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

(2021/C 368/01)

Last publication

OJ C 357, 6.9.2021

Past publications

OJ C 349, 30.8.2021

OJ C 338, 23.8.2021

OJ C 329, 16.8.2021

OJ C 320, 9.8.2021

OJ C 310, 2.8.2021

OJ C 297, 26.7.2021

These texts are available on:

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

Formation of Chambers and assignment of Judges to Chambers

(2021/C 368/02)

Following the death of Judge Berke on 1 August 2021, the General Court is required, in accordance with the conditions laid down in its Rules of Procedure, to reassign the cases in which Judge Berke was Judge-Rapporteur and to appoint a new Judge in the cases in which Judge Berke was sitting as a member of the bench.

On 2 September 2021, the General Court decided to amend the decision on the formation of the Chambers of 30 September 2019, (1) as amended, (2) and the decision on the assignment of Judges to Chambers of 4 October 2019, (3) as amended, (4) for the period from 2 September 2021 to 31 August 2022 and to assign the Judges to Chambers as follows:

First Chamber (Extended Composition), sitting with five Judges:

Mr Kanninen, President of the Chamber, Mr Jaeger, Ms Półtorak, Ms Porchia and Ms Stancu, Judges.

First Chamber, sitting with three Judges:

Mr Kanninen, President of the Chamber;

Formation A: Mr Jaeger and Ms Półtorak, Judges;

Formation B: Mr Jaeger and Ms Porchia, Judges;

Formation C: Mr Jaeger and Ms Stancu, Judges;

Formation D: Ms Półtorak and Ms Porchia, Judges;

Formation E: Ms Półtorak and Ms Stancu, Judges;

Formation F: Ms Porchia and Ms Stancu, Judges.

Second Chamber (Extended Composition), sitting with five Judges:

Ms Tomljenović, President of the Chamber, Mr Schalin, Ms Škvařilová-Pelzl, Mr Nõmm and Ms Steinfatt, Judges.

Second Chamber, sitting with three Judges:

Ms Tomljenović, President of the Chamber;

Formation A: Mr Schalin and Ms Škvařilová-Pelzl, Judges;

Formation B: Mr Schalin and Mr Nõmm, Judges;

Formation C: Ms Škvařilová-Pelzl and Mr Nõmm, Judges.

Third Chamber (Extended Composition), sitting with five Judges:

Mr Collins, President of the Chamber, Mr Kreuschitz, Mr Csehi, Mr De Baere and Ms Steinfatt, Judges.

Third Chamber, sitting with three Judges:

Mr Collins, President of the Chamber;

Formation A: Mr Kreuschitz and Mr Csehi, Judges;

Formation B: Mr Kreuschitz and Mr De Baere, Judges;

Formation C: Mr Kreuschitz and Ms Steinfatt, Judges;

Formation D: Mr Csehi and Mr De Baere, Judges;

Formation E: Mr Csehi and Ms Steinfatt, Judges;

Formation F: Mr De Baere and Ms Steinfatt, Judges.

Fourth Chamber (Extended Composition), sitting with five Judges:

Mr Gervasoni, President of the Chamber, Mr Madise, Mr Nihoul, Ms Frendo and Mr Martín y Pérez de Nanclares, Judges.

Fourth Chamber, sitting with three Judges:

Mr Gervasoni, President of the Chamber;

Formation A: Mr Madise and Mr Nihoul, Judges;

Formation B: Mr Madise and Ms Frendo, Judges;

Formation C: Mr Madise and Mr Martín y Pérez de Nanclares, Judges;

Formation D: Mr Nihoul and Ms Frendo, Judges;

Formation E: Mr Nihoul and Mr Martín y Pérez de Nanclares, Judges;

Formation F: Ms Frendo and Mr Martín y Pérez de Nanclares, Judges.

Fifth Chamber (Extended Composition), sitting with five Judges:

Mr Spielmann, President of the Chamber, Mr Öberg, Ms Spineanu-Matei, Mr Mastroianni and Ms Brkan, Judges.

Fifth Chamber, sitting with three Judges:

Mr Spielmann, President of the Chamber;

Formation A: Mr Öberg and Ms Spineanu-Matei, Judges;

Formation B: Mr Öberg and Mr Mastroianni, Judges;

Formation C: Mr Öberg and Ms Brkan, Judges;

Formation D: Ms Spineanu-Matei and Mr Mastroianni, Judges;

Formation E: Ms Spineanu-Matei and Ms Brkan, Judges;

Formation F: Mr Mastroianni and Ms Brkan, Judges.

Sixth Chamber (Extended Composition), sitting with five Judges:

Ms Marcoulli, President of the Chamber, Mr Frimodt Nielsen, Mr Schwarcz, Mr Iliopoulos and Mr Norkus, Judges.

Sixth Chamber, sitting with three Judges:

Ms Marcoulli, President of the Chamber;

Formation A: Mr Frimodt Nielsen and Mr Schwarcz, Judges;

Formation B: Mr Frimodt Nielsen and Mr Iliopoulos, Judges;

Formation C: Mr Frimodt Nielsen and Mr Norkus, Judges;

Formation D: Mr Schwarcz and Mr Iliopoulos, Judges;

Formation E: Mr Schwarcz and Mr Norkus, Judges;

Formation F: Mr Iliopoulos and Mr Norkus, Judges.

Seventh Chamber (Extended Composition), sitting with five Judges:

Mr da Silva Passos, President of the Chamber, Mr Valančius, Ms Reine, Mr Truchot and Mr Sampol Pucurull, Judges.

Seventh Chamber, sitting with three Judges:

Mr da Silva Passos, President of the Chamber;

Formation A: Mr Valančius and Ms Reine, Judges;

Formation B: Mr Valančius and Mr Truchot, Judges;

Formation C: Mr Valančius and Mr Sampol Pucurull, Judges;

Formation D: Ms Reine and Mr Truchot, Judges;

Formation E: Ms Reine and Mr Sampol Pucurull, Judges;

Formation F: Mr Truchot and Mr Sampol Pucurull, Judges.

Eighth Chamber (Extended Composition), sitting with five Judges:

Mr Svenningsen, President of the Chamber, Mr Barents, Mr Mac Eochaidh, Ms Pynnä and Mr Laitenberger, Judges.

Eighth Chamber, sitting with three Judges:

Mr Svenningsen, President of the Chamber;

Formation A: Mr Barents and Mr Mac Eochaidh, Judges;

Formation B: Mr Barents and Ms Pynnä, Judges;

Formation C: Mr Barents and Mr Laitenberger, Judges;

Formation D: Mr Mac Eochaidh and Ms Pynnä, Judges;

Formation E: Mr Mac Eochaidh and Mr Laitenberger, Judges;

Formation F: Ms Pynnä and Mr Laitenberger, Judges.

Ninth Chamber (Extended Composition), sitting with five Judges:

Ms Costeira, President of the Chamber, Mr Gratsias, Ms Kancheva, Ms Perišin and Mr Petrlík, Judges.

Ninth Chamber, sitting with three Judges:

Ms Costeira, President of the Chamber;

Formation A: Mr Gratsias and Ms Kancheva, Judges;

Formation B: Mr Gratsias and Ms Perišin, Judges;

Formation C: Ms Kancheva and Ms Perišin, Judges.

Tenth Chamber (Extended Composition), sitting with five Judges:

Mr Kornezov, President of the Chamber, Mr Buttigieg, Ms Kowalik-Bańczyk, Mr Hesse and Mr Petrlík, Judges.

Tenth Chamber, sitting with three Judges:

Mr Kornezov, President of the Chamber;

Formation A: Mr Buttigieg and Ms Kowalik-Bańczyk, Judges;

Formation B: Mr Buttigieg and Mr Hesse, Judges;

Formation C: Mr Buttigieg and Mr Petrlík, Judges;

Formation D: Ms Kowalik-Bańczyk and Mr Hesse, Judges;

Formation E: Ms Kowalik-Bańczyk and Mr Petrlík, Judges;

Formation F: Mr Hesse and Mr Petrlík, Judges.

The Second Chamber, composed of four Judges, will be extended by the addition of a fifth Judge from the Third Chamber. The Ninth Chamber, composed of four Judges, will be extended by the addition of a fifth Judge from the Tenth Chamber. The fifth Judge shall be designated according to the reverse order to the order laid down in Article 8 of the Rules of Procedure for the period ending on 31 August 2022.

The General Court confirms its decision of 4 October 2019 that the First, Fourth, Seventh and Eighth Chambers shall hear cases brought under Article 270 TFEU and, where appropriate, Article 50a of the Protocol on the Statute of the Court of Justice of the European Union, and that the Second, Third, Fifth, Sixth, Ninth and Tenth Chambers shall hear cases relating to intellectual property rights referred to in Title IV of the Rules of Procedure.

It also confirms that:

—	the President and the Vice-President shall not be attached permanently to a Chamber;

—

in the course of each judicial year, the Vice-President shall sit in each of the ten Chambers sitting with five Judges, on the basis of one case per Chamber in the following order: — the first case referred back, by decision of the General Court, to an extended Chamber sitting with five Judges of the First Chamber, the Second Chamber, the Third Chamber, the Fourth Chamber and the Fifth Chamber; — the third case referred back, by decision of the General Court, to an extended Chamber sitting with five Judges of the Sixth Chamber, the Seventh Chamber, the Eighth Chamber, the Ninth Chamber and the Tenth Chamber.

