mello Alessandro (Leverano, Italy), Mello Lucio (Carmiano, Italy), Romano Alessio Luigi (Giurdignano, Italy), Sansone Antonio (Copertino, Italy), Vivai Tarantino Ss (Cavallino, Italy), Verdesca Paolo (Copertino, Italy), Verdesca Giuseppe (Copertino, Italy), Hobby Flora di Miggiano Luigi (Poggiardo, Italy), Mauro Stefano (Muro Leccese, Italy), Miggiano Emanuele (Montesano Salentino, Italy), Miggiano Garden Center Sas di Miggiano Gianluigi & C. (San Cassiano, Italy), Miggiano Claudio (Maglie, Italy), Vivai Piante Rizzo Carmelo (Lecce, Italy), Cairo Antonio (Nardo’, Italy), Floricoltura Marti di Marti Sandro (Porto Cesareo, Italy), Azienda Agricola Mariani Fabrizio (Alliste, Italy), Giannotta Giuseppe (Leverano, Italy), Ligetta & Solida Srl (Alezio, Italy), Vivai Caputo Sas di Carbone R. & F. Ss (San Donaci, Italy), Perrone Cosimo (Leverano, Italy), Durante Giuseppina (Leverano, Italy), Società Agricola CO.VI.SER Srl (Arnesano, Italy), Miggiano Antonio (Sanarica, Italy), Castrignano’ Antonio (Sanarica, Italy), Stincone Giorgio (Sanarica, Italy), Zecca Fabio (Leverano, Italy), Società Agricola Florsilva Srl (Copertino, Italy) (represented by: G. Manelli, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should annul Implementing Decision No 2015/789/EU of 18 May 2015, published in the OJEU on 21 May 2015.

Pleas in law and main arguments

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

Infringement of essential procedural requirements, complete failure to give reasons, clear irrationality and infringement of the principle of proportionality.

The applicants claim that:

—

The European Commission, despite acknowledging a series of studies carried out in Europe, has not taken into account their results and therefore does not allow for assessment of the suitability of the measures applied. Nor has the Commission explained why it decided to adopt a list of more than 180 specified plants which, though capable in the abstract of hosting Xylella fastidiosa, are not found in the province of Lecce. Furthermore, the Commission has not explained why it decided to list in Annex 1 over 180 species, including plants susceptible to ‘non-European’ isolates, which are clearly of no relevance to the territory in question.

—	The European Commission has not made clear why it considered it necessary to apply an indiscriminate ban on movement of the plants referred to in Annex 1 and remove at EU level the option of using alternative measures which could address the risk of spreading.

—

The European Commission has not expressly indicated what EU provision might justify the adoption of the implementing decision. Nor has it explained why it has deviated from the principle of subsidiarity, in a situation where the Member State not only has competence but has used its powers in that respect. It has not explained why the decision should be considered proportionate to the objective pursued, nor has it made a comparison or expressly weighed up the interests at stake.

Infringement of essential procedural requirements from another perspective, complete failure to give reasons, clear irrationality and infringement of the principle of proportionality

—

According to the applicants, it is not clear what scientific assumptions serve as the basis for the prohibition on moving specified plants once they have been declared pathogen-free following the appropriate scientific analysis. Nor is it clear why a plant which has spent part of its growth cycle outside screen-house systems may not be introduced into other systems to complete its life cycle, in order that it may subsequently be offered for sale.

Infringement of Articles 5(3) and (4) of the Treaty and the legal rules governing its application, infringement of the principle of subsidiarity and infringement of the principle of proportionality.

According to the applicants:

—

The EU decision is unlawful with specific reference to Article 6, entitled ‘Eradication measures’. The provision is incongruous and disproportionate since it applies to healthy plants or only to plants suspected of infection within a hundred metre radius of the site of the infected plant. That restriction makes no sense from a scientific point of view and, in particular, is disproportionate to the intended objective.

—

The EU decision is also unlawful with specific reference to Article 9, entitled ‘Movement of specified plants within the Union’, since it imposes an indiscriminate and unjustified ban on movement irrespective of the plant’s health status. This is all the more serious in view of the fact that the ban in question applies both outside the demarcated area and inside it.

