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

(2019/C 187/01)

Last publication

OJ C 182, 27.5.2019

Past publications

OJ C 172, 20.5.2019

OJ C 164, 13.5.2019

OJ C 155, 6.5.2019

OJ C 148, 29.4.2019

OJ C 139, 15.4.2019

OJ C 131, 8.4.2019

These texts are available on:

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

Judgment of the Court (Grand Chamber) of 26 March 2019 — Kingdom of Spain v European Parliament

(Case C-377/16) (1)

(Actions for annulment - Rules on languages - Selection procedure for contract staff - Call for expressions of interest - Drivers - Function group I - Knowledge of languages - Restriction of the choice of language 2 of the selection procedure to English, French and German - Language of communication - Regulation No 1 - Staff Regulations - Conditions of Employment of Other Servants - Discrimination based on language - Justification - Interests of the service)

(2019/C 187/02)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M.J. García-Valdecasas Dorrego and M.A. Sampol Pucurull, Agents)

Defendant: European Parliament (represented by: D. Nessaf, C. Burgos and M. Rantala, Agents)

Operative part of the judgment

The Court:

1.	Annuls the Call for Expressions of Interest Contract Staff — Function Group I — Drivers (F/M) — EP/CAST/S/16/2016;

2.	Declares the database established pursuant to Call for Expressions of Interest Contract Staff — Function Group I — Drivers (F/M) — EP/CAST/S/16/2016 void;

3.	Orders the European Parliament to pay the costs

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(1)  OJ C 314, 29.8.2016.

Judgment of the Court (Third Chamber) of 28 March 2019 — Federal Republic of Germany v European Commission

(Case C-405/16 P) (1)

(Appeal - State aid - Aid granted by certain provisions of the amended German law concerning renewable energy sources (EEG 2012) - Aid supporting renewable electricity and reduced EEG surcharge for energy-intensive users - Decision declaring the aid partially incompatible with the internal market - Concept of State aid - Advantage - State resources - Public control of resources - Measure which can be assimilated to a levy on electricity consumption)

(2019/C 187/03)

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by T. Henze and R. Kanitz, acting as Agents, and by T. Lübbig, Rechtsanwalt)

Other party to the proceedings: European Commission (represented by K. Herrmann and T. Maxian Rusche, Agents)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 10 May 2016, Germany v Commission (T-47/15, EU:T:2016:281);

2.	Annuls Commission Decision (EU) 2015/1585 of 25 November 2014 in State aid proceedings SA. 33995 (2013/C) (ex 2013/NN) [implemented by Germany for the support of renewable electricity and energy-intensive users];

3.	Orders the European Commission to pay the costs relating to both the appeal proceedings and the proceedings at first instance.

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(1)  OJ C 326, 5.9.2016.

Judgment of the Court (Fourth Chamber) of 27 March 2019 — European Commission v Federal Republic of Germany

(Case C-620/16) (1)

(Failure of a Member State to fulfil obligations - Article 258 TFEU - Decision 2014/699/EU - Principle of sincere cooperation - Article 4(3) TEU - Admissibility - Effects of the conduct criticised on the expiry date of the time limit set in the reasoned opinion - Ongoing effects on the unity and consistency of the European Union’s international action - Sufficiency of the measures taken by the Member State concerned in order to comply with the reasoned opinion - Vote by the Federal Republic of Germany against the Union position laid down in Decision 2014/699/EU at the 25th session of the Intergovernmental Organisation for International Carriage by Rail (OTIF) Revision Committee and opposition expressed by that Member State against that position and the arrangements for the exercise of voting rights as defined in that decision)

(2019/C 187/04)

Language of the case: German

Parties

Applicant: European Commission (represented by: W. Mölls, L. Havas, J. Hottiaux and J. Norris-Usher, acting as Agents)

Defendant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

Intervener in support of the applicant: Council of the European Union (represented by: R. Liudvinaviciute-Cordeiro and J.-P. Hix, acting as Agents)

Operative part of the judgment

The Court:

1.

Declares that the Federal Republic of Germany, by having, at the 25th session of the Intergovernmental Organisation for International Carriage by Rail (OTIF) Revision Committee, voted against the position laid down in Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and the Appendices thereto, and having publicly opposed that position and the arrangements for the exercise of voting rights provided for therein, failed to fulfil its obligations under that decision and Article 4(3) TEU;

2.	Orders the Federal Republic of Germany to pay the costs;

3.	Orders the Council of the European Union to bear its own costs.

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(1)  OJ C 22, 22.1.2018.

Judgment of the Court (Grand Chamber) of 26 March 2019 — European Commission v Italian Republic, Republic of Lithuania

(Case C-621/16 P) (1)

(Appeal - Rules on languages - Open competition for the recruitment of administrators - Notice of competition - Administrators (AD 5) - Administrators (AD 6) in the field of data protection - Knowledge of languages - Restriction of the choice of language 2 of the competitions to English, French and German - Language of communication with the European Personnel Selection Office (EPSO) - Regulation No 1 - Staff Regulations - Discrimination based on language - Justification - Interests of the service - Judicial review)

(2019/C 187/05)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: L. Pignataro-Nolin and G. Gattinara, acting as Agents)

Other parties to the proceedings: Italian Republic (represented by: G. Palmieri, acting as Agent, and by P. Gentili, avvocato dello Stato), Republic of Lithuania

Intervener in support of the defendant: Kingdom of Spain (represented by: M.J. García-Valdecasas Dorrego, acting as Agent)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

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

3.	Orders the Kingdom of Spain to bear its own costs.

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(1)  OJ C 46, 13.2.2017.

Judgment of the Court (Fourth Chamber) of 27 March 2019 — Dr. August Wolff GmbH & Co. KG Arzneimittel, Remedia d.o.o. v European Commission

(Case C-680/16 P) (1)

(Appeal - Medicinal products for human use - Directive 2001/83/EC - Article 30(1) - Committee for Medicinal Products for Human Use - Referral of a matter to the committee subject to the absence of a previous national decision - Active substance estradiol - Decision of the European Commission ordering the Member States to revoke or vary marketing authorisations for medicinal products with 0.01% estradiol by weight for topical use)

(2019/C 187/06)

Language of the case: German

Parties

Appellants: Dr. August Wolff GmbH & Co. KG Arzneimittel, Remedia d.o.o. (represented by: P. Klappich and C. Schmidt, Rechtsanwälte)

Other party to the proceedings: European Commission (represented by: B.-R. Killmann and A. Sipos and by M. Šimerdová, Agents)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 20 October 2016, August Wolff and Remedia v Commission (T-672/14, not published, EU:T:2016:623);

2.

Annuls Commission Implementing Decision C(2014) 6030 final of 19 August 2014 concerning the marketing authorisations for high concentration of estradiol containing human medicinal products for topical use in the framework of Article 31 of Directive 2001/83/EC of the European Parliament and of the Council in so far as that decision directs the Member States to comply with the requirements which it stipulated for the medicinal products, for which Dr. August Wolff GmbH & Co. KG Arzneimittel and Remedia d.o.o. hold marketing authorisation, with 0.01% estradiol by weight for topical use referenced and non-referenced in Annex I thereto, excluding the restriction that the medicinal products with 0.01% estradiol by weight for topical use;

3.	Orders the European Commission to pay the costs of the proceedings at first instance and on appeal, with the exception of the proceedings for interim measures, which are to be borne by Dr. August Wolff GmbH & Co. KG Arzneimittel and Remedia d.o.o.

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(1)  OJ C 78, 13.3.2017.

Judgment of the Court (Grand Chamber) of 26 March 2019 (requests for a preliminary ruling from the Tribunal Supremo and the Juzgado de Primera Instancia no 1 de Barcelona — Spain) — Abanca Corporación Bancaria SA v Alberto García Salamanca Santos (C-70/17) and Bankia SA v Alfonso Antonio Lau Mendoza and Verónica Yuliana Rodríguez Ramírez (C-179/17)

(Joined Cases C-70/17 and C-179/17) (1)

(Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Articles 6 and 7 - Unfair terms in consumer contracts - Accelerated repayment clause of a mortgage loan contract - Declaration that the clause is unfair in part - Powers of the national court when dealing with a term regarded as ‘unfair’ - Replacement of the unfair term with a provision of national law)

(2019/C 187/07)

Language of the case: Spanish

Referring courts

Tribunal Supremo and Juzgado de Primera Instancia no 1 de Barcelona

Parties to the main proceedings

Appellant/Applicant: Abanca Corporación Bancaria SA (C-70/17) and Bankia SA (C-179/17)

Respondent/Defendants: Alberto García Salamanca Santos (C-70/17) and Alfonso Antonio Lau Mendoza and Verónica Yuliana Rodríguez Ramírez (C-179/17)

Operative part of the judgment

Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted, first, as precluding an accelerated repayment clause of a mortgage loan contract that has been found to be unfair from being maintained in part, with the elements which make it unfair removed, where the removal of those elements would be tantamount to revising the content of that clause by altering its substance, and, second, as not precluding the national court from compensating for the invalidity of such an unfair term by replacing that term with the new wording of the legislative provision on which it was based, which is applicable where the parties to the contract so agree, provided that the mortgage loan contract in question cannot continue in existence if that unfair term is removed, and that the annulment of the contract in its entirety would expose the consumer to particularly unfavourable consequences.

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(1)  OJ C 121, 18.4.2017.

OJ C 231, 17.7.2017.

Judgment of the Court (Fourth Chamber) of 21 March 2019 — European Commission v Republic of Poland

(Case C-127/17) (1)

(Failure of a Member State to fulfil obligations - Transport - Directive 96/53/EC - International traffic - Vehicles complying with the limit values for weights and dimensions laid down in that directive - Use of such vehicles, which were registered or put into circulation in one Member State, on the territory of another Member State - Special permit regime - Articles 3 and 7 - 2003 Act of Accession - Transitional arrangements - Point 8.3 of Annex XII)

(2019/C 187/08)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: J. Hottiaux and W. Mölls, acting as Agents)

Defendant: Republic of Poland (represented by: B. Majczyna, M. Kamejsza-Kozłowska and J. Sawicka, acting as Agents, and by J. Waszkiewicz, expert)

Operative part of the judgment

The Court:

1.

Declares that, by imposing on transport undertakings a requirement to be in possession of special permits in order to be able to circulate on certain public roads, the Republic of Poland has failed to fulfil its obligations under the combined provisions of Articles 3 and 7 of Council Directive 96/53/EC of 25 July 1996 laying down for certain road vehicles circulating within the Community the maximum authorised dimensions in national and international traffic and the maximum authorised weights in international traffic, as amended by Directive (EU) 2015/719 of the European Parliament and of the Council of 29 April 2015, read in conjunction with points 3.1 and 3.4 of Annex I to Directive 96/53;

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

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(1)  OJ C 151, 15.5.2017.

Judgment of the Court (Grand Chamber) of 19 March 2019 (request for a preliminary ruling from the Verwaltungsgerichtshof Baden-Württemberg — Germany) — Abubacarr Jawo v Bundesrepublik Deutschland

(Case C-163/17) (1)

(Reference for a preliminary ruling - Area of freedom, security and justice - Dublin system - Regulation (EU) No 604/2013 - Transfer of the asylum seeker to the Member State responsible for examining the application for international protection - Concept of ‘absconding’ - Modalities of extending the time limit for transfer - Article 4 of the Charter of Fundamental Rights of the European Union - Substantial risk of inhuman or degrading treatment on completion of the asylum procedure - Living conditions of beneficiaries of international protection in that Member State)

(2019/C 187/09)

Language of the case: German

Referring court

Verwaltungsgerichtshof Baden-Württemberg

Parties to the main proceedings

Applicant: Abubacarr Jawo

Defendant: Bundesrepublik Deutschland

Operative part of the judgment

1.

The second sentence of Article 29(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as meaning that an applicant ‘absconds’, within the meaning of that provision, where he deliberately evades the reach of the national authorities responsible for carrying out his transfer, in order to prevent the transfer. It may be assumed that that is the case where the transfer cannot be carried out due to the fact that the applicant has left the accommodation allocated to him without informing the competent national authorities of his absence, provided that he has been informed of his obligations in that regard, which it is for the referring court to determine. The applicant retains the possibility of demonstrating that the fact that he has not informed the authorities of his absence is due to valid reasons and not the intention to evade the reach of those authorities. Article 27(1) of Regulation No 604/2013 must be interpreted as meaning that, in proceedings brought against a transfer decision, the person concerned may rely on Article 29(2) of that regulation, by claiming that, since he had not absconded, the six-month transfer time limit had expired.

2.

The second sentence of Article 29(2) of Regulation No 604/2013 must be interpreted as meaning that, in order to extend the transfer time limit by a maximum of 18 months, it suffices that the requesting Member State informs the Member State responsible, before the expiry of the six-month transfer time limit, that the person concerned has absconded and specifies, at the same time, a new transfer time limit.

3.

EU law must be interpreted as meaning that the question whether Article 4 of the Charter of Fundamental Rights of the European Union precludes the transfer, pursuant to Article 29 of Regulation No 604/2013, of an applicant for international protection to the Member State which, in accordance with that regulation, is normally responsible for examining his application for international protection, where, in the event of such protection being granted in that Member State, the applicant would be exposed to a substantial risk of suffering inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights, on account of the living conditions that he could be expected to encounter as a beneficiary of international protection in that Member State, falls within its scope. Article 4 of the Charter of Fundamental Rights must be interpreted as not precluding such a transfer of an applicant for international protection, unless the court hearing an action challenging the transfer decision finds, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, that that risk is real for that applicant, on account of the fact that, should he be transferred, he would find himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty.

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(1)  OJ C 318, 25.9.2017.

Judgment of the Court (Fourth Chamber) of 27 March 2019 — Canadian Solar Emea GmbH and Others v Council of the European Union, European Commission

(Case C-236/17 P) (1)

(Appeal - Dumping - Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China - Definitive anti-dumping duty - Regulation (EC) No 1225/2009 - Article 3(7) - Article 9(4) - Temporal scope of Regulation (EU) No 1168/2012)

(2019/C 187/10)

Language of the case: English

Parties

Appellants: Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar Manufacturing (Luoyang) Inc., Csi Cells Co. Ltd, Csi Solar Power Group Co. Ltd, formerly Csi Solar Power (China) Inc. (represented by: J. Bourgeois and A. Willems, avocats, and by S. De Knop, M. Meulenbelt and B. Natens, advocaten)

Other parties to the proceedings: Council of the European Union (represented by: H. Marcos Fraile, acting as Agent, and by N. Tuominen, avocată), European Commission (represented by: N. Kuplewatzky, J.-F. Brakeland and T. Maxian Rusche, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeals;

2.	Orders Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar Manufacturing (Luoyang) Inc., Csi Cells Co. Ltd and Csi Solar Power Group Co. Ltd to pay the costs relating to the main appeal;

3.	Orders the European Commission to bear its own costs relating to the main appeal;

4.	Orders the Commission to pay the costs relating to the cross-appeal;

5.	Orders the Council of the European Union to bear its own costs relating to the cross-appeal.

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(1)  OJ C 239, 24.7.2017.

Judgment of the Court (Fourth Chamber) of 27 March 2019 — Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar Manufacturing (Luoyang) Inc., Csi Cells Co. Ltd, Csi Solar Power (China) Inc. v Council of the European Union, European Commission

(Case C-237/17 P) (1)

(Appeal - Subsidies - Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China - Definitive countervailing duty - Regulation (EC) No 597/2009)

(2019/C 187/11)

Language of the case: English

Parties

Appellants: Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar Manufacturing (Luoyang) Inc., Csi Cells Co. Ltd, Csi Solar Power Group Co. Ltd, formerly Csi Solar Power (China) Inc. (represented by: J. Bourgeois and A. Willems, avocats, and by S. De Knop and M. Meulenbelt, advocaten)

Other parties to the proceedings: Council of the European Union (represented by: H. Marcos Fraile, acting as Agent, and by N. Tuominen, avocată), European Commission (represented by: T. Maxian Rusche, J.-F. Brakeland and N. Kuplewatzky, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeals;

2.	Orders Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu) Inc., Canadian Solar Manufacturing (Luoyang) Inc., Csi Cells Co. Ltd and Csi Solar Power Group Co. Ltd to pay the costs relating to the main appeal;

3.	Orders the European Commission to bear its own costs relating to the main appeal;

4.	Orders the Commission to pay the costs relating to the cross-appeal;

5.	Orders the Council of the European Union to bear its own costs relating to the cross-appeal.

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(1)  OJ C 239, 24.7.2017.