Where the Chamber in which the Vice-President sits is composed of:

—

five Judges, the extended Chamber shall be composed of the Vice-President, Judges from the Chamber sitting with three Judges originally seised as well as one of the other Judges of the Chamber in question, determined on the basis of the reverse order to the order laid down in Article 8 of the Rules of Procedure;

—	four Judges, the extended Chamber shall be composed of the Vice-President, Judges from the Chamber sitting with three Judges originally seised and the fourth Judge of the Chamber in question.

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(1)  OJ 2019 C 372, p. 3.

(2)  OJ 2020 C 68, p. 2, OJ 2020 C 114, p. 2, OJ 2020 C 371, p. 2, OJ 2021 C 110, p. 2, and OJ 2021 C 297, p. 2.

(3)  OJ 2019 C 372, p. 3.

(4)  OJ 2020 C 68, p. 2, OJ 2020 C 114, p. 2, OJ 2020 C 371, p. 2, OJ 2021 C 110, p. 2, and OJ 2021 C 297, p. 2.

Appeal brought on 24 February 2021 by Cinkciarz.pl sp. z o.o. against the judgment of the General Court delivered on 16 December 2020 in Case T-665/19, Cinkciarz.pl v EUIPO

(Case C-114/21 P)

(2021/C 368/03)

Language of the case: Polish

Parties

Appellant: Cinkciarz.pl sp. z o.o. (represented by: E. Skrzydło-Tefelska, radca prawny, K. Gajek, adwokat, and M. Żuk, radca prawny)

Other party to the proceedings: European Union Intellectual Property Office

By order of 22 June 2021, the Court of Justice (Chamber determining whether appeals may proceed) did not allow the appeal to proceed.

Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 17 June 2021 — TBI Bank EAD

(Case C-379/21)

(2021/C 368/04)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant in the main proceedings: TBI Bank EAD

Questions referred

1.

Must Article 6(1) of Directive 93/13/EEC (1) be interpreted as requiring the national court, in proceedings to which the debtor is not party until the issuance of a court order for immediate payment, to assess of its own motion the unfairness of a contractual term, including if there is a mere suspicion that the term is unfair, and disapply it?

2.

If the first question is answered in the affirmative, is the national court required to refuse to issue a court decision ordering immediate payment altogether where only part of the claim made is based on a likely unfair contractual term giving rise to the amount of the claim, including in cases where, in proceedings to which the debtor is not party until the issuance of a court order for immediate payment, it is not possible to determine the specific amount of all the elements of the claims based on terms which are not suspected of being unfair?

3.	If the first question is answered in the affirmative and the second in the negative, is the national court required partially to refuse to issue a court decision ordering payment in respect of the part of the claim that is based on the unfair term?

4.

If the third question is answered in the affirmative, is the national court required, and, if so, under what conditions, to take into account of its own motion the consequences of the unfairness of a term in the case where it has available to it information about a payment based on that term, inter alia by offsetting that payment against other outstanding debts under the contract, as provided for in respect of similar cases under national law?

5.

If the second, third and fourth questions are answered in the affirmative, is the national court bound by the instructions of a higher court which, under national law, are binding on the instance under review, in the case where those instructions do not take the consequences of the unfairness of a contractual term in the consumer contract into account?

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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 Landgericht Köln (Germany) lodged on 25 June 2021 — ADPA European Independent Automotive Data Publishers Association international not-for-profit association — Belgian law and Gesamtverband Autoteile-Handel e.V. v Automobiles PEUGEOT SA and PSA Automobiles SA

(Case C-390/21)

(2021/C 368/05)

Language of the case: German

Referring court

Landgericht Köln

Parties to the main proceedings

Applicants: ADPA European Independent Automotive Data Publishers Association international not-for-profit association — Belgian law, Gesamtverband Autoteile-Handel eV

Defendants: Automobiles PEUGEOT SA, PSA Automobiles SA

Questions referred

1.

Do the provisions of Chapter XIV of Regulation (EU) 2018/858 (1) (Article 61 et seq., including Annex X) also apply to those vehicle models which were type-approved for the first time before 1 September 2020, under Regulation (EC) No 715/2007 (2)? If this question is answered in the negative, additionally: Does Chapter III of Regulation (EC) No 715/2007 and, in relation to the calculation of fees, specifically Article 7 of Regulation (EC) No 715/2007, still apply in relation to these ‘end-of-life vehicles’?

2.

Does the concept of ‘access’ to that information, which the manufacturer is required to grant under Article 61(1) of Regulation (EU) 2018/858, include giving the publishers of technical information pursuant to Article 3(45) of Regulation (EU) 2018/858 the authority to use this information for tasks associated with their business in the aftermarket supply chain, or does a right of exploitation of this kind require a separate agreement in the form of an exploitation and republishing licence, which then does not fall within the scope of Article 63 of Regulation (EU) 2018/858 as regards the fees claimed by the manufacturer in this respect? If the first question referred is answered in the negative, and Chapter III of Regulation (EC) No 715/2007 applies to end-of-life vehicles, additionally: Does the concept of ‘access’ to that information, which the manufacturer is required to grant under Article 6(1) of Regulation (EU) No 715/2007, include giving the publishers of technical information pursuant to Article 3(15) of Regulation (EU) No 715/2007 the authority to use this information for tasks associated with their business in the aftermarket supply chain, or does a right of exploitation of this kind require a separate agreement in the form of an exploitation and republishing licence, which then does not fall within the scope of Article 7 of Regulation (EU) 715/2007 as regards the fees claimed by the manufacturer in this respect?

3.

Is the concept of ‘reasonable and proportionate fees’ in the first sentence of Article 63(1) of Regulation (EU) 2018/858 to be interpreted as meaning that the manufacturer must treat all independent economic operators pursuant to Article 3(45) of Regulation (EU) 2018/858 equally when calculating fees, irrespective of their commercial activity? If the first question referred is answered in the negative, and Chapter III of Regulation (EC) No 715/2007 applies to end-of-life vehicles, additionally: Is the concept of ‘reasonable and proportionate fees’ in the first sentence of Article 7(1) of Regulation (EU) No 715/2007 to be interpreted as meaning that the manufacturer must treat all independent economic operators pursuant to Article 3(15) of Regulation (EU) No 715/2007 equally when calculating fees, irrespective of their commercial activity? If the third question referred is answered in the negative:

4.

Is the concept of ‘reasonable and proportionate fees’ in the first sentence of Article 63(1) of Regulation (EU) 2018/858 to be interpreted as meaning that the fee should generally only cover the manufacturers’ costs? If the first question referred is answered in the negative, and Chapter III of Regulation (EC) No 715/2007 applies to end-of-life vehicles, additionally: Is the concept of ‘reasonable and proportionate fees’ in the first sentence of Article 7(1) of Regulation (EC) No 715/2007 to be interpreted as meaning that the fee should generally only cover the manufacturer’s costs?

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(1)  Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC (OJ 2018 L 151, p. 1).

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

Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 28 June 2021 — Lufthansa Technik AERO Alzey GmbH v Arik Air Limited and Others

(Case C-393/21)

(2021/C 368/06)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellant on a point of law: Lufthansa Technik AERO Alzey GmbH

Other parties in the appeal on a point of law: Arik Air Limited and Others

Questions referred

1.

How, taking into account the objectives of Regulation No 805/2004, (1) inter alia the objective of accelerating and simplifying the enforcement of judgments of Member States and effective safeguarding of the right to a fair trial, must the term ‘exceptional circumstances’ in Article 23(c) of Regulation No 805/2004 be interpreted? What is the discretion that the competent authorities of the Member State of enforcement have to interpret the term ‘exceptional circumstances’?

2.

Are circumstances, such as those in the present case, related to judicial proceedings in the State of origin which decide a question regarding the setting aside of the judgment on the basis of which a European Enforcement Order was issued to be regarded as relevant when deciding on the application of Article 23(c) of Regulation No 805/2004? According to what criteria must the appeal proceedings in the Member State of origin be assessed and how comprehensive must the assessment of the proceedings taking place in the Member State of origin that is carried out by the competent authorities of the Member State of enforcement be?

3.

What is the subject matter of the assessment when deciding on the application of the term ‘exceptional circumstances’ in Article 23 of Regulation No 805/2004: must the impact of the respective circumstances of the dispute when the judgment of the State of origin is challenged in the State of origin be assessed, must the possible potential benefit or harm of the respective measure specified in Article 23 of the regulation be analysed, or must the debtor’s economic abilities to implement the judgment, or other circumstances, be analysed?

4.

Under Article 23 of Regulation No 805/2004, is the simultaneous application of several measures specified in that article possible? If the answer to this question is in the affirmative, what criteria must the competent authorities of the State of enforcement rely on when deciding on the merits and proportionality of the application of several of those measures?

5.

Is the legal regime laid down in Article 36(1) of Regulation (EU) No 1215/2012 (2) of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be applied to a judgment of the State of origin regarding the suspension (or cancellation) of enforceability, or is a legal regime similar to that specified in Article 44(2) of that regulation applicable?

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(1)  Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15).

(2)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 28 June 2021 — D. V. v M. A.