—	The contested decision infringes the principles of proportionality and subsidiarity.

—

The EU decision is also unlawful with specific reference to Article 9(2)(d)(f) and (h) since, by way of derogation from paragraph 1, it requires a 200 m buffer zone around the site where the plants are grown and lays down a series of requirements for that zone. That derogation is clearly impracticable since the buffer zone around the growing site may be outside the control of nurseries, in all cases where that zone forms part of the property of third parties.

5.10.2015

Official Journal of the European Union

C 328/24

Action brought on 4 August 2015 — Amrita and Others v Commission

(Case T-439/15)

(2015/C 328/23)

Language of the case: Italian

Parties

Applicants: Soc. coop. Amrita arl (Scorrano, Italy), Cesi Marta (Alliste, Italy), Comune Agricola Lunella — Soc. Mutua Coop Agricola (Galatone, Italy), Mustich Loredana Faustina (Lequile, Italy), Rollo Olga (Lecce, Italy), Borrello Claudia (Salve, Italy), Società agricola Merico Maria Rosa di Consiglia, Marta e Vito Lisi (Miggiano, Italy), Marzo Luigi (Specchia, Italy), Azienda Agricola Piccapane di Pellegrino Giuseppe (Castrignano del Capo, Italy), Azienda Agricola Le Lame di Russo Antonello e Russo Gianluigi Ss (Cutrofiano, Italy), Lanzieri Ivana (Ugento, Italy), Stendardo Giovanni (Presicce, Italy), Stasi Anna Maria (Castrignano del Capo, Italy), Azienda Agricola Crie di Miggiano Gianluigi (Muro Leccese, Italy), Castriota Maria Grazia (Galatone, Italy), Gabrieli Tommasi Emanuele (Calimera, Italy), Azienda Agricola di Canioni Fiorella (Melendugno, Italy), Azienda Agricola Spirdo Ss agricola (Ruffano, Italy), Coppola Silvia (Guagnano, Italy), Fondazione le Costantine (Uggiano la Chiesa, Italy), Impresa Agricola Stefania Stamerra (Lecce, Italy), Azienda Agricola Clemente Pezzuto di Pezzuto Francesco (Trepuzzi, Italy), Cooperativa Sociale Terrarossa (Tricase, Italy), Vaglio Irene (Tricase, Italy), Simone Cosimo Antonio (Morciano di Leuca, Italy), Azienda Agrituristica ‘Gli Ulivi’ di Baglivo Cesaria (Tricase, Italy), Preite Osvaldo (Taurisano, Italy), Masseria Alti Pareti Società Agricola arl (Maglie, Italy), Società Agricola Li Matonni Sas di Sammarco Ascanio & C. (Erchie, Italy) (represented by: L. Paccione and V. Stamerra, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should annul Commission Implementing Decision No 789 of 18 May 2015, published in the Official Journal of the European Union No 125/36 of 21 May 2015, entitled ‘Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Well and Raju)’, if necessary after disapplying Council Directive No 29 of 8 May 2000 published in the Official Journal of the European Union No 169 of 10 July 2000, with all the legal consequences thus arising as to costs and jurisdiction.

Pleas in law and main arguments

The decision contested in the present proceedings is the same as that contested in Cases T-436/15, Consorzio Vivaisti viticoli pugliesi and Negro v Commission, and T-437/15, Eden Green Vivai Piante di Verdesca Giuseppe and Others v Commission.

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

First plea in law, alleging (i) that Directive 2000/29 is unlawful in so far as it infringes Article 48 TEU in connection with Article 3 TFEU and Article 5 TEU, (ii) lack of competence and (iii) breach of the principle of cooperation in good faith.

—	In that respect, the applicants claim that the Directive confers on the Union exclusive powers which are not recognised by the Treaties.

Second plea in law, alleging that Directive 2000/29 is unlawful on the grounds of lack of competence and infringement of Article 5 TEU in relation to the principles of cooperation in good faith and subsidiarity.

—	The applicants maintain in that regard that the Directive confers on the Commission the power, which is not recognised by the Treaties, to repeal measures adopted by the Member State concerning the regulation of plant health requirements.