Judgment of the Court (Fourth Chamber) of 21 March 2019 (requests for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Rhein-Sieg-Kreis (C-266/17), Rhenus Veniro GmbH & Co. KG (C-267/17) v Verkehrsbetrieb Hüttebräucker GmbH, BVR Busverkehr Rheinland GmbH (C-266/17), Kreis Heinsberg (C-267/17)

(Joined Cases C-266/17 and C 267/17) (1)

(Reference for a preliminary ruling - Transport - Public passenger transport services by rail and by road - Regulation (EC) No 1370/2007 - Article 5(1) and (2) - Direct award - Contracts for public passenger transport services by bus and tram - Conditions - Directive 2004/17/EC - Directive 2004/18/EC)

(2019/C 187/12)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

(Case C-266/17)

Applicant: Rhein-Sieg-Kreis

Defendants: Verkehrsbetrieb Hüttebräucker GmbH, BVR Busverkehr Rheinland GmbH

Intervener: Regionalverkehr Köln GmbH (C-266/17)

Case (C-267/17)

Applicant: Rhenus Veniro GmbH & Co. KG

Defendant: Kreis Heinsberg

Intervener: WestVerkehr GmbH (C-267/17)

Operative part of the judgment

Article 5(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road does not apply to the direct award of contracts for public passenger transport services by bus which do not take the form of service concessions contracts for the purposes of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

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(1)  OJ C 283, 28.8.2017.

OJ C 269, 14.8.2017.

Judgment of the Court (Grand Chamber) of 19 March 2019 (requests for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Bashar Ibrahim (C-297/17), Mahmud Ibrahim and Others (C-318/17), Nisreen Sharqawi, Yazan Fattayrji, Hosam Fattayrji (C-319/17) v Bundesrepublik Deutschland, Bundesrepublik Deutschland v Taus Magamadov (C-438/17)

(Joined Cases C-297/17, C-318/17, C-319/17 and C-438/17) (1)

(Reference for a preliminary ruling - Area of freedom, security and justice - Common procedures for granting and withdrawing international protection - Directive 2013/32/EU - Article 33(2)(a) - Rejection by the authorities of a Member State of an application for asylum as being inadmissible because of the prior granting of subsidiary protection in another Member State - Article 52 - Scope ratione temporis of that directive - Articles 4 and 18 of the Charter of Fundamental Rights of the European Union - Systemic flaws in the asylum procedure in that other Member State - Systematic rejection of applications for asylum - Substantial risk of suffering inhuman or degrading treatment - Living conditions of those granted subsidiary protection in that other State)

(2019/C 187/13)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Bashar Ibrahim (C-297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, Mohammad Ibrahim, Ahmad Ibrahim (C-318/17), Nisreen Sharqawi, Yazan Fattayrji, Hosam Fattayrji (C-319/17), Bundesrepublik Deutschland (C-438/17)

Defendants: Bundesrepublik Deutschland (C-297/17, C-318/17, C-319/17), Taus Magamadov (C-438/17)

Operative part of the judgment

1.

The first paragraph of Article 52 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as meaning that it permits a Member State to provide for the immediate application of the provision of national law transposing Article 33(2)(a) of that directive to applications for asylum on which no final decision has yet been made, which were lodged before 20 July 2015 and before the entry into force of that provision of national law. However, the first paragraph of Article 52 of that directive, read in the light of, inter alia, Article 33 thereof, precludes such an immediate application in a situation where both the application for asylum and the take back request were lodged before the entry into force of Directive 2013/32 and, in accordance with Article 49 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, still fall fully within the scope of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.

2.

In a situation such as that at issue in Cases C-297/17, C-318/17 and C-319/17, Article 33 of Directive 2013/32 must be interpreted as meaning that it is not a condition for Member States to be able to reject an application for asylum as being inadmissible under Article 33(2)(a) of the directive that they must, or must be able, to have recourse, as the first resort, to the take charge or take back procedures provided for by Regulation No 604/2013.

3.

Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising the option granted by that provision to reject an application for the grant of refugee status as being inadmissible on the ground that the applicant has been previously granted subsidiary protection by another Member State, where the living conditions that that applicant could be expected to encounter as the beneficiary of subsidiary protection in that other Member State would not expose him to a substantial risk of suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The fact that the beneficiaries of such subsidiary protection do not receive, in that Member State, any subsistence allowance, or that such allowance as they receive is markedly inferior to that in other Member States, though they are not treated differently from nationals of that Member State, can lead to the finding that that applicant would be exposed in that Member State to such a risk only if the consequence is that that applicant would, because of his or her particular vulnerability, irrespective of his or her wishes and personal choices, be in a situation of extreme material poverty. Article 33(2)(a) of Directive 2013/32 must be interpreted as not precluding a Member State from exercising that option, where the asylum procedure in the other Member State that has granted subsidiary protection to the applicant leads to a systematic refusal, without real examination, to grant refugee status to applicants for international protection who satisfy the conditions laid down in Chapters II and III of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

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(1)  OJ C 309, 18.9.2017.

OJ C 347, 16.10.2017.

Judgment of the Court (Fourth Chamber) of 21 March 2019 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — Mobit Soc. cons. arl v Regione Toscana (C-350/17), Autolinee Toscane SpA v Mobit Soc. cons. arl (C-351/17)

(Joined Cases C-350/17 and C-351/17) (1)

(Reference for a preliminary ruling - Regulation (EC) No 1370/2007 - Public passenger transport services by rail and by road - Article 5 - Award of public service contracts - Article 5(2) - Direct award - Concept of ‘internal operator’ - Authority exercising similar control - Article 8(2) - Transitional arrangements - Deadline for the expiry of the direct award)

(2019/C 187/14)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

(Case C-350/17)

Applicant: Mobit Soc. cons. arl

Defendant: Regione Toscana

Interveners: Autolinee Toscane SpA, Régie Autonome des Transports Parisiens (RATP) (C-350/17)

(Case C-351/17)

Applicant: Autolinee Toscane SpA

Defendant: Mobit Soc. cons. arl

Interveners: Regione Toscana, Régie Autonome des Transports Parisiens (RATP) (C-351/17)

Operative part of the judgment

Article 5 and Article 8(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 must be interpreted as meaning that Article 5 of Regulation No 1370/2007 is not applicable to an award procedure which has been carried out before 3 December 2019, so that a competent authority which awards, by an award decision closing a competitive tendering procedure, before that date, a public service concession contract for the provision of local passenger transport by road, is not required to comply with Article 5 of that regulation.

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(1)  OJ C 330, 2.10.2017.

Judgment of the Court (Tenth Chamber) of 28 March 2019 — European Commission v Ireland

(Case C-427/17) (1)

(Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Collection and treatment of urban waste water - Exceptional circumstances - Best technical knowledge not entailing excessive costs - Principle that the costs should be proportionate - Burden of proof - Means of proof)

(2019/C 187/15)

Language of the case: English

Parties

Applicant: European Commission (represented by: K. Mifsud-Bonnici and E. Manhaeve, Agents)

Defendant: Ireland (represented by: J. Quaney, M. Browne and A. Joyce, acting as Agents, S. Kingston, Barrister-at-Law, C. Toland, Senior Counsel, and B. Murray, Senior Counsel)

Operative part of the judgment

The Court:

1.

Declares that Ireland has failed to fulfil its obligations: — under Article 3(1) and (2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008, and section A and footnote 1 of Annex I thereto by not ensuring that the waters collected in a combined urban waste water and rainwater system are retained and conducted for treatment in compliance with the requirements of that directive, as amended, so far as concerns the agglomerations of Athlone, Cork City, Enniscorthy apart from the townland of Killagoley, Fermoy, Mallow, Midleton, Ringaskiddy and Roscommon Town; — under Article 4(1) and/or (3) of Directive 91/271 as amended by Regulation No 1137/2008, read in conjunction with Article 10 thereof and section B of Annex I thereto, by not putting in place secondary or equivalent treatment so far as concerns the agglomerations of Arklow, Athlone, Ballybofey/Stranorlar, Cobh, Cork City, Enfield, Enniscorthy, Fermoy, Killybegs, Mallow, Midleton, Passage/Monkstown, Rathcormac, Ringaskiddy, Ringsend, Roscommon Town, Shannon Town, Tubbercurry and Youghal; — under Article 5(2) and (3) of Directive 91/271 as amended by Regulation No 1137/2008, read in conjunction with Article 10 thereof and section B of Annex I thereto, by not ensuring that urban waste water entering collecting systems from the agglomerations of Athlone, Cork City, Dundalk, Enniscorthy apart from the townland of Killagoley, Fermoy, Killarney, Killybegs, Longford, Mallow, Midleton, Navan, Nenagh, Portarlington, Ringsend, Roscrea and Tralee be, before discharge into sensitive areas, made subject to treatment more stringent than that described in Article 4 of that directive, as amended, and in accordance with the requirements of section B of Annex I thereto; and — under Article 12 of Directive 91/271, as amended by Regulation No 1137/2008, by not ensuring that the disposal of waste water from urban waste water treatment plants of the agglomerations of Arklow and Castlebridge is subject to prior regulations and/or specific authorisation;

2.	Dismisses the action as to the remainder;

3.	Orders Ireland to pay the costs.

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(1)  OJ C 293, 4.9.2017.

Judgment of the Court (Fourth Chamber) of 21 March 2019 (request for a preliminary ruling from the High Court of Justice (Chancery Division) — United Kingdom) — Abraxis Bioscience LLC v Comptroller General of Patents

(Case C-443/17) (1)

(Reference for a preliminary ruling - Medicinal product for human use - Supplementary protection certificate for medicinal products - Regulation (EC) No 469/2009 - Article 3(d) - Conditions for granting - Grant of first authorisation to place the product on the market as a medicinal product - Authorisation covering a product as a medicinal product constituting a new formulation of a known active ingredient)

(2019/C 187/16)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: Abraxis Bioscience LLC

Defendant: Comptroller General of Patents

Operative part of the judgment

Article 3(d) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, read in conjunction with Article 1(b) of that regulation, must be interpreted as meaning that the marketing authorisation referred to in Article 3(b) of that regulation, relied on in support of an application for a supplementary protection certificate concerning a new formulation of an old active ingredient, cannot be regarded as being the first marketing authorisation for the product concerned as a medicinal product in the case where that active ingredient has already been the subject of a marketing authorisation as an active ingredient.

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(1)  OJ C 309, 18.9.2017.

Judgment of the Court (Grand Chamber) of 19 March 2019 (request for a preliminary ruling from the Cour de cassation — France) — Préfet des Pyrénées-Orientales v Abdelaziz Arib, Procureur de la République près le tribunal de grande instance de Montpellier, Procureur général près la cour d’appel de Montpellier

(Case C-444/17) (1)

(Reference for a preliminary ruling - Area of freedom, security and justice - Border control, asylum and immigration - Regulation (EU) 2016/399 - Article 32 - Temporary reintroduction of border control by a Member State at its internal borders - Illegal entry of a third-country national - Equation of internal borders with external borders - Directive 2008/115/EC - Scope - Article 2(2)(a))

(2019/C 187/17)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Préfet des Pyrénées-Orientales

Defendants: Abdelaziz Arib, Procureur de la République près le tribunal de grande instance de Montpellier, Procureur général près la cour d’appel de Montpellier

Operative part of the judgment

Article 2(2)(a) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 32 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as not applying to the situation of an illegally staying third-country national who was apprehended in the immediate vicinity of an internal border of a Member State, even where that Member State has reintroduced border control at that border, pursuant to Article 25 of the regulation, on account of a serious threat to public policy or internal security in that Member State.

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(1)  OJ C 330, 2.10.2017.

Judgment of the Court (Third Chamber) of 21 March 2019 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Falck Rettungsdienste GmbH, Falck A/S v Stadt Solingen

(Case C-465/17) (1)

(Reference for a preliminary ruling - Public procurement - Directive 2014/24/EU - Article 10(h) - Specific exclusions for service contracts - Civil defence, civil protection and danger prevention services - Non-profit organisations or associations - Patient transport ambulance services - Transport by qualified ambulance)

(2019/C 187/18)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Applicants: Falck Rettungsdienste GmbH, Falck A/S

Defendant: Stadt Solingen

Operative part of the judgment

1.

Article 10(h) of Directive 2014/24/EU, of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, must be interpreted as meaning that the exclusion from the application of the public procurement rules that it lays down, covers the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic, covered by CPV [Common Procurement Vocabulary] code 75252000-7 (rescue services) and transport by qualified ambulance, which comprises, in addition to the provision of transport, the care of patients in an ambulance by a paramedic assisted by a medical assistant, covered by CPV code 85143000-3 (ambulance services), provided that, as regards transport by qualified ambulance, it is in fact undertaken by personnel properly trained in first aid and, second, it is provided to a patient whose state of health is at risk of deterioration during that transport.

2.

Article 10(h) of Directive 2014/24 must be interpreted as meaning, first, that it precludes public aid associations recognised in national law as civil protection and defence associations from being regarded as ‘non-profit organisations or associations’, within the meaning of that provision, in so far as, under national law, recognition as having public aid association status is not subject to not having a profit-making purpose and, second, that organisations or associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organisation or association constitute ‘non-profit organisations or associations’ within the meaning of that provision.

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(1)  OJ C 330, 2.10.2017.

Judgment of the Court (Tenth Chamber) of 28 March 2019 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Alfonso Verlezza and Others

(Joined Cases C-487/17 to C 489/17) (1)

(Reference for a preliminary ruling - Environment - Directive 2008/98/EC and Decision 2000/532/EC - Waste - Classification as hazardous waste - Waste which may be assigned codes for both hazardous waste and non-hazardous waste)

(2019/C 187/19)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main criminal proceedings against

Alfonso Verlezza, Riccardo Traversa, Irene Cocco, Francesco Rando, Carmelina Scaglione, Francesco Rizzi, Antonio Giuliano, Enrico Giuliano, Refecta Srl, E. Giovi Srl, Vetreco Srl, SE.IN Srl

Operative part of the judgment

1.

Annex III to Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, as amended by Commission Regulation (EU) No 1357/2014 of 18 December 2014, and the Annex to Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, as amended by Commission Decision 2014/955/EU of 18 December 2014, must be interpreted to the effect that a holder of waste which may be classified under either hazardous waste codes or non-hazardous waste codes, but the composition of which is not immediately known, must, in view of that classification, determine that composition and ascertain the hazardous substances which may reasonably be found in that waste in order to establish whether that waste has hazardous properties and may, for that purpose, use the sampling, chemical analyses and tests provided for in Commission Regulation (EC) No 440/2008 of 30 May 2008 laying down test methods pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), or any other internationally recognised sampling, chemical analysis or test.

2.

The precautionary principle must be interpreted to the effect that where, following an assessment of the risks, which is as complete as possible having regard to the particular circumstances of the case, it is impossible, in practical terms, for a holder of waste which may be classified under either hazardous waste codes or non-hazardous waste codes to determine the presence of hazardous substances or to assess the hazardous property of that waste, it must be classified as hazardous waste.

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(1)  OJ C 374, 6.11.2017.

Judgment of the Court (Fifth Chamber) of 21 March 2019 — European Commission v Italian Republic

(Case C-498/17) (1)

(Failure of a Member State to fulfil obligations - Directive 1999/31/EC - Article 14(b) and (c) - Landfill of waste - Existing landfill sites - Infringement)

(2019/C 187/20)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: G. Gattinara, F. Thiran and E. Sanfrutos Cano, acting as Agents)

Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and G. Palatiello, avvocato dello Stato)

Operative part of the judgment

The Court:

1.

Declares that, by having failed to adopt, with regard to the landfill sites of Avigliano (area of Serre Le Brecce), Ferrandina (area of Venita), Genzano di Lucania (area of Matinella), Latronico (area of Torre), Lauria (area of Carpineto), Maratea (area of Montescuro), Moliterno (area of Tempa La Guarella), both landfill sites of Potenza (area of Montegrosso-Pallareta), the landfill sites of Rapolla (area of Albero in Piano), Roccanova (area of Serre), Sant’Angelo Le Fratte (area of Farisi), Campotosto (area of Reperduso), Capistrello (area of Trasolero), Francavilla (Valle Anzuca), L’Aquila (area of Ponte delle Grotte), Andria (D’Oria G. & C. Snc), Canosa (CO.BE.MA), Bisceglie (CO.GE.SER), Andria (F.lli Acquaviva), Trani (BAT-Igea Srl), Torviscosa (Caffaro (undertaking)), Atella (area of Cafaro), Corleto Perticara (area of Tempa Masone), Marsico Nuovo (area of Galaino), Matera (area of La Martella), Pescopagano (area of Domacchia), Rionero in Volture (area of Ventaruolo), Salandra (area of Piano del Governo), San Mauro Forte (area of Priati), Senise (area of Palomabara), Tito (area of Aia dei Monaci), Tito (area of Valle del Forno), Capestrano (area of Tirassegno), Castellalto (area of Colle Coccu), Castelvecchio Calvisio (area of Termine), Corfinio (area of Cannucce), Corfinio (area of Case querceto), Mosciano S. Angelo (area of Santa Assunta), S. Omero (area of Ficcadenti), Montecorvino Pugliano (area of Parapoti), San Bartolomeo in Galdo (area of Serra Pastore), Trivigano (formerly Cava Zof) and Torviscosa (area of La Valletta), all the measures necessary in order that, as soon as possible, in accordance with Article 7(g) and Article 13 of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, those landfill sites in the above list which have not obtained, in accordance with Article 8 of that directive, a permit to continue to operate, may be closed, or by failing to adopt the measures necessary to bring those landfill sites which have obtained a permit to continue to operate into line with that directive, without prejudice to the conditions laid down in Annex I, point 1, to that directive, the Italian Republic has failed to fulfil its obligations under Article 14(b) and (c) of Directive 1999/31;

2.	Orders the Italian Republic to pay the costs.

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(1)  OJ C 338, 9.10.2017.

