title: Case T-729/16: Judgment of the General Court of 25 October 2018 — PO and Others v EEAS (Civil Service – EEAS – Remuneration – Officials posted to the Beijing delegation – Family allowance – Education allowance for the school year 2015/2016 – Second sentence of Article 15 of Annex X to the Staff Regulations – Exceedance of the statutory ceiling for third countries – Decision to cap the reimbursement of education costs in exceptional circumstances – General Implementing Provisions)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/24

      Judgment of the General Court of 25 October 2018 — PO and Others v EEAS
      (Case T-729/16) (1)

      (Civil Service - EEAS - Remuneration - Officials posted to the Beijing delegation - Family allowance - Education allowance for the school year 2015/2016 - Second sentence of Article 15 of Annex X to the Staff Regulations - Exceedance of the statutory ceiling for third countries - Decision to cap the reimbursement of education costs in exceptional circumstances - General Implementing Provisions)
      (2019/C 4/32)
      Language of the case: French

         Parties

         Applicants: PO, PP, PQ and PR (represented initially by: N. de Montigny and J.-N. Louis, and subsequently by: N. de Montigny, lawyers)

         Defendant: European External Action Service (represented by: S. Marquardt and R. Spac, acting as Agents, and M. Troncoso Ferrer, F.-M. Hislaire and S. Moya Izquierdo, lawyers).

         Re:

      Application based on Article 270 TFEU seeking the annulment of the decisions of the EEAS not to reimburse the applicants, in respect of the school year 2015/2016, for the education costs exceeding an amount corresponding to the statutory ceiling for third countries (six times the basic ceiling) increased by EUR 10 000 (EUR 27 788,40 in total).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders PO, PP, PQ and PR to bear their own costs and to pay the costs incurred by the European External Action Service (EEAS).

         (1)  OJ C 475, 19.12.2016.


title: Case C-640/18: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 12 October 2018 — Wagram Invest SA v État belge (Belgian State)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/14

      Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 12 October 2018 — Wagram Invest SA v État belge (Belgian State)
      (Case C-640/18)
      (2019/C 4/18)
      Language of the case: French

         Referring court

      Cour d’appel de Mons

         Parties to the main proceedings

         Appellant: Wagram Invest SA

         Respondent: État belge (Belgian State)

         Questions referred

                  1.

                  Does the notion of a true and fair view under Article 2(3) of Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual accounts of certain types of companies, (1) where a public limited company purchases a financial fixed asset, authorise a discount relating to a non-interest-bearing debt becoming due after one year to be entered as a charge in the profit and loss account, and the acquisition price of the fixed asset to be entered as an asset in the balance sheet after deduction of that discount, in the light of the valuation principles set out in Article 32 of that directive?

                  2.

                  Must the expression ‘in exceptional cases’ that is a proviso for application of Article 2(5) of the Council Directive of 25 July 1978 based on Article 54(3)(g) of the [EEC] Treaty [now Article 50(2)(g) TFEU] on the annual accounts of certain types of companies and that allows application of a (different) provision of that directive to be excluded be interpreted as meaning that the provision in question can apply only on condition that it is found that compliance with the provisions of the directive, together with, where applicable, additional disclosure in the notes on the accounts in accordance with Article 2(4) of that directive, cannot adversely affect compliance with the principle that a true and fair view must be given?

                  3.

                  Must Article 2(4) of the aforementioned directive be applied as a priority with the effect that the possibility, under Article 2(5) of that directive, of excluding application of a provision of the directive can be utilised only if additional disclosure cannot ensure effective implementation of the principle that a true and fair view must be given enshrined in Article 2(3) of that directive and, even then, only in exceptional cases?