3.	Third plea in law, alleging that Commission Decision 2015/789 is unlawful on the ground that Directive 2000/29, on which it is based is unlawful, as referred to in the above paragraphs 1 and 2.

4.	Fourth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 6 TEU in connection with the principle of effective judicial protection, which has already been granted to the applicants by the Italian administrative courts.

Fifth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 5 TEU in connection with the principles of cooperation in good faith and subsidiarity in the absence of any justification whatsoever concerning the key point regarding potentially inadequate action to combat the bacterium Xylella fastidiosa by the Member State.

Sixth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 5 TEU, in relation to the principle of proportionality and the precautionary principle.

—	It is submitted in this connection that the prescriptive content of the contested decision appears excessive in relation to the stated objectives.

7.	Seventh plea in law, alleging that Commission Decision 2015/789 is unlawful in its own right in so far as it infringes ISPM No 9 in connection with Article 5 TEU and Protocol (No 2) TFEU concerning the application of the principle of proportionality and the precautionary principle.

Eighth plea in law, alleging that Commission Decision 2015/789 is unlawful in its own right to the extent that it infringes Article 5 TEU and the principle of proportionality laid down therein by referring to the entire province of Lecce as an ‘infected zone’ and an area approximately 10 km north of that province as a ‘buffer zone’. The contested measure also infringes essential procedural requirements of decisions on the grounds of failure to investigate and to give reasons. It is also vitiated by incorrect and unjustified assumptions.

9.	Ninth plea in law, alleging that Decision 2015/789 is unlawful in its own right 2015/789 in so far as it infringes Article 5 TUE and on the grounds of lack of competence, given that it was for the Italian state alone to identify and determine the extent of any infected zone.

10.

Tenth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 5 TUE and on the grounds of lack of competence in so far as it imposes a prohibition on planting host plants in the ‘infected zone’, and breach of Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms in so far as it turns the contested measure into an uncodified restriction of the applicants’ rights in rem over agricultural land in their possession.

11.

Eleventh plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Articles 11 and 191 TFUE, the precautionary principle and Article 5 TEU in in connection with Directive 2001/42, since the measure concerning the uprooting of infected and healthy plants within a 100 m radius and the requirement for compulsory plant-health treatments to eradicate the insect vector, involves environmental harm and changes to the landscape of Salento in the absence of a Strategic Environmental Assessment and an assessment of risks to the environment and human health.

12.

Twelfth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 11 TFEU, Article 191 TFEU and Directive No 43/1992, since the measures adopted do not include evaluation of the risks that uprooting, eradication and plant-protection products may entail in parts of the territory enjoying special protection under EU law since they have been identified as Special Protection Areas, natural parks and Sites of Community Interest.

13.

Thirteenth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes the European Landscape Convention signed in Florence on 20 October 2000 and Articles 191 and 11 TFEU, in connection with Directive No 43/1992.

—

The applicants maintain in that regard that the EU measure requires olive trees to be uprooted indiscriminately and the administration of chemical pesticides which are strictly banned in organic farming, with the de facto result of destroying the businesses of the applicants, who have been practising organic olive cultivation for years.

14.

Fourteenth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 and Articles 11 and 191 TFEU, including in connection with Directive 2009/128/EC, and on the ground of infringement of the principle of proportionality and essential procedural requirements.

—

The applicants submit in that connection that the EU decision requires them to administer chemical substances which are not authorised in organic farming and also to uproot plants which are only suspected of infection. It is argued that those measures are at odds with the scientific opinion of the European Food Safety Agency and are based on an assumption that there is a causal link between rapid desiccation of olive trees and the bacterium Xylella, which to date has not been established.

15.

Fifteenth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as the European Commission, instead of adopting provisional risk management measures to ensure a high level of health protection, took a purely hypothetical approach to the risk, which the Court of Justice has expressly ruled out.

16.

Sixteenth plea in law, alleging that Decision 2015/789 is unlawful in its own right in so far as it infringes Article 5 TEU with regard to infringement of essential procedural requirements and the principle of proportionality.