Judgment of the Court (Fourth Chamber) of 27 March 2019 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Mariusz Pawlak v Prezes Kasy Rolniczego Ubezpieczenia Społecznego

(Case C-545/17) (1)

(Reference for a preliminary ruling - Internal market of postal services - Directives 97/67/EC and 2008/6/EC - Article 7(1) - Definition of ‘exclusive or special rights for the establishment and provision of postal services’ - Article 8 - Right of the Member States to organise the registered mail service used in the course of judicial proceedings - Time-limit for lodging a procedural document before a court - Interpretation of national law in conformity with EU law - Limits - Direct effect relied on by an emanation of a Member State in proceedings between it and an individual)

(2019/C 187/21)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Appellant: Mariusz Pawlak

Respondent: Prezes Kasy Rolniczego Ubezpieczenia Społecznego

Operative part of the judgment

1.

The first sentence of Article 7(1) 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, read in conjunction with Article 8 of Directive 97/67/EC, must be interpreted as precluding a rule of national law which recognises only the posting of a procedural document in a post office of the sole operator designated to provide the universal postal service as being equivalent to lodging a procedural document before the relevant court, without there being an objective justification based on grounds of public policy or public security.

2.	A public authority, regarded as an emanation of a Member State, cannot rely on Directive 97/67, as amended by Directive 2008/6, as such, against an individual.

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(1)  OJ C 13, 15.1.2018.

Judgment of the Court (Fourth Chamber) of 27 March 2019 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Oy Hartwall Ab

(Case C-578/17) (1)

(Reference for a preliminary ruling - Approximation of laws - Trade marks - Directive 2008/95/EC - Articles 2 and 3(1)(b) - Refusal to register or invalidity - Assessment of distinctive character by reference to the actual situation - Classification of a trade mark - Effect - Colour mark or figurative mark - Graphic representation of a mark submitted as a figurative mark - Conditions for registration - Insufficiently clear and precise graphic representation)

(2019/C 187/22)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Oy Hartwall Ab

Interested party: Patentti- ja rekisterihallitus

Operative part of the judgment

1.

Articles 2 and 3(1)(b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that the classification as a ‘colour mark’ or ‘figurative mark’ given to a sign by the applicant on registration is a relevant factor among others for the purpose of establishing whether that sign can constitute a trade mark within the meaning of Article 2 of the directive and, if so, whether it is distinctive within the meaning of Article 3(1)(b) of that directive, but does not release the competent trade mark authority from its obligation to carry out a global assessment of distinctive character by reference to the actual situation of the mark considered, which means that that authority cannot refuse registration of a sign as a mark on the sole ground that that sign has not acquired distinctive character through use in relation to the goods or services claimed.

2.	Article 2 of Directive 2008/95 must be interpreted as precluding, in circumstances such as those in the main proceedings, the registration of a sign as a mark due to an inconsistency in the application for registration, which it is for the referring court to ascertain.

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(1)  OJ C 412, 4.12.2017.

Judgment of the Court (Third Chamber) of 21 March 2019 (request for a preliminary ruling from the Cour de cassation — France) — Henri Pouvin, Marie Dijoux, the spouse of Henri Pouvin v Électricité de France (EDF)

(Case C-590/17) (1)

(Reference for a preliminary ruling - Directive 93/13/EEC - Scope - Article 2(b) and (c) - Concepts of ‘consumer’ and of ‘seller or supplier’ - Finance for the purchase of a home - Mortgage loan granted by an employer to its employee and to his spouse, the jointly and severally liable co-borrower)

(2019/C 187/23)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Henri Pouvin, Marie Dijoux, the spouse of Henri Pouvin

Defendant: Électricité de France (EDF)

Operative part of the judgment

Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the employee of an undertaking and his spouse, who conclude a loan contract with that undertaking, reserved, principally, to members of staff of that undertaking, with a view to financing the purchase of real estate for private purposes, must be regarded as ‘consumers’, within the meaning of that provision;

Article 2(c) of Directive 93/13 must be interpreted as meaning that that undertaking must be regarded as a ‘seller or supplier’, within the meaning of that provision, where it concludes such a loan contract in the context of its professional activity, even if granting loans does not constitute its main activity.

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(1)  OJ C 437, 18.12.2017.

Judgment of the Court (Second Chamber) of 28 March 2019 (request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Portugal) — Cogeco Communications Inc. v Sport TV Portugal SA, Controlinveste-SGPS SA, NOS-SGPS SA

(Case C-637/17) (1)

(Reference for a preliminary ruling - Article 102 TFEU - Principles of equivalence and effectiveness - Directive 2014/104/EU - Article 9(1) - Article 10(2) to (4) - Articles 21 and 22 - Actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union - Effects of national decisions - Limitation periods - Transposition - Temporal application)

(2019/C 187/24)

Language of the case: Portuguese

Referring court

Tribunal Judicial da Comarca de Lisboa

Parties to the main proceedings

Applicant: Cogeco Communications Inc.

Defendants: Sport TV Portugal SA, Controlinveste-SGPS SA, NOS-SGPS SA

Operative part of the judgment

1.

Article 22 of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union must be interpreted as meaning that that directive is not applicable to the dispute in the main proceedings.

2.

Article 102 TFEU and the principle of effectiveness must be interpreted as precluding national legislation which, first, provides that the limitation period in respect of actions for damages is three years and starts to run from the date on which the injured party was aware of its right to compensation, even if unaware of the identity of the person liable and, secondly, does not include any possibility of suspending or interrupting that period during proceedings before the national competition authority.

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(1)  OJ C 32, 29.1.2018.

Judgment of the Court (Sixth Chamber) of 27 March 2019 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — slewo — schlafen leben wohnen GmbH v Sascha Ledowski

(Case C-681/17) (1)

(Reference for a preliminary ruling - Consumer protection - Directive 2011/83/EU - Article 6(1)(k) and Article 16(e) - Distance contract - Right of withdrawal - Exceptions - Concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ - Mattress whose protective seal has been removed by the consumer after delivery)

(2019/C 187/25)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant: slewo — schlafen leben wohnen GmbH

Respondent: Sascha Ledowski

Operative part of the judgment

Article 16(e) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.

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(1)  OJ C 112, 26.3.2018.

Judgment of the Court (First Chamber) of 21 March 2019 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Unareti SpA v Ministero dello Sviluppo Economico and Others

(Case C-702/17) (1)

(Reference for a preliminary ruling - Internal market in natural gas - Public service distribution concessions - Early cessation of concessions at the end of a transitional period - Reimbursement by the incoming concessionaire to the outgoing concessionaire - Principle of legal certainty)

(2019/C 187/26)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Unareti SpA

Defendants: Ministero dello Sviluppo Economico, Presidenza del Consiglio dei Ministri — Dipartimento per gli Affari Regionali, Autorità Garante per l’Energia Elettrica il Gas e il Sistema Idrico — Sede di Milano, Presidenza del Consiglio dei Ministri — Conferenza Stato Regioni ed Unificata — Ministero per gli affari regionali — Dipartimento per gli affari regionali e le autonomie, Conferenza Unificata Stato Regioni e Enti Locali

Operative part of the judgment

EU law on public service concessions, read in the light of the principle of legal certainty, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which amends the basic criteria for the calculation of the reimbursement to which holders of natural gas distribution concessions award without be put out for tender on account of the early termination of those concessions in order to award them again after being put out for tender.

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(1)  OJ C 112, 26.3.2018.

Judgment of the Court (Second Chamber) of 28 March 2019 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Tallinna Vesi AS v Keskkonnaamet

(Case C-60/18) (1)

(Reference for a preliminary ruling - Environment - Waste - Directive 2008/98/EC - Re-use and recovery of waste - Specific end-of-waste criteria for sewage sludge which has undergone recovery treatment - No defined criteria at European Union or national level)

(2019/C 187/27)

Language of the case: Estonian

Referring court

Tallinna Ringkonnakohus

Parties to the main proceedings

Applicant: Tallinna Vesi AS

Defendant: Keskkonnaamet

intervener: Keskkonnaministeerium

Operative part of the judgment

Article 6(4) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives must be interpreted as meaning that:

—

it does not preclude national legislation, such as that at issue in the main proceedings, under which, where criteria have not been set at European Union level for determining end-of-waste status as regards a specific type of waste, such end status depends on the existence of criteria laid down in a generally applicable national legal act concerning that type of waste, and

—	it does not allow a waste holder, in circumstances such as those in the main proceedings, to demand the recognition of end of waste status by the competent authority of the Member State or by a court of that Member State.

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(1)  OJ C 142, 23.4.2018.

Judgment of the Court (Tenth Chamber) of 28 March 2019 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Idi Srl v Arcadis Agenzia Regionale Campana Difesa Suolo

(Case C-101/18) (1)

(Reference for a preliminary ruling - Coordination of procedures for the award of public works contracts, public supply contracts and public service contracts - Directive 2004/18/EC - Article 45(2), first subparagraph, point (b) - Personal situation of the candidate or tenderer - Possibility for the Member States to exclude from participation in a public contract any operator subject to a procedure for an arrangement with creditors - National legislation providing for the exclusion of persons subject to an ‘ongoing’ procedure for a declaration of admission to an arrangement with creditors, except where the insolvency plan provides for the continuation of the business - Operator having filed an application for an arrangement with creditors, reserving the possibility to submit a plan providing for the continuation of the business)

(2019/C 187/28)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Idi Srl

Defendant: Arcadis — Agenzia Regionale Campana Difesa Suolo

intervening parties: Regione Campania

Operative part of the judgment

Article 45(2), first subparagraph, point (b) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows the exclusion from a public procurement procedure of an economic operator who, at the date of the exclusion decision, has filed an application for an arrangement with creditors, while reserving the right to present a plan which provides for the continuation of the business

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(1)  OJ C 166, 14.5.2018.

Judgment of the Court (Grand Chamber) of 26 March 2019 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — SM v Entry Clearance Officer, UK Visa Section

(Case C-129/18) (1)

(Reference for a preliminary ruling - Citizenship of the European Union - Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States - Directive 2004/38/EC - Family members of a citizen of the Union - Article 2(2)(c) - ‘Direct descendant’ - Child in permanent legal guardianship under the Algerian kafala (provision of care) system - Article 3(2)(a) - Other family members - Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union - Family life - Best interests of the child)

(2019/C 187/29)

Language of the case: English

Referring court

Supreme Court of the United Kingdom

Parties to the main proceedings

Appellant: SM

Respondents: Entry Clearance Officer, UK Visa Section

in the presence of: Coram Children’s Legal Centre (CCLC), AIRE Centre

Operative part of the judgment

The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.

However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.

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(1)  OJ C 134, 16.4.2018.

Judgment of the Court (Eighth Chamber) of 28 March 2019 — River Kwai International Food Industry Co. Ltd v Association européenne des transformateurs de maïs doux (AETMD), Council of the European Union, European Commission

(Case C-144/18 P) (1)

(Appeal - Dumping - Definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand - Interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009)

(2019/C 187/30)

Language of the case: English

Parties

Appellant: River Kwai International Food Industry Co. Ltd (represented by: F. Graafsma and J. Cornelis, advocaten)

Other parties to the proceedings: Association européenne des transformateurs de maïs doux (AETMD) (represented by: A. Willems and C. Zimmermann, avocats, and by S. De Knop, advocaat), Council of the European Union (represented by: S. Boelaert, acting as Agent), European Commission (represented by: J.-F. Brakeland and A. Demeneix, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders River Kwai International Food Industry Co. Ltd to bear its own costs and to pay those incurred by the Association européenne des transformateurs de maïs doux (AETMD) and by the Council of the European Union;

3.	Orders the Commission to bear its own costs.

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(1)  OJ C 142, 23.4.2018.

Judgment of the Court (Seventh Chamber) of 27 March 2019 (request for a preliminary ruling from the cour d’appel de Mons — Belgium) — Mydibel SA v État belge

(Case C-201/18) (1)

(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Harmonisation of fiscal legislation - Deduction of input tax - Immovable property acquired as capital goods - Sale and lease back - Adjustment of deductions of VAT - Principle of VAT neutrality - Principle of equal treatment)

(2019/C 187/31)

Language of the case: French

Referring court

Cour d’appel de Mons

Parties to the main proceedings

Applicant: Mydibel SA

Defendant: État belge

Operative part of the judgment

1.

Subject to verification of the relevant matters of fact and national law by the referring court, Articles 184, 185, 187 and 188 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/162/EU of 22 December 2009, must be interpreted as not imposing an obligation to adjust value added tax (VAT) on a building which was initially deducted correctly, where that property was the subject of a sale and lease back transaction not subject to VAT in circumstances such as those at issue in the main proceedings.

2.

An interpretation of Articles 184, 185, 187 and 188 of Directive 2006/112, as amended by Directive 2009/162, as imposing an obligation to adjust the value added tax (VAT) initially deducted in circumstances such as those at issue in the main proceedings complies with the principles of VAT neutrality and equal treatment.

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(1)  OJ C 182, 28.5.2018.

Judgment of the Court (Tenth Chamber) of 21 March 2019 (request for a preliminary ruling from the Tribunale Ordinario di Udine — Italy) — Tecnoservice Int. Srl, in liquidation v Poste Italiane SpA

(Case C-245/18) (1)

(Reference for a preliminary ruling - Payment services in the internal market - Directive 2007/64/EC - Article 74(2) - Payment order by credit transfer - Incorrect unique identifier provided by the payer - Execution of the payment transaction on the basis of the unique identifier - Liability of the payee’s payment service provider)

(2019/C 187/32)

Language of the case: Italian

Referring court

Tribunale Ordinario di Udine

Parties to the main proceedings

Applicant: Tecnoservice Int. Srl, in liquidation

Defendant: Poste Italiane SpA

Operative part of the judgment

Article 74(2) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC must be interpreted as meaning that, when a payment order is executed in accordance with the unique identifier provided by the payment service user, which does not correspond to the payee name indicated by that user, the limitation of payment service provider liability, provided for by that article, applies to both the payer’s and the payee’s payment service provider.

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(1)  OJ C 249, 16.7.2018.

Judgment of the Court (Third Chamber) of 28 March 2019 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Milan Vinš v Odvolací finanční ředitelství

(Case C-275/18) (1)

(Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - Article 131 and Article 146(1)(a) - Exemption for supplies of goods dispatched or transported to a destination outside the European Union - Condition of exemption laid down by national law - Placing of goods under a particular customs procedure - Proof of placing of goods under the export procedure)

(2019/C 187/33)

Language of the case: Czech

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Applicant: Milan Vinš

Defendant: Odvolací finanční ředitelství

Operative part of the judgment

Article 146(1)(a) in conjunction with Article 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding a national legislative provision from making the exemption from value added tax for goods intended to be exported outside the European Union conditional on the goods being placed under the export customs procedure, in a situation in which it is established that the substantive conditions of exemption, in particular the condition that the goods concerned actually leave the territory of the European Union, are satisfied

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(1)  OJ C 221, 25.6.2018.

Judgment of the Court (Eighth Chamber) of 21 March 2019 — Eco-Bat Technologies Ltd, Berzelius Metall GmbH, Société traitements chimiques des métaux v European Commission

(Case C-312/18 P) (1)

(Appeal - Agreements, decisions and concerted practices - Market for car battery recycling - Decision finding an infringement of Article 101 TFEU and imposing fines - Correcting decision adding the value of purchases of the addressees which were not included in the initial decision - Time limit for bringing an action - Point from which time starts to run - Delay - Inadmissibility)

(2019/C 187/34)

Language of the case: English

Parties

Appellants: Eco-Bat Technologies Ltd, Berzelius Metall GmbH, Société traitements chimiques des métaux (represented by: M. Brealey QC, I. Vandenborre, advocaat, and S. Dionnet, avocat)

Other party to the proceedings: European Commission (represented by: G. Conte, I. Rogalski, J. Szczodrowski and F. van Schaik, acting as Agents)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitements chimiques des métaux (STCM) to pay the costs.

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(1)  OJ C 231, 2.7.2018.

Request for a preliminary ruling from the Curtea de Apel Cluj (Romania) lodged on 1 February 2019 — NG, OH v SC Banca Transilvania SA

(Case C-81/19)

(2019/C 187/35)

Language of the case: Romanian

Referring court

Curtea de Apel Cluj

Parties to the main proceedings

Applicants: NG, OH

Defendant: SC Banca Transilvania SA

Questions referred

1.

Must Article 1 [paragraph 2] of Directive 93/13/EEC (1) be interpreted as not precluding any analysis, with regard to unfairness, of a contractual term that reproduces a supplementary rule from which the parties could have derogated, but did not in fact do so as there was no negotiation in that regard, as in the present case analysed here with regard to the clause requiring repayment of the loan in the same foreign currency as that in which it was granted?

2.