         (1)  Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11).


title: Case C-433/17 P: Judgment of the Court (Sixth Chamber) of 25 October 2018 — Enercon GmbH v European Union Intellectual Property Office (EUIPO), Gamesa Eólica, SL (Appeal – EU trade mark – Regulation (EC) No 207/2009 – Article 7(1)(b) – Invalidity proceedings – Article 53 – EU colour mark consisting of blended shades of green – Partial declaration of invalidity – Remittal of the case to the Cancellation Division)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/6

      Judgment of the Court (Sixth Chamber) of 25 October 2018 — Enercon GmbH v European Union Intellectual Property Office (EUIPO), Gamesa Eólica, SL
      (Case C-433/17 P) (1)

      (Appeal - EU trade mark - Regulation (EC) No 207/2009 - Article 7(1)(b) - Invalidity proceedings - Article 53 - EU colour mark consisting of blended shades of green - Partial declaration of invalidity - Remittal of the case to the Cancellation Division)
      (2019/C 4/07)
      Language of the case: English

         Parties

         Appellant: Enercon GmbH (represented by: R. Böhm, Rechtsanwalt, and M. Silverleaf QC)

         Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: D. Botis, V. Ruzek and A. Folliard-Monguiral, acting as Agents), Gamesa Eólica, SL (represented by: A. Sanz Cerralbo, abogada)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Enercon GmbH to pay the costs.

         (1)  OJ C 412, 4.12.2017.


title: Case T-874/16: Judgment of the General Court of 8 November 2018 — RA v Court of Auditors (Civil service – Officials – Promotion – 2016 promotion exercise – Decision not to promote the applicant to grade AD 11 – No staff report – Comparison of merits)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/24

      Judgment of the General Court of 8 November 2018 — RA v Court of Auditors
      (Case T-874/16) (1)

      (Civil service - Officials - Promotion - 2016 promotion exercise - Decision not to promote the applicant to grade AD 11 - No staff report - Comparison of merits)
      (2019/C 4/33)
      Language of the case: French

         Parties

         Applicant: RA (represented by: S. Orlandi and T. Martin, lawyers)

         Defendant: European Court of Auditors (represented by: C. Lesauvage, E. von Bardeleben and A.-M. Cosciug, acting as Agents)

         Re:

      Application based on Article 270 TFEU seeking annulment of the decision of the Court of Auditors of 4 March 2016 not to promote the applicant to the next grade (AD 11), in the 2016 promotion procedure, by not including his name in the list of officials promoted in the 2016 promotion exercise.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Court of Auditors of 4 March 2016 not to promote RA to grade AD 11 in the 2016 promotion exercise;

                  2.

                  The Court of Auditors is ordered to pay all the costs.

         (1)  OJ C 46, 13.2.2017.


title: Case C-643/18: Request for a preliminary ruling from the Landesgericht Korneuburg (Austria) lodged on 15 October 2018 — British Airways Plc v MF

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/14

      Request for a preliminary ruling from the Landesgericht Korneuburg (Austria) lodged on 15 October 2018 — British Airways Plc v MF
      (Case C-643/18)
      (2019/C 4/19)
      Language of the case: German

         Referring court

      Landesgericht Korneuburg

         Parties to the main proceedings

         Applicant: British Airways Plc

         Defendant: MF

         Questions referred

                  1.

                  Is Article 5(3) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, to be interpreted as meaning that the operating air carrier can rely also on such extraordinary circumstances which did not occur on the flight booked by the passenger but on a — not immediately — preceding flight on the same day using the aircraft that was supposed to be used for the flight booked by the passenger as part of a flight diagram?

                  2.

                  Is Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, to be interpreted as meaning that ‘all reasonable measures’ which the operating air carrier must have taken in order, in the event of extraordinary circumstances, to avoid an obligation to pay compensation in accordance with Article 7 of that regulation must be aimed merely at avoiding the ‘extraordinary circumstances’ (in this particular case, the allocation of a new (later) air traffic control slot by the European air surveillance organisation EUROCONTROL), or is the operating air carrier also required to take reasonable measures to avoid cancellations or long delays themselves?

                  3.