—	The applicants maintain in that regard that the use of pesticides and the eradication measure, which were deemed by EFSA to be ineffective and impractical, are not necessary for the purpose laid down by EU law in Directive 2000/29/CE, thereby infringing the principle of proportionality.

5.10.2015

Official Journal of the European Union

C 328/26

Action brought on 31 July 2015 — European Dynamics Luxembourg and Others v European Medicines Agency

(Case T-441/15)

(2015/C 328/24)

Language of the case: Greek

Parties

Defendant: European Medicines Agency

Form of order sought

The applicants claim that the General Court should:

—

annul the decision of the European Medicines Agency (ΕMA) which was notified to the applicants by means of an e-mail of 04/06/2015 from the IT Resource Manager, whereby the EMA rejected two of the candidates whom the applicants had proposed in relation to Request Form for Services No SC001 in the context of the ΕΜΑ/2012/10/ICT framework-agreement;·

—

order the EMA to pay compensation to the applicants for the loss of opportunity to conclude individual Project Manager contracts under Request Form for Services No SC001, which the applicants estimate ex aequo et bono at eight thousand euros (EUR 8 000), with interest from the date of delivery of the judgment or such other sum as the General Court deems appropriate, and

—	order the EMA to pay all the costs of the applicants.

Pleas in law and main arguments

In the opinion of the applicants, the contested decision should be annulled under Article 263 TFEU, because it is in breach of the principle of proportionality which governs public procurement. More specifically, the contested decision rejected the applicants’ candidates due to the absence of certification in the PRINCE2 methodology, a criterion which is neither appropriate nor necessary and is therefore in breach of the principle of proportionality in public procurement.

Accordingly, the EMA committed a clear infringement of a specific rule of law (Article 102(1) of the Financial Regulation) which confers rights on individuals, and caused harm to the applicants, since they lost the opportunity to conclude individual Project Manager contracts, and consequently the conditions for the payment of compensation to the applicants are satisfied.

5.10.2015

Official Journal of the European Union

C 328/27

Action brought on 6 August 2015 — EEB v Commission

(Case T-448/15)

(2015/C 328/25)

Language of the case: English

Parties

Applicant: European Environmental Bureau (EEB) (Brussels, Belgium) (represented by: B. Kloostra, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

declare the Commission to be in violation of the Regulation (EC) No 1367/2006 and the Aarhus Convention namely:

Articles 1(1)(a), 3 and 6(1) of Regulation (EC) No 1367/2006 (1) for failure to interpret these provisions in accordance with Article 4(1), (3) and (4) of the Aarhus Convention and/or to directly apply Article 4(1), (3) and (4) of the Aarhus Convention to environmental information, as Articles 3 and 6(1) of Regulation (EC) No 1367/2006 are incompatible with Article 4(1), (3) and (4) of the Aarhus Convention and illegally extend the grounds of refusal of Article 4(3) of Regulation (EC) No 1049/2001 (2) to environmental information;

Article 6(1) of Regulation (EC) No 1367/2006 for failure to interpret and apply the grounds of refusal of Article 4(3) of Regulation (EC) No 1049/2001 in a restrictive way and/or to take into account the public interest in disclosure of environmental information and/or the take into account that the information at issue relates to emissions into the environment;

—

declare the Commission in violation of Regulation (EC) No 1049/2001 namely:

a.	Article 4(3) of Regulation (EC) No 1049/2001 by not providing detailed reasons for refusing access to the documents concerned;

b.	Article 4(3) of Regulation (EC) No 1049/2001 by applying the first paragraph of this provision to documents related to a finalised decision-making process;

c.	Article 4(3) of Regulation (EC) No 1049/2001 for failure to assess in a sufficient way whether there was an overriding public interest in disclosure;

d.	Articles 6(3), 7(1) and (3) and 8(1) and (2) of Regulation (EC) No 1049/2001 for not undertaking any efforts to confer informally with a view to finding a fair solution and for not taking a decision within the prescribed time-limits;

—

condemn the EU as represented by the Commission to repair any damage suffered by the EEB, including interest, as a result of the EEB not having timely access to the requested documents, which were not disclosed by the Commission in accordance with the time-limits prescribed in Articles 7(1) and (3) and 8(1) and (2) of Regulation (EC) No 1049/2001, to an amount to be determined by the General Court, but not lower than 1 Euro;

—	annul the Contested Commission Decision of 1 June 2015; and

—	order the Commission to pay the costs, including the costs of intervening parties annul the Contested Commission Decision of 1 June 2015.

