title: Case C-327/19: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 April 2019 — Nobina Finland Oy

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/22

      Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 April 2019 — Nobina Finland Oy
      (Case C-327/19)
      (2019/C 220/28)
      Language of the case: Finnish

         Referring court

      Korkein hallinto-oikeus

         Parties to the main proceedings

         Applicant: Nobina Finland Oy

         Other parties: Helsingin seudun liikenne-kuntayhtymä, Oy Pohjolan Kaupunkiliikenne Ab

         Questions referred

                  1.

                  Does Directive 2004/17/EC (1) of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (‘Directive 2004/17’) preclude an interpretation according to which, in a situation in which a tender can be submitted for several or all of the lots of a contract, a contracting authority can limit, by means of a clause included in the invitation to tender, the number of lots for which a single tenderer can be awarded a contract (a lot award limitation clause)?

                  2.

                  Pursuant to the lot award limitation clause included in the call for competition for bus transport at issue, if the components of the subject matter of a contract that are won by a tenderer exceed the maximum number of vehicle days laid down in the clause, then the subject matter of the contract for which the points difference between the best and the second-best tender, multiplied by the number of vehicles of that subject matter of the contract, is the smallest is transferred to the tenderer that submitted the second-best tender. The use of the lot award limitation clause can mean that, on the basis of the call for competition, the tenderer that submitted the best tender for the subject matter of the contract in question is awarded a contract for fewer vehicle days in total than the tenderer that submitted the second-best tender for the subject matter of the contract.

                              a)

                              Can the specific outcome to which the inclusion of the lot award limitation clause in the call for competition could lead be taken into account when assessing the permissibility of the lot award limitation clause, or must this be assessed on an abstract basis, so that the inclusion of a lot award limitation clause such as that in question in the main proceedings is either permissible or not permissible pursuant to Directive 2004/17?

                              b)

                              Are the circumstances specified in the invitation to tender as justification for the clause — which are related to the preservation of the competitive situation in public bus transport in the Helsinki region and the reduction of the operational risk that the assumption of responsibility for a high volume of transport and the establishment of transport on changed lines entail for the quality of the transport service — relevant to the assessment of the permissibility of a lot award limitation clause such as that at issue in the main proceedings?

         (1)  OJ 2004 L 134, p. 1.


title: Case C-328/19: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 April 2019 — Porin kaupunki

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/23

      Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 April 2019 — Porin kaupunki
      (Case C-328/19)
      (2019/C 220/29)
      Language of the case: Finnish

         Referring court

      Korkein hallinto-oikeus

         Parties to the main proceedings

         Appellant: Porin kaupunki

         Other parties: Porin Linjat OY, Lyttylän liikenne Oy

         Questions referred

                  1.

                  Must Article 1(2)(a) of Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts be interpreted as meaning that the model of the ‘municipality responsible’ in accordance with the cooperation agreement between municipalities in question meets the conditions for a transfer of responsibilities which is not covered by the scope of the Directive (C-51/15, Remondis) or a horizontal cooperation which is not covered by an obligation to issue a call for tenders (C-386/11, Piepenbrock with further references), or does this constitute another case altogether?

                  2.

                  If the model of the ‘municipality responsible’ in accordance with the cooperation agreement meets the conditions for a transfer of responsibilities: In the event that contracts are awarded after responsibilities have been transferred, is the public entity to which the responsibilities have been transferred the contracting authority and is this public entity entitled, on the basis of the responsibilities transferred to it by the other municipalities, to award contracts for services to one of its related entities without a call for tenders in circumstances where the award of these contracts for services would — without the principle of the ‘municipality responsible’ — have been the responsibility of the municipalities which transferred the responsibility?

                  3.

                  If, on the other hand, the model of the ‘municipality responsible’ in accordance with the cooperation agreement fulfils the conditions of a horizontal cooperation: Can the municipalities taking part in the cooperation award contracts for services without issuing calls for tenders to a municipality taking part in the cooperation, which awarded these service contracts to one of its related entities without a call for competitive tenders?

                  4.

                  As part of the assessment whether a company carries out the essential part of its activities for the municipality by which it is controlled, does the calculation of the turnover related to the municipality take into account the turnover of a company owned by the municipality which operates transport services within the meaning of Regulation (EC) No 1370/2007 (2) of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and (EEC) No 1107/70 (hereinafter: Regulation on Public Passenger Transport Services) to the extent that the company derives this turnover from transport services organised by the municipality as the competent authority within the meaning of the Regulation on Public Passenger Transport Services?

         (1)  OJ 2004 L 134, p. 114.

         (2)  OJ 2007 L 315, p. 1.


title: Case C-333/19: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 24 April 2019 — DA v Romanian Air Traffic Services Administration (Romatsa), Romania, European Organisation for the Safety of Air Navigation (Eurocontrol) — and FC, S. C. European Food S.A., S. C. Starmill S.R. L., S. C. Multipack S.R. L. v Romanian Air Traffic Services Administration (Romatsa), Romania, DA, European Organisation for the Safety of Air Navigation (Eurocontrol)

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/24

      Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 24 April 2019 — DA v Romanian Air Traffic Services Administration (Romatsa), Romania, European Organisation for the Safety of Air Navigation (Eurocontrol) — and FC, S. C. European Food S.A., S. C. Starmill S.R. L., S. C. Multipack S.R. L. v Romanian Air Traffic Services Administration (Romatsa), Romania, DA, European Organisation for the Safety of Air Navigation (Eurocontrol)
      (Case C-333/19)
      (2019/C 220/30)
      Language of the case: French

         Referring court

      Cour d’appel de Bruxelles

         Parties to the main proceedings

         Appellant: DA

         Respondents: Romanian Air Traffic Services Administration (Romatsa), Romania, European Organisation for the Safety of Air Navigation (Eurocontrol)

         Other parties: European Commission, FC, S. C. European Food S.A., S. C. Starmill S.R. L., S. C. Multipack S.R. L.

         Appellants: FC, S. C. European Food S.A., S. C. Starmill S.R. L., S. C. Multipack S.R. L.

         Respondents: Romanian Air Traffic Services Administration (Romatsa), Romania, DA, European Organisation for the Safety of Air Navigation (Eurocontrol)

         Other party: European Commission

         Questions referred

                  1.

                  Is Decision (EU) 2015/1470 of the European Commission of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) (1) to be understood as referring to payments due from Romania even in a case where payments are recovered against Romania as a result of proceedings to enforce the ICSID arbitral award of 11 December 2013 brought before the courts of a Member State other than Romania?

                  2.