                  If the operating air carrier is required to take reasonable measures to avoid long delays themselves, is Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, to be interpreted as meaning that, in the case of the carriage of passengers on a route consisting of two (or more) flights, the air carrier must, in order to avoid an obligation to pay compensation in accordance with Article 7 of that regulation, merely take reasonable measures aimed at avoiding a delay to the flight which it is due to operate and which is subject to possible delay, or that it must also take reasonable measures to avoid a long delay for the individual passenger at the final destination (for example, by examining the possibility of rebooking the passenger onto another flight)?

         (1)  OJ 2004 L 46, p. 1.


title: Case C-451/17: Judgment of the Court (Sixth Chamber) of 25 October 2018 (request for a preliminary ruling from the Administrativen sad Veliko Tarnovo — Bulgaria) — ‘Walltopia’ AD v Direktor na Teritorialna direktsia na Natsionalnata agentsia za prihodite — Veliko Tarnovo (Reference for a preliminary ruling – Social security – Regulation (EC) No 883/2004 – Article 12(1) – Regulation (EC) No 987/2009 – Article 14(1) – Posted workers – Legislation applicable – A1 certificate – Whether the employee is subject to the legislation of the Member State in which his employer is established – Conditions)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/6

      Judgment of the Court (Sixth Chamber) of 25 October 2018 (request for a preliminary ruling from the Administrativen sad Veliko Tarnovo — Bulgaria) — ‘Walltopia’ AD v Direktor na Teritorialna direktsia na Natsionalnata agentsia za prihodite — Veliko Tarnovo
      (Case C-451/17) (1)

      (Reference for a preliminary ruling - Social security - Regulation (EC) No 883/2004 - Article 12(1) - Regulation (EC) No 987/2009 - Article 14(1) - Posted workers - Legislation applicable - A1 certificate - Whether the employee is subject to the legislation of the Member State in which his employer is established - Conditions)
      (2019/C 4/08)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad Veliko Tarnovo

         Parties to the main proceedings

         Applicant:‘Walltopia’ AD

         Defendant: Direktor na Teritorialna direktsia na Natsionalnata agentsia za prihodite — Veliko Tarnovo

         Operative part of the judgment

      Article 14(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, read together with Article 12(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted as meaning that an employee recruited with a view to being posted to another Member State must be regarded as having been ‘just before the start of his employment … already subject to the legislation of the Member State in which his employer is established’, within the meaning of Article 14(1) of Regulation No 987/2009, even if that employee was not an insured person under the legislation of that Member State immediately before the start of his employment, if, at that time, that employee had his residence in that Member State, which is for the referring court to ascertain.

         (1)  OJ C 330, 2.10.2017.


title: Case C-649/18: Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 15 October 2018 — A v Daniel B, UD, AFP, B, L

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/15

      Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 15 October 2018 — A v Daniel B, UD, AFP, B, L
      (Case C-649/18)
      (2019/C 4/20)
      Language of the case: French

         Referring court

      Cour d’appel de Paris

         Parties to the main proceedings

         Appellant: A

         Respondents: Daniel B, UD, AFP, B, L

         Questions referred

      The Court of Justice must rule on the question of whether EU law, in particular;

                  —

                  Article 34 TFEU,

                  —

                  Article 85c of European Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (as amended), (1)

                  —

                  the internal-market clause in Article 3 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services for electronic commerce, (2)

            allows a Member State of the European Union to impose, within its territory, specific rules on pharmacists who are nationals of another EU Member State operating in its territory concerning:

                  —

                  the prohibition of soliciting clients through procedures and methods which are regarded as being contrary to the dignity of the profession, pursuant to the present version of Article R 4235 22 of the French Public Health Code;

                  —

                  the prohibition of inciting patients to misuse medicinal products, pursuant to the present version of Article R 4235 64 of the French Public Health Code;

                  —

                  the obligation to observe good practices, as defined by the public authorities of the Member State, in the distribution of medicinal products, which also requires that a health questionnaire be included when medicinal products are ordered online and which prohibits the use of paid referencing pursuant to the present version of the Decree of 28 November 2016 of the (French) Minister for Social Affairs and Health.