Pleas in law and main arguments

In support of the action, the applicant relies on on the following arguments and pleas in law regarding violation by the Commission of Regulations (EC) No 1367/2006 and 1049/2001 and of the Aarhus Convention (3):

First plea in law, alleging a violation of Articles 1(1)(a), 3 and 6(1) of Regulation (EC) No 1367/2006 and/or Articles 4(1), (3) and (4) of the Aarhus Convention.

—	The requested information qualifies as environmental information under the Aarhus Convention and under Articles 2(d)(iii), 3 and 6(1) of Regulation (EC) No 1367/2006;

—	Articles 3 and 6(1) of Regulation (EC) No 1367/2006 are incompatible with Article 4(3) and (4) of the Aarhus Convention and illegally extend the grounds of refusal of Article 4(3) of Regulation (EC) No 1049/2001 to environmental information;

—	The Commission violated Article 6(1) of Regulation (EC) No 1367/2006 regarding the restrictive interpretation of exceptions to the main rule of disclosure, regarding the obligation of the balancing of interests and regarding the ‘emissions rule’.

Second plea in law, alleging a violation of Article 4(3) of Regulation (EC) No 1049/2001.

—	The ground of refusal of Article 4(3), first paragraph, of Regulation (EC) No 1049/2001 does not apply to the documents requested;

—	Disclosure of the documents requested does not seriously undermine the Commission’s decision-making process;

—	Violation of Article 4(3) of Regulation (EC) No 1049/2001 where the Commission did not correctly balance the interests protected by non-disclosure against the public interest served with the disclosure of the documents concerned.

3.	Third plea in law, alleging a violation of Article 7(1) and (3) and Article 8(1) and (2) of Regulation (EC) No 1049/2001.

4.	Fourth plea in law, in relation to the action for damages under Article 340 TFEU, alleging the violation by the Commission of Article 7(1) and (3) and Article 8(1) and (2) of Regulation (EC) No 1049/2001.

(1) Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, OJ L 264 of 25.9.2006, p. 13.

(2) Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145 of 31.5.2001, p. 43.

(3) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, the Aarhus Convention, OJ L 124 of 17.5.2005, p. 1.

5.10.2015

Official Journal of the European Union

C 328/31

Action brought on 10 August 2015 — Automobile Club di Brescia v OHIM — Rebel Media (e-miglia)

(Case T-458/15)

(2015/C 328/28)

Language in which the application was lodged: Italian

Parties

Applicant: Automobile Club di Brescia (Brescia, Italy) (represented by: F. Celluprica and F. Fischetti, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: Rebel Media Ltd (Wilmslow, United Kingdom)

Details of the proceedings before OHIM

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: Community figurative mark containing the word elements ‘e-miglia’ — Application for registration No 9 782 673

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of OHIM of 9 June 2015 in Case R 1990/2014-5

Form of order sought

The applicant claims that the Court should:

—	annul only paragraphs 3 and 4 of the contested decision;

—	confirm the decision of the Opposition Division of OHIM of 30 May 2014 concerning opposition No B 1 900 540 in its entirety, except for the part relating to compensation of expenses;

—	order the other party to pay the costs, including the costs of all proceedings before OHIM.

Plea in law

—	Infringement of Article 8(1)(b) of Regulation No 207/2009.

5.10.2015

Official Journal of the European Union

C 328/32

Action brought on 10 August 2015 — Guccio Gucci v OHIM — Guess? IP Holder (Representation of interlaced signs)

(Case T-461/15)

(2015/C 328/29)

Language in which the application was lodged: English

Parties

Applicant: Guccio Gucci SpA (Florence, Italy) (represented by: P. Roncaglia, F. Rossi and N. Parrotta, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: Guess? IP Holder LP (Los Angeles, United States)

Details of the proceedings before OHIM

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

Trade mark at issue: Figurative mark (Representation of interlaced signs) — Community trade mark No 5 538 012

Procedure before OHIM: Proceedings for a declaration of invalidity

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 27 May 2015 in Case R 2049/2014-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order OHIM to pay the costs incurred by the applicant during these proceedings;

—	order Guess? IP Holder L.P. to pay the costs incurred by the applicant in the proceedings before both the OHIM Cancellation Division and the Board of Appeal.