(Case C-395/21)

(2021/C 368/07)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellant in the appeal in cassation: D. V.

Other party in the appeal in cassation: M. A.

Questions referred

1.

Must Article 4(2) of Directive 93/13 (1) be interpreted as meaning that the words ‘the main subject matter of the contract’ cover a term — which has not been individually negotiated and is in a contract for legal services concluded by a businessman (lawyer) and a consumer — concerning the cost and the way in which it is calculated?

2.

Must the reference in Article 4(2) of Directive 93/13 to the plainness and intelligibility of a contractual term be interpreted as meaning that it is sufficient to specify in the term in the contract regarding cost (which establishes the cost for services actually provided on the basis of an hourly rate) the amount of the hourly fee payable to the lawyer?

3.

If the answer to the second question is in the negative: must the requirement of transparency be interpreted as encompassing an obligation of the lawyer to indicate in the contract the cost of services the specific rates of which can be clearly defined and specified in advance, or must an indicative cost of the services (a preliminary budget for the legal services provided) also be specified, if it is impossible to predict the number (or duration) of specific actions, and the fee for them, when concluding the contract, and the possible risks leading to an increase or decrease in the cost be indicated? When assessing whether the contractual term regarding cost complies with the requirement of transparency, is it relevant whether information relating to the cost of legal services and the way in which it is calculated is provided to the consumer by any appropriate means or is laid down in the contract for legal services itself? Can a lack of information in pre-contractual relations be compensated for by providing information during the performance of the contract? Is the assessment of whether the contractual term complies with the requirement of transparency affected by the fact that the final cost of the legal services provided becomes clear only after their provision has come to an end? When assessing whether the contractual term regarding cost complies with the requirement of transparency, is it relevant that the contract does not stipulate the periodic provision of reports of the lawyer in respect of the services provided or the periodic presentation of bills to the consumer, which would allow the consumer to decide in good time on the refusal of legal services or a change of the contract price?

4.

If the national court decides that the contractual term establishing the cost for services actually provided on the basis of an hourly rate is not in plain intelligible language as required under Article 4(2) of Directive 93/13, must it examine whether that term is unfair within the meaning of Article 3(1) of that directive (that is to say, when examining whether the contractual term may be unfair, it must be established whether that term causes a ‘significant imbalance’ in the rights and obligations of the parties to the contract, to the detriment of the consumer) or, nevertheless taking into account the fact that that term covers essential information under the contract, is the mere fact that the term regarding cost is not transparent sufficient for it to be found unfair?

5.

Does the fact that, when the contractual term regarding cost has been found to be unfair, the contract for legal services is not binding, as indicated in Article 6(1) of Directive 93/13, mean that it is necessary to restore the situation in which the consumer would have been in the absence of the term which has been found to be unfair? Would the restoration of such a situation mean that the consumer does not have the obligation to pay for the services already provided?

6.

If the nature of a contract for services provided for consideration means that it is impossible to restore the situation in which the consumer would have been in the absence of the term which has been found to be unfair (the services have already been provided), would the establishment of remuneration for the services provided by the lawyer be contrary to the objective of Article 7(1) of Directive 93/13? If the answer to this question is in the negative, would the real balance by which the equality of the parties to the contract is restored be achieved: (i) if the lawyer were paid for the services provided at the hourly rate specified in the contract; (ii) if the lawyer were paid the minimum cost of legal services (for example, that specified in a national legal measure, namely recommendations on the maximum amount of the fee for assistance provided by a lawyer); (iii) if the lawyer were paid a reasonable amount for the services that was determined by the court, regard being had to the complexity of the case, the lawyer’s qualifications and experience, the client’s financial situation and other relevant circumstances?

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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 Svea hovrätt, Patent- och marknadsöverdomstolen (Sweden) lodged on 28 June 2021 — IRnova AB v FLIR Systems AB

(Case C-399/21)

(2021/C 368/08)

Language of the case: Swedish

Referring court

Svea hovrätt, Patent- och marknadsöverdomstolen

Parties to the main proceedings

Applicant: IRnova AB

Defendant: FLIR Systems AB

Question referred

Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of Regulation (EU) No 1215/2012 (1) of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

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(1)  OJ 2012 L 351, p. 1.

Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 1 July 2021 — A Oy v B Ky and joint heirs of C

(Case C-406/21)

(2021/C 368/09)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Appellant: A Oy

Respondents: B Ky and joint heirs of C

Questions referred

1.

Is Article 12(4) of Directive 2011/7 (1) to be interpreted as meaning that Member States may exclude from the scope of that directive a contractual practice relating to penalties for late payment which the parties engaged in on a consistent basis in respect of individual orders prior to 16 March 2013, even if the individual orders in respect of which the enforcement of penalties for late payment is sought were placed after that date?

2.

If the first question is answered in the negative, is Article 7(2) and (3) of Directive 2011/7 to be interpreted as meaning that the contractual practice described in Question 1 is to be regarded as a contractual term or practice which excludes interest for late payment or compensation for recovery costs within the meaning of those provisions?

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(1)  Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ 2011 L 48, p. 1).

Request for a preliminary ruling from the Hof van Cassatie (Belgium) lodged on 7 July 2021 — VP Capital NV v Belgische Staat; other parties: PricewaterhouseCoopers Belastingadviseurs NV, Ernst & Young Tax Consultants BV, Ernst & Young Bedrijfsrevisoren BV

(Case C-414/21)

(2021/C 368/10)

Language of the case: Dutch

Referring court

Hof van Cassatie

Parties to the main proceedings

Appellant: VP Capital NV

Respondent: Belgische Staat

Other parties: PricewaterhouseCoopers Belastingadviseurs NV, Ernst & Young Tax Consultants BV, Ernst & Young Bedrijfsrevisoren BV

Question referred

Does freedom of establishment, as guaranteed by Article 49 TFEU, preclude national legislation, such as that at issue here, where it results in a Luxembourg company which records write-downs on shares in Luxembourg and which, although deducting those write-downs in principle from its taxable income, cannot actually deduct them from its taxable income because of the existence of a tax loss position, being taxed on the write-back of those write-downs in Belgium following the transfer of its registered office to Belgium, unless the increases in value masked by that write-back are allocated to a liability account not available for distribution, whereas a Belgian company which has recorded write-downs on shares in Belgium is not taxed on the write-back of those write-downs, provided that the write-downs had not been previously deducted from its Belgian taxable income, without needing to allocate the increases in value masked by that write-back to a liability account not available for distribution?

Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 July 2021 — Ministero dell’Interno v TO

(Case C-422/21)

(2021/C 368/11)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Ministero dell’Interno

Respondent: TO

Question referred

Does Article 20(4) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 (1) preclude national legislation which provides for the withdrawal of reception measures from adult applicants who are not categorised as ‘vulnerable persons’, if such an applicant is deemed to have engaged in particularly violent behaviour outside the accommodation centre involving the use of physical force against public officials and/or public servants, causing such injuries to the victims that they were required to seek emergency treatment?

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(1)  Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (OJ 2013 L 180, p. 96).

Request for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 14 July 2021 — European arrest warrant issued against HM; other party to the proceedings: Openbaar Ministerie

(Case C-428/21)

(2021/C 368/12)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

European arrest warrant issued against: HM

Other party to the proceedings: Openbaar Ministerie

Questions referred

1.

Must Article 27(3)(g) and (4) of Framework Decision 2002/584/JHA, (1) read in the light of the right to effective judicial protection, be interpreted as meaning that: — a surrendered person must be able to exercise his or her right to be heard in relation to a request for an extension of the offences in the issuing Member State when a judicial authority of that Member State grants him or her a hearing relating to the possible renunciation of the entitlement to the speciality rule as referred to in Article 27(3)(f) of the Framework Decision, or — must that person be able to exercise his or her right to be heard in the Member State which previously surrendered him or her to the executing judicial authority in the proceedings relating to the request for consent to extend the offences?

2.

If a surrendered person must be able to exercise his or her right to be heard in relation to the decision on a request for consent to extend the offences, as referred to in Article 27(4) of Framework Decision 2002/584/JHA, in the Member State which previously surrendered him or her, in what way must that Member State enable him or her to do so?

---

(1)  Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

Request for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 14 July 2021 — European arrest warrant issued against TZ; other party to the proceedings: Openbaar Ministerie

(Case C-429/21)

(2021/C 368/13)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

European arrest warrant issued against: TZ

Other party to the proceedings: Openbaar Ministerie

Questions referred

1.

Must Article 28(3) of Framework Decision 2002/584/JHA, (1) read in the light of the right to effective judicial protection, be interpreted as meaning: — that a person who has been surrendered to the issuing Member State and in respect of whom a third Member State has subsequently issued an EAW for offences committed prior to that surrender, must be able to exercise his or her right to be heard in relation to the request for consent for subsequent surrender, as referred to in Article 28(3) of Framework Decision 2002/584/JHA, in the issuing Member State before a judicial authority of that Member State during the proceedings on the execution of the EAW issued by the third Member State; or — that that person must be able to exercise his right to be heard in the Member State which previously surrendered him to the executing judicial authority during the proceedings on the giving of consent for subsequent surrender?

2.