         (1)  OJ 2001 L 311, p. 67.

         (2)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).


title: Case T-608/18: Application lodged on 8 October 2018 — Sammut v Parliament

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/30

      Application lodged on 8 October 2018 — Sammut v Parliament
      (Case T-608/18)
      (2019/C 4/41)
      Language of the case: Maltese

         Parties

         Applicant: Mark Anthony Sammut (Foetz, Luxembourg) (represented by: P. Borg Olivier, lawyer)

         Defendant: European Parliament

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul, pursuant to Article 270 TFEU, the decision of 6 July 2018 of the European Parliament, adopted under Article 90(2) of the Staff Regulations, by which it rejected the complaint presented by the applicant in order to have removed, from his staff report for the year 2016, a statement concerning the alleged failure to inform the Appointing Authority of his intention to publish a book in 2016 entitled ‘L-Aqwa fl-Ewropa. Il-Panama papers u il-Poter’ [‘The best in Europe. The Panama Papers and Power’]; and as a result,

                  —

                  annul in part the decision of the Director General of the Directorate-General for Translation of 4 January 2018; and as a result,

                  —

                  order the removal of the said statement from the staff report (point 3 concerning the conduct of the applicant — Compliance with Rules and Procedures);

                  —

                  assess the damage suffered by the applicant as a consequence of those decisions;

                  —

                  order the defendant to pay compensation for the damage suffered by the applicant as a result of those decisions;

                  —

                  order the Appointing Authority to pay the costs.

         Pleas in law

      In support of his application, the applicant puts forward three pleas.

                  1.

                  The first plea in law alleges infringement of Article 17a of the Staff Regulations, in as much as it is intended to protect the fundamental right of freedom of expression guaranteed by Article 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms and by Article 11 of the Charter of Fundamental Rights of the European Union. Furthermore, a balance has to be stuck between rights and obligations, as not all rights are absolute.

                  2.

                  The second plea in law alleges misinterpretation of Article 17a of the Staff Regulations, in that the subject of the book does not concern ‘the work of the Union’, and therefore the applicant was not under an obligation to inform the Appointing Authority of his intention beforehand. The words ‘matter dealing with’ mean and refer to the content of the document, the purpose of which is to deal with ‘work of the Union’. This means that an official has to inform the Appointing Authority and obtain permission only if he would in any way be dealing with the work of the Union. The duty of the Appointing Authority that follows from this is to interpret strictly, not broadly what constitutes the ‘work of the Union’. Furthermore, it is claimed that:

                              —

                              no reasons for the decision have been given, as it is based simply on a mere opinion, not on facts or legal considerations;

                              —

                              the duty imposed by the Appointing Authority is more onerous than that laid down in the Staff Regulations;

                              —

                              the decision is based on the disproportionate exercise discretion;

                              —

                              ‘matter dealing with the work of the Union’ relates to a context which can be inferred, with regard to the workings of the Union, from other Guidelines;

                              —

                              as there is no reference to his work or to any other work of the Union in the book, the applicant has not failed in his duty of trust, loyalty and impartiality towards the Union;

                              —

                              from the case-law of the Court of Justice, in particular its judgment of the 6 March 2001 (Connolly v Commission (C-274/99 P, EU:C:2001:127, paragraphs 43 to 62), a number of relevant points emerge for the evaluation of the application and implementation of Article 17a of the Staff Regulations.

                  3.