                  Does EU law itself automatically require a court of a Member State (other than Romania), before which an action is brought to oppose proceedings for the enforcement of an ICSID arbitral award which has the force of res judicata according to the national procedural rules of that Member State, to reject that award, for the sole reason that a non-definitive decision of the European Commission adopted after the date of the award considers enforcement of that award to be contrary to the EU State aid regime?

                  3.

                  Does EU law, in particular the principle of cooperation in good faith and the principle of res judicata, allow the national court of a Member State (other than Romania) not to comply with its international obligations under the ICSID Convention in a situation where the European Commission has adopted a decision after the date of that award, under which enforcement of the award is regarded as contrary to the EU State aid regime, even when the European Commission participated in the arbitration proceedings (including the action for annulment of the award) and put forward its case in relation to the EU State aid regime?

         (1)  Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania — Arbitral award […] of 11 December 2013 (notified under document C(2015) 2112) (OJ 2015 L 232, p. 43).


title: Case C-340/19: Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 29 April 2019 — Valsts ieņēmumu dienests v SIA ‘Hydro Energo’

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/25

      Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 29 April 2019 — Valsts ieņēmumu dienests v SIA ‘Hydro Energo’
      (Case C-340/19)
      (2019/C 220/31)
      Language of the case: Latvian

         Referring court

      Augstākā tiesa (Senāts)

         Parties to the main proceedings

         Appellant in the appeal on a point of law: Valsts ieņēmumu dienests

         Respondent in the appeal on a point of law: SIA ‘Hydro Energo’

         Question referred

      Must the Combined Nomenclature, as set out in Annex I of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (1) amended by Commission Regulation (EU) No 1006/2011 of 27 September 2011, (2) be interpreted as meaning that heading 7407 (Copper bars, rods and profiles) includes copper or copper alloy ingots in a rectangular shape, the thickness of which exceeds one-tenth of the width and which are hot-rolled, but which have irregular pores, holes and cracks in their cross-section?

         (1)  OJ 1987 L 256, p. 1.

         (2)  OJ 2011 L 282, p. 1.


title: C-352/19 P: Appeal brought on 1 May 2019 by Région de Bruxelles-Capitale against the order of the General Court (Fifth Chamber) delivered on 28 February 2019 in Case T-178/18 Région de Bruxelles-Capitale v Commission

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/26

      Appeal brought on 1 May 2019 by Région de Bruxelles-Capitale against the order of the General Court (Fifth Chamber) delivered on 28 February 2019 in Case T-178/18 Région de Bruxelles-Capitale v Commission
      (C-352/19 P)
      (2019/C 220/32)
      Language of the case: French

         Parties

         Appellant: Région de Bruxelles-Capitale (Brussels, Belgium) (represented by: A. Bailleux, lawyer)

         Other party to the proceedings: European Commission

         Form of order sought

                  —

                  Set aside the order of 28 February 2019 (T-178/18);

                  —

                  Rule on the admissibility of the action for annulment brought by the Région de Bruxelles-Capitale against Commission Implementing Regulation (EU) 2017/2324 of 12 December 2017 renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (1), and, as to the remainder, refer the case back to the General Court;

                  —

                  Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

         Pleas in law and main arguments

      By the contested order, the General Court declared the action brought by the Région de Bruxelles-Capitale inadmissible on the ground of lack of interest in bringing proceedings. More specifically, the Court held that the Région de Bruxelles-Capitale was not directly concerned by the contested regulation, within the meaning of Article 263(4) TFEU.
      In support of its appeal, the Région de Bruxelles-Capitale raises a single plea in law which is divided into two parts.
      First, the Court’s refusal to examine the conditions for admissibility of the action in the light of Article 9 of the Aarhus Convention was based on an incorrect interpretation of Articles 2(4) and 9 of that Convention and is inadequately reasoned.
      Secondly, the General Court’s finding that the applicant has not been directly affected results from insufficient reasoning and failure to comply with Article 263(4) TFEU and Articles 20(2), 32(1), 36(3), 41(1), 43(5) and 43(6) of Regulation 1107/2009.
      In the second part of its application, developed in the event that the Court grants the application for annulment of the contested order and decides to rule itself on the admissibility of the appeal, the Région de Bruxelles-Capitale sets out the grounds on which its appeal must be declared admissible in so far as it satisfies the conditions of Article 263(4) TFEU.

         (1)  OJ 2017 L 333, p. 10.


title: Case C-386/19 P: Appeal brought on 16 May 2019 by Hamas against the judgment of the General Court (First Chamber, Extended Composition) delivered on 6 March 2019 in Case T-289/15 Hamas v Council

text:
               1.7.2019

               EN

               Official Journal of the European Union

               C 220/27

      Appeal brought on 16 May 2019 by Hamas against the judgment of the General Court (First Chamber, Extended Composition) delivered on 6 March 2019 in Case T-289/15 Hamas v Council
      (Case C-386/19 P)
      (2019/C 220/33)
      Language of the case: French

         Parties

         Appellant: Hamas (represented by: L. Glock, avocate)

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

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of 6 March 2019, Hamas v Council, T-289/15;

                  —

                  give final judgment in the matters that are the subject of the appeal;

                  —

                  order the Council to pay all the costs of the proceedings before the General Court and the Court of Justice.

         Grounds of appeal and main arguments

      The applicant relies on four grounds of appeal.
      First, in holding that the facts set out in paragraph 15 of Annex A and paragraph 17 of Annex B to the statement of reasons for the acts of March 2015 were invoked independently by the Council, the General Court distorted the evidence before it, substituted its own grounds for those of the author of the contested acts, failed to comply with the obligation to state reasons for its decision and deprived the applicant of the ability to prepare its defence.
      Secondly, the General Court infringed Article 1(4) of Common Position 2001/931 by accepting that a decision of an administrative authority had been taken by a competent authority within the meaning of that provision, even though it had never been subject to judicial review.
      Thirdly, the General Court infringed Article 1(4) of Common Position 2001/93, Article 296 TFEU, and the applicant’s rights of the defence and right to effective judicial protection by holding that the British decision was a condemnation decision and that the Council was therefore obliged to defer as far as possible to the assessment conducted by the authority that adopted it.
      Fourthly, in holding that Hamas and Hamas IDQ were a single entity, the General Court infringed the rules on the burden of proof, allowed the Council to alter its grounds in the course of the proceedings, took account of evidence without checking its veracity, breached the audi alteram partem rule in relation to the facts, distorted the evidence before it and breached the principle of the independence of proceedings.


