7.8.2017   

EN

Official Journal of the European Union

C 256/1

7.8.2017   

EN

Official Journal of the European Union

C 256/2

(1)

Is there a ‘production of hydrogen’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU (1) only in the case where an H2 hydrogen molecule is produced by chemical synthesis from two H hydrogen atoms, or does the concept of production also include the process whereby, in the case of a hydrogenous gas mixture, the relative share of H2 hydrogen in that mixture is increased — without synthesis — by removal of the other gas components — whether by physical or chemical means — in order to obtain a ‘product … expressed as saleable (net) production and to 100 % purity of the substance concerned’ within the meaning of Annex I, Part 2, to Decision 2011/278/EU?

(2)

If the answer to Question 1 is that the concept of production does not include the process of increasing the relative share of H2 hydrogen in a gas mixture, the following further question must be asked:

Must the wording ‘relevant process elements directly or indirectly linked to the production of hydrogen and the separation of hydrogen and carbon monoxide’ be interpreted as meaning that only both elements together (‘and’) are covered by the system boundaries of the product benchmark for hydrogen described in Annex I, Part 2, to Commission Decision 2011/278/EU of 27 April 2011, or can the process element ‘separation of hydrogen and carbon monoxide’ also operate in isolation within the system boundaries as an independent process element in its own right?

(3)

If the answer to Question 2 is that the process element ‘separation of hydrogen and carbon monoxide’ can also operate in isolation within the system boundaries as an independent process element in its own right, the following further question must be asked:

Is the process element ‘separation of hydrogen and carbon monoxide’ present only where H2 hydrogen is separated exclusively from CO carbon monoxide, or is the process element ‘separation of hydrogen and carbon monoxide’ also present where that process involves the separation of hydrogen not only from carbon monoxide but also from other substances, such as CO2 carbon dioxide or CnHn?

(4)

In the event that the applicant is to be recognised by judicial decision as being entitled to an additional allocation of free emission allowances, must paragraph 3 of the operative part of the judgment of the European Court of Justice of 28 April 2014 in Case C-191/14 be interpreted as meaning that:

7.8.2017   

EN

Official Journal of the European Union

C 256/3

1.

With regard to the interpretation of the opportunity to examine all the terms of a contract, referred to in the twentieth recital of Directive 93/13, and the requirement that that contract be drafted in plain, intelligible language, laid down in Articles 4(2) and 5 of the same directive, are the relevant contractual terms to be regarded as not being unfair in the case where the consumer is not given an opportunity to examine the amount of any essential element of the loan agreement (the subject matter of the agreement, that is to say the loan amount, the repayment instalments and the interest on the transaction) until after the agreement has been concluded (not because this is objectively necessary but pursuant to a stipulation to that effect which has been laid down by the seller or supplier in the standard terms and conditions of contract and has not been individually negotiated), by means of a declaration of intent by the seller or supplier which is unilateral (notwithstanding that it states that it forms part of the agreement) and legally binding on the consumer?

2.

With regard to the interpretation of the opportunity to examine all the terms of a contract, referred to in the twentieth recital of Directive 93/13, and the requirement that that contract be drafted in plain, intelligible language, laid down in Articles 4(2) and 5 of the same directive, are the relevant contractual terms to be regarded as not being unfair in the case where the loan agreement communicates any essential element thereof (the subject matter of the agreement, that is to say the loan amount, the repayment instalments and the interest on the transaction) only by use of the expression ‘for information purposes’, without making it clear whether or not the part communicated for information purposes is legally binding or capable of forming the basis of rights and obligations?

3.

With regard to the interpretation of the opportunity to examine all the terms of a contract, referred to in the twentieth recital of Directive 93/13, and the requirement that that contract be drafted in plain, intelligible language, laid down in Articles 4(2) and 5 of the same directive, are the relevant contractual terms to be regarded as not being unfair in the case where the loan agreement defines any essential element by using incorrect terminology, in particular where, in a foreign-exchange-based loan agreement (in which the credit provided for in the loan agreement is determined and recorded in a foreign currency (‘the credit currency’) and the obligation to pay that credit is fulfilled in the national currency (‘the fulfilment currency’)),

4.