                  The third plea in law is based on the non-material damage suffered by the applicant as a result of the decision, both at his workplace as well as in his personal life, and the impact that this has had on his literary output. It is consequently necessary to quantify the damage and subsequently award compensation in that regard.


title: Case C-462/17: Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Landgericht Hamburg — Germany) — Tänzer & Trasper GmbH v Altenweddinger Geflügelhof Kommanditgesellschaft (Reference for a preliminary ruling – Approximation of laws – Regulation (EC) No 110/2008 – Spirit drinks – Definition, description, presentation, labelling and the protection of geographical indications – Category 41 of Annex II – Egg liqueur – Definition – Exhaustive nature of the permissible components)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/7

      Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Landgericht Hamburg — Germany) — Tänzer & Trasper GmbH v Altenweddinger Geflügelhof Kommanditgesellschaft
      (Case C-462/17) (1)

      (Reference for a preliminary ruling - Approximation of laws - Regulation (EC) No 110/2008 - Spirit drinks - Definition, description, presentation, labelling and the protection of geographical indications - Category 41 of Annex II - Egg liqueur - Definition - Exhaustive nature of the permissible components)
      (2019/C 4/09)
      Language of the case: German

         Referring court

      Landgericht Hamburg

         Parties to the main proceedings

         Applicant: Tänzer & Trasper GmbH

         Defendant: Altenweddinger Geflügelhof Kommanditgesellschaft

         Operative part of the judgment

      Category 41 of Annex II to Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89, as amended by Regulation (EC) No 1334/2008 of the European Parliament and of the Council of 16 December 2008, must be interpreted as meaning that, in order to be able to bear the sales denomination ‘egg liqueur’, a spirit drink cannot contain ingredients other than those mentioned in that provision.

         (1)  OJ C 347, 16.10.2017.


title: Case C-652/18: Request for a preliminary ruling from the Аdministrativen sad Haskovo (Bulgaria) lodged on 18 October 2018 — SZ v Мitnitsa Burgas

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/16

      Request for a preliminary ruling from the Аdministrativen sad Haskovo (Bulgaria) lodged on 18 October 2018 — SZ v Мitnitsa Burgas
      (Case C-652/18)
      (2019/C 4/21)
      Language of the case: Bulgarian

         Referring court

      Аdministrativen sad Haskovo

         Parties to the main proceedings

         Appellant: SZ

         Respondent: Мitnitsa Burgas

         Question referred

      Are Article 9(1) of Regulation (EC) No 1889/2005 (1) of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community and Article 49(3) of the Charter of Fundamental Rights of the European Union to be interpreted as precluding a provision of national law such as Article 20(1) of the Valuten Zakon (Law on Currency) which, in the case of a failure to comply with the obligation to declare under Article 3 of the Regulation, in addition to the imposition of a fine pursuant to Article 18(1) of the Law on Currency of BGN 1 000 to BGN 3 000, cumulatively provides for the full confiscation of the undeclared cash regardless of its provenance and intended use?

         (1)  OJ 2005 L 309, p. 9.


title: Case T-616/18: Action brought on 15 October 2018 — Polskie Górnictwo Naftowe i Gazownictwo v European Commission

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/31

      Action brought on 15 October 2018 — Polskie Górnictwo Naftowe i Gazownictwo v European Commission
      (Case T-616/18)
      (2019/C 4/42)
      Language of the case: Polish

         Parties

         Applicant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (Warsaw, Poland) (represented by: E. Buczkowska and M. Trepka, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the Commission Decision of 24 May 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement in Case AT.39816 — Upstream Gas Supplies in Central and Eastern Europe, (1) closing that proceeding in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], (2) by making the commitments of the public joint stock company Gazprom and Gazprom Export LLC (‘Gazprom’) of 15 March 2018 legally binding;

                  —

                  order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission adopted a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission committed a manifest error of assessment of the evidence gathered and considered that the objections raised during proceeding AT.39816, which concerned the subordination, on the part of Gazprom, of gas deliveries to Poland to the obtaining of control of gas infrastructures in Poland, were not justified and, by reason of that error, accepted commitments of Gazprom which did not address the objections raised in that regard.

                  2.

                  Second plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the application of unfair and manifestly excessive prices, commitments which do not adequately address the objections of the Commission, including the essence of those complaints, namely the application by a dominant operator of manifestly excessive prices.

                  3.

                  Third plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the implementation of territorial restrictions, which do not adequately address the Commission’s objections, are selective and reproduce commitments already formulated by the dominant operator in other proceedings but which, however, have not led to any change in its conduct.