title: Case C-243/18 P: Judgment of the Court (First Chamber) of 8 May 2019 — European Joint Undertaking for ITER and the Development of Fusion for Energy v Yosu Galocha (Appeal — Civil service — Officials — Competition — Judgment annulling a decision — Extent of the annulment — Weighing up of interests involved — Annulment of reserve lists — Annulment of the decisions to appoint successful candidates from those lists)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/15

      Judgment of the Court (First Chamber) of 8 May 2019 — European Joint Undertaking for ITER and the Development of Fusion for Energy v Yosu Galocha
      (Case C-243/18 P) (1)

      (Appeal - Civil service - Officials - Competition - Judgment annulling a decision - Extent of the annulment - Weighing up of interests involved - Annulment of reserve lists - Annulment of the decisions to appoint successful candidates from those lists)
      (2019/C 230/18)
      Language of the case: Spanish

         Parties

         Appellant: European Joint Undertaking for ITER and the Development of Fusion for Energy (represented by: G. Poszler and R. Hanak, acting as Agents)

         Other party to the proceedings: Yosu Galocha (represented by: A. Asmaryan Degtyareva, abogada)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal.

                  2.

                  Orders the European Joint Undertaking for ITER and the Development of Fusion for Energy to bear its own costs.

         (1)  OJ C 249, 16.7.2018.


title: Case T-185/18: Judgment of the General Court of 8 May 2019 — Lucchini v Commission (Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Partial annulment of the Commission decision — Rejection of a request for reimbursement of a fine paid pursuant to a decision annulled in part — Rejection of a request to be allowed to participate in the administrative procedure that was reopened following the partial annulment of the decision — Rights of the defence — Non-existent act — Non-contractual liability — Limitation)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/39

      Judgment of the General Court of 8 May 2019 — Lucchini v Commission
      (Case T-185/18) (1)

      (Competition - Agreements, decisions and concerted practices - Market for concrete reinforcing bars in bars or coils - Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 - Partial annulment of the Commission decision - Rejection of a request for reimbursement of a fine paid pursuant to a decision annulled in part - Rejection of a request to be allowed to participate in the administrative procedure that was reopened following the partial annulment of the decision - Rights of the defence - Non-existent act - Non-contractual liability - Limitation)
      (2019/C 230/48)
      Language of the case: Italian

         Parties

         Applicant: Lucchini SpA in AS (Piombino, Italy) (represented by: G. Belotti, lawyer)

         Defendant: European Commission (represented by: P. Rossi, G. Conte and T. Vecchi, acting as Agents)

         Re:

      First, application under Article 263 TFEU seeking annulment of the Commission’s letter of 17 January 2018 rejecting the applicant’s request to be reimbursed for the fine, in the amount of EUR 14 350 000, that was imposed on it by Commission Decision C(2009) 7492 final of 30 September 2009 concerning an infringement of Article 65 of the ECSC Treaty, in accordance with Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/37.956 — Reinforcing bars, re-adoption) and of the Commission’s letter of 9 March 2018 rejecting the applicant’s request to be allowed to participate in the resumed procedure relating to that case and, secondly, application under Article 268 TFEU seeking compensation for the damage allegedly suffered by the applicant as a result of the infringement of Article 41 of the Charter of Fundamental Rights of the European Union committed by the Commission in the procedure leading to the adoption of that decision.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Lucchini SpA in AS to pay the costs.

         (1)  OJ C 161, 7.5.2018.


title: Case T-269/15: Order of the General Court of 15 May 2019 — Novartis Europharm v Commission (Medicinal products for human use — Marketing authorisation for the medicinal product Vantobra — tobramycine — Withdrawal of the contested measure — Action which has become devoid of purpose — No need to adjudicate)

text:
               22.7.2019

               EN

               Official Journal of the European Union

               C 246/19

      Order of the General Court of 15 May 2019 — Novartis Europharm v Commission
      (Case T-269/15) (1)

      (Medicinal products for human use - Marketing authorisation for the medicinal product Vantobra - tobramycine - Withdrawal of the contested measure - Action which has become devoid of purpose - No need to adjudicate)
      (2019/C 246/19)
      Language of the case: English

         Parties

         Applicant: Novartis Europharm Ltd (Camberley, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

         Defendant: European Commission (represented by: M. Šimerdová, A. Sipos and K. Mifsud-Bonnici, acting as Agents)

         Intervener in support of the defendant: Pari Pharma GmbH (Starnberg, Germany) (represented by: M. Epping and W. Rehmann, lawyers)

         Re:

      Application based on Article 263 TFEU seeking annulment of Commission Implementing Decision C(2015) 1977 final of 18 March 2015 granting marketing authorisation for the medicinal product for human use Vantobra — tobramycine, in accordance with Regulation No 726/2004 of the European Parliament and of the Council,

         Operative part of the order

                  1.

                     There is no longer any need to adjudicate on the present action.

                  2.

                     Novartis Europharm Ltd shall bear its own costs and pay those incurred by the European Commission.

                  3.

                     Pari Pharma GmbH shall bear its own costs.

         (1)  OJ C 279, 24.8.2015.


title: Case C-795/18 P: Appeal brought on 18 December 2018 by FCA US LLC against the judgment of the General Court (Sixth Chamber) delivered on 18 October 2018 in Case T-109/17: FCA US v EUIPO — Busbridge

text:
               29.7.2019

               EN

               Official Journal of the European Union

               C 255/15

      Appeal brought on 18 December 2018 by FCA US LLC against the judgment of the General Court (Sixth Chamber) delivered on 18 October 2018 in Case T-109/17: FCA US v EUIPO — Busbridge
      (Case C-795/18 P)
      (2019/C 255/19)
      Language of the case: English

         Parties

         Appellant: FCA US LLC (represented by: C. Morcom QC)

         Other party to the proceedings: European Union Intellectual Property Office
      By order of 20 June 2019 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.


title: Case T-381/19: Action brought on 21 June 2019 — adp Gauselmann v EUIPO — Gameloft (City Mania)

text:
               12.8.2019

               EN

               Official Journal of the European Union

               C 270/43

      Action brought on 21 June 2019 — adp Gauselmann v EUIPO — Gameloft (City Mania)
      (Case T-381/19)
      (2019/C 270/45)
      Language of the case: English

         Parties

         Applicant: adp Gauselmann GmbH (Lübbecke, Germany) (represented by: P. Koch Moreno, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

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

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union word mark City Mania — Application for registration No 15 936 339

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 11 April 2019 in Case R 976/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare the ground of appeal to be founded and annul the contested decision, declare the existence of likelihood of confusion between the trade marks in dispute, and accordingly, order the complete rejection of the requested trade mark;

                  —

                  order EUIPO and the opposing party, should it appear in the proceedings before the General Court, to bear the costs.