With regard to the interpretation of the opportunity to examine all the terms of a contract, referred to in the twentieth recital of Directive 93/13, and the requirement that that contract be drafted in plain, intelligible language, laid down in Articles 4(2) and 5 of the same directive, are the relevant contractual terms to be regarded as not being unfair in the case where, in a foreign-exchange-based loan agreement (not because this is objectively necessary but pursuant to a stipulation to this effect which has been laid down by the seller or supplier in the standard terms and conditions of contract and has not been not been individually negotiated), the [elements forming the] subject matter of the agreement, that is to say the loan amount and repayment instalments,

7.8.2017   

EN

Official Journal of the European Union

C 256/6

1.

What is the date from which the limitation period of four years provided for in the first subparagraph of Article 3(1) (1) [of Regulation No 2988/95] starts to run for instantaneous infringements (not continuous or repeated)?

2.

In the case of an infringement that is not continuous or repeated, are the rules applicable according to which ‘in the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated’?

3.

Does the rule laid down in Article 3, according to which the ‘limitation shall become effective at the latest on the day on which a period equal to twice the limitation period expires without the competent authority having imposed a penalty’ also apply in the case of a multiannual programme, that is to say, does the period referred to here also run until the termination of the multiannual programme?

4.

Which of the following is the meaning of the expression ‘In the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated’:

7.8.2017   

EN

Official Journal of the European Union

C 256/6

1.

Does Directive 2010/18/EU (1) preclude an interpretation of Article 37.4 ET (leave of absence of an hour every day until the child reaches nine months of age) to the effect that, regardless of the sex of either parent, such leave is not be granted to the person applying for it if the other parent is unemployed?

2.

Does Article 3 of Directive 2006/54/EC, (2) which seeks to guarantee full equality between men and women in their working lives, preclude an interpretation of the said Article 37.4 ET to the effect that, if the male parent is working, he has no entitlement to such leave if his wife and fellow parent is unemployed?

7.8.2017   

EN

Official Journal of the European Union

C 256/7

1)

Must Article 14(2) of Directive 97/67/EC (1) of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC (2) of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (the Postal Directive) be interpreted as meaning that it follows that national legislation must provide that universal service providers must, in their internal accounting, keep separate accounts for each of the services and products which are part of the universal service in order to be able to make a clear distinction between each of the services and products which are part of the universal service and services and products which are not part of such a service, or does it only follow from that provision that an accounting distinction must be made between, on the one hand, the services and products which are part of the universal service and, on the other hand, services and products which are not part of such a service?

2)

Must the introductory paragraph and second indent of Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services be interpreted as meaning that each individual service that is part of the universal service must be cost-oriented?

3)

Does the requirement laid down in the introductory paragraph and second indent of Article 12 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6 EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, that prices must be cost-oriented and give incentives for an efficient universal service provision preclude the adoption for an indefinite period of a fixed rate of return by which the costs of the universal postal services are increased having regard to tariff headroom?

7.8.2017   

EN

Official Journal of the European Union

C 256/8

1.

Given, in particular, that when the definition of the main subject matter of a contract is found to be unfair, the contract is consequently invalid in its entirety (and not merely in part), may a declaration that the term defining the main subject-matter of a loan agreement is invalid because of its unfairness (meaning that the consumer cannot be bound by that term) have as a consequence (for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law) that the legal characterisation of the contract, or its effects, changes such that, in particular, a foreign currency based loan agreement (in which the credit provided for in the loan agreement is determined and denominated in a foreign currency (‘the credit currency’) and the obligation to pay that credit is fulfilled in the national currency (‘the payment currency’)), must be regarded as a loan agreement denominated in Hungarian forints?

2.

Are the legal consequences entailed by the unfairness [of a term] a purely legal question, of an absolute nature, or may regard be had, in the assessment of those consequences, to

3.

For the purposes of Article 3(1), Article 4(2), Article 5 and Article 6(1) of Directive 93/13/EEC (1) (that is to say, for the purposes of assessing the unfairness and its legal effects), may the term imposing the currency risk on the consumer (that is to say the provision(s) of the contract governing the allocation of the risk) be composed of various terms?

4.