                  4.

                  Fourth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 7 TFEU, read in conjunction with Article 194(1) TFEU, in so far as the Commission adopted a decision that is contrary to the energy-policy objectives of the European Union, without taking into account its negative effect on the European gas supply market, a decision which further reinforces, in particular, the isolation and maintenance of non-competitive conditions on Central and Eastern European gas markets in comparison with Western Europe, even though the objective of that policy is to integrate those markets and to ensure equal conditions of competition on all markets of the European Union.

                  5.

                  Fifth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of the first paragraph of Article 18 TFEU and the principle of equality, in so far as the Commission discriminated between the contracting partners of Gazprom active on the markets of Central and Eastern European countries, including the applicant, and the contracting partners of Gazprom active on the markets of Western European countries, even though the two abovementioned groups of contracting partners operate on the same European Union gas-supply market and, in that respect, benefit from the rules of Article 102 TFEU and Article 194(1) TFEU and the secondary legislation adopted on that basis.

                  6.

                  Sixth plea in law, alleging abuse of powers and infringement of essential procedural requirements, in so far as the Commission adopted a decision which is objectively contrary to the purpose of Article 9 of Regulation No 1/2003 and conducted proceeding AT.39816 in clear breach of the powers conferred on it.

         (1)  OJ 2018 C 258, p. 6.

         (2)  OJ 2003 L 1, p. 1.


title: Case C-527/17: Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Bundespatentgericht — Germany) — proceedings brought by Boston Scientific Ltd (Reference for a preliminary ruling – Intellectual and industrial property – Supplementary protection certificate for medicinal products – Regulation (EC) No 469/2009 – Scope – Medical device incorporating as an integral part a substance which, used separately, may be considered to be a medicinal product – Directive 93/42/EEC – Article 1(4) – Concept of ‘administrative authorisation procedure’)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/8

      Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Bundespatentgericht — Germany) — proceedings brought by Boston Scientific Ltd
      (Case C-527/17) (1)

      (Reference for a preliminary ruling - Intellectual and industrial property - Supplementary protection certificate for medicinal products - Regulation (EC) No 469/2009 - Scope - Medical device incorporating as an integral part a substance which, used separately, may be considered to be a medicinal product - Directive 93/42/EEC - Article 1(4) - Concept of ‘administrative authorisation procedure’)
      (2019/C 4/10)
      Language of the case: German

         Referring court

      Bundespatentgericht

         Party to the main proceedings

      Boston Scientific Ltd

         In the presence of: Deutsches Patent- und Markenamt

         Operative part of the judgment

      Article 2 of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products must be interpreted as meaning that a prior authorisation procedure, under Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007, for a device incorporating as an integral part a substance, within the meaning of Article 1(4) of that directive as amended, cannot be treated in the same way, for the purposes of applying that regulation, as a marketing authorisation procedure for that substance under Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, even if that substance was the subject of the assessment provided for in the first and second paragraphs of section 7.4 of Annex I to Directive 93/42, as amended by Directive 2007/47.

         (1)  OJ C 402, 17.11.2017.


title: Case T-622/18: Action brought on 15 October 2018 — EN (Information erased or replaced within the framework of protection of personal data and/or confidentiality.) v Commission

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/32

      Action brought on 15 October 2018 — EN (1) v Commission
      (Case T-622/18)
      (2019/C 4/43)
      Language of the case: English

         Parties

         Applicant: EN (2) (represented by: E. Metodieva, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of 12 December 2017 of the selection board of Open Competition EPSO/AD/323/16 — Investigators (AD 7) for the following profiles: 1. Investigators: EU expenditure, anti-corruption; 2. Investigators: Customs and trade, tobacco and counterfeit goods, not to include the applicant’s name in the reserve list for the first profile of the said competition;

                  —

                  set aside in its entirety EPSO’s decision of 10 July 2018 to reject the applicant’s complaint under Article 90(2) of the Staff Regulations regarding the decision of the EPSO selection board not to include him on the reserve list;

                  —

                  order the defendant to pay damages to the applicant in the form of lost benefits as a result of his non-inclusion in the said reserve list;

                  —

                  order the defendant to pay the applicant the expenses for legal assistance and legal representation before and during the proceedings.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging inadequate behaviour on the part of one of the members of the selection board, allegedly resulting in a failure to examine the applicant properly.