         Plea in law

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


title: Case T-382/19: Action brought on 25 June 2019 — Turk Hava Yollari v EUIPO — Sky (skylife)

text:
               12.8.2019

               EN

               Official Journal of the European Union

               C 270/44

      Action brought on 25 June 2019 — Turk Hava Yollari v EUIPO — Sky (skylife)
      (Case T-382/19)
      (2019/C 270/46)
      Language of the case: English

         Parties

         Applicant: Turk Hava Yollari AO (Istanbul, Turkey) (represented by: R. Almaraz Palmero, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Sky Ltd (Isleworth, United Kingdom)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: International registration designating the European Union in respect of the word mark skylife — International registration designating the European Union No 898 322

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 23 April 2019 in Case R 880/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to declare valid the contested international trademark registration No. 898 322 for all the goods and services as registered in classes 39 and 41;

                  —

                  order EUIPO and the intervener, Sky Limited, to pay all the costs of the dispute before the General Court, including those relating to the procedure before the Fourth Board of Appeal.

         Pleas in law

                  —

                  Infringement of Article 60(1)(a) in conjunction with Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 94 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-383/19: Action brought on 21 June 2019 — CI and Others v Parliament and Council

text:
               12.8.2019

               EN

               Official Journal of the European Union

               C 270/45

      Action brought on 21 June 2019 — CI and Others v Parliament and Council
      (Case T-383/19)
      (2019/C 270/47)
      Language of the case: French

         Parties

         Applicants: CI, CJ, CK, CL and CN (represented by: J. Fouchet, lawyer)

         Defendants: European Parliament and Council of the European Union

         Form of order sought

                  —

                  annul Regulation (EU) 2019/592 of the European Parliament and of the Council of 10 April 2019 amending Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas when crossing the external borders of Member States and those whose nationals are exempt from that requirement, as regards the withdrawal of the United Kingdom from the Union;

                  —

                  order the Council of the European Union and the European Parliament to pay the costs of the proceedings in full, including legal fees of EUR 5 000.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement by Regulation (EU) 2019/592 of the acquired rights derived from European citizenship.
                  In the first place, the applicants are of the opinion that the Parliament and the Council infringed their right to respect for private and family life in that for over fifteen years they have established their lives in another Member State of the European Union, a State with which they have a close connection: some of the applicants have spouses and children who are nationals from another Member State or they own property in another Member State.
                  In the second place, the applicants take the view that the contested regulation infringes the principle of equality since it recognises that the rights they derive from their European citizenship will cease without making any distinction between citizens subject to the rule depriving them of their right to vote after residing for fifteen years outside the United Kingdom and other citizens.

                  2.

                  Second plea in law, alleging infringement by the contested regulation of the status of Gibraltar, in that the reference to Gibraltar in the contested regulation as a ‘colony of the British Crown’ can only create an unfavourable climate for conciliation between Spain and the United Kingdom to the detriment of the rights of the inhabitants of Gibraltar.

                  3.

                  Third plea in law, alleging infringement of the visa exemption granted to British citizens by Regulation 2018/1240, on the ground that the applicants will have to apply for an ETIAS travel authorisation and that there is therefore a possibility that they be denied that authorisation.


title: Case C-303/19: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 11 April 2019 — Istituto Nazionale della Previdenza Sociale v VR

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/14

      Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 11 April 2019 — Istituto Nazionale della Previdenza Sociale v VR
      (Case C-303/19)
      (2019/C 288/18)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main proceedings

         Appellant: Istituto Nazionale della Previdenza Sociale

         Respondent and cross-appellant: VR

         Question referred

      Should Article 11(1)(d) of Council Directive 2003/109/EC of 25 November 2003 (1) and the principle of equal treatment for long-term residents and national citizens be interpreted to the effect that they preclude national legislation under which, unlike the provisions laid down for nationals of the Member State, the family members of a worker who is a long-term resident and a citizen of a third country are excluded when determining the members of the family unit, for the purpose of calculating the family unit allowance, where those individuals live in the third country of origin?

         (1)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).


title: Case C-326/19: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 23 April 2019 — EB v Presidenza del Consiglio dei Ministri and Others

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/15

      Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 23 April 2019 — EB v Presidenza del Consiglio dei Ministri and Others
      (Case C-326/19)
      (2019/C 288/20)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per il Lazio

         Parties to the main proceedings

         Applicant: EB

         Defendants: Presidenza del Consiglio dei Ministri, Ministero dell’Istruzione, dell’Università e della Ricerca — MIUR, Università degli Studi Roma Tre

         Questions referred

                  1.

                  Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration, does Clause 5 of the framework agreement on fixed-term work annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, (1) headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, which does not allow in respect of university researchers employed on a three-year fixed-term contract, which may be extended for two years pursuant to Article 24(3)(a) of Law No 240 of 2010, the subsequent establishment of a relationship of indefinite duration?

                  2.

                  Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, headed ‘Measures to prevent abuse’, preclude, also in the light of the principle of equivalence, national legislation, such as that laid down in Article 29(2)(d) and (4) of Legislative Decree No 81 of 15 June 2015 and Article 36(2) and (5) Legislative Decree No 165 of 30 March 2001, from being applied by the national courts of the Member concerned in such a way that a right to maintain the employment relationship is granted to persons employed by public authorities under a flexible employment contract governed by the rules of employment law, but that right is not conferred, in general, on staff employed on fixed-term contracts by those authorities under administrative law, and (as a result of the above provisions of national law) no other effective measure is available under the national legal system to penalise such abuse with regard to workers?

                  3.

                  Although there is no general obligation on Member States to provide for the conversion of fixed-term employment contracts into contracts of unlimited duration, does Clause 5 of the framework agreement on fixed-term work annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, headed ‘Measures to prevent abuse’, preclude …, also in the light of the principle of equivalence, national legislation such as that laid down in Article 24(1) and (3) of Law No 240 of 30 December 2010, which provides for the conclusion and extension for a total period of five years (three years and a possible extension of two years) of fixed-term contracts between researchers and universities, making the conclusion of the contract subject to the availability of ‘the resources for planning for the purposes of carrying out research, teaching, non-curricular activities and student service activities’ and also making extension of the contract subject to a ‘positive appraisal of the teaching and research activities carried out’, without laying down objective and transparent criteria for determining whether the conclusion and renewal of those contracts actually meet a genuine need and whether they are capable of achieving the objective pursued and are necessary for that purpose, and therefore entails a specific risk of abusive use of such contracts, thus rendering them incompatible with the purpose and practical effect of the framework agreement?