May Article 6(1) of Directive 93/13/EEC (according to which the unfair terms used in a contract concluded with a consumer by a seller or supplier are not binding on the consumer) be interpreted as meaning that a term (not a specific part of that term, but the term taken as a whole) may be either unfair in its entirety or both partly fair and partly unfair, with the result that it remains applicable in part and (for example, depending on the assessment of the court in a specific case) may be binding on the consumer to a certain extent (that is to say, that, as regards its effects, the term is unfair only to a certain extent in both cases), for example, through the application of a court decision, a particular legal consequence laid down by a provision of national law, a regulatory provision or a decision harmonising the law?

5.

6.

For the purposes of assessing the unfairness of a contractual term which allocates the currency risk to the consumer (a term used as a standard contractual term by the seller or supplier and which was not individually negotiated) and which was drafted in fulfilment of a legal obligation to provide information, necessarily of general application, how should the burden of proof be allocated between the consumer and the seller or supplier in order to assess whether the consumer actually had the opportunity, before the conclusion of the loan agreement, to become acquainted with the term in question to which he was irrevocably bound (Article 3(3) of Directive 93/13/EEC and point 1(i) of the annex)?

7.

Must it be considered that, in foreign currency based loan agreements — that is to say, for the purposes of transactions in relation to services whose price is linked to fluctuations in an exchange rate on the monetary markets — credit institutions which conclude agreements with a consumer using their own foreign currency exchange rates are sellers or suppliers who do not control the price fluctuations within the meaning of point 2(c) of the annex to Directive 93/13/EEC?

7.8.2017   

EN

Official Journal of the European Union

C 256/11

1.

Is Article 4(3) of Framework Decision 2002/584/JHA to be interpreted as meaning that the decision not to prosecute for an offence on which a European arrest warrant is based or to halt proceedings relates only to the offence on which the European arrest warrant is based or is that provision to be understood as meaning that the cessation or discontinuation of proceedings must also concern the requested person as the suspect/accused in those proceedings?

2.

May a Member State refuse, pursuant to Article 4(3) of Framework Decision 2002/584/JHA, to execute a European arrest warrant which has been issued when the judicial authority of the other Member State has decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings where the requested person had the status of a witness and not of a suspect/accused in the proceedings?

3.

Does the decision to terminate an investigation in which the requested person did not have the status of a suspect but was interviewed as a witness constitute, for the other Member States, a ground not to act on the European arrest warrant which has been issued in accordance with Article 3(2) of Framework Decision 2002/584/JHA?

4.

What is the link between the mandatory ground for refusal of surrender laid down in Article 3(2) of the Framework Decision, where ‘the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts’, and the optional ground for refusal of surrender laid down in Article 4(3) of the Framework Decision, where ‘a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings’?

5.

Is Article 1(2) of Framework Decision 2002/584/JHA to be interpreted as meaning that the executing State is required to adopt a decision on any European arrest warrant communicated to it, even where it has already taken a decision on a previous European arrest warrant issued by the other judicial authority against the same requested person in the same criminal proceedings and where the new European arrest warrant is issued because of a change in circumstances in the State issuing the European arrest warrant (decision to refer — initiation of criminal proceedings, stricter evidential criteria relating to the commission of the offence, new competent judicial authority/court)?

7.8.2017   

EN

Official Journal of the European Union

C 256/12

1.

Must Article 13(1) and (3) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 (1) be interpreted as prohibiting the use, on unit packets, outside packaging and tobacco products, of any brand name calling to mind certain qualities, however well-known it is?

2.

Depending on the interpretation to be given to Article 13(1) and (3) of the directive, do those provisions, in so far as they apply to names and trade marks, comply with the right to property, freedom of expression, the freedom to conduct a business and the principles of proportionality and legal certainty?

3.

If the preceding question is answered in the affirmative, under what conditions can a Member State, without infringing the right to property, freedom of expression, the freedom to conduct a business and the principle of proportionality, avail itself of the option open to it under Article 24(2) of the directive in order to require manufacturers and importers to have plain, standardised unit packets and outside packaging?

7.8.2017   

EN

Official Journal of the European Union

C 256/13

1.

Must Articles 2(1)(c), 64(1), 66(a) and 73 of Directive 2006/112/EC (1) be interpreted as meaning that a telecommunications operator (television, internet, mobile network and fixed network) is liable for value added tax as a result of charging its customers –– in a case of termination, for reasons attributable to the customer, of a contract containing an obligation to be bound by the contract for a defined term (tie-in period) before the end of that period –– a pre-determined amount, corresponding to the basic monthly amount payable by the customer under the contract, multiplied by the number of monthly payments that are still to be made before the end of the tie-in period, the operator having, at the time when that amount is invoiced and independently of its actual payment, already ceased to provide the services, where:

2.