                  2.

                  Second plea in law, alleging the lack of impartiality of one of the members of the selection board for the competition in question.

                  3.

                  Third plea in law, alleging lack of competence of the assessors.

                  4.

                  Fourth plea in law, alleging that the competition in question violated the language regime.

                  5.

                  Fifth plea in law, alleging that certain irregularities affected the case study in the competition in question.

                  6.

                  Sixth plea in law, alleging breach of the principles of equal and fair treatment said to result from the allegedly excessive period of one month over which the competition in question was carried out.

                  7.

                  Seventh plea in law, alleging an insufficient statement of reasons in respect of the applicant’s assessment.

         (1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

         (2)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.


title: Case C-528/17: Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Vrhovno sodišče — Slovenia) — Milan Božičevič Ježovnik v Republika Slovenija (Reference for a preliminary ruling – Value added tax (VAT) – Directive 2006/112/EC – Article 143(1)(d) – Exemption from import VAT – Importation followed by an intra-Community supply – Risk of tax evasion – Good faith of the taxable importer and supplier – Assessment – Duty of care of the taxable importer and supplier)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/8

      Judgment of the Court (Ninth Chamber) of 25 October 2018 (request for a preliminary ruling from the Vrhovno sodišče — Slovenia) — Milan Božičevič Ježovnik v Republika Slovenija
      (Case C-528/17) (1)

      (Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Article 143(1)(d) - Exemption from import VAT - Importation followed by an intra-Community supply - Risk of tax evasion - Good faith of the taxable importer and supplier - Assessment - Duty of care of the taxable importer and supplier)
      (2019/C 4/11)
      Language of the case: Slovene

         Referring court

      Vrhovno sodišče

         Parties to the main proceedings

         Applicant: Milan Božičevič Ježovnik

         Defendant: Republika Slovenija

         Operative part of the judgment

      Article 143(1)(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/69/EC of 25 June 2009, must be interpreted to the effect that, in circumstances where the taxable importer and supplier benefitted from an exemption from import value added tax on the basis of an authorisation issued after a prior examination by the competent customs authorities in the light of the evidence provided by that taxable person, the latter is not required to pay value added tax after the event where it is revealed, during a subsequent examination, that the substantive conditions for the exemption had not been met, except where it is established, in the light of objective evidence, that that taxable person knew, or should have known, that the supplies subsequent to the imports at issue were involved in fraud committed by the customer and that he did not take all reasonable steps in his power to avoid that fraud, which is a matter for the referring court to determine.

         (1)  OJ C 374, 6.11.2017.


title: Case T-627/18: Action brought on 19 October 2018 — ZK v Commission

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/34

      Action brought on 19 October 2018 — ZK v Commission
      (Case T-627/18)
      (2019/C 4/45)
      Language of the case: French

         Parties

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

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  Annul the confirmatory decision of the selection board of competition EPSO/AD/323/16 of 1 February 2018 not to list the applicant as a successful candidate;

                  —

                  In so far as necessary, annul the confirmed decision of the competition’s selection board of 12 December 2017;

                  —

                  Order the Commission to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging, first, infringement of Article 30 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and Article 3 of Annex III thereto and, second, infringement of the rules governing the organisation of the competition’s tests. In that regard, the applicant claims in particular that only two members of the selection board were present at her interviews, and not the selection board composed of the president and six members. Furthermore, she points out that the president took part in the proceedings of the selection board only as a mere observer, which also infringes the provisions of the Staff Regulations.

                  2.