         (1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43).


title: Case C-476/19: Request for a preliminary ruling from the Kammarrätten i Göteborg (Sweden) lodged on 19 June 2019 — Allmänna ombudet hos Tullverket v Combinova AB

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/35

      Request for a preliminary ruling from the Kammarrätten i Göteborg (Sweden) lodged on 19 June 2019 — Allmänna ombudet hos Tullverket v Combinova AB
      (Case C-476/19)
      (2019/C 288/42)
      Language of the case: Swedish

         Referring court

      Kammarrätten i Göteborg

         Parties to the main proceedings

         Applicant: Allmänna ombudet hos Tullverket

         Defendant: Combinova AB

         Question referred

      A customs debt on importation or exportation incurred under Article 79 is to be extinguished in accordance with Article 124(1)(k) (1) if there is sufficient evidence to the satisfaction of the customs authorities that the goods have not been used or consumed and have been removed from the customs territory of the Union. Does the term ‘used’ mean that goods have been processed or refined for the purpose for which authorisation was granted to a company for those goods, or does the term concern a use which goes beyond that processing or refining? Is it relevant whether the use takes place before or after the customs debt arose?

         (1)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1).


title: Case C-483/19: Request for a preliminary ruling from the Cour du travail de Liège (Belgium) lodged on 24 June 2019 — Ville de Verviers v J

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/36

      Request for a preliminary ruling from the Cour du travail de Liège (Belgium) lodged on 24 June 2019 — Ville de Verviers v J
      (Case C-483/19)
      (2019/C 288/43)
      Language of the case: French

         Referring court

      Cour du travail de Liège

         Parties to the main proceedings

         Appellant: Ville de Verviers
      Respondent: J

         Questions referred

                  1.

                  Does the fact that the social partners, by means of Opinion of No 1342 … of the Conseil national de travail, decided to make use of the option to exclude from the scope of the Framework Agreement in question, referred to in clause 2(2)(a) and (b) thereof, absolve the Belgian legislature from taking, with regard to employment contracts which have been concluded within the framework of a specific public or publicly-supported training, integration and vocational retraining programme, specific, objective and concrete measures to ensure that the Framework Agreement’s objectives are guaranteed to workers engaged in subsidised employment?

                  2.

                  If the answer to the first question is in the negative, that is to say the Belgian State is not relieved of its obligations under Council Directive 1999/70/EC (1) of 28 June on fixed-term work, does clause 5(1)(a) of the Framework Agreement preclude a provision of national law which, like Article 10 of the Law of 3 July 1978 on employment contracts, authorises having recourse to successive fixed-term employment contracts in breach of the strict conditions relating to maximum duration and renewal laid down by Article 10a of that law, provided that the public employer establishes ‘legitimate reasons’ not otherwise specified in that law which justify the use of unlimited successive fixed-term employment contracts?

                  3.

                  Again, if the answer to the first question is in the negative, does clause 5(1)(a) of the Framework Agreement impose the obligation, on the national court hearing a case between a public employer and a worker employed under successive fixed-term employment contracts concluded within the framework of various training, integration and retraining programmes, to examine the appropriateness of concluding successive fixed-term employment contracts in the light of the ‘objective reasons’ set out in the case-law of the Court of Justice of the European Union?
                  In such a case, can the ‘legitimate reasons’ put forward by the public employer be considered to be ‘objective reasons’ justifying the use of successive fixed-term employment contracts in breach of the conditions laid down by Article 10a, cited above, in order, on the one hand, to prevent and tackle abuse arising from the use of successive fixed-term employment contracts where the needs covered by those contracts are not of a temporary nature but are rather fixed and permanent needs in terms of social cohesion within an insecure population and, on the other, to take account of the specific objectives of those vocational reinsertion contracts concluded within the framework of that social employment policy established by the Belgian State and the Walloon Region and which is heavily dependent on public subsidies?

         (1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. (OJ 1999 L 175 p. 43).


title: Case C-490/19: Request for a preliminary ruling from the Cour de cassation (France) lodged on 26 June 2019 — Syndicat interprofessionnel de défense du fromage Morbier v Société Fromagère du Livradois SAS

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/37

      Request for a preliminary ruling from the Cour de cassation (France) lodged on 26 June 2019 — Syndicat interprofessionnel de défense du fromage Morbier v Société Fromagère du Livradois SAS
      (Case C-490/19)
      (2019/C 288/44)
      Language of the case: French

         Referring court

      Cour de cassation

         Parties to the main proceedings

         Applicant: Syndicat interprofessionnel de défense du fromage Morbier

         Defendant: Société Fromagère du Livradois SAS

         Question referred

      Must Article 13(1) of Council Regulation No 510/2006 of 20 March 2006 (1) and Article 13(1) of Regulation No 1151/2012 of the European Parliament and of the Council of 21 November 2012 (2) be interpreted as prohibiting solely the use by a third party of the registered name, or must they be interpreted as prohibiting the presentation of a product protected by a designation of origin, in particular the reproduction of the shape or the appearance which are characteristic of it, which is liable to mislead the consumer as to the true origin of the product, even if the registered name is not used?

         (1)  Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 2006 L 93, p. 12).

         (2)  Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1).


title: Case C-633/17: Order of the President of the Court of 29 April 2019 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich — Austria) — Gmalieva s.r.o., Manfred Naderhirn, in the presence of: Landespolizeidirektion Oberösterreich, Bezirkshauptmann von Linz-Land

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/37

      Order of the President of the Court of 29 April 2019 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich — Austria) — Gmalieva s.r.o., Manfred Naderhirn, in the presence of: Landespolizeidirektion Oberösterreich, Bezirkshauptmann von Linz-Land
      (Case C-633/17) (1)

      (2019/C 288/45)
      Language of the case: German
      The President has ordered that the case be removed from the register.

         (1)  OJ C 42, 5.2.2018.


title: Case C-167/18: Order of the President of the Court of 17 April 2019 (request for a preliminary ruling from the Tribunal Superior de Justicia de Canarias — Spain) — Unión Insular de CC.OO. de Lanzarote v Swissport Spain Aviation Services Lanzarote S.L.

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/38

      Order of the President of the Court of 17 April 2019 (request for a preliminary ruling from the Tribunal Superior de Justicia de Canarias — Spain) — Unión Insular de CC.OO. de Lanzarote v Swissport Spain Aviation Services Lanzarote S.L.
      (Case C-167/18) (1)

      (2019/C 288/46)
      Language of the case: Spanish
      The President has ordered that the case be removed from the register.