Is the answer to the first question liable to change in the event that one or more of the situations described in points (a), (b) and (c) of that question does not apply?

7.8.2017   

EN

Official Journal of the European Union

C 256/14

1.

Is Article 3(1) of Council Regulation (EC) No 1346/2000 (1) of 29 May 2000 on insolvency proceedings to be interpreted as meaning that the jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened to hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive, or, in the case of Article 18(2) of that regulation, is the liquidator empowered to bring an action to set aside before a court in the Member State within the territory of which the defendant has his registered office or habitual residence, where the action to set aside brought by the liquidator is based on a disposal of moveable assets carried out in the other Member State?

2.

Is an obligation which was honoured for the benefit of the debtor in one Member State, via the managing director of an establishment of the debtor company registered in that Member State, deemed to have been discharged, in accordance with Article 24(2) in conjunction with Article 24(1) of Regulation No 1346/2000, where, at the time when that obligation was honoured, a request for the opening of insolvency proceedings in respect of the debtor’s assets had been made and a provisional liquidator had been appointed in another Member State, but no judgment opening insolvency proceedings had been delivered?

3.

Does Article 24(1) of Regulation No 1346/2000, on the honouring of an obligation, apply to the payment of a sum of money to the debtor, where the original transfer of that sum from the debtor to the person honouring the obligation is regarded as being invalid under the national law of the insolvency court and that invalidity follows from the opening of the insolvency proceedings?

4.

Does the presumption of a lack of awareness provided for in Article 24(2) of Regulation No 1346/2000 apply where the authorities referred to in the second sentence of Article 21(2) have not taken all necessary measures to ensure that the decisions by which the insolvency court appointed a provisional liquidator and ordered that disposals of assets effected by the company are to be valid only with the consent of the provisional liquidator are published in the register of the Member State within the territory of which the debtor has an establishment, where the Member State in which the establishment has its registered office provides for the mandatory publication of those decisions, even though it recognises them in accordance with Article 25 in conjunction with Article 16 of that regulation?

7.8.2017   

EN

Official Journal of the European Union

C 256/14

1.

Must an undertaking that offers live streaming of television programmes online be regarded, on the basis of that fact alone, as an undertaking providing an electronic communications network used for the distribution of radio or television broadcasts to the public within the meaning of Article 31(1) of Directive 2002/22/EC (1) of 7 March 2002?

2.

If the answer to the first question is in the negative, can a Member State, without infringing the Directive or other provisions of EU law, impose an obligation for the distribution of radio and television services on both undertakings providing electronic communications networks and on undertakings which, without providing such networks, offer live streaming of television programmes online?

3.

If the answer to the second question is in the affirmative, it is open to the Member States not to make the ‘must carry’ obligation, on the part of service distributors not providing electronic communications networks, subject to all the conditions laid down in Article 31(1) of Directive 2002/22/EC of 7 March 2002, even though the fulfilment of those conditions is required on the part of network operators under the Directive?

4.

Can a Member State imposing a ‘must carry’ obligation for the transmission of certain radio or television services on certain networks impose, without infringing the directive, an acceptance requirement for the distribution of those services on those networks, including distribution online, where the service in question already distributes its own programmes online?

5.

With regard to distribution online, must the condition requiring a significant number of end-users of networks subject to the ‘must carry’ obligation to use them as their principal means of receiving radio and television broadcasts, set out in Article 31(1) of Directive 2002/22 EC, be assessed in relation to all users viewing television programmes streamed live online, or only in relation to users of the site subject to the ‘must carry’ obligation?

7.8.2017   

EN

Official Journal of the European Union

C 256/15

1.

Is there a breach of the principles of fiscal neutrality and effectiveness of the common system of value added tax under the provisions of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax if, in a case such as that in the main proceedings, VAT is levied twice on the same supply, once under the general rules, by the supplier showing the tax in the sales invoice, and a second time, by the customer being charged by means of a tax adjustment notice according to the reverse charge mechanism, and if in practice the right to deduct input VAT is refused and national law makes no provision for the VAT shown in the supplier’s invoice to be rectified following the conclusion of the tax audit procedure?