If a surrendered person must be able to exercise his or her right to be heard in relation to the decision on a request for consent for subsequent surrender, as referred to in Article 28(3) of Framework Decision 2002/584/JHA, in the Member State which previously surrendered him or her, in what way must that Member State enable him or her to do so?

---

(1)  Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).

Appeal brought on 29 July 2021 by Land Rheinland-Pfalz against the judgment of the General Court (Ninth Chamber) delivered on 19 May 2021 in Case T-218/18, Deutsche Lufthansa AG v European Commission

(Case C-466/21 P)

(2021/C 368/14)

Language of the case: German

Parties

Appellant: Land Rheinland-Pfalz (represented by: R. van der Hout, advocaat, C. Wagner, Rechtsanwalt)

Other parties to the proceedings: Deutsche Lufthansa AG, European Commission, Federal Republic of Germany

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court (Ninth Chamber) of 19 May 2021 in Case T-218/18, Deutsche Lufthansa v Commission, and definitively dismiss the action;

—	order Deutsche Lufthansa AG to pay the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The appeal is based on five grounds:

—

First ground of appeal, alleging that the General Court erred in law by considering that Deutsche Lufthansa AG (‘DLH’) had standing under Article 263(4) TFEU. It incorrectly assumed that DLH was an ‘interested party’ within the meaning of Article 1(h) and Article 24 of Regulation (EU) 2015/1589 (1) and that its action alleged an infringement of its procedural rights. Furthermore, the General Court did not sufficiently explain the relevant aspects it took into account for its decision on standing.

—	Second ground of appeal, alleging that the General Court erred in law by basing its decision as to the catchment area solely on the text of the contested decision, without consulting the relevant context and documents from the administrative procedure.

—

Third ground of appeal, alleging that the General Court erred in law by basing the judgment on the fact that the Commission did not take into account destination airports and other specific features when determining the catchment area. Since DLH did not challenge this in its application, the General Court should not have upheld the application on this ground.

—

Fourth ground of appeal, alleging that the General Court erred in law by considering that the Commission did not address all concerns as to the compatibility of the catchment area with the internal market. In so doing, the General Court failed to appreciate that, when taking a decision to close the preliminary investigation procedure, the Commission must decide on the basis of the information available to it at that time, and that the Commission had no reason to raise concerns when examining the compatibility of the catchment area with the criteria of the Guidelines on aid in the aviation sector.

—

Fifth ground of appeal, alleging that the General Court infringed Article 264(2) TFEU by annulling the contested decision without specifying which effects should continue to apply. In addition, it breached its duty to state reasons, since it did not justify the decision with regard to its temporal effect.

---

(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

Order of the President of the Court of 18 June 2021 (request for a preliminary ruling from the Vrhovni sud — Croatie) — I.D. v Z b. d.d.

(Case C-474/20) (1)

(2021/C 368/15)

Language of the case: Croatian

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

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(1)  OJ C 423, 7.12.2020.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — IO, SP, DR v Deutsche Lufthansa AG

(Case C-526/20) (1)

(2021/C 368/16)

Language of the case: German

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

---

(1)  OJ C 28, 25.1.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — PJ v Deutsche Lufthansa AG

(Case C-527/20) (1)

(2021/C 368/17)

Language of the case: German

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

---

(1)  OJ C 28, 25.1.2021.

Order of the President of the Court of 18 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — CT v Deutsche Lufthansa AG

(Case C-528/20) (1)

(2021/C 368/18)

Language of the case: German

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

---

(1)  OJ C 28, 25.01.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — AP v Deutsche Lufthansa AG

(Case C-529/20) (1)

(2021/C 368/19)

Language of the case: German

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

---

(1)  OJ C 28, 25.1.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — DS v Deutsche Lufthansa AG

(Case C-565/20) (1)

(2021/C 368/20)

Language of the case: German

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

---

(1)  OJ C 19, 18.1.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — DG v Deutsche Lufthansa AG

(Case C-566/20) (1)

(2021/C 368/21)

Language of the case: German

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

---

(1)  OJ C 28, 25.1.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v OP

(Case C-627/20) (1)

(2021/C 368/22)

Language of the case: German

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

---

(1)  OJ C 72, 1.3.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v BA

(Case C-628/20) (1)

(2021/C 368/23)

Language of the case: German

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

---

(1)  OJ C 72, 1.3.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v CS

(Case C-630/20) (1)

(2021/C 368/24)

Language of the case: German

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

---

(1)  OJ C 72, 1.3.2021.

Order of the President of Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany.) — Deutsche Lufthansa AG v PR, TV

(Case C-631/20) (1)

(2021/C 368/25)

Language of the case: German

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

---

(1)  OJ C 72, 1.3.2021

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — German) — GJ v Ryanair DAC

(Case C-712/20) (1)

(2021/C 368/26)

Language of the case: German

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

---

(1)  OJ C 128, 12. 4.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v TZ

(Case C-10/21) (1)

(2021/C 368/27)

Language of the case: German

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

---

(1)  OJ C 88, 15.03.2021.

Order of the President of the Court of 18 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v IY, TP

(Case C-11/21) (1)

(2021/C 368/28)

Language of the case: German.

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

---

(1)  OJ C 88, 15.3.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v FL

(Case C-12/21) (1)

(2021/C 368/29)

Language of the case: German

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

---

(1)  OJ C 88, 15.03.2021.

Order of the President of the Court of 17 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v ZR

(Case C-107/21) (1)

(2021/C 368/30)

Language of the case: German

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

---

(1)  OJ C 182, 10.05.2021.

Order of the President of the Court of 18 June 2021 (request for a preliminary ruling from the Landgericht Köln — Germany) — Deutsche Lufthansa AG v GD, WT

(Case C-135/21) (1)

(2021/C 368/31)

Language of the case: German

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

---

(1)  OJ C 182, 10. 5.2021.

Order of the President of the Court of 18 June 2021 (request for a preliminary ruling from the Københavns Byret — Danmark) — Orion Corporation v Lægemiddelstyrelsen, in the presence of: Teva Danmark A/S

(Case C-165/21) (1)

(2021/C 368/32)

Language of the case: German

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

---

(1)  OJ C 206, 31.05.2021.

Judgment of the General Court of 14 July 2021 — Public.Resource.Org and Right to Know v Commission

(Case T-185/19) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Harmonised standards - Documents concerning four harmonised standards approved by CEN - Refusal to grant access - Exception relating to the protection of the commercial interests of a third party - Protection deriving from copyright)

(2021/C 368/33)

Language of the case: English

Parties

Applicants: Public.Resource.Org, Inc., (Sebastopol, California, United States), Right to Know CLG (Dublin, Ireland) (represented by: F. Logue, Solicitor, A. Grünwald, J. Hackl and C. Nüßing, lawyers)

Defendant: European Commission (represented by: G. Gattinara, F. Thiran and S. Delaude, acting as Agents)

Intervener in support of the defendant: European Committee for Standardisation (CEN), and 14 other interveners, whose names are listed in the annex to the judgment (represented by: U. Karpenstein, K. Dingemann and M. Kottmann, lawyers)

Re:

Application on the basis of Article 263 TFEU for annulment of Commission Decision C(2019) 639 final of 22 January 2019 refusing to grant a request for access to four harmonised standards adopted by CEN.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Public.Resource.Org, Inc. and Right to Know CLG to bear their own costs and to pay those incurred by the European Commission;

3.

Orders the European Committee for Standardisation (CEN), the Asociación Española de Normalización (UNE), the Asociaţia de Standardizare din România (ASRO), the Association française de normalisation (AFNOR), Austrian Standards International (ASI), the British Standards Institution (BSI), the Bureau de normalisation/Bureau voor Normalisatie (NBN), Dansk Standard (DS), the Deutsches Institut für Normung eV (DIN), the Koninklijk Nederlands Normalisatie Instituut (NEN), the Schweizerische Normen-Vereinigung (SNV), Standard Norge (SN), the Suomen Standardisoimisliitto ry (SFS), the Svenska institutet för standarder (SIS) and the Institut za standardizaciju Srbije (ISS) to bear their own costs.

---

(1)  OJ C 172, 20.5.2019.

Judgment of the General Court of 14 July 2021 — JT v EUIPO — Carrasco Pirard (QUILAPAYÚN)

(Case T-197/20) (1)

(EU trade mark - Opposition proceedings - Application for the EU figurative mark QUILAPAYÚN - Relative ground for refusal - No well-known mark within the meaning of Article 6bis of the Paris Convention - Article 8(2)(c) of Regulation (EC) No 207/2009 (now Article 8(2)(c) of Regulation (EU) 2017/1001))

(2021/C 368/34)

Language of the case: Spanish

Parties

Applicant: JT (represented by: A. Mena Valenzuela, lawyer)

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

Other parties to the proceedings before the Board of Appeal of EUIPO: Eduardo Carrasco Pirard (Santiago, Chile) and the seven other parties to the proceedings before the Board of Appeal of EUIPO whose names are listed in the annex to the judgment

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 February 2020 (Case R 1518/2019-4), relating to opposition proceedings between, on the one hand, JT and, on the other hand, Mr Carrasco Pirard and the other parties to the proceedings before the Board of Appeal of EUIPO whose names are listed in the annex.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders JT to pay the costs.

---

(1)  OJ C 320, 28.9.2020.