         (1)  OJ C 211, 18.6.2018.


title: Case C-633/18 P: Order of the President of the Court of 10 May 2019 — Apple Distribution International v European Commission, supported by: French Republic

text:
               26.8.2019

               EN

               Official Journal of the European Union

               C 288/39

      Order of the President of the Court of 10 May 2019 — Apple Distribution International v European Commission, supported by: French Republic
      (Case C-633/18 P) (1)

      (2019/C 288/49)
      Language of the case: English
      The President of the Court has ordered that the case be removed from the register.

         (1)  OJ C 436, 3.12.2018.


title: Case C-563/19 P: Appeal brought on 23 July 2019 by Recylex SA, Fonderie et Manufacture de Métaux, Harz-Metall GmbH against the judgment of the General Court (Eighth Chamber) delivered on 23 May 2019 in Case T-222/17: Recylex e.a. v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/8

      Appeal brought on 23 July 2019 by Recylex SA, Fonderie et Manufacture de Métaux, Harz-Metall GmbH against the judgment of the General Court (Eighth Chamber) delivered on 23 May 2019 in Case T-222/17: Recylex e.a. v Commission
      (Case C-563/19 P)
      (2019/C 312/10)
      Language of the case: English

         Parties

         Appellants: Recylex SA, Fonderie et Manufacture de Métaux, Harz-Metall GmbH (represented by: M. Wellinger, avocat, S. Reinart and K. Bongs, Rechtsanwälte)

         Other party to the proceedings: European Commission

         Forms of order sought

      The appellants claim that the Court should:

                  —

                  set aside the judgment of the General Court of 23 May 2019 in Case T-222/17 in so far as it upholds the fine imposed on the appellants by the Contested Decision (1) and orders the appellants to pay the costs;

                  —

                  annul the Contested Decision in so far as it imposes a fine of EUR 26 739 000 on the appellants;

                  —

                  reduce the amount of the fine imposed on the appellants to EUR 5 877 732 on the basis of all three pleas; or at least to EUR 17 679 141 on the basis of the first plea only, to EUR 13 305 478 on the basis of the second plea only, to EUR 19 099 565 on the basis of the third plea only, to EUR 8 228 824 on the basis of the first and second pleas, to EUR 12 627 958 on the basis of the first and the third pleas, or to EUR 9 503 913 on the basis of the second and the third pleas; and

                  —

                  order the Commission to bear all the costs of these proceedings, including the proceedings before the General Court.

         Pleas in law and main arguments

      In support of the appeal, the appellants rely on three pleas in law.

                  1)

                  The contested judgment is vitiated by an error of law, first, because its reasoning is incoherent and unclear as regards the legal test applicable for the grant of partial immunity and, second, because, when applying a legal test, the contested judgment manifestly distorted the evidence and disregarded the rules on the burden of proof.

                  2)

                  The contested judgment is vitiated by an error of law because it misconstrued and incorrectly applied the rules on partial immunity pursuant to the third paragraph of point 26 of the 2006 Leniency Notice.

                  3)

                  The contested judgment is vitiated by an error of law in its application of Section III of the 2006 Leniency Notice when holding that an undertaking which is second to provide evidence of significant added value cannot take the place of the first undertaking to have provided such evidence but which does not meet the conditions to qualify for a reduction of its fine.

         (1)  Commission Decision of 8 February 2017 (C(2017) 900 final) relating to a proceeding under Article 101 of the TFEU (Case AT.40018 — Car battery recycling).


title: Case T-456/19: Action brought on 4 July 2019 — ITV v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/12

      Action brought on 4 July 2019 — ITV v Commission
      (Case T-456/19)
      (2019/C 312/13)
      Language of the case: English

         Parties

         Applicant: ITV plc (London, United Kingdom) (represented by: J. Lesar, Solicitor, and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicant’s freedom of establishment contrary to Article 49 TFEU.

                  6.

                  Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  7.

                  Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  8.

                  Eighth plea in law, alleging that the Commission erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

                  9.

                  Ninth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (including the applicant) and that the applicant had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-473/19: Action brought on 4 July 2019 — Diageo and Others v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/18

      Action brought on 4 July 2019 — Diageo and Others v Commission
      (Case T-473/19)
      (2019/C 312/17)
      Language of the case: English

         Parties

         Applicants: Diageo plc (London, United Kingdom), UDV (SJ) Ltd (London), Diageo US Investments (London), Diageo UK Turkey Ltd (London) and Diageo Investment Holdings Ltd (London) (represented by: J. Lesar, Solicitor, and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicants’ freedom of establishment contrary to Article 49 TFEU.

                  6.

                  Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  7.

                  Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  8.

                  Eighth plea in law, alleging that the Commission also erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

                  9.

                  Ninth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (including the applicants) and that the applicants had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-474/19: Action brought on 4 July 2019 — Halma and Others v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/19

      Action brought on 4 July 2019 — Halma and Others v Commission
      (Case T-474/19)
      (2019/C 312/18)
      Language of the case: English

         Parties

         Applicants: Halma plc (Amersham, United Kingdom), Halma Overseas Funding Ltd (Amersham) and Halma International Ltd (Amersham) (represented by: J. Lesar, Solicitor, and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicants’ freedom of establishment contrary to Article 49 TFEU.

                  6.

                  Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  7.

                  Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  8.

                  Eighth plea in law, alleging that the Commission also erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

                  9.

                  Ninth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (including the applicants) and that the applicants had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-482/19: Action brought on 4 July 2019 — BT Group and Communications Global Network Services v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/24

      Action brought on 4 July 2019 — BT Group and Communications Global Network Services v Commission
      (Case T-482/19)
      (2019/C 312/21)
      Language of the case: English

         Parties

         Applicants: BT Group plc (London, United Kingdom) and Communications Global Network Services Ltd (London) (represented by: J. Lesar, Solicitor, and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicants’ freedom of establishment contrary to Article 49 TFEU.

                  6.

                  Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  7.

                  Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  8.

                  Eighth plea in law, alleging that the Commission erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

                  9.

                  Ninth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (including the applicants) and that the applicants had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-483/19: Action brought on 4 July 2019 — Meggitt and Cavehurst v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/25

      Action brought on 4 July 2019 — Meggitt and Cavehurst v Commission
      (Case T-483/19)
      (2019/C 312/22)
      Language of the case: English

         Parties

         Applicants: Meggitt plc (Christchurch, United Kingdom) and Cavehurst Ltd (Christchurch) (represented by: J. Lesar, Solicitor and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the ‘full’ exemption under section 371IB of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  6.

                  Sixth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicants’ freedom of establishment contrary to Article 49 TFEU.

                  7.

                  Seventh plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  8.

                  Eighth plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  9.