7.8.2017   

EN

Official Journal of the European Union

C 256/16

1.

Are national legislation and case-law consistent with Article 14 of Directive 2014/41/EU (1) regarding the European Investigation Order in criminal matters, in so far as they preclude a challenge, either directly as an appeal against a court decision or indirectly by means of a separate claim for damages, to the substantive grounds of a court decision issuing a European investigation order for a search on residential and business premises and the seizure of specific items, and allowing examination of a witness?

2.

Does Article 14(2) of the directive grant, in an immediate and direct manner, to a concerned party the right to challenge a court decision issuing a European investigation order, even where such a procedural step is not provided for by national law?

3.

Is the person against whom a criminal charge was brought, in the light of Article 14(2) in connection with Article 6(1)(a) and Article 1(4) of the directive, a concerned party, within the meaning of Article 14(4), if the measures for collection of evidence are directed at third party?

4.

Is the person who occupies the property in which the search and seizure was carried out or the person who is to be examined as a witness a concerned party within the meaning of Article 14(4) in connection with Article 14(2) of the directive?

7.8.2017   

EN

Official Journal of the European Union

C 256/16

1.

Is Article 21 of Directive 2011/83/EU (1) of the European Parliament and of the Council of 25 October 2011 to be interpreted as meaning that a trader can make available a telephone number for which a higher rate than the normal rate applies if the trader, in addition to the telephone number at a higher rate, also offers consumers, in a comprehensible and easily accessible way, a landline number at the normal rate for the purposes of contacting him in relation to a contract concluded?

2.

If the answer to Question 1 is in the affirmative, does Article 21 of Directive 2011/83/EU preclude a situation in which a consumer who voluntarily uses a telephone number with a higher rate for contacting a trader in relation to a concluded contract, despite the provision by the trader of a telephone number at the normal rate in a comprehensible and easily accessible manner, is obliged to pay the higher rate for contacting the trader?

3.

If the answer to Question 1 is in the affirmative, does the limitation in Article 21 of Directive 2011/83 oblige the trader, together with the speed dial number, everywhere also to present a landline number at the normal rate and information on the differences in price?

7.8.2017   

EN

Official Journal of the European Union

C 256/17

7.8.2017   

EN

Official Journal of the European Union

C 256/18

—

set aside the judgment of the General Court of 24 March 2017 in Case T-117/15 in so far as it dismissed the action of the Republic of Estonia of 4 March 2015 as inadmissible;

—

remit the claims made in Estonia’s action of 4 March 2015 to the General Court for decision;

—

order the defendant to pay the costs.

1.

The General Court infringed EU law by finding that the judgments in Pimix, (1) Czech Republic v Commission  (2) and Lithuania v Commission  (3) could not be treated as substantial new facts within the meaning of the case-law and therefore declaring inadmissible the action brought by the Republic of Estonia on 4 March 2015 for the annulment of the decision contained in the European Commission’s letter of 22 December 2014 (Ares(2014)4324235).

2.

Secondly, in paragraphs 13 and 84 its judgment of 24 March 2017, the General Court wrongly stated as the date of publication in the Official Journal of the European Union of Regulation No 60/2004 (4) in Estonian 4 July 2004 instead of the actual date 4 July 2005. The General Court thereby reached, on the basis of wrong factual elements, a conclusion concerning the possibility of charging operators the levy on the non-elimination of excess sugar stocks solely on the basis of national law.

3.

Thirdly, the General Court infringed the obligation to state reasons. More precisely, the General Court did not deal with the obligation to declare excess stocks of sugar as at 1 May 2004, so that the General Court’s conclusion that the failure to publish Regulation No 60/2004 in the Official Journal in Estonian in due time did not prevent the Republic of Estonia from relying on national law to charge operators the levy on the non-elimination of excess sugar stocks is not comprehensible.

7.8.2017   

EN

Official Journal of the European Union

C 256/19

1.

Dismisses the action;

2.

Orders Deutsche Post AG to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/19

1.

Dismisses the action;

2.

Orders Industrie Aeronautiche Reggiane to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/20

1.

Dismisses the action;

2.

Orders Flamagas, SA to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/21

1.