Judgment of the General Court of 14 July 2021 — Upper Echelon Products LLC v EUIPO (Everlasting Comfort)

(Case T-562/20) (1)

(EU trade mark - International registration designating the European Union - Word mark Everlasting Comfort - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EU) 2017/1001)

(2021/C 368/35)

Language of the case: English

Parties

Applicant: Upper Echelon Products LLC (Austin, Texas, United States)) (represented by: M. Izquierdo Blanco, lawyer)

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

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 July 2020 (Case R 952/2020-1) relating to the international registration designating the European Union in respect of the word mark Everlasting Comfort

Operative part of the judgment

The Court:

1.	Dismisses the action.

2.	Orders Upper Echelon Products LLC to pay the costs.

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(1)  OJ C 371, 3.11.2020.

Judgment of the General Court of 14 July 2021 — Ryanair and Laudamotion v Commission (Austrian Airlines; Covid-19)

(Case T-677/20) (1)

(State aid - Austrian air transport market - Aid granted by Austria to an airline amid the COVID-19 pandemic - Subordinated loan to Austrian Airlines - Decision not to raise any objections - Aid previously granted to the parent company of the recipient - Aid intended to make good the damage caused by an exceptional occurrence - Freedom of establishment - Free provision of services - Equal treatment - Duty to state reasons)

(2021/C 368/36)

Language of the case: English

Parties

Applicants: Ryanair DAC (Swords, Ireland), Laudamotion GmbH, (Schwechat, Austria) (represented by: E. Vahida, F.-C. Laprévote, V. Blanc, S. Rating and I.-G. Metaxas-Maranghidis, lawyers)

Defendant: European Commission (represented by: L. Flynn, F. Tomat and S. Noë, acting as Agents)

Interveners in support of the defendants: Federal Republic of Germany (represented by: R. Kanitz, J. Möller and P.-L. Krüger, acting as Agents), Republic of Austria (represented by: A. Posch, J. Schmoll, G. Eberhard and S. Weber, acting as Agents), Austrian Airlines AG, (Vienna, Austria), (represented by: A. Zellhofer, lawyer)

Re:

Application under Article 263 TFEU for annulment of Commission Decision C(2020) 4684 final of 6 July 2020 on State aid SA.57539 (2020/N) — Austria — COVID-19 — Aid to Austrian Airlines.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Ryanair DAC and Laudamotion GmbH to bear their own costs and to pay those incurred by the European Commission;

3.	Orders the Federal Republic of Germany, the Republic of Austria and Austrian Airlines AG to bear their own respective costs.

---

(1)  OJ C 9, 11.1.2021.

Action brought on 25 June 2021 — Telly v Commission

(Case T-362/21)

(2021/C 368/37)

Language of the case: English

Parties

Applicant: Telly s. r. o. (Prague, Czech Republic) (represented by: R. Kubáč, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul the European Commission’s decision of 15 March 2021 on State aid SA.55805 (2020/FC) — Czech Republic — Extension of DTT network operators’ frequency licences;

—	order the Commission to bear 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 a manifest error of assessment;

2.	Second plea in law, alleging that the Commission’s decision is not duly reasoned.

Action brought on 28 June 2021 — Česká asociace satelitních operátorů v Commission

(Case T-363/21)

(2021/C 368/38)

Language of the case: English

Parties

Applicant: Česká asociace satelitních operátorů z. s. (Prague, Czech Republic) (represented by: R. Kubáč, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul the European Commission’s decision of 15 March 2021 on State aid SA.55805 (2020/FC) — Czech Republic — Extension of DTT network operators’ frequency licences;

—	order the Commission to bear 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 a manifest error of assessment;

2.	Second plea in law, alleging that the Commission’s decision is not duly reasoned.

Action brought on 28 June 2021 — TJ v EEAS

(Case T-365/21)

(2021/C 368/39)

Language of the case: English

Parties

Applicant: TJ (represented by: A. Véghely, lawyer)

Defendant: European External Action Service (EEAS)

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Appointing Authority for the selection of Civilian Operations Commander and Director of CPCC;

—	Compensate for damages under Article 340 of the TFEU suffered as a result of the above mentioned decision.

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 a violation of Article 98 of the Staff Regulations and Council Decision 2010/427/EU;

2.	Second plea in law, alleging a violation of Article 27 of the Staff Regulations;

3.	Third plea in law, alleging violations of the principle of equal treatment;

4.	Fourth plea in law, alleging a violation of the principle of good administration.

Action brought on 1 July 2021 — Di Taranto v European Public Prosecutor’s Office

(Case T-368/21)

(2021/C 368/40)

Language of the case: Italian

Parties

Applicant: Alessandro Di Taranto (Rome, Italy) (represented by: G. Pellegrino, lawyer)

Defendant: European Public Prosecutor’s Office (EPPO)

Form of order sought

The applicant claims that the Court should:

—	annul the Decision of the College of the European Public Prosecutor’s Office of 3 May 2021 on the appointment of fifteen European Delegated Prosecutors of the EPPO in the Italian Republic, appointing the European Delegated Prosecutors of the Italian State;

—	order the defendant to pay the costs incurred by the applicant in the present proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law alleging unlawfulness as a result of the unlawful nature of the preliminary and binding decision of 28 April 2021 adopted by the Consiglio Superiore della Magistratura (Supreme Council of the Judiciary), which is the competent authority in Italy for designating European Delegated Prosecutors (EDPs).

As an interim measure, the applicant challenges the decision of the College of the EPPO appointing the EDPs, claiming that it is vitiated as a result of the unlawfulness of the decision of 28 April 2021 by which the Supreme Council of the Judiciary approved the final determination in which Dottore Di Taranto, with regard to the three prosecutors to be appointed for the office in Rome, was classified after the other candidates.

Action brought on 2 July 2021 — ZR v EUIPO

(Case T-400/21)

(2021/C 368/41)

Language of the case: English

Parties

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

Defendant: European Union Intellectual Property Office (EUIPO)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the EUIPO rejecting the applicant’s application for transfer from the European Commission to the EUIPO;

—	annul, insofar as necessary, the decision to reject the applicant’s complaint filed under Article 90(2) of the Staff Regulations;

—	order the defendant to bear the costs.

Pleas in law and main arguments

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

1.	First plea in law, alleging a breach of Articles 4, 8, 27, 29 and 110 of Staff Regulations and of the principles of continuity of EU officials, of the comparison of merits and of transparency;

2.	Second plea in law, alleging a breach of the principle of equal treatment;

3.	Third plea in law, alleging a breach of the duty to state reasons and the duty of care, resulting in a manifest error of appreciation.

Action brought on 7 July 2021 — UniCredit Bank v SRB

(Case T-402/21)

(2021/C 368/42)

Language of the case: German

Parties

Applicant: UniCredit Bank AG (Munich, Germany) (represented by: F. Schäfer, H. Großerichter and F. Kruis, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Single Resolution Board of 14 April 2021 on the calculation of the 2021 ex ante contributions to the Single Resolution Fund (SRB/ES/2021/22) including the annexes thereto, in so far as they concern the applicant;

—	order the Single Resolution Board to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:

1.	First plea in law, alleging that the decision of 14 April 2021 infringes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU because it has not been properly established.

2.

Second plea in law, alleging that the decision of 14 April 2021 and Annexes I to III thereto infringe essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU and the right to good administration in that they do not contain an adequate statement of reasons as required by the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

3.

Third plea in law, alleging that the decision of 14 April 2021 and Annexes I to II thereto infringe the right to an effective remedy under the first paragraph of Article 47 of the Charter in that it is practically impossible to subject the substantive accuracy of the decision to effective judicial review.

4.

Fourth plea in law, alleging that the decision of 14 April 2021 and the annexes thereto are unlawful because Articles 4 to 7 and 9 of Delegated Regulation (EU) 2015/63 (1) are unlawful. They infringe the institutions’ right to effective judicial protection because they result in inherently opaque decisions adopted on the basis thereof.

5.

Fifth plea in law, alleging that, if the view is taken that the opaque calculation of the institutions’ contribution is already provided for in Article 70(2) of Regulation No 806/2014 (2) and Article 103(2) and (7) of Directive 2014/59, (3) those legal acts are unlawful for the reasons mentioned in the fourth plea in law and should therefore be declared inapplicable.

6.

Sixth plea in law, alleging that the decision of 14 April 2021 infringes Articles 6, 7 and 20(1) of Delegated Regulation (EU) 2015/63 in that, in calculating the risk-adjustment multiplier, the defendant did not take account of the risk indicator Net Stable Funding Ratio (‘NSFR’), the risk indicator Minimum Requirements for Own Funds and Eligible Liabilities (‘MREL’) or the risk indicators ‘complexity’ and ‘resolvability’.

7.

Seventh plea in law, alleging that the decision of 14 April 2021 and Annexes I to III thereto infringe essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU and the right to good administration under Article 41(2)(a) of the Charter because the applicant was not heard before the decision was adopted.