In a context where, when being granted a loan in a foreign currency, the consumer was not given calculations/estimates relating to the economic impact that any exchange rate fluctuation would have as regards the overall payment obligations arising under the agreement, can it reasonably be maintained that such a term, under which the exchange risk is borne entirely by the consumer (in accordance with the nominalist principle) is clear and intelligible and that the seller or supplier/bank has complied in good faith with the obligation to provide information to the other party to the agreement, in circumstances in which the maximum degree of indebtedness of consumers established by the Banca Națională a României (National Bank of Romania) has been calculated by reference to the exchange rate prevailing on the date when the loan was granted?

3.

Do Directive 93/13/EEC and the case-law based on it and the principle of effectiveness preclude a contract from continuing unchanged after a term relating to the party that bears the exchange rate risk has been declared unfair? What change would make it possible to disapply the unfair term and comply with the principle of effectiveness?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29, Special edition Chapter 15 Vol. 2 p. 273)

Request for a preliminary ruling from the Tribunalul Olt (Romania) lodged on 5 February 2019 — Asociația ‘Forumul Judecătorilor din România’ v Inspecția Judiciară

(Case C-83/19)

(2019/C 187/36)

Language of the case: Romanian

Referring court

Tribunalul Olt

Parties to the main proceedings

Applicant: Asociația ‘Forumul Judecătorilor din România’

Defendant: Inspecția Judiciară

Questions referred

1.

Must the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, (1) be considered to be an act of an institution of the European Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union?

2.

Do the terms, nature and duration of the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, come within the scope of application of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements laid down in the reports prepared in the context of that mechanism binding on Romania?

3.

Must the second subparagraph of Article 19(1) of the Treaty on European Union be interpreted as meaning that it obliges the Member States to take the measures necessary to ensure effective legal protection in the fields covered by EU law, that is to say, guarantees of an independent disciplinary procedure for Romanian judges, by eliminating all risks of political influence over the conduct of those procedures, such as direct Government appointment of the management of the Inspecția Judiciară (Judicial Inspection, Romania), even on a provisional basis?

4.

Must Article 2 of the Treaty on European Union be interpreted as meaning that the Member States are obliged to comply with the rule of law criteria, also required in the reports prepared in the context of the cooperation and verification mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, in the case of procedures whereby the Government directly appoints the management of the Inspecția Judiciară (Judicial Inspection, Romania), even on a provisional basis?

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(1)  Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56, Special edition: Chapter 11 Vol. 51 p. 55).

Request for a preliminary ruling from the Curtea de Apel Pitești (Romania) lodged on 18 February 2019 — Asociația ‘Forumul Judecătorilor din România’, Asociația ‘Mișcarea pentru Apărarea Statutului Procurorilor’ v Consiliul Superior al Magistraturii

(Case C-127/19)

(2019/C 187/37)

Language of the case: Romanian

Referring court

Curtea de Apel Pitești

Parties to the main proceedings

Applicant: Asociația ‘Forumul Judecătorilor din România’, Asociația ‘Mișcarea pentru Apărarea Statutului Procurorilor’

Defendant: Consiliul Superior al Magistraturii

Questions referred

1.

Must the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006 (1) be regarded as an act of an institution of the Union, within the meaning of Article 267 TFEU, and therefore amenable to interpretation by the Court of Justice of the European Union?

2.

Do the terms, nature and duration of the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, fall within the scope of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed by Romania in Luxembourg on 25 April 2005? Are the requirements laid down in the reports prepared in accordance with that mechanism binding on Romania?

3.

Must Article 2, in conjunction with Article 4(3), TEU be interpreted as meaning that the obligation on Romania to comply with the requirements laid down in the reports prepared in accordance with the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, forms part of the Member State’s obligation to comply with the principles of the rule of law?

4.

Does Article 2 TEU, and more specifically the obligation to comply with the values of the rule of law, preclude legislation which establishes and organises the section for the investigation of offences committed within the Judiciary, within the prosecutors office attached to the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania), because of the possibility of indirect pressure being exerted on members of the judiciary?

5.

Does the principle of judicial independence, enshrined in the second subparagraph of Article 19(1) TEU and in Article 47 of the Charter of Fundamental Rights of the European Union, as interpreted by the case-law of the Court of Justice of the European Union (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117), preclude the establishment of the section for the investigation of offences committed within the Judiciary, within the prosecutors office attached to the High Court of Cassation and Justice, in the light of the rules governing the appointment/removal of prosecutors as members of that section, the rules governing the exercise of functions within that section and the way in which jurisdiction is established, in connection with the limited number of positions in that section?

---

(1)  Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56, Special edition: Chapter 11 Vol. 51 p. 55).

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 20 February 2019 — DY

(Case C-138/19)

(2019/C 187/38)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: DY

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

1.

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

2.

If the answer to Question 1 is in the negative: Must Article 56 TFEU, Directive 96/71/EC and Directive 2014/67/EU be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	If the answer to Question 3 is in the negative: Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

5.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that, for the purposes of the requirement to make available certain documents, it is not sufficient subsequently to submit appropriate and relevant documents within a reasonable period of time?

6.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that foreign service providers are to submit documents that go beyond those specified in Article 9 of Directive 2014/67/EU, are neither relevant nor appropriate and are not clearly defined under national law (such as, for example, pay statements, payslips, pay lists, tax statements, registrations and deregistrations, health insurance, schedules of notification and allocation of surcharges, documents relating to pay grades, certificates)?

---

(1)  OJ 1997 L 18, p. 1.

(2)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 20 February 2019 — DY

(Case C-139/19)

(2019/C 187/39)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: DY

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

1.

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

2.

If the answer to Question 1 is in the negative: Must Article 56 TFEU, Directive 96/71/EC and Directive 2014/67/EU be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	If the answer to Question 3 is in the negative: Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

5.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that, for the purposes of the requirement to make available certain documents, it is not sufficient subsequently to submit appropriate and relevant documents within a reasonable period of time?

6.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that foreign service providers are to submit documents that go beyond those specified in Article 9 of Directive 2014/67/EU, are neither relevant nor appropriate and are not clearly defined under national law (such as, for example, pay statements, payslips, pay lists, tax statements, registrations and deregistrations, health insurance, schedules of notification and allocation of surcharges, documents relating to pay grades, certificates)?

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(1)  OJ 1997 L 18, p. 1.

(2)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 20 February 2019 — EX

(Case C-140/19)

(2019/C 187/40)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: EX

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

1.

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

2.

If the answer to Question 1 is in the negative: Must Article 56 TFEU, Directive 96/71/EC and Directive 2014/67/EU be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	If the answer to Question 3 is in the negative: Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

5.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that, for the purposes of the requirement to make available certain documents, it is not sufficient subsequently to submit appropriate and relevant documents within a reasonable period of time?

6.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that foreign service providers are to submit documents that go beyond those specified in Article 9 of Directive 2014/67/EU, are neither relevant nor appropriate and are not clearly defined under national law (such as, for example, pay statements, payslips, pay lists, tax statements, registrations and deregistrations, health insurance, schedules of notification and allocation of surcharges, documents relating to pay grades, certificates)?

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(1)  OJ 1997 L 18, p. 1.

(2)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).

Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 20 February 2019 — EX

(Case C-141/19)

(2019/C 187/41)

Language of the case: German

Referring court

Landesverwaltungsgericht Steiermark

Parties to the main proceedings

Appellant: EX

Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

Interested party: Finanzpolizei

Questions referred

1.

Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

2.

If the answer to Question 1 is in the negative: Must Article 56 TFEU, Directive 96/71/EC and Directive 2014/67/EU be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

3.	Is Article 56 TFEU to be interpreted as precluding national legislation that requires a declaration of amendment to be provided to the Central Coordination Office in the event that the temporary activity in the host country is concluded prematurely and/or interrupted?

4.	If the answer to Question 3 is in the negative: Is Article 56 TFEU to be interpreted as precluding national legislation which does not grant a reasonable period of time for the submission of a declaration of amendment?

5.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that, for the purposes of the requirement to make available certain documents, it is not sufficient subsequently to submit appropriate and relevant documents within a reasonable period of time?

6.

Are Article 56 TFEU and Article 9 of Directive 2014/67/EU to be interpreted as precluding national legislation that provides that foreign service providers are to submit documents that go beyond those specified in Article 9 of Directive 2014/67/EU, are neither relevant nor appropriate and are not clearly defined under national law (such as, for example, pay statements, payslips, pay lists, tax statements, registrations and deregistrations, health insurance, schedules of notification and allocation of surcharges, documents relating to pay grades, certificates)?

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(1)  OJ 1997 L 18, p. 1.

(2)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).

Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 26 February 2019 — Hecta Viticol SRL v Agenția Națională de Administrare Fiscală (ANAF) — Direcția Generală de Soluționare a Contestațiilor, Biroul Vamal de Interior Buzău and Direcția Generală Regională a Finanțelor Publice Galați

(Case C-184/19)

(2019/C 187/42)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Appellant: Hecta Viticol SRL

Respondents: Agenția Națională de Administrare Fiscală (ANAF) — Direcția Generală de Soluționare a Contestațiilor, Biroul Vamal de Interior Buzău and Direcția Generală Regională a Finanțelor Publice Galați

Questions referred

1.

Do Articles 7, 11 [and] 15 of Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structures of excise duties on alcohol and alcoholic beverages (1) and Article 5 of Council Directive 92/84/EEC of 19 October 1992 on the approximation of the rates of excise duty on alcohol and alcoholic beverages (2) preclude the provisions of Article I(21) and Article IV(1) of Ordonanța de urgență [a Guvernului] nr. 54 din 23 iunie 2010 privind unele măsuri pentru combaterea evaziunii fiscale (Government Emergency Order No 54 of 23 June 2010 laying down certain measures to address tax evasion)?

2.

Do the principles of legal certainty and the protection of legitimate [expectations] preclude the rule laid down in Article I(21) and Article IV(1) of Ordonanța de urgență [a Guvernului] nr. 54 din 23 iunie 2010 privind unele măsuri pentru combaterea evaziunii fiscale, inasmuch as it alters the rate of excise duty on still fermented beverages other than beer and wines?

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(1)  OJ 1992 L 316, p. 21.

(2)  OJ 1992 L 316, p. 29.

Appeal brought on 22 February 2019 by the European External Action Service against the judgment of the General Court (Eighth Chamber) delivered on 13 December 2018 in Case T-537/17 De Loecker v EEAS

(Case C-187/19 P)

(2019/C 187/43)

Language of the case: French

Parties

Appellant: European External Action Service (represented by: S. Marquardt, R. Spac, Agents)

Other party to the proceedings: Stéphane De Loecker

Form of order sought

The appellant claims that the Court should:

—	Set aside the judgment under appeal;

—	Dismiss the originating application as unfounded as regards the application for annulment of the decision of 10 October 2016 to reject the complaint for psychological harassment lodged against the Chief Operating Officer of the EEAS at the time;

—	Order the applicant at first instance to pay the costs.

Pleas in law and main arguments

The appeal is directed against paragraphs 57, 58 and 65 of the judgment under appeal. According to the EEAS, the General Court erred in law in holding, in paragraph 65 of its judgment, that the EEAS had not properly complied with the judgment of 16 December 2015, De Loecker v EEAS (F-34/15) and infringed the applicant’s right to be heard in not hearing him in the context of the analysis prior to the opening of an administrative investigation.

In that context, the EEAS submits that the General Court erred in law in the assessment of the facts of the case, in distorting the procedure followed and in disregarding the fact that the EEAS had heard the applicant in giving him the opportunity to submit any evidence additional to his initial complaint, before submitting the file to the Commission’s services for the purposes of the preliminary investigation.

In addition, the judgment De Loecker v EEAS (F-34/15) was misinterpreted as imposing an obligation on the EEA to hear the applicant already at the preliminary procedure stage (paragraphs 55 to 57 of the judgment under appeal).

Lastly, the EEAS submits that the General Court made an error of assessment as regards the procedure, in applying the conclusions of the judgment of 14 February 2017, Kerstens v Commission (T-270/16 P, cited in paragraph 58 of the judgment under appeal) to the present case. The General Court fails to have regard to the fact that, in the present case, it was a question only of a preliminary analysis, not an administrative investigation.

Request for a preliminary ruling from the Curtea de Apel București (Romania) lodged on 28 February 2019 — PJ v QK

(Case C-195/19)

(2019/C 187/44)

Language of the case: Romanian

Referring court

Curtea de Apel București

Parties to the main proceedings

Applicant: PJ

Defendant: QK

Questions referred

1.	Are the Cooperation and Verification Mechanism (CVM), established by Commission Decision 2006/928/EC of 13 December 2006, (1) and the requirements laid down in the reports prepared in the context of that mechanism binding on Romania?

2.	Do Article 67(1) TFEU and both the first sentence of Article 2 TEU and the first sentence of Article 9 TEU preclude national legislation establishing a section of the prosecution office which has exclusive jurisdiction to investigate any type of offence committed by judges or prosecutors?

3.

Does the principle of the primacy of European law, as enshrined in the judgment of 15 July 1964, Costa, 6/64, EU:C:1964:66, and by subsequent settled case-law of the Court of Justice, preclude national legislation which allows a politico-judicial institution, such as the Curtea Constituțională a României (Romanian Constitutional Court), to infringe the aforementioned principle by means of decisions which are not open to appeal?

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

Request for a preliminary ruling from the Miskolci Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 6 March 2019 — UO v Készenléti Rendőrség

(Case C-211/19)

(2019/C 187/45)

Language of the case: Hungarian

Referring court

Miskolci Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: UO

Defendant: Készenléti Rendőrség

Questions referred

1.

Must Article 1(3) of Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time (1) be interpreted as meaning that the scope ratione personae of that directive is determined by Article 2 of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work? (2)

2.

If so, must Article 2(2) of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work be interpreted as meaning that Article 2(1) and (2) of [Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time] is not to be applied to police officers who are members of the professional staff of the Rapid Intervention Police?

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(1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

(2)  OJ 1989 L 183, p. 1.

Request for a preliminary ruling from the Landesgericht Wiener Neustadt (Austria) lodged on 13 March 2019 — YS v NK

(Case C-223/19)

(2019/C 187/46)

Language of the case: German

Referring court

Landesgericht Wiener Neustadt

Parties to the main proceedings

Applicant: YS

Defendant: NK

Questions referred

1.

Does the scope of Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, (1) and/or of Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, (2) include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives?

2.

Does the scope of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (3) include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a direct defined benefit pension, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened?

3.

Are the provisions of the Charter of Fundamental Rights (‘the Charter’), in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to Directive 79/7/EEC, Directive 2000/78/EC and Directive 2006/54/EC?

4.

Is Article 20 et seq. of the Charter to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 of the Charter and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the Charter prohibit such forms of discrimination?

5.

Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 of the Charter if they cover only people with relatively large occupational pensions?

6.

Is Article 17 of the Charter to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a direct defined benefit pension entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties?

7.

Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property?

8.

Is Article 47 of the Charter to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?

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(1)  OJ 1979 L 6, p. 24.

(2)  OJ 2006 L 204, p. 23.

(3)  OJ 2000 L 303, p. 16.

Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Haarlem (Netherlands) lodged on 14 March 2019 — R.N.N.S. v Minister van Buitenlandse Zaken

(Case C-225/19)

(2019/C 187/47)

Language of the case: Dutch

Referring court

Rechtbank Den Haag, zittingsplaats Haarlem

Parties to the main proceedings

Applicant: R.N.N.S.

Defendant: Minister van Buitenlandse Zaken

Questions referred

1.

In the case of an appeal as referred to in Article 32(3) of the Visa Code (1) against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the EU Charter under the following circumstances: — where, in its reasons for the decision, the Member State merely stated: ‘you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2.19 or 2.21 of the Schengen Borders Code, or to the international relations of one or more Member States’; — where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked; — where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based?

2.	In the circumstances outlined in Question 1, can there be said to be good administration within the meaning of Article 41 of the EU Charter, in particular, because of the duty of the services concerned to give reasons for their decisions?

3.

(a) Should Questions 1 and 2 be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined? (b) Does an affirmative answer to Question 1 in connection with Question 3(a) require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that option, until the (final) decision on that appeal has been obtained?

4.

For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which its objection is based?

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(1)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1).

Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Haarlem (Netherlands) lodged on 14 March 2019 — K.A. v Minister van Buitenlandse Zaken

(Case C-226/19)

(2019/C 187/48)

Language of the case: Dutch

Referring court

Rechtbank Den Haag, zittingsplaats Haarlem

Parties to the main proceedings

Applicant: K.A.

Defendant: Minister van Buitenlandse Zaken

Questions referred

1.

In the case of an appeal as referred to in Article 32(3) of the Visa Code (1) against a final decision refusing a visa on the ground referred to in Article 32(1)(a)(vi) of the Visa Code, can it be said that there is an effective remedy within the meaning of Article 47 of the EU Charter under the following circumstances: — where, in its reasons for the decision, the Member State merely stated: ‘you are regarded by one or more Member States as a threat to public policy, internal security, public health as defined in Article 2.19 or 2.21 of the Schengen Borders Code, or to the international relations of one or more Member States’; — where, in the decision or in the appeal, the Member State does not state which specific ground or grounds of those four grounds set out in Article 32(1)(a)(vi) of the Visa Code is being invoked; — where, in the appeal, the Member State does not provide any further substantive information or substantiation of the ground or grounds on which the objection of the other Member State (or Member States) is based?