Dismisses the action;

2.

Orders Tillotts Pharma AG to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/21

1.

Dismisses the action;

2.

Orders City Train GmbH to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/22

1.

Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 November 2015 (Case R 1814/2014-1);

2.

Orders EUIPO to pay the costs of M/S. Indeutsch International;

3.

Orders Crafts Americana Group, Inc. to pay its own costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/22

1)

Dismisses the appeal;

2)

Orders Nicole Clarke, Sigrid Dickmanns and Elisavet Papathanasiou to bear their own costs and pay those incurred by the European Intellectual Property Office (EUIPO) in the present appeal.

7.8.2017   

EN

Official Journal of the European Union

C 256/23

1.

Annuls the decision of the Commission of 28 January 2016 imposing the administrative penalty of exclusion of NC from procurement and grant award procedures financed from the general budget of the European Union for a period of 18 months and consequently registering it in the Early Detection and Exclusion System database provided for in Article 108 (1) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002;

2.

Orders the European Commission to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/24

1.

Dismisses the action;

2.

Orders GP Joule PV GmbH & Co. KG to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/24

1.

Dismisses the action;

2.

Orders Biogena Naturprodukte GmbH & Co. KG to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/25

1.

Dismisses the action;

2.

Orders Mr Ernst Kneidinger to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/26

1.

Dismisses the action;

2.

Orders Aldi Einkauf GmbH & Co. OHG to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/26

1.

Dismisses the action;

2.

Orders Mr Carlos Javier Jiménez Gasalla to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/27

1.

Dismisses the action;

2.

Orders Rare Hospitality International, Inc. to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/27

1.

The action is dismissed.

2.

MS is ordered to pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/28

1.

The action is dismissed as inadmissible.

2.

Ms Laure Camerin shall pay the costs.

7.8.2017   

EN

Official Journal of the European Union

C 256/28

1.

There is no longer any need to adjudicate in the present case.

2.

The European Commission shall bear its own costs and pay those incurred by Elevolution — Engenharia SA.

7.8.2017   

EN

Official Journal of the European Union

C 256/29

—

annul the Commission’s State aid decision of 19 September 2016 in case SA.41539 (2016/N) — Lithuania, Investment aid for high-efficiency cogeneration power plant in Vilnius, UAB Vilniaus kogeneracinė jėgainė Viniaus Kogeneracinee Jeqaine — C(2016) 5943final;

—

order the defendant to pay the costs.

1.

First plea in law, alleging that the Commission decision constitutes a manifest error of assessment as it is based on insufficient, incomplete, insignificant and inconsistent evidence

2.

Second plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it does not respect the individual notification and assessment necessary for large-scale aid and assumes the contribution to an objective of common interest

3.

Third plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it will result in a circumvention of the waste hierarchy in Lithuania

4.

Fourth plea in law, alleging that the Commission decision infringes Article 107 TFEU where it concludes that there would be the need for State intervention in the form of State aid.

5.

Fifth plea in law, alleging that the Commission decision infringes Article 107 TFEU where it concludes the aid to be proportionate.

6.

Sixth plea in law, alleging that the Commission decision infringes Article 107 TFEU in concluding that the State aid would have an incentive effect.

7.

Seventh plea in law, alleging that the Commission decision infringes Article 107 TFEU in that it misjudges the impact on competition in the Vilnius heat market.

7.8.2017   

EN

Official Journal of the European Union

C 256/30

—

partially annul Directive 2014/40/EU, Article 10 and Annex II (‘picture library’), mainly with reference to image 5 in ‘Set 1’ of the WARNING section;

—

in the alternative, partially amend Directive 2014/40, Article 10 and Annex II approved by the European Commission, in view of the absence of any reference whatsoever on cigarette packets to an information link or to a ‘disclaimer’ concerning the photographs which appear on cigarette packets, and include on all cigarette packets within the EU a warning concerning the images which appear on those packets, with reference in particular to a link via which information can be read about the images which appear on such packets in order to dispel any doubts;

—

amend the ways in which consent is obtained from the persons who appear on those cigarette packets in such a way that the persons who will appear on cigarette packets consent to the publication of their real name and personal medical data so that there can be no confusion and in order that any other source of uncertainty can be avoided with regard to the persons who appear on those cigarette packets, and ensure that personal and medical data form an integral part of the link that persons who wish to know the identity/medical history of the subjects who appear on cigarette packets may consult;