Pleas in law

—	Infringement of Article 75 of Regulation No 207/2009;

—	Infringement of Article 8(1)(b) of Regulation No 207/2009;

—	Infringement of Article 8(5) of Regulation No 207/2009.

5.10.2015

Official Journal of the European Union

C 328/34

Action brought on 17 August 2015 — GGP Italy v Commission

(Case T-474/15)

(2015/C 328/31)

Language of the case: Italian

Parties

Applicant: Global Garden Products Italy SpA (GGP Italy) (Castelfranco Veneto, Italy) (represented by: A. Villani, L. D’Amario and M. Caccialanza, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul Commission Implementing Decision (EU) 2015/902, made on 10 June 2015 and published in the Official Journal of the European Union on 12 June 2015;

—	adopt any further measures deemed appropriate;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The present action is for the annulment of Commission Implementing Decision (EU) 2015/902 of 10 June 2015 (OJ 2015 L 147, p. 22), in which the Commission held that a restrictive measure adopted by Latvia, pursuant to Article 11 of Directive 2006/42/EC of the European Parliament and of the Council, concerning a lawnmower produced by the applicant, was justified.

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

First plea in law, alleging infringement of Article 20 of Directive 2006/42/EC, which states that any restrictive measure taken pursuant to that directive must ‘state the exact grounds on which it is based’ and ‘be notified as soon as possible to the party concerned, who shall at the same time be informed of the legal remedies available to him under the laws in force in the Member State concerned and of the time limits to which such remedies are subject’.

—

In that regard, the applicant complains that, since it was never notified of the restrictive measure adopted against it by the Latvian authorities, the contested decision regarded as justified a measure seriously prejudicial to its rights of the defence, as it was adopted at the end of a procedure which was not properly carried out and which was vitiated by serious irregularities, in particular formal ones.

Second plea in law, alleging infringement of the rules of Directive 2006/42/EC governing obligations to comply with essential safety requirements (Article 5(1)), the free movement of machinery (Article 6(1)), the presumption of conformity with harmonised standards (Article 7) and the safeguard procedure which may be adopted by each Member State (Article 11).

—

In that regard, the applicant asserts that the Commission wrongly regarded the restrictive measure adopted by Latvia as justified. The Latvian authorities contested the alleged non-compliance of the Stiga Collector 35 EL C350 297 352 654/S13 lawnmower with the health and safety requirements listed in Annex I to Directive 2006/42/EC by reason of the fact that that machine did not comply with harmonised standard EN 60335-2-77:2010. However, at the time when the machine in question was produced and marketed by the applicant, the more developed standard EN 60335-2-77:2010 had not yet become binding as the only standard capable of giving rise to a presumption of compliance with health and safety requirements, insofar as, during the transition period established by the standard itself, the previous standard EN 60335-2-77:2006 (with which the machine in question was compliant) also remained applicable.

5.10.2015

Official Journal of the European Union

C 328/35

Action brought on 12 August 2015 — L’Oréal v OHIm — LR Health & Beauty Systems (LR)

(Case T-475/15)

(2015/C 328/32)

Language in which the application was lodged: English

Parties

Applicant: L’Oréal (Paris, France) (represented by: R. Dissmann, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Other party to the proceedings before the Board of Appeal: LR Health & Beauty Systems GmbH (Ahlen, Germany)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word elements ‘LR’ — Community trade mark No 11 047 578

Procedure before OHIM: Proceedings for a declaration of invalidity

Contested decision: Decision of the First Board of Appeal of OHIM of 21 May 2015 in Case R 1143/2014-1

Form of order sought

The applicant claims that the Court should:

—	partly annul the contested decision as far as the Board of Appeal rejects under point 2 the Plaintiff’s request for proof of use of the Intervener’s earlier trademarks as belated;

—	order OHIM to pay the costs of the proceedings before the court as well as the appeal proceedings before the Board of Appeal.