                  Ninth plea in law, alleging that the Commission erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

                  10.

                  Tenth plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU by finding at recital (176) of the contested decision that a class of beneficiaries exists (including the applicants) and that the applicants had obtained any aid which needed to be recovered under Article 2(1) of the contested decision.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-485/19: Action brought on 4 July 2019 — Babcock International Group and Others v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/28

      Action brought on 4 July 2019 — Babcock International Group and Others v Commission
      (Case T-485/19)
      (2019/C 312/24)
      Language of the case: English

         Parties

         Applicants: Babcock International Group plc (London, United Kingdom), Babcock Aviation Services (Holdings) Ltd (London) and Babcock Mission Critical Services Leasing Ltd (London) (represented by: J. Lesar, Solicitor, and K. Beal, QC)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission wrongly applied Article 107(1) TFEU and/or made a manifest error of appraisal or assessment in its selection of the reference framework for the analysis of the tax regime. The Commission should have treated the reference framework as the UK’s corporation tax regime, not simply the controlled foreign companies (CFC) regime itself.

                  2.

                  Second plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU and/or made a manifest error of appraisal or assessment by adopting a flawed approach to the analysis of the CFC regime. The Commission at recitals (124) to (126) of the contested decision wrongly treated the provisions of Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a form of derogation from a general charge to tax found in Chapter 5 thereof.

                  3.

                  Third plea in law, alleging that the Commission erred in law in its application of Article 107(1) TFEU when finding at recitals (127) to (151) of the contested decision that the selectivity criterion was fulfilled in that undertakings in factually and legally comparable positions were treated differently.

                  4.

                  Fourth plea in law, alleging that the 75 % exemption under section 371ID of the Taxation (International and Other Provisions) Act 2010 is justified by the nature and overall structure of the tax system.

                  5.

                  Fifth plea in law, alleging that the imposition of a tax burden on CFCs meeting the exemptions contained in Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 as a class would breach the applicants’ freedom of establishment contrary to Article 49 TFEU.

                  6.

                  Sixth plea in law, alleging that there was a manifest error of appraisal or assessment in relation to the 75 % exemption and fixed ratio issue.

                  7.

                  Seventh plea in law, alleging that the Commission’s decision fails to comply with the general EU law principle of non-discrimination or equality.

                  8.

                  Eighth plea in law, alleging that the Commission erred in law in applying by analogy or placing undue reliance upon the terms of Council Directive (EU) 2016/1164, (1) which was not applicable ratione temporis.

         (1)  Council Directive (EU) 2016/1164 of 12 July 2016 laying down rules against tax avoidance practices that directly affect the functioning of the internal market (OJ 2016 L 193, p. 1).


title: Case T-486/19: Action brought on 5 July 2019 — Spectris and Spectris Group v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/29

      Action brought on 5 July 2019 — Spectris and Spectris Group v Commission
      (Case T-486/19)
      (2019/C 312/25)
      Language of the case: English

         Parties

         Applicants: Spectris plc (Egham, United Kingdom) and Spectris Group Holdings Ltd (Egham) (represented by: C. McDonnell, Barrister, B. Goren and K. Desai, Solicitors, and M. Peristeraki, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  hold that there has been no unlawful State aid and (i) annul Article 1 of Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, to the extent that it finds that there is unlawful State aid; and (ii) set aside the requirement for the UK to recover from the applicant the alleged unlawful State aid received in this context (Articles 2 and 3 of the contested decision);

                  —

                  in the alternative, annul Articles 2 and 3 of the contested decision insofar as they require the UK to recover the alleged State aid from the applicants;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the contested decision is vitiated by manifest errors in the appreciation of the relevant facts and laws.

                              —

                              In particular, it is argued that the Commission misunderstands the way the UK controlled foreign companies (CFC) rules in question work with respect to the treatment of non-trading financial profits. In addition, the contested decision wrongly construed the group financing exemption (GFE) as a tax exemption.

                  2.

                  Second plea in law, alleging that the Commission was wrong to find that the CFC rules constituted an aid measure within the meaning of Article 107(1) TFEU and as such, that the rules conferred a selective advantage on certain operators.

                              —

                              More precisely, it is argued that the Commission wrongly determined the reference system for the assessment of the effects of the CFC rules, and wrongly identified two different situations as being comparable to the situation where the GFE applies. As a result of either or both of these errors, the Commission was wrong to identify that these rules conferred a selective advantage on certain market operators. Moreover, the Commission wrongly identified the CFC rules as a distinct set of rules from the overall UK corporation tax system, while ignoring other features of the UK corporation tax system intended to work in conjunction with the CFC rules. As a result, the analysis of the Commission on comparability and selectivity is vitiated by manifest errors of appreciation of the relevant facts and errors in law.

                  3.

                  Third plea in law, alleging that, even assuming that the CFC measures in question constituted aid in the meaning of Article 107(1) TFEU, the contested decision wrongly concluded that there was no justification that could apply to defend the compatibility of the measures in question with EU State aid rules. In addition, the contested decision is irrational and inconsistent, in that the Commission has correctly accepted that Chapter 9 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 is justified in cases where the only reason for a CFC charge to apply is the ‘UK connected capital’ test, on the basis that that test may be excessively difficult to operate in practice, but at the same time, and without providing adequate reasoning, the Commission contends that the said Chapter 9 is never justified in cases where the significant people functions (SPF) test causes a CFC charge to apply. In fact, the SPF test is excessively difficult to apply in practice such that the Commission should have found the said Chapter 9 to be justified in the context of that test as well and hence it should have concluded that there is no State aid.

                  4.

                  Fourth plea in law, alleging that, if the contested decision is upheld, enforcement of it through recovery of the alleged State aid from the applicants will infringe fundamental principles of EU law, including the freedom of establishment and the freedom to provide services, noting that in the applicants’ case the CFCs in question are situated in other Member States.

                  5.

                  Fifth plea in law, the recovery order resulting from the contested decision is unfounded and contrary to fundamental principles of EU law.

                  6.

                  Sixth plea in law, alleging that the Commission failed to provide adequate reasons for critical elements in the contested decision, such as the conclusion that the CFC charge under Chapter 5 of Part 9A of the UK’s Taxation (International and Other Provisions) Act 2010 could be applied using the SPF test without difficulty or disproportionate burden.

                  7.