2.	In the circumstances outlined in Question 1, can there be said to be good administration within the meaning of Article 41 of the EU Charter, in particular, because of the duty of the services concerned to give reasons for their decisions?

3.

(a) Should Questions 1 and 2 be answered differently if, in the final decision on the visa, the Member State refers to an actual and sufficiently clearly specified possibility of appeal in the other Member State against the specifically named authority responsible in that other Member State (or Member States) that has (or have) raised the objection referred to in Article 32(1)(a)(vi) of the Visa Code, in which that ground for refusal can be examined? (b) Does an affirmative answer to Question 1 in connection with Question 3(a) require that the decision in the appeal in and against the Member State that made the final decision be suspended until the applicant has had the opportunity to make use of the option of appealing in the other Member State (or Member States) and, if the applicant does make use of that opportunity, until the (final) decision on that appeal has been obtained?

4.

For the purpose of answering the questions, does it matter whether (the authority in) the Member State (or Member States) that has (or have) objected to the issuing of the visa can be given the opportunity, in the appeal against the final decision on the visa, to act as second defendant and on that basis to be given the opportunity to introduce a substantiation of the ground or grounds on which its objection is based?

---

(1)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1).

Request for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands) lodged on 14 March 2019 — Dexia Nederland BV v XXX

(Case C-229/19)

(2019/C 187/49)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: Dexia Nederland BV

Defendant: XXX

Question referred

Should Directive 93/13 (1) be interpreted as meaning that a contractual term, from the point of view of the criteria laid down in that directive, should already be regarded as unfair if that contractual term, assessed in the light of all the circumstances attending the conclusion of the contract, contains the mere possibility of causing a significant imbalance depending on the circumstances that materialise during the course of the contract, in particular because that contractual term fixes in advance a potential advantage that arises for the seller at the time of the premature termination of the contract, at a certain percentage of the remaining lease sum, thereby derogating from the applicable rules of national law under which such an advantage is not fixed in advance but must be determined on the basis of the circumstances attending the termination of the contract, in particular, the level of the interest rate that should be applied for the remaining duration of the contract to an amount received prematurely?

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

Request for a preliminary ruling from the Kúria (Hungary) lodged on 19 March 2019 — Gömböc Kutató, Szolgáltato és Kerreskedelmi Kft. v Szellemi Tulajdon Nemzeti Hivatala

(Case C-237/19)

(2019/C 187/50)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: Gömböc Kutató, Szolgáltato és Kerreskedelmi Kft.

Defendant: Szellemi Tulajdon Nemzeti Hivatala

Questions referred

1.

Is Article 3(1)(e)(ii) of Directive 2008/95/EC (1) of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that, for signs which consist exclusively of the shape of goods, (a) it can only be examined if the shape is necessary to obtain the technical result sought on the basis of the graphic representation contained in the register, or (b) can the perception of the relevant public also be taken into account? In other words, can it be taken into account that the relevant public is aware that the shape for which registration is sought is necessary in order to obtain the technical result sought?

2.

Is Article 3(1)(e)(iii) of Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that the ground for refusal is applicable to those signs which consist exclusively of the shape of goods and in respect of which it can be determined whether the shape gives substantial value to the goods, bearing in mind the perception or knowledge that the buyer has of the goods represented graphically?

3.

Is Article 3(1)(e)(iii) of Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks to be interpreted as meaning that the ground for refusal is applicable to signs which consist exclusively of a shape (a) that, by virtue of its individual character, already enjoys the protection conferred on designs, or (b) whose aesthetic appearance alone gives the goods any kind of value?

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(1)  OJ 2008 L 299, p. 25.

Appeal brought on 18 March 2019 by George Haswani against the judgment of the General Court (Fifth Chamber) delivered on 16 January 2019 in Case T-477/17 Haswani v Council

(Case C-241/19 P)

(2019/C 187/51)

Language of the case: French

Parties

Appellant: George Haswani (represented by: G. Karouni, avocat)

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

Form of order sought

The appellant submits that the Court should:

—	Set aside the judgment of 16 January 2019, T-477/17, in its entirety;

—	Order the removal of Mr George Haswani’s name from the annexes to the acts contested before the General Court;

—	Dispose of the case and: — Annul Decision 2015/1836 and Regulation 2015/1828; — Order the Council to pay the sum of EUR 100 000 in respect of the non-pecuniary harm suffered by Mr Haswani;

—	Order the Council to bear its own costs and pay those incurred by the appellant before both the General Court and the Court of Justice.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law, infringement of Decisions 2015/1836 (recital 6) and 2013/255 (recital 5) as amended by Decision 2015/1836, as well as the reversal of the burden of proof and breach of the principle of the presumption of innocence.

The second ground of appeal alleges breach of the obligation to state reasons and failure to state reasons.

The third ground of appeal alleges breach of the principle of proportionality and failure to state reasons.

Request for a preliminary ruling from the Kúria (Hungary) lodged on 27 March 2019 — EUROVIA Ipari, Kerskedelmi, Szállítmányozási és Idegenforgalmi Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

(Case C-258/19)

(2019/C 187/52)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: EUROVIA Ipari, Kereskedelmi, Szállítmányozási és Idegenforgalmi Kft.

Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

Questions referred

1.

Does the practice of a Member State infringe the principle of fiscal neutrality and the formal requirements of the right to deduct VAT where, for the purposes of exercising the right to deduct the tax, it has regard solely to the time the chargeable event occurred, and does not take into account the fact that there was a civil dispute between the parties concerning performance of the contract, which was determined in judicial proceedings, and that the invoice was only issued once a final judgment was delivered?

2.	If the answer to that question is in the affirmative, is it possible to exceed the limitation period for exercising the right to deduct VAT, set by the legislation of the Member State at five years from the time when the services were supplied?

3.

If the answer to that question is in the affirmative, is the exercise of the right to deduct VAT affected by the conduct of the recipient of the invoice in the present case, which did not pay the contractor’s remuneration determined by a final judgment until the contractor had brought enforcement proceedings, for which reason the invoice was not issued until after the limitation period had expired?

Appeal brought on 26 March 2019 by Bena Properties Co. SA against the judgment of the General Court (Fifth Chamber) delivered on 16 January 2019 in Case T-412/16 Bena Properties v Council

(Case C-260/19 P)

(2019/C 187/53)

Language of the case: French

Parties

Appellant: Bena Properties Co. SA (represented by: E. Ruchat, avocat)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant submits that the Court should:

—	Declare the appeal admissible and well founded;

—	Accordingly, set aside the judgment of 16 January 2019, Bena Properties v Council, T-412/16;

And, giving judgment itself,

—	Annul Decision (CFSP) 2016/850 of 27 May 2016 and its subsequent implementing acts, in so far as they concern the appellant;

—	Order the Council of the European Union to pay the costs of the proceedings.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law in that the General Court disregarded the applicant’s right, enshrined in Article 41 of the Charter of Fundamental Rights, to be heard prior to the adoption of new restrictive measures.

The second ground of appeal alleges an error of law and distortion of the facts in that the General Court disregarded the items submitted by the applicant in support of its action for annulment to demonstrate that it did not support the Syrian regime.

The third ground of appeal alleges an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

Appeal brought on 26 March 2019 by Cham Holding Co. SA against the judgment of the General Court (Fifth Chamber) delivered on 16 January 2019 in Case T-413/16 Cham v Council

(Case C-261/19P)

(2019/C 187/54)

Language of the case: French

Parties

Appellant: Cham Holding Co. SA (represented by: E. Ruchat, avocat)

Other party to the proceedings: Council of the European Union

Form of order sought

The appellant submits that the Court should:

—	Declare the appeal admissible and well founded;

—	Accordingly, set aside the judgment of 16 January 2019, Cham v Council, T-413/16;

And, giving judgment itself,

—	Annul Decision (CFSP) 2016/850 of 27 May 2016 and its subsequent implementing acts, in so far as they concern the appellant;

—	Order the Council of the European Union to pay the costs of the proceedings.

Grounds of appeal and main arguments

The first ground of appeal alleges an error of law in that the General Court disregarded the applicant’s right, enshrined in Article 41 of the Charter of Fundamental Rights, to be heard prior to the adoption of new restrictive measures.

The second ground of appeal alleges an error of law and distortion of the facts in that the General Court disregarded the items submitted by the applicant in support of its action for annulment to demonstrate that it did not support the Syrian regime.

The third ground of appeal alleges an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

Request for a preliminary ruling from the Polymeles Protodikeio Athinon (Greece) lodged on 28 March 2019 — RM, SN v Agrotiki Trapeza tis Ellados AE

(Case C-262/19)

(2019/C 187/55)

Language of the case: Greek

Referring court

Polymeles Protodikeio Athinon

Parties to the main proceedings

Applicants: RM, SN

Defendant: Agrotiki Trapeza tis Ellados AE

Questions referred

1.

Can the provision in Article 70(1) of Law No 4235/2014, to the effect that ‘In the case of mortgages or pre-notices of mortgages, which have been recorded in the registers of mortgages and in the Land Registry if appropriate in favour of the Bank known as “Αgrotiki Trapeza tis Ellados ΑΕ” (“the Bank”), which has now entered into special liquidation, which affect farmers who are natural persons or third party farmers who are natural persons and are over their agricultural immovable property or their agricultural production plant in order to secure claims of the Bank of any kind which arise from loans — such as claims on the principal, interest, interest on arrears, including interest on interest as it falls due and on interest on arrears, charges, costs and expenses and all other outlays as specified in the relevant loan agreement — with respect to the granting by the Bank to farmers, natural persons, of short-term and medium-term loans which relate exclusively to their agricultural activity and repayment of which is overdue, wholly or in part, the amount of the loan with respect to which there has been recorded a mortgage or a pre-notice of mortgage shall be restricted in the proportion of 120 for every hundred (120 %) of the principal amount of the loan, provided that the total sum of the abovementioned claims of the Bank of any kind, as arising from the loan, do not exceed (including amounts already paid) an amount that is double the initial principal, and shall be restricted to the sum that is double the amount of the due principal of the loan if the total amount of the claims is greater than double, at the time when the present article enters into force and the loan becomes, if it has not already so become, payable and due in full as from that date. In the event that there is a recorded mortgage or pre-notice of mortgage on more than one agricultural immovable property, of a natural person, or of a third natural person, the mortgage or pre-notice of mortgage shall be limited by the Bank to the immovable property or properties which secure its claim up to the above maximum figures and preferably to the immovable property or properties which do not constitute the first residence and/or the main stock of agricultural equipment of the farmer or that third party’, be classified as State aid within the meaning of Article 107(1) TFEU?

2.	Is the above provision in Article 70(1) of Law 4235/2014 compatible with the internal market, within the meaning of Article 107(2) TFEU?

3.	Can the above provision in Article 70(1) of Law 4235/2014 be considered to be compatible with the internal market, within the meaning of Article 107(3) TFEU?

Request for a preliminary ruling from the Verwaltungsgericht Wiesbaden (Germany) lodged on 1 April 2019 — VQ v Land Hesse

(Case C-272/19)

(2019/C 187/56)

Language of the case: German

Referring court

Verwaltungsgericht Wiesbaden

Parties to the main proceedings

Applicant: VQ

Defendant: Land Hesse

Questions referred

1.

Is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (1) — in particular Article 15 on ‘Right of access by the data subject’ thereof — applicable to the committee of a parliament of a constituent state of a Member State that is responsible for processing the petitions of citizens — namely the Petitions Committee of the Hesse Land Parliament — and is that committee to be regarded in that connection as a public authority within the meaning of Article 4(7) of the Regulation No 2016/679?

2.	Is the referring court an independent and impartial tribunal within the meaning of Article 267 TFEU read in conjunction with Article 47(2) of the Charter of Fundamental Rights of the European Union?

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(1)  OJ 2016 L 119, p. 1.

Request for a preliminary ruling from the Općinski sud u Zadru (Croatia) lodged on 2 April 2019 — R. D., A. D. v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

(Case C-277/19)

(2019/C 187/57)

Language of the case: Croatian

Referring court

Općinski sud u Zadru

Parties to the main proceedings

Applicants: R.D., A.D.

Defendant: Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

Questions referred

1.

What is the scope and extent of the consumer protection granted by Directive 2[0]11/83/[EU] (1) of the European Parliament and of the Council of 2[5] October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC [of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council], and by Directive 2[0]14/17/EU (2) of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC (3) and 2013/36/EU (4) and Regulation (EU) No 1093/2010? (5)

2.

Are the applicants consumers within the meaning of the provisions of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 [on consumer rights], amending Council Directive 93/13/EEC and Directive 1999/44/EC [of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council], and Directive 2[0]14/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, account being taken of the fact that the defendant denies the applicants the status of consumer?

3.

Are the national provisions contained in Article 3(1)(a) of the Law on consumer credit […] at odds with the provisions contained in Article 4 of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 [on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010], and Article 3 of Directive 2008/48/EC, and with the remaining consumer protection objectives and purposes established in the preamble to Directive 2014/17/EU, in so far as they fix the maximum limit for consumer protection at a certain amount, namely Kuna 1000 000?

4.

[Must] Article 5(1) of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 [on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010] be interpreted […] as meaning that a situation in which the defendant is a credit cooperative registered in the Republic of Austria which held no authorisation from the Central Bank of Croatia to grant consumer credit in 2007 and 2008, nor any special authorisation from the Ministry of Finance in accordance with Article 22 of the ZPP, and does not have a registered representative or a subsidiary in the Republic of Croatia, constitutes a ground for a declaration as to the nullity of the credit agreement and an infringement of the provisions of that directive because that situation has the (potential) effect of directly jeopardising the rights of consumers who are natural persons in the territory of the Republic of Croatia, in so far as the defendant was not subject to the supervision provided for in law for the purpose of protecting consumers and establishing uniform rules and criteria for the grant of consumer credit in the case of mortgage credits, as mentioned in the preamble to Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014?

5.

May the view be taken that this is a situation in which there is an infringement of Articles 18, 19 and 20 of Directive 2014/17/EU, account being taken of the fact that the principles of good faith and loyalty constitute a legal standard, which is to say that, at the time when the credit agreement was concluded, an infringement of the aforementioned directive occurred, given that the credit was granted at an actual interest rate of 9.4%, while the defendant grants domestic consumers of Austrian nationality an interest rate of 4 % — Article 1000 of the ABGB (Allgemeines bürgerliches Gesetzbuch, Austrian Civil Code) —, and given, moreover, that that this is a variable rate, meaning that the defendant, as a credit institution, changes it unilaterally, and that the defendant grants credit only on the basis of a mortgage?

6.

May the view be taken that there has been an infringement of the provisions of Directive 2014/17/EU in conjunction with Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010, account being taken of the provisions of Articles 2 and 5(1), point 2, of the Law on credit institutions, if the defendant, as a credit institution, is allowed to grant consumer credit to Croatian citizens in the territory of the Republic of Croatia without authorisation from or supervision by the national authorities, and may the view be taken that, in such a situation, the aforementioned national provisions do not afford adequate protection to natural persons who are consumers in the manner prescribed in Article 5 of Directive 2014/17/EU — competent authorities —, and that the defendant did not act in accordance with the principles of good faith and loyalty provided for in Article 4 of the ZOO, meaning that the provisions of the credit agreement are therefore void?

7.

[Was there] a formal defect in the conclusion of the credit agreement, which is to say that, in the main proceedings, there was an infringement of Articles 13, 14 and 16 of Directive 2014/17/EU, inasmuch as clause A of the single-repayment credit agreement stipulates — on page 2—: ‘Actual annual interest rate of 9,4%. For the notional annual interest in the event of late repayment, see the counter notice’?

8.

May the view be taken that, in a situation such as that in the main proceedings, there is an infringement of Articles 13, 14 and 16 of Directive 2014/17/EU, account being taken of the fact that the credit agreements at issue are pre-formulated standard contracts which are drafted by the defendant, printed in German and not fully translated into the applicants’ mother tongue, and the fact that the conclusion of the agreement is preceded by advertising via the defendant’s network of intermediaries (cooperative) in the Republic of Croatia, who, like the defendant, did not, in accordance with Croatian law, hold any authorisation from the Central Bank of Croatia to conclude credit transactions, nor any authorisation from the Ministry of Finance to grant consumer credit in the territory of the Republic of Croatia?

9.

May the view be taken that, in a situation [such as] that in the main proceedings, there is an infringement of the provisions of Directive 2014/17/EU in conjunction with Directives 2008/48/EC and 2013/36/EU (6) and Regulation (EU) No 1093/2010 (7), where the national provisions, that is to say Article 2(1), (2) and (3) and Article 5(1), points 1 and 2, of the Law on credit institutions allow the defendant, as a credit institution under Austrian law, to conclude consumer credit transactions for Croatian citizens in the territory of the Republic of Croatia without authorisation from the Croatian national supervisory authority, and may the view be taken that, in such a situation, those national provisions do not afford adequate protection to natural persons who are consumers in the manner prescribed in Article 5 of Directive 2014/17/EU — competent authorities —, and that the defendant did not act in accordance with the principles of good faith and loyalty provided for in Article 4 of the ZOO, meaning that the provisions of the credit agreement are therefore void?