Plea in law

—	Infringement of Article 57(2), (3) of Regulation No 207/2009 in connection with Rule 40 of Regulation No 2868/95.

5.10.2015

Official Journal of the European Union

C 328/37

Action brought on 18 August 2015 — ZZ v F4E

(Case F-117/15)

(2015/C 328/36)

Language of the case: Spanish

Parties

Applicant: ZZ (represented by: A. Asmaryan Degtyareva, lawyer)

Defendant: European Joint Undertaking for ITER and the Development of Fusion Energy (F4E)

Subject-matter and description of the proceedings

Annul and declare void the decision of the European Joint Undertaking for ITER and the Development of Fusion Energy not to place the applicant on the reserve list of selection procedure F4E/CA/STIFGIV/2015/001 and annul the appointments of the candidates selected for the vacant posts.

Form of order sought

The applicant claims that the Civil Service Tribunal should:

—	declare void selection procedure F4E/CA/STIFGIV/2015/001 of Fusion for Energy for the posts of Cost control support officer;

—	declare void the reserve list drawn up by the defendant as a result of that selection procedure;

—	declare void the appointment of the candidates selected for the vacant posts and the taking of office by the candidates proposed by the Selection Committee and selected by the Director of Fusion for Energy;

—	declare that the defendant should organise a new selection procedure for candidates for the vacant posts of Cost control support officer;

—	declare that the new selection procedure for Cost control support officers should include a written test and be organised immediately in order to select new candidates;

—	declare unfair and void the defendant’s failure to organise a written test, contrary to what was indicated in the Guide for Applicants;

—

order any measures that the Tribunal deems appropriate in order to repeat the selection procedure in accordance with the rules established in the Vacancy Notice published on 5 February 2015 and those set out in the Guide for Applicants contained in that notice, the organisation of an oral test and a written test being obligatory;

—	order the defendant, Fusion for Energy, to pay the costs of the present proceedings.