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

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

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

Action brought on 7 July 2021 — Norddeutsche Landesbank — Girozentrale v SRB

(Case T-403/21)

(2021/C 368/43)

Language of the case: German

Parties

Applicant: Norddeutsche Landesbank — Girozentrale (Hanover, Germany) (represented by: D. Flore and J. Seitz, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

As successor in law to Deutsche Hypothekenbank (Actien-Gesellschaft), the applicant claims that the Court should:

—

annul the decision of the defendant of 14 April 2021 (SRB/ES/2021/22) including the annexes thereto, in particular Annex I concerning the ‘Results of the calculation with respect to all institutions falling within the scope of calculation of the 2021 ex-ante contributions set separately (per institution) in the Harmonized Annexes’, in so far as they are each relevant to the applicant;

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

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:

1.	First plea in law, alleging an infringement of the right to be heard — The defendant failed to hear Deutsche Hypothekenbank before adopting the contested decision, thereby infringing Article 41(1) and (2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2.	Second plea in law, alleging an infringement of procedural rules — The contested decision is invalid because it was adopted in breach of general procedural requirements deriving from Article 41 of the Charter, Article 298 TFEU, general principles of law and the defendant’s Rules of Procedure.

3.

Third plea in law, alleging a failure to state reasons for the contested decision — Contrary to Article 296 TFEU, the contested decision does not contain a sufficient statement of reasons; in particular, it lacks a statement of reasons relating to the individual case and a description of the fundamental considerations in the context of proportionality and discretion. — Moreover, the calculation of the annual contribution is not comprehensible, in particular due to the use of inconsistent terms and the failure to show key intermediate steps.

4.

Fourth plea in law, alleging an infringement of the fundamental right to effective judicial protection for lack of verifiability of the contested decision — The failure to state reasons for the contested decision makes judicial review considerably more difficult. — In particular, the defendant infringed the principle of audi alteram partem, according to which the parties must be able to discuss both the factual and legal circumstances which are decisive for the outcome of the proceedings.

5.

Fifth plea in law, alleging that the application of the IPS (Institutional Protection Scheme) indicator infringes higher-ranking law — In applying the IPS indicator, the significance of Deutsche Hypothekenbank’s membership of the institutional guarantee scheme of the Sparkassen-Finanzgruppe (Savings Banks Finance Group) was misjudged. — Under the second sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, (1) the defendant should also have taken account of the low probability of the institution concerned being resolved and thus of the use of the Single Resolution Fund and should have observed the principle of proportionality.

6.

Sixth plea in law, alleging that the consideration of the overall derivative risk position within the framework of the risk indicator ‘trading activities, off-balance sheet exposures, derivatives, complexity and resolvability’ infringes Delegated Regulation (EU) 2015/63, which must be interpreted in the light of higher-ranking law — In accordance with the requirement of orientation towards the risk profile, the defendant should also have taken into account, when considering the overall derivative risk position in the context of point (a) of the first sentence of Article 6(5), Article 6(6) and point (a) of the first sentence of Article 7(4) of Delegated Regulation (EU) 2015/63, that in the case of Deutsche Hypothekenbank all derivatives are allocated to the non-trading portfolio and serve exclusively for hedging purposes, and that Deutsche Hypothekenbank has a low level of complexity and a high level of resolvability.

7.

Seventh plea in law, alleging that the failure to take account of the MREL (Minimum Requirements for Own Funds and Eligible Liabilities) within the framework of the ‘risk exposure’ pillar infringes Delegated Regulation (EU) 2015/63 — In accordance with Article 6(1)(a) and (2)(a) of Delegated Regulation (EU) 2015/63, the defendant should have taken account of the applicant’s higher-than-average MREL ratio of 67.6 %, which significantly exceeded the minimum ratio of 8 % set by the Single Resolution Board.

8.

Eighth plea in law, alleging that the application of the risk-adjustment multiplier infringes Delegated Regulation (EU) 2015/63, which must be interpreted in the light of higher-ranking law — When setting the risk-adjustment multiplier, the defendant should have taken into account the applicant’s low probability of default and higher-than-average MREL ratio in accordance with the principle of orientation towards the risk profile and the fundamental right to entrepreneurial freedom under Article 16 of the Charter.

9.

Ninth plea in law (in the alternative), alleging that the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 infringes higher-ranking law — By providing for a relativisation of the IPS indicator, the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 infringes the general principle of equality under Article 20 of the Charter and the principle of proportionality, since institutions which are subject to the same institutional guarantee and thus have the same probability of default may be treated differently.

10.

Tenth plea in law, alleging that the definition of ‘interbank deposits’ provided for in Step 1 of Annex I to Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The definition of ‘interbank deposits’ provided for in Step 1 of Annex I to Delegated Regulation (EU) 2015/63 is unlawful because risk-neutral securities, such as registered Pfandbriefe, should not, due to their coverage, be taken into account in the calculation of the risk indicator ‘interbank loans and deposits’.

11.

Eleventh plea in law, alleging that the assignment to bins pursuant to Step 2 of Annex I to Delegated Regulation (EU) 2015/63 infringes higher-ranking law — The assignment to bins laid down in Step 2 of Annex I to Delegated Regulation (EU) 2015/63 is unlawful because the small number of bins and the identical number of institutions per bin do not enable sufficient differentiation to be made when considering the risk profile of the institution concerned, as in the case of Deutsche Hypothekenbank, for example.

---

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

Action brought on 9 July 2021 — Germany v Commission

(Case T-409/21)

(2021/C 368/44)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: J. Möller and R. Kanitz, acting as Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

annul the European Commission’s decision of 3 June 2021 on State aid SA.56826 (2020/N) — Germany — 2020 reform of support for cogeneration and State aid SA.53308 (2019/N) — Germany — Change of support to existing CHP plants (§ 13 KWKG), to the extent that it finds that (a) the support to the production of CHP electricity in new, modernised and retrofitted highly efficient CHP installations, (b) the support to energy-efficient district heating/cooling networks, (c) the support to heat/cooling storage facilities, (d) the support to the production of CHP electricity in existing highly efficient gas-fired CHP installations in the district heating sector, and (e) the reduced CHP surcharge for hydrogen producers constitute State aid under the KWKG 2020; and

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law. According to the applicant, the European Commission erred in law in its interpretation and application of Article 107(1) TFEU by determining that the undertakings concerned by the notified measures had received aid granted by the State or through State resources. The applicant submits that the European Commission, first, erred in assuming that the fiscal nature of a surcharge of itself implies that the funds raised have the characteristic of State resources within the meaning of Article 107(1) TFEU. The applicant submits that the European Commission, secondly, erred in assuming that the CHP-surcharge under the Gesetz für die Erhaltung, die Modernisierung und den Ausbau der Kraft-Wärme-Kopplung 2020 (‘the Law on Combined Heat and Power Generation; ‘the KWKG’) actually constitutes a tax within the meaning of the case-law of the European Court of Justice. The applicant submits that the European Commission, thirdly, erred in assuming that the resources received by the transmission system operators are under public control and are thus at the disposal of the State.

Action brought on 9 July 2021 — Norddeutsche Landesbank — Girozentrale v SRB

(Case T-412/21)

(2021/C 368/45)

Language of the case: German

Parties

Applicant: Norddeutsche Landesbank — Girozentrale (Hanover, Germany) (represented by: D. Flore and J. Seitz, lawyers)

Defendant: Single Resolution Board (SRB)

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the defendant of 14 April 2021 (SRB/ES/2021/22) including the annexes thereto, in particular Annex I concerning the ‘Results of the calculation with respect to all institutions falling within the scope of calculation of the 2021 ex-ante contributions set separately (per institution) in the Harmonized Annexes’, in so far as they are each relevant to the applicant;

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

Pleas in law and main arguments

In support of the action, the applicant relies on the following pleas in law:

1.	First plea in law, alleging an infringement of the right to be heard — The defendant failed to hear the applicant before adopting the contested decision, thereby infringing Article 41(1) and (2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2.	Second plea in law, alleging an infringement of procedural rules — The contested decision is invalid because it was adopted in breach of general procedural requirements deriving from Article 41 of the Charter, Article 298 TFEU, general principles of law and the defendant’s Rules of Procedure.

3.

Third plea in law, alleging a failure to state reasons for the contested decision — Contrary to Article 296 TFEU, the contested decision does not contain a sufficient statement of reasons; in particular, it lacks a statement of reasons relating to the individual case and a description of the fundamental considerations in the context of proportionality and discretion. — Moreover, the calculation of the annual contribution is not comprehensible, in particular due to the use of inconsistent terms and the failure to show key intermediate steps.

4.

Fourth plea in law, alleging an infringement of the fundamental right to effective judicial protection for lack of verifiability of the contested decision — The failure to state reasons for the contested decision makes judicial review considerably more difficult. — In particular, the defendant infringed the principle of audi alteram partem, according to which the parties must be able to discuss both the factual and legal circumstances which are decisive for the outcome of the proceedings.

5.

Fifth plea in law, alleging that the application of the IPS (Institutional Protection Scheme) indicator infringes higher-ranking law — In applying the IPS indicator, the significance of the applicant’s membership of the institutional guarantee scheme of the Sparkassen-Finanzgruppe (Savings Banks Finance Group) was misjudged. — Under the second sentence of Article 6(5) of Delegated Regulation (EU) 2015/63, (1) the defendant should also have taken account of the low probability of the institution concerned being resolved and thus of the use of the Single Resolution Fund and should have observed the principle of proportionality.

6.