—

order both institutions, in conjunction with the European Commission, to submit a copy of the consent consistent with the original provided by the person who appears in the series of images, number 5, set 1, without withholding personal data, and the images corresponding to the consent given, in order to make it possible to draw up an expert criminal report on the photographs;

—

order the defendants to pay the sum of EUR 1 000 000 as compensation for the non-material damage quantified on the basis of the suffering caused by the publication of such images a relatively short period after the death of the applicants’ father and for the anguish occasioned by the withholding of information that could have clarified the situation of the man shown on the cigarette packets in such a way that the family’s anguish would have lasted a much shorter length of time.

7.8.2017   

EN

Official Journal of the European Union

C 256/31

—

annul the defendant’s award decision disclosed to the applicants on 16 March 2017 regarding the tender filed by the applicants in response to the open procurement procedure (reference 2016-MIBO_IPA_PPI-002) by which they were informed that their bid had not been ranked as the most economically advantageous tender;

—

order the defendant to pay the applicants exemplary damages reaching the amount of EUR 100 000 (one hundred thousand Euros); and

—

order the defendant to pay the applicants’ legal fees and other costs and expenses incurred in connection with this application, even if the current application is rejected.

7.8.2017   

EN

Official Journal of the European Union

C 256/32

—

primarily, annul in full, on the basis of Article 263 TFEU, European Commission Decision C(2017) 1742 final of 17 March 2017 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport, Case COMP.39258 — Airfreight, insofar as it concerns Air France-KLM, as well as the grounds supporting its operative part, on the basis of the applicant’s first plea in law;

—

in the alternative, should the General Court not order the annulment in full of Decision C(2017) 1742 final on the basis of the first plea in law:

—

in the further alternative, should the General Court not order the annulment of Decision C(2017) 1742 on the basis of the second, third or fourth pleas in law:

—

in the even further alternative, should the General Court not order the annulment of Decision C(2017) 1742 on the basis of the fifth plea in law:

—

in any event, order the European Commission to pay all of the costs.

1.

First plea in law, alleging that the responsibility for the practices of Air France and KLM was incorrectly attributed to Air France-KLM. This plea is divided into two parts:

2.

Second plea in law, alleging infringement of the 2002 Leniency Notice and of the principles of legitimate expectations, equal treatment and non-discrimination between Air France-KLM and Lufthansa affecting the admissibility of the evidence submitted in the context of Lufthansa’s application for immunity;

3.

Third plea in law, alleging breach of the duty to state reasons and infringement of the principles of equal treatment, non-discrimination and protection against arbitrary intervention on the part of the Commission as a result of the exclusion from the operative part of the decision of airlines which had been involved in the practices concerned. This plea comprises two parts:

4.

Fourth plea in law, alleging that the inclusion of the inbound EEA traffic in the single and continuous infringement is contrary to the rules imposing limits on the Commission’s territorial powers. This plea is divided into two parts:

5.

Fifth plea in law, alleging contradictory reasoning and a manifest error of assessment vitiating the finding that the refusal to pay commission to freight forwarders amounts to a separate aspect of the single and continuous infringement. This plea comprises two parts:

6.

Sixth plea in law, alleging an error in the sales values taken into account to calculate the fine imposed on Air France-KLM; this plea is divided into two parts:

7.

Seventh plea in law, alleging an erroneous assessment of the severity of the infringement; this plea comprises two parts:

8.

Eighth plea in law, alleging an error in the calculation of the duration of the infringement imputed to Air France and taken into account for the calculation of the fine imposed on Air France-KLM;

9.

Ninth plea in law, alleging a failure to state reasons and inadequacy of the 15 % reduction granted by the Commission in respect of the regulatory regimes.

7.8.2017   

EN

Official Journal of the European Union

C 256/34

—

annul decision C(2017) 2258 final of the European Commission, of 31 March 2017, relating to a proceeding pursuant to Article 18(3) and to Article 24(1)(d) of Council Regulation No 1/2003 in Case AT.39711 — Qualcomm (predation); and

—

order the European Commission to pay the costs.

1.

First plea in law, alleging that the contested decision infringes the principle of necessity

2.