10.

Has the fact that, at the time when the 2007 and 2008 credit agreements were concluded, the Croatian legal system lacked any adequate implementing provisions laying down detailed rules governing the right, and the conditions applicable to the right, of Croatian citizens to incur debt abroad caused a significant imbalance in the position of borrowers, on the one hand, and banks, on the other, which is contrary to the provisions of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014, in particular Article 13 thereof?

---

(1)  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

(2)  Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34).

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

(4)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC Text with EEA relevance (OJ 2013 L 176, p. 338).

(5)  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12).

(6)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC Text with EEA relevance (OJ 2013 L 176, p. 338).

(7)  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ 2010 L 331, p. 12).

Request for a preliminary ruling from the Tribunal administratif de Paris (France) lodged on 3 April 2019 — XS v Recteur de l’académie de Paris

(Case C-281/19)

(2019/C 187/58)

Language of the case: French

Referring court

Tribunal administratif de Paris

Parties to the main proceedings

Applicant: XS

Defendant: Recteur de l’académie de Paris

Question referred

Does French law, which does not take into account for the purposes of regrading within the school-teaching professional body the previous service of an official with the European Commission, or more broadly, with an EU institution, whereas it does provide for previous professional activities carried out within the authorities of an EU Member State to be taken into account, infringe the obligations and scope of Article 45 of the Treaty on the Function of the European Union?

Action brought on 16 April 2019 — European Commission v Republic of Slovenia

(Case C-316/19)

(2019/C 187/59)

Language of the case: Slovenian

Parties

Applicant: European Commission (represented by: L. Flynn and B. Rous Demiri)

Defendant: Republic of Slovenia

Form of order sought

—

Pursuant to Article 258 of the Treaty on the Functioning of the European Union, the Commission asks the Court of Justice to declare that, by unilaterally seizing from the premises of the Bank of Slovenia documents connected to the performance of the ESCB’s and the Eurosystem’s tasks and by unfairly cooperating with the ECB on that subject, the Republic of Slovenia has failed to fulfil its obligations under Article 343 of the Treaty on the Functioning of the European Union, Article 39 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank, Articles 2, 18 and 22 of Protocol No 7 on the Privileges and Immunities of the European Union and Article 4(3) of the Treaty on European Union.

—	The Commission also asks the Court to order the Republic of Slovenia to pay the costs.

Pleas in law and main arguments

The search and seizure at the premises of the Bank of Slovenia on 6 July 2016 undermined the privileges attaching to the archives of the Union, as provided for in Article 343 of the Treaty on the Functioning of the European Union, Article 39 of Protocol No 4 and Articles 2 and 22 of Protocol No 7, in conjunction with Article 18 of the latter protocol, and as provided for in Article 4(3) of the Treaty on European Union. The search and seizure were carried out unilaterally, without the ECB’s consent, and, on the assumption of a disagreement between the ECB and the Slovene bodies, without a decision of the Court of Justice of the European Union. Despite repeated warnings, the Slovene bodies responsible for the seizure did not attempt to separate documents forming part of the archives of the Union and did not constructively discuss the matter with the ECB.

Judgment of the General Court of 10 April 2019 — Deutsche Post v Commission

(Case T-388/11) (1)

(State aid - Postal services - Funding of additional salary and social costs relating to some of the staff of Deutsche Post by means of subsidies and revenue generated by remuneration for price-regulated services - Decision to extend the formal investigation procedure - Decision finding that there was new aid at the end of the preliminary investigation phase - Action for annulment - Challengeable act - Interest in bringing proceedings - Admissibility - Consequences of the annulment of the final decision - Obligation to state reasons)

(2019/C 187/60)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) (represented by: J. Sedemund, T. Lübbig and M. Klasse, lawyers)

Defendant: European Commission (represented by: D. Grespan, T. Maxian Rusche and R. Sauer, acting as Agents)

Interveners in support of the defendant: UPS Europe SPRL/BVBA, formerly UPS Europe NV/SA (Brussels, Belgium); and United Parcel Service Deutschland Sàrl & Co. OHG, formerly UPS Deutschland Inc. & Co. OHG (Neuss, Germany) (represented initially by T. Ottervanger and E. Henny, and subsequently by T. Ottervanger and R. Wojtek, lawyers)

Re:

Application based on Article 263 TFEU seeking annulment of Commission Decision C(2011) 3081 final of 10 May 2011 extending the formal investigation procedure laid down in Article 108(2) TFEU on State aid C 36/07 (ex NN 25/07) granted by the Federal Republic of Germany in favour of Deutsche Post, a summary of which has been published in the Official Journal of the European Union (OJ 2011 C 263, p. 4).

Operative part of the judgment

The Court:

1)	Dismisses the plea of inadmissibility;

2)	Annuls Commission Decision C(2011) 3081 final of 10 May 2011 extending the formal investigation procedure laid down in Article 108(2) TFEU on State aid C 36/07 (ex NN 25/07) granted by the Federal Republic of Germany in favour of Deutsche Post;

3)	Orders the Commission to bear its own costs and those incurred by Deutsche Post AG;

4)	Orders UPS Europe SPRL/BVBA and United Parcel Service Deutschland Sàrl & Co. OHG each to bear their own costs.

---

(1)  OJ C 282, 24.9.2011.

Judgment of the General Court of 9 April 2019 — Sopra Steria Group v Parliament

(Case T-182/15) (1)

(Public service contracts - Tendering procedure - Supply of IT services to the Parliament and other EU institutions and bodies - Exclusion from tendering procedures - Potential conflict of interests - Failure to provide information required by the contracting authority - Article 107(1)(b) of the Financial Regulation - Transparency - Proportionality - Equal treatment - Article 102(1) of the Financial Regulation)

(2019/C 187/61)

Language of the case: English

Parties

Applicant: Sopra Steria Group SA (Annecy-le-Vieux, France) (represented by: A. Verlinden, R. Martens and J. Joossen, lawyers)

Defendant: European Parliament (represented by: B. Simon and L. Tapper Brandberg, acting as Agents)

Interveners in support of the defendants: CGI Luxembourg SA (Bertrange, Luxembourg) and Intrasoft International SA (Luxembourg, Luxembourg) (represented by: N. Korogiannakis, lawyer)

Re:

Action under Article 263 TFEU seeking annulment of the European Parliament’s decisions, taken in the context of tendering procedure PE/ITEC-ITS14, concerning the provision of IT services to the European Parliament and other EU institutions and bodies, to exclude the tenders submitted for Lots 2 and 3 by the IBI IUS and STEEL consortia, of which the applicant was a member.

Operative part of the judgment

The Court:

1.	dismisses the action;

2.	orders Sopra Steria Group SA to bear its own costs and to pay those incurred by the European Parliament;

3.	orders CGI Luxembourg SA and Intrasoft International SA to bear their own costs.

---

(1)  OJ C 262, 10.8.2015.

Judgment of the General Court of 9 April 2019 — Close and Cegelec v Parliament

(Case T-259/15) (1)

(Public works contracts - Tender procedure - Construction of an energy unit - Extension and refurbishment of the Konrad Adenauer building in Luxembourg - Rejection of tender submitted by a tenderer - Award of the contract to another tenderer - Selection criteria - Financial and economic capacity - Technical and professional capacity - Obligation to state reasons - Manifest error of assessment)

(2019/C 187/62)

Language of the case: French

Parties

Applicants: SA Close (Harzé-Aywaille, Belgium), Cegelec (Brussels, Belgium) (represented by: J.-M. Rikkers and J.-L. Teheux, lawyers)

Defendant: European Parliament (represented initially by M. Rantala and M. Mraz, and subsequently by J.-M. Stenier, B. Schäfer and M. Mraz, acting as Agents)

Re:

Application based on Article 263 TFEU seeking annulment of the Parliament’s decision of 19 March 2015 rejecting the tender submitted by the applicants in the context of the call for tenders INLO-D-UPIL-T-14-AO 4, relating to public works contracts in respect of Lot No 73 (energy unit) for the project to extend and refurbish the Konrad Adenauer building in Luxembourg and awarding that lot to another tenderer.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders SA Close and Cegelec, on the one hand, and the European Parliament, on the other, each to bear their own costs, including the costs relating to the application for interim measures.

---

(1)  OJ C 236, 20.7.2015.

Judgment of the General Court of 12 April 2019 — Deutsche Lufthansa v Commission

(Case T-492/15) (1)

(Action for annulment - State aid - Measures implemented by Germany in favour of Frankfurt Hahn airport and airlines using that airport - Decision regarding the measures in favour of Frankfurt Hahn airport as State aid compatible with the internal market and finding no State aid in favour of airlines using that airport - Lack of individual concern - Lack of direct concern - Inadmissibility)

(2019/C 187/63)

Language of the case: German

Parties

Applicant: Deutsche Lufthansa AG (Cologne, Germany) (represented by: A. Martin-Ehlers, lawyer)

Defendant: European Commission (represented by: K. Herrmann, T. Maxian Rusche and S. Noë, acting as Agents)

Interveners in support of the defendant: Land Rheinland-Pfalz (Germany) (represented by: Professor C. Koenig) and Ryanair DAC, formerly Ryanair Ltd (Dublin, Ireland) (represented by: G. Berrisch, lawyer, and B. Byrne, Solicitor)

Objet

Action under Article 263 TFEU for the annulment of Commission Decision (EU) 2016/789 of 1 October 2014 on the State aid SA.21121 (C29/08) (ex NN 54/07) implemented by Germany concerning the financing of Frankfurt Hahn airport and the financial relations between the airport and Ryanair (OJ 2016 L 134, p. 46).

Order

1)	The action is dismissed as inadmissible.

2)	Deutsche Lufthansa AG is ordered to pay the costs.

---

(1)  OJ C 363, 3.11.2015.

Judgment of the General Court of 10 April 2019 — Jindal Saw and Jindal Saw Italia v Commission

(Case T-300/16) (1)

(Subsidies - Imports of tubes and pipes of ductile cast iron originating in India - Implementing Regulation (EU) 2016/387 - Imposition of a definitive countervailing duty - Indian scheme establishing an export tax on iron ore and a dual railway freight charge placing the transport of iron ore for export at a disadvantage - Article 3(1)(a)(iv) of Regulation (EC) No 597/2009 (replaced by Regulation (EU) 2016/1037) - Financial contribution - Provision of goods - Action consisting of ‘entrusting’ a private body to carry out a function constituting a financial contribution - Article 4(2)(a) of Regulation No 597/2009 - Specificity of a subsidy - Article 6(d) of Regulation No 597/2009 - Calculation of benefit - Injury to the Union industry - Calculation of price undercutting and the injury margin - Causal link - Access to confidential data of the subsidy investigation - Rights of the defence)

(2019/C 187/64)

Language of the case: English

Parties

Applicants: Jindal Saw Ltd (New Delhi, India), Jindal Saw Italia SpA (Trieste, Italy) (represented by: R. Antonini and E. Monard, lawyers)

Defendant: European Commission (represented by: J.-F. Brakeland and G. Luengo, Agents)

Intervener in support of the defendant: Saint-Gobain Pam (Pont-à-Mousson, France) (represented by: O. Prost, A. Coelho Dias and C. Bouvarel, lawyers)

Re:

Application under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), originating in India (OJ 2016 L 73, p. 1), in so far as that regulation concerns the applicants.

Operative part of the judgment

The Court:

1.	Annuls Commission Implementing Regulation (EU) 2016/387 of 17 March 2016 imposing a definitive countervailing duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron), originating in India, in so far as it concerns Jindal Saw Ltd;

2.	Orders the European Commission to bear its own costs and to pay the costs incurred by Jindal Saw and Jindal Saw Italia SpA;

3.	Orders Saint-Gobain Pam to bear its own costs.

---

(1)  OJ C 314, 29.8.2016.

Judgment of the General Court of 10 April 2019 — Jindal Saw and Jindal Saw Italia v Commission

(Case T-301/16) (1)

(Dumping - Imports of tubes and pipes of ductile cast iron originating in India - Implementing Regulation (EU) 2016/388 - Regulation (EC) No 1255/2009 (replaced by Regulation (EU) 2016/1036) - Dumping margin - Determination of the export price - Association between an exporter and an importer - Reliable export price - Construction of the export price - Reasonable margin for selling, general and administrative costs - Reasonable margin for profit - Injury to the Union industry - Calculation of price undercutting and the injury margin - Causal link - Access to confidential data of the anti-dumping investigation - Rights of the defence)

(2019/C 187/65)

Language of the case: English

Parties

Applicants: Jindal Saw Ltd (New Delhi, India), Jindal Saw Italia SpA (Trieste, Italy) (represented by: R. Antonini and E. Monard, lawyers)

Defendant: European Commission (represented by: J.-F. Brakeland and G. Luengo, acting as Agents)

Intervener in support of the defendant: Saint-Gobain Pam (Pont-à-Mousson, France) (represented by: O. Prost, A. Coelho Dias and C. Bouvarel, lawyers)

Re:

Application under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53), in so far as that regulation concerns the applicants.

Operative part of the judgment

The Court:

1.	Annuls Commission Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, in so far as it concerns Jindal Saw Ltd;

2.	Orders the European Commission to bear its own costs and to pay the costs incurred by Jindal Saw and Jindal Saw Italia SpA;

3.	Orders Saint-Gobain Pam to bear its own costs.

---

(1)  OJ C 314, 29.8.2016.

Judgment of the General Court of 10 April 2019 — Gamaa Islamya Égypte v Council

(Case T-643/16) (1)

(Common foreign and security policy - Specific restrictive measures directed against certain persons and entities with a view to combating terrorism - Freezing of funds - Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP - Factual basis of the decisions to freeze funds - Obligation to state reasons - Authentication of Council acts)

(2019/C 187/66)

Language of the case: French

Parties

Applicant: Al-Gama’a al-Islamiyya Egypt (Gamaa Islamya Égypte) (represented by: L. Glock, lawyer)

Defendant: Council of the European Union (represented initially by G. Étienne and H. Marcos Fraile, subsequently by H. Marcos Fraile, B. Driessen and V. Piessevaux and last by H. Marcos Fraile, B. Driessen and A. Sikora-Kalėda, acting as Agents)

Intervener in support of the defendant: European Commission (represented initially by J. Norris, L. Havas, R. Tricot and L. Baumgart, subsequently by R. Tricot, C. Zadra and A. Tizzano, acting as Agents)

Re:

Application based on Article 263 TFEU seeking annulment (i) of Council Decision (CFSP) 2016/1136 of 12 July 2016 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2015/2430 (OJ 2016 L 188, p. 21) and of Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2015/2425 (OJ 2016 L 188, p. 1); (ii) of Council Decision (CFSP) 2017/154 of 27 January 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2016/1136 (OJ 2017 L 23, p. 21) and of Council Implementing Regulation (EU) 2017/150 of 27 January 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2016/1127 (OJ 2017 L 23, p. 3); (iii) of Council Decision (CFSP) 2017/1426 of 4 August 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/154 (OJ 2017 L 204, p. 95) and of Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2017/150 (OJ 2017 L 204, p. 3); (iv) of Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/1426 (OJ 2018 L 79, p. 26) and of Council Implementing Regulation (EU) 2018/468 of 21 March 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2017/1420 (OJ 2018 L 79, p. 7), (v) of Council Decision (CFSP) 2018/1084 of 30 July 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2018/475 (OJ 2018 L 194, p. 144) and of Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2018/468 (OJ 2018 L 194, p. 23), to the extent that those acts concern the applicant.

Operative part of the judgment

The Court:

1.

Annuls Council Decision (CFSP) 2016/1136 of 12 July 2016 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision (CFSP) 2015/2430, Council Implementing Regulation (EU) 2016/1127 of 12 July 2016 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation (EU) 2015/2425, Council Decision (CFSP) 2017/154 of 27 January 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2016/1136, Council Implementing Regulation (EU) 2017/150 of 27 January 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2016/1127, Council Decision (CFSP) 2017/1426 of 4 August 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/154, Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, and repealing Implementing Regulation 2017/150, Council Decision (CFSP) 2018/475 of 21 March 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2017/1426, Council Implementing Regulation (EU) 2018/468 of 21 March 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2017/1420, Council Decision (CFSP) 2018/1084 of 30 July 2018 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2018/475, and Council Implementing Regulation (EU) 2018/1071 of 30 July 2018 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation 2018/468, to the extent that those acts concern ‘“Gama’a al-Islamiyya’ (a.k.a. ‘Al Gama’a al-Islamiyya’ (‘Islamic Group’ — ‘IG’)”’;

2.	Orders the Council of the European Union to bear its own costs and to pay those incurred by Al-Gama’a al-Islamiyya Egypt (Gamaa Islamya Égypte);

3.	Orders the European Commission to bear its own costs.

---

(1)  OJ C 419, 14.11.2016.