Sixth plea in law, alleging that the failure to take account of the MREL (Minimum Requirements for Own Funds and Eligible Liabilities) within the framework of the ‘risk exposure’ pillar infringes Delegated Regulation (EU) 2015/63 — In accordance with Article 6(1)(a) and (2)(a) of Delegated Regulation (EU) 2015/63, the defendant should have taken account of the applicant’s higher-than-average MREL ratio of 67,6 %, which significantly exceeded the minimum ratio of 8 % set by the Single Resolution Board.

7.

Seventh plea in law, alleging that the application of the risk-adjustment multiplier infringes Delegated Regulation (EU) 2015/63, which must be interpreted in the light of higher-ranking law — When setting the risk-adjustment multiplier, the defendant should have taken into account the applicant’s low probability of default and higher-than-average MREL ratio in accordance with the principle of orientation towards the risk profile and the fundamental right to entrepreneurial freedom under Article 16 of the Charter.

8.

Eighth plea in law (in the alternative), alleging that the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 infringes higher-ranking law — By providing for a relativisation of the IPS indicator, the second sentence of Article 7(4) of Delegated Regulation (EU) 2015/63 infringes the general principle of equality under Article 20 of the Charter and the principle of proportionality, since institutions which are subject to the same institutional guarantee and thus have the same probability of default may be treated differently.

---

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

Action brought on 26 July 2021 — YAplus DBA Yoga Alliance v EUIPO — Vidyanand (YOGA ALLIANCE INDIA INTERNATIONAL)

(Case T-443/21)

(2021/C 368/46)

Language of the case: English

Parties

Applicant: YAplus DBA Yoga Alliance (Arlington, Virginia, United States) (represented by: A. Thünken, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Swami Vidyanand (Villupuram, India)

Details of the proceedings before EUIPO

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

Trade mark at issue: International registration designating the European Union in respect of the figurative mark YOGA ALLIANCE INDIA INTERNATIONAL — International registration designating the European Union No 1 415 321

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 17 May 2021 in Case R 1062/2020-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO and, as the case may be, the intervener to bear the costs of the proceedings and the costs incurred by proceedings before the EUIPO.

Pleas in law

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

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

Action brought on 27 July 2021 — Copal Tree Brands v EUIPO — Sumol + Compal Marcas (COPALLI)

(Case T-445/21)

(2021/C 368/47)

Language of the case: English

Parties

Applicant: Copal Tree Brands, Inc. (Oakland, California, United States) (represented by: B. Niemann Fadani, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Sumol + Compal Marcas SA (Carnaxide, Portugal)

Details of the proceedings before EUIPO

Applicant of the trademark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union word mark COPALLI — Application for registration No 17 955 499

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 25 May 2021 in Case R 1581/2020-2

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Second Board of Appeal of 25 May 2021 in case R 1581/2020-2;

—	annul the decision of the Opposition division of 29 May 2020 in Opposition no. B3075279;

—	order EUIPO to pay the costs.

Plea in law

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

Action brought on 28 July 2021 — Commission de régulation de l’énergie v ACER

(Case T-446/21)

(2021/C 368/48)

Language of the case: English

Parties

Applicant: Commission de régulation de l’énergie (Paris, France) (represented by: C. Le Bihan-Graf, lawyer)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

—	annul the Decision No A-001-2021 of 28 May 2021 which confirms the Decision no30-2020 of ACER of 30 November 2020 on the Core CCR TSO’s proposal for the methodology for cost sharing of redispatching and countertrading and its annexes I and Ia;

—	by a way of consequence, annul the ACER decision No 30/2020 of 30 November 2020 on the Core CCR TSO’s proposal for the methodology for cost sharing of redispatching and countertrading and its annexes I and Ia;

—	order the defendant to pay costs and expenses.

Pleas in law and main arguments

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

1.

First plea in law, alleging that Article 28 of Regulation No 2019/942 was violated by the Board of Appeal carrying out only a limited review of complex technical and economic assessments encompassed in ACER decision No 30/2020. In the light of the case-law T-735/18 of the Court, Aquind v. ACER (18 November 2020), the Board of Appeal of ACER shall exercise a full review of the pleas and of the arguments of the applicant.

2.	Second plea in law, alleging that Article 16(13) of Regulation No 2019/943 was violated by ACER who set a common threshold for loop flows without any prior analysis by the transmission system operators or approval by the national regulatory authorities.

3.	Third plea in law, alleging that an error of law was committed by linking the implementation timeline of the methodology to other methodologies without any legal basis.

4.

Fourth plea in law, alleging that Article 3 of Regulation No 1/58 and the fundamental legal certainty principle of the EU law were infringed by restricting to English the language used in the contested decision No A-001-2021. It appears that the contested decision No A-001-2021 has not been issued in French, as well as it is unclear and unintelligible to the applicant due to its complexity, length and incompleteness.

5.

Fifth plea in law, alleging that Article 74(2) of Regulation No 2015/1222, Article 74(6)(a) of Regulation No 2015/1222 and Article 16(13) of Regulation No 2019/943 were violated by setting an excessive scope for the methodology for redispatching and countertrading cost sharing. The scope should not be extended to network elements that are not concerned with cross-border exchanges in electricity pursuant to Article 74(2) of Regulation No 2015/1222 and Article 16(13) of Regulation No 2019/943. The scope was linked to other methodologies without any legal basis. A scope larger than what is provided in the capacity calculation methodology could not be legally upheld. The scope should be consistent with the obligations and liabilities of transmission system operators pursuant to Article 74(6)(a) of Regulation No 2015/1222.

6.

Sixth plea in law, alleging that an error in the application of Article 16(13) of Regulation No 2019/943 was committed by setting a unique and common threshold on loop flows for all of transmission system operators of the Core capacity calculation region. There is no ground to justify and explain that a common and unique threshold should apply for all bidding zone border whereas the national transmission networks are different and meshed.

7.

Seventh plea in law, alleging that the fundamental principle of non-discrimination in the EU law and Article 16(13) Regulation No 2019/943 were violated by giving the priority to congestion caused by loop flows in the determination of the costs burden in the methodology. The congestion caused by internal flows and by loop flows should be treated equally in the methodology. Placing the loop flows as first in the priority list of the polluting flows that caused congestion does not provide good incentives to operators to manage the congestion. The Board of Appeal of ACER dismissed the evidences of the applicant without any justification. The prioritization of the loop flows discriminated transmission system operators that made the investments required to develop their networks because those operators could be penalized for the residual loop flows for which they may be responsible.

8.

Eights plea in law, alleging that an error in the application of Article 15(3) of Regulation No 2019/943 was committed by acknowledging that the methodology should cover the costs borne by State members under their action plans. The costs borne by the States members under their action plans shall be excluded from the methodology. The methodology should provide specific rules for the treatment of these costs. The argumentation of the Board of Appeal is inconsistent from a technical point of view. It did not reply to the argument of the applicant regarding the impossibility to distinguish costs incurred to make available cross-zonal capacity from costs incurred for other purposes.

Action brought on 30 July 2021 — Hesse v EUIPO — Wedl & Hofmann (Testa Rossa)

(Case T-451/21)

(2021/C 368/49)

Language in which the application was lodged: German

Parties

Applicant: Kurt Hesse (Nuremberg, Germany) (represented by: M. Krogmann, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Wedl & Hofmann GmbH (Mils/Hall in Tyrol, Austria)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union word mark Testa Rossa — Application for registration No 13 019 047

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 20 May 2021 in Case R 878/2020-1

Form of order sought

The applicant claims that the Court should:

—

annul the contested decision to the extent that the opposition should be dismissed also in respect of the following goods: Class 7 — Bread cutting machines; grating machines for vegetables; coffee grinders (other than hand-operated); electric blenders and kitchen grinders, electric; Class 21 — Household utensils;

—	order EUIPO to pay the costs.

Plea in law

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

Action brought on 30 July 2021 — Thomas Henry v EUIPO (MATE MATE)

(Case T-452/21)

(2021/C 368/50)

Language of the case: German

Parties

Applicant: Thomas Henry GmbH (Berlin, Germany) (represented by: O. Spieker, A. Schönfleisch, N. Willich and D. Mienert, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for EU word mark MATE MATE — Application for registration No 18 091 934

Contested decision: Decision of the First Board of Appeal of EUIPO of 28 May 2021 in Case R 406/2021-1

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs.

Pleas in law

—	Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 7(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 7(1)(g) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in conjunction with Article 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 30 July 2021 — UniCredit and UniCredit Bank v Commission

(Case T-453/21)

(2021/C 368/51)

Language of the case: English

Parties

Applicants: UniCredit SpA (Rome, Italy), UniCredit Bank AG (Munich, Germany) (represented by: I. Vandenborre, S. Dionnet, M. Siragusa, G. Rizza and B. Massella Ducci Teri, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—

Annul in whole or in part the Commission’s Decision C(2021) 3489 final of 20 May 2021 in Case COMP/AT.40324 — European Government Bonds (the ‘Decision’) finding that the applicants infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating from the 9 September 2011 to the 28 November 2011 in a single and continuous infringement in the European government Bonds sector, and/or the fine;

—	In the alternative, reduce substantially the level of the fine imposed, in the exercise of its unlimited jurisdiction;

—	Order the Commission to pay the costs;

—

Order the Commission, as a measure of organization of procedure or of inquiry, to lodge the non-confidential version of the submissions filed by a third party with the Commission’s DG Competition in the course of the investigation AT.40324, following the Statement of Objections and the Oral Hearing so that they can be introduced into the case-file.