		ISSN 1977-091X
Official Journal of the European Union		C 328

English edition	Information and Notices	Volume 58 5 October 2015

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	Court of Justice of the European Union
2015/C 328/01	Last publications of the Court of Justice of the European Union in the Official Journal of the European Union	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2015/C 328/02	Case C-320/15: Action brought on 26 June 2015 — European Commission v Hellenic Republic	2
2015/C 328/03	Case C-340/15: Request for a preliminary ruling from the Bundesfinanzgericht (Austria) lodged on 7 July 2015 — Christine Nigl and Others	3
2015/C 328/04	Case C-365/15: Request for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 14 July 2015 — Wortmann KG Internationale Schuhproduktionen v Hauptzollamt Bielefeld	5
2015/C 328/05	Case C-408/15 P: Appeal brought on 24 July 2015 by Ackermann Saatzucht GmbH & Co.KG, Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, Deutsche Saatveredelung AG, Ernst Benary, Samenzucht GmbH, Freiherr Von Moreau Saatzucht GmbH, Hybro Saatzucht GmbH & Co. KG, Klemm + Sohn GmbH & Co. KG, KWS Saat AG, Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, Nordsaat Saatzuchts GmbH, Peter Franck-Oberaspach, P. H. Petersen Saatzucht Lundsgaard GmbH, Saatzucht Streng — Engelen GmbH & Co. KG, Saka Pflanzenzucht GmbH & Co. KG, Strube Research GmbH & Co. KG, Gartenbau und Spezialkulturen Westhoff GbR, W. von Borries-Eckendorf GmbH & Co. KG against the order of the General Court (Fifth Chamber) delivered on 18 May 2015 in Case T-559/14: Ackermann Saatzucht GmbH & Co. KG and others v European Parliament, Council of the European Union	5
2015/C 328/06	Case C-409/15 P: Appeal brought on 24 July 2015 by ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV against the order of the General Court (Fifth Chamber) delivered on 18 May 2015 in Case T-560/14: ABZ Aardbeien Uit Zaad Holding BV and others v European Parliament, Council of the European Union	7
	General Court
2015/C 328/07	Case T-106/15: Order of the General Court of 16 July 2015 — Opko Ireland Global Holdings v OHIM — Teva Pharmaceutical Industries (ALPHAREN) (Community trade mark — Opposition proceedings — Revocation of the contested decision by OHIM — No need to adjudicate)	9
2015/C 328/08	Case T-326/15: Action brought on 22 June 2015 — DIMA Verwaltungs v OHIM (Shape of a container)	9
2015/C 328/09	Case T-352/15: Action brought on 29 June 2015 — DEI v Commission	10
2015/C 328/10	Case T-354/15: Action brought on 2 July 2015 — Allergopharma v Commission	11
2015/C 328/11	Case T-383/15: Action brought on 14 July 2015 — DIMA Verwaltungs v OHIM (Shape of a container)	12
2015/C 328/12	Case T-392/15: Action brought on 17 July 2015 — European Dynamics Luxembourg and Others v European Railway Agency	13
2015/C 328/13	Case T-411/15: Action brought on 28 July 2015 — Gappol Marzena Porczyńska v OHIM — GAP (ITM) (GAPPoL)	14
2015/C 328/14	Case T-422/15: Action brought on 28 July 2015 — U-R LAB/OHIM (THE DINING EXPERIENCE)	15
2015/C 328/15	Case T-423/15: Action brought on 28 July 2015 — U-R LAB/OHIM (THE DINING EXPERIENCE)	16
2015/C 328/16	Case T-425/15: Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)	16
2015/C 328/17	Case T-426/15: Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)	17
2015/C 328/18	Case T-428/15: Action brought on 30 July 2015 — Schräder v CPVO — Hansson (SUMOST-02)	18
2015/C 328/19	Case T-434/15: Action brought on 27 July 2015 — Islamic Republic of Iran Shipping Lines a.o./Council	19
2015/C 328/20	Case T-435/15: Action brought on 29 July 2015 — Kolachi Raj Industrial/Commission	19
2015/C 328/21	Case T-436/15: Action brought on 4 August 2015 — Consorzio Vivaisti viticoli pugliesi and Negro v Commission	20
2015/C 328/22	Case T-437/15: Action brought on 4 August 2015 — Eden Green Vivai Piante di Verdesca Giuseppe and Others v Commission	22
2015/C 328/23	Case T-439/15: Action brought on 4 August 2015 — Amrita and Others v Commission	24
2015/C 328/24	Case T-441/15: Action brought on 31 July 2015 — European Dynamics Luxembourg and Others v European Medicines Agency	26
2015/C 328/25	Case T-448/15: Action brought on 6 August 2015 — EEB v Commission	27
2015/C 328/26	Case T-456/15: Action brought on 10 August 2015 — Foodcare v OHIM — Michalczewski (T.G.R. ENERGY DRINK)	29
2015/C 328/27	Case T-457/15: Action brought on 11 August 2015 — Fakro v OHIM — Saint Gobain Cristalería (climaVera)	30
2015/C 328/28	Case T-458/15: Action brought on 10 August 2015 — Automobile Club di Brescia v OHIM — Rebel Media (e-miglia)	31
2015/C 328/29	Case T-461/15: Action brought on 10 August 2015 — Guccio Gucci v OHIM — Guess? IP Holder (Representation of interlaced signs)	32
2015/C 328/30	Case T-473/15: Action brought on 14 August 2015 — Capella v OHIM — Abus (APUS)	33
2015/C 328/31	Case T-474/15: Action brought on 17 August 2015 — GGP Italy v Commission	34
2015/C 328/32	Case T-475/15: Action brought on 12 August 2015 — L’Oréal v OHIm — LR Health & Beauty Systems (LR)	35
	European Union Civil Service Tribunal
2015/C 328/33	Case F-109/15: Action brought on 28 July 2015 — ZZ v Parliament	36
2015/C 328/34	Case F-110/15: Action brought on 29 July 2015 — ZZ v Commission	36
2015/C 328/35	Case F-116/15: Action brought on 17 August 2015 — ZZ v OHIM	37
2015/C 328/36	Case F-117/15: Action brought on 18 August 2015 — ZZ v F4E	37