Judgment of the General Court of 4 April 2019 –Hesse and Wedl & Hofmann v EUIPO (TESTA ROSSA)

(Cases T-910/16 and T 911/16) (1)

(EU trade mark - Revocation proceedings - EU figurative mark TESTA ROSSA - Partial revocation - Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) - Proof of use - Outward use of the contested mark - Equal treatment)

(2019/C 187/67)

Language of the case: German

Parties

Applicant in Case T-910/16: Kurt Hesse (Nuremberg, Germany) (represented by: M. Krogmann, lawyer)

Applicant in Case T-911/16: Wedl & Hofmann GmbH (Mils, Austria) (represented by: T. Raubal, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO) (represented by M. Fischer, acting as Agent)

Other parties to the proceedings before the Board of Appeal of EUIPO, interveners before the General Court, respectively in Case T-910/16 and Case T-911/16: Wedl & Hofmann GmbH and Kurt Hesse

Re:

Actions brought against the decision of the First Board of Appeal of EUIPO of 5 October 2016 (Case R 68/2016-1), relating to revocation proceedings between Mr Hesse and Wedl & Hofmann.

Operative part of the judgment

The Court:

1.	Joins Cases T-910/16 and T-911/16 for the purposes of the judgment;

2.	Dismisses the actions;

3.	Orders Mr Kurt Hesse to pay the costs in Case T-910/16;

4.	Orders Wedl & Hofmann GmbH to pay the costs in Case T-911/16.

---

(1)  OJ C 53, 20.2.2017.

Judgment of the General Court of 4 April 2019 — Sharif v Council

(Case T-5/17) (1)

(Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Rights of the defence - Right to effective judicial protection - Manifest error of assessment - Right to property - Proportionality - Damage to reputation)

(2019/C 187/68)

Language of the case: English

Parties

Applicant: Ammar Sharif (Damascus, Syria) (represented by: B. Kennelly QC, and J. Pobjoy, Barrister)

Defendant: Council of the European Union (represented by: S. Kyriakopoulou, P. Mahnič and V. Piessevaux, acting as Agents)

Intervener in support of the defendant: European Commission (represented by: L. Havas and J. Norris, acting as Agents)

Re:

Application, principally, pursuant to Article 263 TFEU for annulment of Council Implementing Decision (CFSP) 2016/1897 of 27 October 2016 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016 L 293, p. 36), of Council Implementing Regulation (EU) 2016/1893 of 27 October 2016 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2016 L 293, p. 25), of Council Decision (CFSP) 2017/917 of 29 May 2017 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2017 L 139, p. 62), of Council Implementing Regulation (EU) 2017/907 of 29 May 2017 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2017 L 139, p. 15), of Council Decision (CFSP) 2018/778 of 28 May 2018 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2018 L 131, p. 16), and of Council Implementing Regulation (EU) 2018/774 of 28 May 2018 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2018 L 131, p. 1), in so far as those acts concern the applicant; and, in the alternative, pursuant to Article 277 TFEU for a declaration that the following provisions are inapplicable, in so far as they apply to the applicant: Article 28(2)(a) of Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14), as amended by Council Decision (CFSP) 2015/1836 of 12 October 2015 (OJ 2015 L 266, p. 75), and Article 15(1a)(a) of Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (OJ 2012 L 16, p. 1), as amended by Council Regulation (EU) 2015/1828 of 12 October 2015 (OJ 2015 L 266, p. 1).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mr Ammar Sharif to bear his own costs and to pay those incurred by the Council of the European Union;

3.	Orders the European Commission to bear its own costs.

---

(1)  OJ C 53, 20.2.2017.

Judgment of the General Court of 10 April 2019 — Poland v Commission

(Case T-51/17) (1)

(EAGF and EAFRD - Expenditure excluded from EU financing - Fruit and vegetable sector - Aid to producer groups - Expenditure effected by Poland - Weaknesses in key controls - Checks on recognition plans and on recognition criteria - Checks on applications for aid - Economic consistency - Reasonableness of expenditure - Systemic weakness - Risk to EAGF - Flat rate corrections of 25 %)

(2019/C 187/69)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: B. Majczyna, K. Straś, M. Pawlicka and B. Paziewska, acting as Agents)

Defendant: European Commission (initially represented by: K. Skelly and A. Stobiecka-Kuik, and subsequently by: A. Stobiecka-Kuik and D. Milanowska, acting as Agents)

Re:

Action under Article 263 TFEU for partial annulment of Commission Implementing Decision (EU) 2016/2018 of 15 November 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (JO 2016, L 312, p. 26) concerning the flat rate corrections applied in respect of the Republic of Poland.

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders the Republic of Poland to pay, in addition to its own costs, three quarters of the costs incurred by the European Commission.

3.	Orders the Commission to pay one quarter of its own costs.

---

(1)  OJ C 86, 20.3.2017.

Judgment of the General Court of 4 April 2019 — ClientEarth v Commission

(Case T-108/17) (1)

(REACH - Regulation (EC) No 1907/2006 - Bis(2-ethylhexyl) phthalate (DEHP) - Request for internal review of a decision on marketing authorisation rejected as unfounded - Error of law - Manifest error of assessment - Article 10 of Regulation (EC) No 1367/2006)

(2019/C 187/70)

Language of the case: English

Parties

Applicant: ClientEarth (London, United Kingdom) (represented by: A. Jones, Barrister)

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

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

Re:

Application pursuant to Article 263 TFEU seeking the annulment of the letter of the Commission of 7 December 2016 by which that institution rejected a request for internal review of 2 August 2016 against Commission Implementing Decision C(2016) 3549 final of 16 June 2016, granting an authorisation for uses of bis(2-ethylhexyl) phthalate (DEHP) under Regulation (EC) No 1907/2006 of the European Parliament and of the Council.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders ClientEarth to bear its own costs and to pay the costs incurred by the European Commission;

3.	Orders the European Chemicals Agency (ECHA) to bear its own costs.

---

(1)  OJ C 121, 18.4.2017.

Judgment of the General Court of 11 April 2019 — Adapta Color v EUIPO — Coatings Foreign IP (ADAPTA POWDER COATINGS)

(Case T-223/17) (1)

(EU trade mark - Invalidity proceedings - European Union figurative mark ADAPTA POWDER COATINGS - Declaration of invalidity by the Board of Appeal - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2007/1001) - No distinctive character acquired by use - Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) - Infringement of the right to be heard - Obligation to state reasons - Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001) - Evidence submitted for the first time before the Court)

(2019/C 187/71)

Language of the case: English

Parties

Applicant: Adapta Color, SL (Peñiscola, Spain) (represented by: G. Macías Bonilla, G. Marín Raigal and E. Armero Lavie, lawyers)

Defendant: European Union Intellectual Property Office (represented by: E. Markakis, A. Söder and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Coatings Foreign IP Co. LLC (Wilmington, Delaware, United States) (represented by: A. Rajendra, Solicitor, and by S. Malynicz QC)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 February 2017 (Case R 2522/2015-5), relating to invalidity proceedings between Coatings Foreign IP and Adapta Color.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Adapta Color, SL to pay the costs.

---

(1)  OJ C 202, 26.6.2017.

Judgment of the General Court of 11 April 2019 — Adapta Color v EUIPO — Coatings Foreign IP (Bio proof ADAPTA)

(Case T-224/17) (1)

(EU trade mark - Invalidity proceedings - European Union figurative mark Bio proof ADAPTA - Declaration of invalidity by the Board of Appeal - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2007/1001) - No distinctive character acquired by use - Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) - Infringement of the right to be heard - Obligation to state reasons - Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001) - Evidence submitted for the first time before the Court)

(2019/C 187/72)

Language of the case: English

Parties

Applicant: Adapta Color, SL (Peñiscola, Spain) (represented by: G. Macías Bonilla, by G. Marín Raigal and by E. Armero Lavie, lawyers)

Defendant: European Union Intellectual Property Office (represented by: E. Markakis, A. Söder and D. Walicka, Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being: Coatings Foreign IP Co. LLC (Wilmington, Delaware, United States) (represented by: A. Rajendra, Solicitor, and by S. Malynicz QC)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 February 2017 (Case R 2521/2015-5), relating to invalidity proceedings between Coatings Foreign IP and Adapta Color

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Adapta Color, SL to pay the costs.

---

(1)  OJ C 202, 26.6.2017.

Judgment of the General Court of 11 April 2019 — Adapta Color v EUIPO — Coatings Foreign IP (Bio proof ADAPTA)

(Case T-225/17) (1)

(EU trade mark - Invalidity proceedings - European Union figurative mark Bio proof ADAPTA - Declaration of partial invalidity by the Board of Appeal - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2007/1001) - No distinctive character acquired by use - Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) - Infringement of the right to be heard - Obligation to state reasons - Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001) - Evidence submitted for the first time before the Court)

(2019/C 187/73)

Language of the case: English

Parties

Applicant: Adapta Color, SL (Peñiscola, Spain) (represented by: G. Macías Bonilla, G. Marín Raigal and E. Armero Lavie, lawyers)

Defendant: European Union Intellectual Property Office (represented by: E. Markakis, A. Söder and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Coatings Foreign IP Co. LLC (Wilmington, Delaware, United States) (represented by: A. Rajendra, Solicitor, and by S. Malynicz QC)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 February 2017 (Case R 311/2016-5), relating to invalidity proceedings between Coatings Foreign IP and Adapta Color.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Adapta Color, SL to pay the costs.

---

(1)  OJ C 202, 26.6.2017.

Judgment of the General Court of 10 April 2019 — Germany v Commission

(Case T-229/17) (1)

(Approximation of laws - Regulation (EU) No 305/2011 - Regulation (EU) No 1025/2012 - Construction products - Harmonised standards EN 14342:2013 and EN 14904:2006 - Obligation to state reasons)

(2019/C 187/74)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented initially by T. Henze and J. Möller, and subsequently by J. Möller, acting as Agents, and by M. Winkelmüller, F. van Schewick and M. Kottmann, lawyers)

Defendant: European Commission (represented initially by G. Zavvos and C. Hermes, and subsequently by C. Hermes and M. Huttunen, acting as Agents)

Intervener in support of the applicant: Republic of Finland (represented by: S. Hartikainen, acting as Agent)

Re:

Application based on Article 263 TFEU seeking annulment of, first, Commission Decision (EU) 2017/133 of 25 January 2017 on the maintenance with a restriction in the Official Journal of the European Union of the reference of harmonised standard EN 14342:2013 ‘Wood flooring and parquet: Characteristics, evaluation of conformity and marking’ in accordance with Regulation (EU) No 305/2011 of the European Parliament and of the Council (OJ 2017 L 21, p. 113), second, Commission Decision (EU) 2017/145 of 25 January 2017 on the maintenance with a restriction in the Official Journal of the European Union of the reference of harmonised standard EN 14904:2006 ‘Surfaces for sport areas — Indoor surfaces for multi-sports use: Specification’ in accordance with Regulation (EU) No 305/2011 of the European Parliament and of the Council (OJ 2017 L 22, p. 62), third, the Commission communication of 10 March 2017 in the framework of the implementation of Regulation (EU) No 305/2011 of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC (OJ 2017 C 76, p. 32), in so far as it refers to harmonised standards EN 14342:2013 and EN 14904:2006, fourth, the Commission Communication of 11 August 2017 in the framework of the implementation of Regulation No 305/2011 (OJ 2017 C 267, p. 16), in so far as it refers to harmonised standards EN 14342:2013 and EN 14904:2006, fifth, the Commission Communication of 15 December 2017 in the framework of the implementation of Regulation No 305/2011 (OJ 2017 C 435, p. 41), in so far as it concerns harmonised standards EN 14342:2013 and EN 14904:2006, and, sixth, the Commission Communication of 9 March 2018 in the framework of the implementation of Regulation No 305/2011 (OJ 2018 C 92, p. 139), in so far as it refers to harmonised standards EN 14342:2013 and EN 14904:2006.

Operative part of the judgment

The Court:

1)	Dismisses the action;

2)	Orders the Federal Republic of Germany to bear its costs and those incurred by the European Commission;

3)	Orders the Republic of Finland to bear its own costs.

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(1)  OJ C 195, 19.6.2017.

Judgment of the General Court of 9 April 2019 — Aldridge and Others v Commission

(Case T-319/17) (1)

(Civil service - Temporary staff - OLAF - Contract for an indefinite period - Decision of the Director of OLAF establishing a one-off reclassification to the next higher grade - Request for an annual reclassification procedure to be launched - Measure of a general nature - Time-limit for bringing an action - Point from which time stars to run - Publication on the intranet - Inadmissibility)

(2019/C 187/75)

Language of the case: French

Parties

Applicants: Adam Aldridge (Schaerbeek, Belgium) and the 32 other applicants whose names are set out in the annex to the judgment (represented by: S. Rodrigues, A. Tymen and A. Champetier, lawyers)

Defendant: European Commission (represented by: L. Radu Bouyon and M. Mensi, then L. Radu Bouyon and G. Berscheid, Agents)

Re:

Application on the basis of Article 270 TFEU and seeking, first, the annulment of the decision of the Director-General of the European Anti-Fraud Office (OLAF) dated 15 July 2016 rejecting the applicants’ request seeking the implementation of an annual reclassification procedure and of the decision of the Director-General of OLAF dated 13 February 2017 rejecting the complaint brought against the decision dated 15 July 2016 and, secondly, the payment of compensation in respect of the material and non-material harm allegedly suffered by the applicants.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Declares that Mr Adam Aldridge and the other members of the temporary staff and former members of the temporary staff of the European Anti-Fraud Office (OLAF) whose names are set out in the annex are to bear their own costs and orders them to pay the costs incurred by the European Commission.

---

(1)  OJ C 249, 31.7.2017.

Judgment of the General Court of 9 April 2019 — Qualcomm and Qualcomm Europe v Commission

(Case T-371/17) (1)

(Competition - Market for baseband chipsets used in consumer electronic devices - Administrative procedure - Article 18(3) and Article 24(1)(d) of Regulation (EC) No 1/2003 - Decision requesting information - Obligation to state reasons - Necessity of the information requested - Proportionality - Burden of proof - Privilege against self-incrimination - Principle of good administration)

(2019/C 187/76)

Language of the case: English

Parties

Applicants: Qualcomm, Inc (San Diego, California, United States), Qualcomm Europe, Inc., (Sacramento, California, United States) (represented by: M. Pinto de Lemos Fermiano Rato and M. Davilla, lawyers)

Defendant: European Commission (represented by: H. van Vliet, G. Conte, M. Farley and C. Urraca Caviedes, Agents)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2017) 2258 final of 31 March 2017 relating to a proceeding pursuant to Article 18(3) and to Article 24(1)(d) of Council Regulation (EC) No 1/2003 (Case AT.39711 — Qualcomm (predation))

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Qualcomm, Inc. and Qualcomm Europe, Inc. to pay the costs, including those of the interim proceedings.

---

(1)  OJ C 256, 7.8.2017.

Judgment of the General Court of 11 April 2019 — Inditex v EUIPO — Ansell (ZARA TANZANIA ADVETURES)

(Case T-655/17) (1)

(EU trade mark - Opposition proceedings - Application for the EU figurative mark ZARA TANZANIA ADVENTURES - Earlier EU word marks ZARA - Relative ground for refusal - Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(5) of Regulation (EU) 2017/1001) - Unfair advantage taken of the distinctive character or the repute of the earlier trade marks - Detriment to the distinctive character or the repute of the earlier trade marks)

(2019/C 187/77)

Language of the case: English

Parties

Applicant: Industria de Diseño Textil, SA (Inditex) (Arteixo, Spain) (represented by: G. Marín Raigal, G. Macías Bonilla, P. López Ronda and E. Armero Lavie, lawyers)

Defendant: European Union Intellectual Property Office (represented by: V. Ruzek, acting as Agent)

Other parties to the proceedings before the Board of Appeal of EUIPO: Zainab Ansell and Roger Ansell (Moshi, Tanzania)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 5 July 2017 (Joined Cases R 2330/2011-2 and R 2369/2011 2), relating to opposition proceedings between Industria de Diseño Textil, on the one hand, and Mrs Ansell and Mr Ansell, on the other hand.

Operative part of the judgment

The Court:

1.

Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 5 July 2017 (Joined Cases R 2330/2011-2 and R 2369/2011-2) in so far as the Board of Appeal partially upheld the appeal brought by Mrs Ansell and Mr Ansell (Case R 2369/2011-2) and allowed the mark applied for to proceed to registration in respect of the services which are listed in point 3 of the operative part of that decision and are in Classes 39 and 43 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2.	Dismisses the action as to the remainder;

3.	Orders EUIPO to bear its own costs and to pay those incurred by Industria de Diseño Textil, SA (Inditex) in the course of the proceedings before the General Court.

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(1)  OJ C 402, 27.11.2017.