                  Seventh plea in law, alleging that the contested decision also breaches the principle of good administration, which requires that the Commission allows transparency and predictability in its administrative procedures and renders its decisions within a reasonable time-frame. It is not reasonable for the Commission to take more than four years to issue its decision opening the investigation in the present case and to give a decision more than six years after the contested measure came into effect.


title: Case T-490/19: Action brought on 5 July 2019 — Weston Investment and Others v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/31

      Action brought on 5 July 2019 — Weston Investment and Others v Commission
      (Case T-490/19)
      (2019/C 312/26)
      Language of the case: English

         Parties

         Applicants: Weston Investment Co. Ltd (London, United Kingdom), Precis (1814) Ltd (London), British American Tobacco Holdings Belgium NV (Brussels, Belgium), British American Tobacco International Holdings (UK) Ltd (London) and British American Tobacco (GLP) Ltd (London) (represented by: M. Anderson, Solicitor)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State aid SA.44896 implemented by the United Kingdom concerning CFC Group Financing Exemption, in so far as it concerns the applicants;

                  —

                  if the decision is not annulled in its entirety, order that in determining the amount of aid to be recovered, losses, reliefs or exemptions which were available to an applicant at the time when it claimed the group financing exemption (GFE), or which would have been available to an applicant at that time had it not claimed the GFE, should in either case be taken into account even if access to those losses, reliefs or exemptions is now time barred under UK law;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the defendant has failed to establish that the group financing exemption (GFE) constitutes an advantage. The applicants argue that the defendant has failed to show that there is an advantage in each case where the GFE has been claimed. Further, each applicant argues that it chose to claim the GFE exemption without considering whether its liability could have been lower if it had done an analysis under the significant people functions test in Section 371EB (the ‘SPF test’) of Chapter 5 of Part 9A of the Taxation (International and Other Provisions) Act 2010.

                  2.

                  Second plea in law, alleging that there was no intervention by the State or through State resources. The applicants argue that the defendant has failed to prove that claiming the GFE has certainly led to a reduction in the UK corporate tax liability.

                  3.

                  Third plea in law, alleging that the GFE does not favour certain undertakings or the production of certain goods. The applicants argue that the defendant has erred by (i) defining the reference system too narrowly as the rules in Part 9A of the abovementioned legislation instead of the wider UK corporate tax system; (ii) failing to understand that Chapter 9 of the said Part 9A is not a derogation from Chapter 5 thereof; and (iii) failing to recognise that, even if the said Chapter 9 is a derogation from that Chapter 5, it is justified by the nature or general scheme of Part 9A of the legislation in question.

                  4.

                  Fourth plea in law, alleging that the GFE does not affect trade between Member States. The applicants argue that the defendant has erred by concluding that the GFE is liable to influence choices made by multinational groups as to the location of their group finance functions and their head office within the EU.

                  5.

                  Fifth plea in law, alleging that the GFE does not distort or threaten to distort competition. The applicants argue that the defendant has failed to prove that claiming the GFE has certainly led to a reduction in the UK corporate tax liability.

                  6.

                  Sixth plea in law, alleging that recovery of the alleged aid would be contrary to general principles of EU law. The applicants argue that the SPF test lacks legal certainty, the UK had a margin of appreciation to address that uncertainty and that the defendant has breached its duty to carry out a complete analysis of all relevant factors. By ordering the recovery of aid, the defendant has acted contrary to Article 16(1) of Council Regulation (EU) 2015/1589 (1) which prohibits the recovery of aid where recovery would be contrary to a general principle of EU law.

                  7.

                  Seventh plea in law, alleging that the selective advantage would be eliminated, and no recovery would be required, if the UK were retrospectively to extend the GFE to upstream lending and third-party lending. The applicants argue that the defendant has failed to acknowledge that taking such action would eliminate any selective advantage (assuming for the moment that there is one) and in such case there would be no unlawful state aid to be recovered under EU law.

                  8.

                  Eighth plea in law, alleging that, in determining the amount of the aid to be recovered, losses, reliefs or exemptions which were available to an applicant at the time when it claimed the GFE, or which would have been available at that time had it not claimed the GFE, should be taken into account even if access to those losses, reliefs or exemptions is now time barred under UK law. The applicants argue that that is the correct interpretation of recital 203 of the contested decision but, insofar as that is not the case, the contested decision is incorrect because failing to take such losses, reliefs or exemptions into account would lead to over-calculation of the amount of the aid which would introduce a distortion into the internal market.

         (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).


title: Case T-492/19: Action brought on 5 July 2019 — GlaxoSmithKline Finance and Setfirst v Commission

text:
               16.9.2019

               EN

               Official Journal of the European Union

               C 312/33

      Action brought on 5 July 2019 — GlaxoSmithKline Finance and Setfirst v Commission
      (Case T-492/19)
      (2019/C 312/28)
      Language of the case: English

         Parties

         Applicants: GlaxoSmithKline Finance plc (Brentford, United Kingdom) and Setfirst Ltd (Brentford) (represented by: K. Bacon QC, and A. Lyle-Smythe, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission Decision C(2019) 2526 final of 2 April 2019 on the State Aid SA.44896 implemented by the United Kingdom concerning the Controlled Foreign Company (CFC) Group Financing Exemption in its entirety;

                  —

                  in the alternative, annul the contested decision insofar as it does or may relate to CFCs actually established and carrying on genuine economic activities in another Member State;

                  —

                  in the alternative, annul the contested decision insofar as it fails to provide sufficient information for the recipient to calculate the precise amount of aid to be recovered without overmuch difficulty;

                  —

                  in the alternative, grant such partial annulment as the General Court deems appropriate; and

                  —

                  in any event, order the Commission to pay 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 four pleas in law.

                  1.

                  First plea in law, alleging that the Commission has erred in law and provided insufficient reasoning in finding that the group financing exemption (GFE) constitutes an advantage as, for CFCs which are genuinely established in another Member State, the effect of the Cadbury Schweppes case (1) is that their parent companies should not have been liable to any CFC charge (even a reduced charge levied as a result of the partial GFE).

                  2.

                  Second plea in law, alleging that the Commission has erred in law, made a manifest error of assessment and has failed to state adequate reasons in finding that the GFE was not justified on the grounds of ensuring compliance with the freedom of establishment.

                  3.

                  Third plea in law, alleging that the Commission has erred in law and made a manifest error of assessment in concluding that the GFE was not a justified derogation based on the need to avoid complex and disproportionately burdensome allocation of profit to significant people functions based on the OECD’s approach to allocating profits to permanent establishments.

                  4.

                  Fourth plea in law, alleging that the Commission has erred in law in failing to provide adequate information as to the parameters of recovery.

         (1)  Judgment of 12 September 2006 in Cadbury Schweppes and Cadbury Schweppes Overseas v Commissioner of Inland Revenue (Case C-196/04, EU:C:2006:544).