Second plea in law, alleging that the contested decision infringes the principle of proportionality

3.

Third plea in law, alleging that the contested decision lacks adequate reasoning

The applicants put forward that in a number of instances, the contested decision provides unconvincing, unclear, vague and inadequate reasons which fail to justify the Commission’s over-reaching and unnecessary requests for information. According to the applicants, in other instances, the contested decision does not provide any reasons at all. The applicants thus claim that they cannot understand the reasons why the requested information is necessary for the Commission to conduct its investigation.

4.

Fourth plea in law, alleging that the war decision seeks to perpetrate an undue reversal burden of proof

The applicants put forward that the contested decision seeks to reverse the burden of proof and effectively ‘outsource’ to the applicants the building of a case against them. In particular, the contested decision requests that the applicants verify, on the Commission’s behalf, the applicants’ accounting data entries, even though such data has been diligently audited by external controllers. Similarly, so the applicants state, the contested decision asks the applicants to prove that it has conducted its business in accordance with the law.

5.

Fifth plea in law, alleging that the contested decision infringes the right to avoid self-incrimination

6.

Sixth plea in law, alleging that the contested decision infringes the principle of sound administration

According to the applicants, the timing of adoption, content and context of the contested decision raise serious concerns of mal-administration, prosecutorial basis, and harassment and they suggest that the Commission is abusing its broad investigatory powers in an attempt to conceal its failure to establish the alleged infringement after more than seven years of investigation.

7.8.2017   

EN

Official Journal of the European Union

C 256/36

—

annul the contested decision and thus declare invalid the contested mark;

—

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

—

order the proprietor to pay the costs incurred by the applicant during these proceedings.

—

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

—

Infringement of Article 75 of Regulation No 207/2009 and of the principle of legal certainty.

7.8.2017   

EN

Official Journal of the European Union

C 256/37

—

annul the contested decision and thus refuse registration to the contested mark;

—

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

—

order Fulia to pay the costs incurred by the applicant during these proceedings.

—

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

—

Infringement of Article 75 of Regulation No 207/2009 and of the principle of legal certainty.

7.8.2017   

EN

Official Journal of the European Union

C 256/37

—

annul in part the decision of the Fourth Board of Appeal of EUIPO of 29 March 2017 in Case R 1141/2016-4, specifically, in so far as its confirms the decision of the Cancellation Division of EUIPO of 29 April 2016, in the cancellation proceedings No 10 786 C declaring invalid EU trade mark No 010931087 ‘Cuervo y Sobrinos LA HABANA 1882’ for goods registered for that mark in Classes 14 and 16;

—

order the defendant to bear the costs of the present proceedings, as well as all those incurred to date in the earlier proceedings before the Opposition Division and the Fourth Board of Appeal of EUIPO that have led to the present application.

—

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

7.8.2017   

EN

Official Journal of the European Union

C 256/38

—

annul the contested decision;

—

remit the trade mark application to the Office for registration to proceed;

—

order EUIPO to pay the costs, including the costs of proceedings before the Board of Appeal.

—

Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.

7.8.2017   

EN

Official Journal of the European Union

C 256/39

—

annul the contested decision.

—

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

7.8.2017   

EN

Official Journal of the European Union

C 256/39

—

set aside the Decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (Trade Marks and designs) (‘EUIPO’) of 23 March 2017 in the appeal No R 415/2015-5 concerning the opposition proceedings No B 002 256 702 regarding European Union Trade Mark Application No 011 623 097, which was received by the applicant on 12 April 2017, and to amend it to the effect that the opposition is rejected in its entirety;

—

order the defendant and, as the case may be, the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings, including the costs of the appeal proceedings.

—

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

7.8.2017   

EN

Official Journal of the European Union

C 256/40

—

annul the contested decision.

—

Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.

7.8.2017   

EN

Official Journal of the European Union

C 256/40

—

annul the contested decision;

—

order EUIPO to pay the costs.

—

Infringement of Article 7(1)(b) of Regulation No 207/2009.

7.8.2017   

EN

Official Journal of the European Union

C 256/41

7.8.2017   

EN

Official Journal of the European Union

C 256/41

7.8.2017   

EN

Official Journal of the European Union

C 256/41

7.8.2017   

EN

Official Journal of the European Union

C 256/42