Judgment of the General Court of 11 April 2019 — Kiku v CPVO — Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Pinova)

(Case T-765/17) (1)

(Plant varieties - Nullity proceedings - Apple variety Pinova - Rejection of the application for a declaration of nullity - New variety - Article 10 of Regulation (EC) No 2100/94 - Burden of proof - Article 76 of Regulation No 2100/94 - Examination of the facts by the CPVO of its own motion)

(2019/C 187/78)

Language of the case: German

Parties

Applicant: Kiku GmbH (Girlan, Italy) (represented by: G. Würtenberger and R. Kunze, lawyers)

Defendant: Community Plant Variety Office (represented by: M. Ekvad, F. Mattina and O. Lamberti, acting as Agents, assisted by A. von Mühlendahl and H. Hartwig, lawyers)

Other party to the proceedings before the Board of Appeal of the CPVO, intervener before the General Court: Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Dresden, Germany) (represented initially by: T. Leidereiter, and subsequently by: B. Lorenzen, lawyers)

Re:

Action brought against the decision of the Board of Appeal of the CPVO of 16 August 2017 (Case A 005/2016) concerning the nullity proceedings between Kiku and the Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie.

Operative part

The Court hereby:

1)	Dismisses the action;

2)	Orders Kiku GmbH to pay the costs.

---

(1)  OJ C 22, 22.1.2018.

Judgment of the General Court of 9 April 2019 — Zitro IP v EUIPO (PICK & WIN MULTISLOT)

(Case T-277/18) (1)

(EU trade mark - Application for EU figurative mark PICK & WIN MULTISLOT - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001)

(2019/C 187/79)

Language of the case: Spanish

Parties

Applicant: Zitro IP Sàrl (Luxembourg, Luxembourg) (represented by: A. Canela Giménez, lawyer)

Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 14 March 2018 (Case R 978/2017-4) relating to an application for registration of the figurative sign PICK & WIN MULTISLOT as an EU trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Zitro IP Sàrl to pay the costs.

---

(1)  OJ C 231, 2.7.2018.

Judgment of the General Court of 10 April 2019 — AV v Commission

(Case T-303/18 RENV) (1)

(Civil service - Temporary agents - Engagement - Article 13 of the CEOS - Pre-engagement medical examination - Incomplete declarations at the medical examination - Failure of the person concerned to declare an illness - Subsequent discovery by the AECE - Retroactive application of medical cover deferment for five years - Referral to the Invalidity Committee - Reasonable time limit - Responsibility - Non-material injury)

(2019/C 187/80)

Language of the case: French

Parties

Applicant: AV (represented by: J.-N. Louis, lawyer)

Defendant: European Commission (represented by: T. Bohr and L. Vernier, acting as Agents)

Re:

Application based on Article 270 TFEU seeking, first, annulment of the decision of the Commission of 16 September 2014 by which the authority empowered to conclude contracts of employment of that institution decided to apply to the applicant the medical reservation clause provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union and not to grant him an invalidity allowance and, second, compensation for the harm he has allegedly suffered in connection with that decision.

Operative part of the judgment

The Court:

1.	Rejects the claims for annulment;

2.	Orders the European Commission to pay AV an amount of EUR 3 000;

3.	Rejects the claim for damages for the remainder;

4.	Orders AV and the Commission each to pay their own costs pertaining to the initial proceedings before the Civil Service Tribunal of the European Union, in the action in Case F-91/15 and in the present appeal proceedings in T-303/18 RENV.

---

(1)  OJ C 406, 7.12.2015 (case initially registered before the Civil Service Tribunal of the European Union under number F-91/15 and transferred to the General Court of the European Union on 1.9.2016).

Judgment of the General Court of 11 April 2019 — Fomanu v EUIPO — Fujifilm Imaging Germany Reresentation of a butterfly)

(Case T-323/18) (1)

(EU trade mark - Revocation proceedings - EU figurative mark representing a butterfly - Genuine use of the mark - Partial revocation - Article 18(1) of Regulation (EU) 2017/1001 - Article 58(1)(a) and (2) of Regulation 2017/1001)

(2019/C 187/81)

Language of the case: German

Parties

Applicant: Fomanu AG (Neustadt an der Waldnaab, Germany) (represented by: S. Reichart, lawyer)

Defendant: European Union Intellectual Property Office (represented by: R. Manea and D. Walicka, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: Fujifilm Imaging Germany GmbH & Co. KG (Willich, Germany)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 16 March 2018 (Case R 2241/2016-2) relating to revocation proceedings between Fujifilm Imaging Germany and Fomanu.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Fomanu AG to pay the costs.

---

(1)  OJ C 240, 9.7.2018.

Judgment of the General Court of 11 April 2019 — Pharmadom v EUIPO — Objectif Pharma (WS wellpharma shop)

(Case T-403/18) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark WS wellpharma shop - Earlier national word mark WELL AND WELL - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 187/82)

Language of the case: French

Parties

Applicant: Pharmadom (Boulogne-Billancourt, France) (represented by: M.-P. Dauquaire, lawyer)

Defendant: European Union Intellectual Property Office (represented by: S. Pétrequin and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Objectif Pharma (Vandoeuvre-lès-Nancy, France) (represented by: A. Nappey, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 March 2018 (Case R 1448/2017-5) relating to opposition proceedings between Pharmadom and Objectif Pharma.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Pharmadom to pay the costs.

---

(1)  OJ C 301, 27.8.2018.

Judgment of the General Court of 3 April 2019 — NSC Holding v EUIPO — Ibercondor (CONDOR SERVICE, NSC)

(Case T-468/18) (1)

(EU trade mark - Opposition proceedings - Application for EU figurative mark CONDOR SERVICE, NSC - Earlier EU word mark IBERCONDOR - Relative ground for refusal - Likelihood of confusion - Relevant public - Similarity of the services - Similarity of the signs - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 187/83)

Language of the case: German

Parties

Applicant: NSC Holding GmbH & Cie. KG (Hamburg, Germany) (represented by: M. Eichhorst, lawyer)

Defendant: European Union Intellectual Property Office (represented by: A. Söder, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Ibercondor, SA (Barcelona, Spain) (represented by: A. Canela Giménez, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 May 2018 (Case R 2440/2017-4) relating to opposition proceedings between Ibercondor Barcelona SA and NSC Holding.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders NSC Holding GmbH & Cie. KG to pay the costs.

---

(1)  OJ C 328, 17.9.2018.

Judgment of the General Court of 11 April 2019 — Užstato sistemos administratorius v EUIPO — DPG Deutsche Pfandsystem (Representation of a bottle with an arrow)

(Case T-477/18) (1)

(EU trade mark - Opposition proceedings - Application for an EU figurative mark representing a bottle and an arrow - Earlier EU figurative mark representing a can, a bottle and an arrow - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)

(2019/C 187/84)

Language of the case: English

Parties

Applicant: Užstato sistemos administratorius VŠĮ (Vilnius, Lithuania) (represented by: I. Lukauskienė, lawyer)

Defendant: European Union Intellectual Property Office (represented by: P. Sipos and H. O’Neill, acting as Agents)

Other party to the proceedings before the Board of Appeal of EUIPO: DPG Deutsche Pfandsystem GmbH (Berlin, Germany)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 22 May 2018 (Case R 2203/2017-2), relating to opposition proceedings between DPG Deutsche Pfandsystem and Užstato sistemos administratorius.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Užstato sistemos administratorius VšĮ to pay the costs.

---

(1)  OJ C 341, 24.9.2018.

Judgment of the General Court of 3 April 2019 — Medrobotics v EUIPO (See More. Reach More. Treat More.)

(Case T-555/18) (1)

(EU trade mark - Application for EU word mark See More. Reach More. Treat More. - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001)

(2019/C 187/85)

Language of the case: English

Parties

Applicant: Medrobotics Corp. (Rayanham, Massachusetts, United States) (represented by: B. Bittner and U. Heinrich, lawyers)

Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral and H. O’Neill, acting as Agents)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 18 July 2018 (Case R 463/2018-2), relating to an application for registration of the word sign See More. Reach More. Treat More. as an EU trade mark.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Medrobotics Corp. to pay the costs.

---

(1)  OJ C 427, 26.11.2018.

Action brought on 8 April 2019 — SJ v Commission

(Case T-701/18)

(2019/C 187/86)

Language of the case: English

Parties

Applicant: SJ (represented by: J. MacGuill, Solicitor and E. Martin-Vignerte, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the European Commission’s refusal to grant access to documents under Regulation (EC) No 1049/2001 (1), taken by confirmatory decision C(2018) 6642 final of 4 October 2018, and notified to the applicant on 8 October 2018;

—	in relation to costs, order that each party should bear their own costs or that the defendant bear the applicant’s costs were the applicant to succeed.

Pleas in law and main arguments

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

1.	First plea in law, alleging that, by relying on the general presumption of non-disclosure, the defendant effectively shifted the burden of proof and afflicted the applicant with an impossible burden of proof to discharge, in contradiction with stated case-law.

2.	Second plea in law, alleging a manifest error of assessment regarding the existence of an overriding public interest, in breach of the principles of the relevant case-law.

---

(1)  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p.43).

Action brought on 21 March 2019 — Exxonmobil Petroleum & Chemical v ECHA

(Case T-177/19)

(2019/C 187/87)

Language of the case: English

Parties

Applicant: Exxonmobil Petroleum & Chemical BVBA (Antwerp, Belgium) (represented by: M. Navin-Jones, Solicitor and A. Kołtunowska, lawyer)

Defendant: European Chemicals Agency

Form of order sought

The applicant claims that the Court should:

—	declare the application admissible and well-founded;

—	annul ECHA’s decision no ED/88/2018 concerning inclusion of substances of very high concern in the Candidate List for eventual inclusion in Annex XIV, published on 15 January 2019, as it pertains to phenanthrene; and

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the defendant manifestly erred in its assessment of the very persistent proprieties of phenanthrene and exceeded its competence as well as breached Article 59 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 (1) by: — relying on finding of the 2009 Member State committee support document on the very persistent proprieties of phenanthrene as a constituent of coal tar pitch, high temperature without making its own assessment of the information at hand and thereby importing the vitiating errors in that support document; — reaching conclusions on the very persistent proprieties of phenanthrene which the evidence relied upon would have not been capable of supporting; — failing to consider available evidence that would have risen serious questions about the reliability and extreme conservatism of the water-sediment simulation OECD 308 study on phenanthrene; — failing to take into consideration information calling into question the use of a calculation to adjust the results of the OECD 308 study to account for temperature; — failing to assess the new evidence on the persistence of phenanthrene that would have been made available to it during the public consultation; and — by failing to consider all relevant information in the weight of evidence determination of the persistent proprieties of phenanthrene specifically with respect to the photodegradation, dissolution, and volatilisation of phenanthrene.

2.	Second plea in law, alleging that by adopting the contested act, the defendant infringed the European Union law principle of proportionality.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1).

Action brought on 29 March 2019 — Zubedi v Council

(Case T-186/19)

(2019/C 187/88)

Language of the case: English

Parties

Applicant: Khaled Zubedi (Damascus, Syria) (represented by: M. Lester, QC and M. O’Kane, Solicitor)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	annul the Council implementing decision (CFSP) 2019/87 of 21 January 2019 (1) and Council implementing regulation (EU) 2019/85 of 21 January 2019 (2), insofar as they apply to the applicant; and

—	order the defendant to pay costs.

Pleas in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the defendant committed a manifest error in its assessment by including the applicant in the European Union’s restrictive measures concerning Syria.

The applicant has been included by the Council implementing decision (CFSP) 2019/87 and Council implementing regulation (EU) 2019/85 on the basis that he is one of a group of successful businessman in Syria, who are all said by the defendant, to be making large profits from and supporting the regime of President Assad by forming partnerships with State backed companies to develop land expropriated from people displaced by the conflict in Syria. This would be completely untrue in respect of the applicant, the criteria for inclusion would have not been fulfilled and the defendant’s case would have been based on an insufficiently solid basis.

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(1)  Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ L 181, 21.1.2019, p. 13).

(2)  Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ L 181, 21.1.2019, p. 4).

Action brought on 3 April 2019 — Haykal v Council

(Case T-189/19)

(2019/C 187/89)

Language of the case: Bulgarian

Parties

Applicant: Maen Haykal (Damascus, Syria) (represented by: Stanislav Koev, lawyer)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

—	declare the present action to be admissible and well founded in its entirety and declare all the grounds of appeal set out in support of the present appeal to be well founded,

—	declare that the contested acts may be annulled in part,

—	annul in part Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria, in so far as it concerns Maen Haykal,

—	annul in part Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as it concerns Maen Haykal, and

—	order the Council of the European Union to pay all the applicant’s costs, expenses, fees and other expenditure linked to his defence.

Pleas in law and main arguments

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

1.

First plea in law, alleging failure on the part of the Council to fulfil its obligation to state reasons — Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the Charter of Fundamental Rights of the European Union.

2.	Second plea in law, alleging infringement of the principle of legality and proportionality of criminal offences and penalties — Article 49 of the Charter of Fundamental Rights of the European Union.

3.	Third plea in law, alleging infringement of the right to effective judicial protection — Articles 6 and 13 of the ECHR, Article 215 TFEU and Articles 41 and 47 of the Charter of Fundamental Rights of the European Union.

4.	Fourth plea in law, alleging an error of assessment on the part of the Council.

5.	Fifth plea in law, alleging infringement of the right to property, of the principle of proportionality and of the freedom to conduct a business — Article 1 of the Additional Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the European Union.

6.	Sixth plea in law, alleging infringement of the right to a normal life — Articles 2 and 4 of the Charter of Fundamental Rights of the European Union and Articles 3 and 25 of the UN Universal Declaration of Human Rights.

7.	Seventh plea in law, alleging a serious infringement of the right to the protection of reputation — Article 8 and Article 10(2) of the ECHR.

Action brought on 5 April 2019 — Le Pen v Parliament

(Case T-211/19)

(2019/C 187/90)

Language of the case: French

Parties

Applicant: Jean-Marie Le Pen (Saint-Cloud, France) (represented by: F. Wagner, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

—	Annul European Parliament Decision P8_TA-PROV(2019)0136 of 12 March 2019 on the request for waiver of the applicant’s immunity 2018/2247(IMM), which does indeed waive the applicant’s immunity;

—	Order the Parliament to pay the entirety of the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging infringement of Article 9 of Protocol No 7 on the privileges and immunities of the European Union (OJ 2010 C 83, p. 266), Article 5(1) and (5) of the Rules of Procedure of the European Parliament (OJ 2005 L 44, p. 1), and Notices to Members Nos 11/2003 and 11/2016.

2.

Second plea in law, alleging abuse of process. The applicant takes the view that in agreeing to the waiver of the applicant’s parliamentary immunity, the Parliament allows the French examining magistrate to replace the Secretary-General of the Parliament for the period 2009-2014, thus infringing Article 68(1) of the Implementing measures for the Statute for Members of the European Parliament, which confers exclusive competence on the Secretary-General for deciding on sums unduly paid and ordering the issuance of an enforceable instrument against the Member concerned.

3.

Third plea in law, alleging misuse of power, abuse of process and breach of the reasonable time period for instituting proceedings. The applicant claims that the Parliament committed an abuse of process, thereby affecting the applicant’s exercise of his rights of defence inasmuch as, after nearly three terms without any claim on the part of the Secretary-General, the applicant did not consider it necessary to keep evidence of the work done by his assistants, and is unable to answer the court.

4.	Fourth plea in law, alleging infringement of Article 43 of Notice to Members No 11/2016, in so far as the underlying purpose of the proceedings is to make the activities of members of one of the main opposition parties in the Parliament more difficult.

Action brought on 8 April 2019 — AW v Parliament

(Case T-213/19)

(2019/C 187/91)

Language of the case: French

Parties

Applicant: AW (represented by: L. Levi and S. Rodrigues, lawyers)

Defendant: European Parliament

Form of order sought

The applicant claims that the Court should:

—	declare the present action admissible and well founded;

—

annul the decisions dated 7 August 2018 adopted by the defendant, which reject the applicant’s requests for recognition of the occupational origin of two diseases (neck pain and stress-related urticaria) and, so far as necessary, annul the decision of 19 February 2019 by which the defendant rejected the complaint brought on 16 October 2018 by the applicant against the decisions of 7 August 2018;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging the infringement of Article 22(3) of the Common rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the Common Rules’), on account of procedural irregularities committed by the medical committee.

2.	Second plea in law, alleging the infringement of Article 22 of the Common Rules in conjunction with the infringement of Article 41 of the Charter of Fundamental Rights of the European Union, inasmuch as the medical committee did not act independently, but on the Parliament’s instructions.

Action brought on 9 April 2019 — Vinos de Arganza v EUIPO — Nordbrand Nordhausen (ENCANTO)

(Case T-239/19)

(2019/C 187/92)

Language of the case: English

Parties

Applicant: Vinos de Arganza, SL (Toral de los Vados, Spain) (represented by: L. Broschat García, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Nordbrand Nordhausen GmbH (Nordhausen, Germany)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union figurative mark ENCANTO — Application for registration No 15 542 251

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 17 January 2019 in Case R 392/2018-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	reject the opposition;

—	allow the registration of the trade mark applied;

—	order EUIPO and the intervener to pay the costs.

Plea in law

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