Pleas in law and main arguments

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

1.	First plea in law, alleging that the Commission infringed its obligation to state reasons in that the Decision does not properly define the relevant market(s).

2.	Second plea in law, alleging that the Decision errs in finding that UniCredit participated in a single and continuous infringement that centered on the primary market despite UniCredit’s trader not trading on that market.

3.	Third plea in law, alleging that the Commission’s finding that UniCredit participated in a single and continuous infringement that amounted to a restriction of competition by object is not supported by contemporaneous evidence and insufficiently reasoned.

4.	Fourth plea in law, alleging that the Commission erred in establishing UniCredit’s participation in a restriction of competition by object without analyzing the potential impact of its conduct on the secondary market.

5.	Fifth plea in law, alleging that the Commission erred in establishing UniCredit’s participation in a restriction of competition by object without analyzing the economic context.

6.	Sixth plea in law, alleging that the Commission committed an error of assessment of the facts with respect to the duration of the Applicants’ participation in the alleged cartel.

7.

Seventh plea in law, alleging that the fine methodology used in the Decision is flawed in that the Commission: (i) used a flawed proxy for calculating the value of sales, (ii) failed to use the best available figures to determine the amount of the Fine, (iii) failed to address the suitability of alternative data submitted by UniCredit, and (iv) failed to comply with its duty to state reasons.

8.	Eight plea in law, alleging that the Commission’s methodology to calculate the proxy for the parties’ value of sales was manifestly unreasonable and unfit for its intended purpose as it failed to correctly reflect UniCredit’s and the other parties’ relative weight in the alleged infringement.

9.	Ninth plea in law, alleging that the Commission breached the principles of proportionality and the principle that penalties must be specific to the offender by reducing the variable component of the basic amount of UniCredit’s Fine by only 1 % compared to the other parties.

10.

Tenth plea in law, alleging that the Commission breached the principle of proportionality and the principle that penalties must be specific to the offender, by failing to make a significant adjustment to the basic amount of the Fine: (a) on the basis of § 37 of the Fining Guidelines and/or (b) on account of mitigating circumstances. As a result, the final amount of the Fine failed to reflect the objective differences in UniCredit’s situation compared with the situations of the other parties.

11.	Eleventh plea in law, alleging that the imposition by the Commission of a disproportionate and inequitable fine on UniCredit should be corrected by the Court’s exercise of its unlimited jurisdiction.

Action brought on 30 July 2021 — G-Core Innovations v EUIPO — Coretransform (G CORELABS)

(Case T-454/21)

(2021/C 368/52)

Language of the case: English

Parties

Applicant: G-Core Innovations Sàrl (Contern, Luxembourg) (represented by: L. Axel Karnøe Søndergaard, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

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

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for European Union figurative mark G CORELABS in Orange, Red, Silver, Black and Grey — Application for registration No 14 955 017

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 10 May 2021 in Case R 22/2021-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision in its entirety and allow the trademark to be registered in respect of all the goods applied for;

—	order EUIPO to pay the costs incurred by the applicant.

Plea in law

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

Action brought on 2 August 2021 — Bank of America and Bank of America Corporation v Commission

(Case T-456/21)

(2021/C 368/53)

Language of the case: English

Parties

Applicants: Bank of America N.A. (Charlotte, North Carolina, United States), Bank of America Corporation (Wilmington, North Carolina, United States) (represented by: D. Bailey, Barrister, D. Liddell, Solicitor, and D. Slater, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul Commission Decision C(2021) 3489 of 20 May 2021 in Case AT.40324 — European Government Bonds (‘Decision’), in so far as it concerns the Applicants; and

—	order the Commission to bear the applicants’ costs and expenses in connection with these proceedings.

Pleas in law and main arguments

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

1.

First plea in law: the Commission’s finding that the applicants participated in a single and continuous infringement is based on an error of law and/or assessment in the application of Article 101(1) TFEU. In particular, the Commission applied the wrong test for participation in a single and continuous infringement; further or alternatively, the Commission has wrongly applied the law concerning the elements of a single and continuous infringement to the facts of this case.

2.

Second plea in law: in circumstances in which, pursuant to Article 25(1)(b) of EC Regulation 1/2003, the conduct of the applicants fell outside the limitation period for imposing a fine, the Commission erred in concluding that there is sufficient legitimate interest, within the meaning of Article 7of Regulation (EC) 1/2003, in finding an infringement against the applicants.

3.

Third plea in law: the Commission infringed the rights of the defence in that (i) the case against the applicants in the Decision did not correspond in a fundamental way with the essential case advanced against the applicants in the Statement of Objections; (ii) the Commission failed to explain why it considered the contacts referenced obliquely only in Annex 1 to the Statement of Objections and Annex 1 to the Decision were unlawful and (iii) the applicants were not given the opportunity to respond to new points made in the Decision — that had not been made in the Statement of Objections — about certain communications.

Action brought on 3 August 2021 — Portigon v Commission

(Case T-462/21)

(2021/C 368/54)

Language of the case: German

Parties

Applicant: Portigon AG (Düsseldorf, Germany) (represented by: A. Bischke, H.-J. Niemeyer and F. Grossmann)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul in its entirety the Commission decision of 20 May 2021 (C(2021) 3489) (AT.40324 — European Government Bonds) adopted against Portigon AG;

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

Pleas in law and main arguments

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

1.

First plea in law, alleging infringement of the right to be heard and a failure to state reasons — The Commission failed clearly to present and state reasons as regards the conduct alleged on the part of the applicant and thus infringed the second paragraph of Article 296 TFEU; — The Commission failed to send the applicant supplementary objections instead of a mere letter setting out facts.

2.	Second plea in law, alleging infringement of the principle of homogeneity of the legal order By adopting the Commission decision, the Commission is going against its own 2011 decision on aid.

3.	Third plea in law, alleging the Commission erred by failing to exercise discretion — The Commission erred by failing to take into consideration the applicant’s complaints and clearly failed to exercise its discretion in the adoption of the decision.

4.	Fourth plea in law, alleging incorrect assumption of a single and continuous infringement — The Commission wrongly proceeds from the assumption of a single and continuous infringement which is alleged to have continued beyond the limitation period.

5.

Fifth plea in law, alleging incorrect assessment of the sanctioned conduct on the basis of Article 101 TFEU and failure to state reasons in accordance with the second paragraph of Article 296 TFEU — The Commission incorrectly assesses all conduct as restriction of competition by object. The Commission has not proved the allegedly discernible effects on the market. — The Commission incorrectly attributes the conduct of a former employee to the applicant.

6.

Sixth plea in law, alleging incorrect adoption of a decision making a finding pursuant to Article 7(1) of Regulation (EC) No 1/2003 (1) — The decision infringes Article 7(1) of Regulation (EC) No 1/2003, since the Commission has no legitimate interest in the adoption of its decision against the applicant.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

Action brought on 30 July 2021 — Faller and Others v Commission

(Case T-464/21)

(2021/C 368/55)

Language of the case: German

Parties

Applicant: Sonja Faller (Brixen, Italy) and 74 other applicants (represented by: R. Holzeisen, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should annul the contested implementing decision, as supplemented and amended.

Pleas in law and main arguments

In support of the action against Commission Implementing Decision of 31 May 2021 amending the conditional marketing authorisation granted by Decision C(2020) 9598 (final) for ‘Comirnaty — COVID-19-mRNA Vaccine (nucleoside modified)’, a medicinal product for human use, the applicants rely on the following pleas in law.

1.

First plea in law, alleging that the contested implementing decision infringes Article 2(1) and (2) of Regulation (EC) No 507/2006. (1) Simply on account of the fact that children are at zero risk if they become infected with SARS-CoV-2, there cannot be a positive risk-benefit balance for healthy children. The use of the experimental substance at issue based on genetic technology is thus grossly contrary to EU law. Furthermore, the WHO and the EU have not duly recognised the crisis situation as a public health threat.

2.

Second plea in law, alleging that the contested implementing decision infringes Article 4 of Regulation (EC) No 507/2006 on account of: — the absence of a positive risk-benefit balance, as defined in Article 1(28a) of Directive 2001/83/EC; (2) — the failure to meet the requirement under Article 4(1)(b) of Regulation (EC) No 507/2006, since the applicant is not in a position to provide the comprehensive clinical data; — the failure to meet the requirement under Article 4(1)(c) of Regulation (EC) No 507/2006, since there are no unmet medical needs that will be fulfilled by the authorised medicinal product; — the failure to meet the requirement under Article 4(1)(d) of Regulation (EC) No 507/2006.

3.	Third plea in law, alleging infringement of Regulation (EC) No 1394/2007, (3) Directive 2001/83/EC and Regulation (EC) No 726/2004. (4)

4.	Fourth plea in law, alleging gross infringement of Articles 168 and 169 TFEU and Articles 3, 35 and 38 of the EU Charter.

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(1)  Commission Regulation (EC) No 507/2006 of 29 March 2006 on the conditional marketing authorisation for medicinal products for human use falling within the scope of Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ 2006 L 92, p. 6).

(2)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).

(3)  Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 (OJ 2007 L 324, p. 121).

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