                  Second plea in law, alleging infringement of the principles of equal treatment and non-discrimination which vitiate the contested decision in the present case, owing to the lack of stability of the selection board and reliance on back-up assessors who were not given any specific assessor training.


title: Case T-623/18: Action brought on 13 October 2018 — EO (Information erased or replaced within the framework of protection of personal data and/or confidentiality.) v Commission

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/33

      Action brought on 13 October 2018 — EO (1) v Commission
      (Case T-623/18)
      (2019/C 4/44)
      Language of the case: English

         Parties

         Applicant: EO (2) (represented by: E. Metodieva, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of 12 December 2017 of the selection board of Open Competition EPSO/AD/323/16 — Investigators (AD 7) for the following profiles: 1. Investigators: EU expenditure, anti-corruption; 2. Investigators: Customs and trade, tobacco and counterfeit goods, not to include the applicant’s name in the reserve list for the first profile of the said competition;

                  —

                  set aside in its entirety EPSO’s decision of 9 July 2018 to reject the applicant’s complaint under Article 90(2) of the Staff Regulations regarding the decision of the EPSO selection board not to include her in the said reserve list;

                  —

                  order the defendant to pay damages to the applicant in the form of lost benefits as a result of her non-inclusion in the said reserve list,

                  —

                  order the defendant to pay the applicant the expenses for legal assistance and legal representation before and during the proceedings.

         Pleas in law and main arguments

      In support of the action, the applicant relies on seven pleas in law and, in addition, relies on all the arguments listed in the complaint made by her under Article 90(2) of the Staff Regulations.

                  1.

                  First plea in law, alleging inadequate behaviour on the part of one of the members of the selection board, allegedly resulting in a failure to examine the applicant properly.

                  2.

                  Second plea in law, alleging the lack of impartiality of one of the members of the selection board for the competition in question.

                  3.

                  Third plea in law, alleging lack of competence of the assessors.

                  4.

                  Fourth plea in law, alleging that the competition in question violated the language regime.

                  5.

                  Fifth plea in law, alleging that certain irregularities affected the case study in the competition in question.

                  6.

                  Sixth plea in law, alleging breach of the principles of equal and fair treatment said to result from the allegedly excessive period of one month over which the competition in question was carried out.

                  7.

                  Seventh plea in law, alleging an insufficient statement of reasons in respect of the applicant’s assessment.

         (1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.

         (2)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.


title: Case C-655/18: Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 19 October 2018 — Mitnitsa Varna v Schenker EOOD

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/17

      Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 19 October 2018 — Mitnitsa Varna v Schenker EOOD
      (Case C-655/18)
      (2019/C 4/22)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad Varna

         Parties to the main proceedings

         Appellant in cassation: Mitnitsa Varna

         Respondent in cassation: Schenker EOOD

         Questions referred

                  1.

                  Should Article 242(1)(a) and (b) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code be interpreted as meaning that, under the specific circumstances of the main proceedings, the theft of goods placed under a customs warehousing procedure constitutes a removal from the customs warehousing procedure that gives cause for the imposition of a financial penalty on the authorisation holder for an offence under customs legislation?

                  2.

                  Is the imposition of a charge equivalent to the value of the goods that were the subject of the customs offence (in this case removal from the customs warehousing procedure) an administrative penalty within the meaning of Article 42(1) and (2) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, and is a national provision regulating such a payment, alongside the imposition of the financial penalty, permissible? Does such a rule meet the criteria of effectiveness, proportionality and dissuasiveness of penalties for failure to comply with the EU customs legislation laid down in the second sentence of Article 42(1) of the regulation?

         (1)  OJ 2013 L 269, p. 1.


title: Case T-634/18: Action brought on 23 October 2018 — Geske v EUIPO (revolutionary air pulse technology)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/35

      Action brought on 23 October 2018 — Geske v EUIPO (revolutionary air pulse technology)
      (Case T-634/18)
      (2019/C 4/46)
      Language of the case: German

         Parties

         Applicant: André Geske (Lübbecke, Germany) (represented by: R. Albrecht, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Mark at issue: Application for EU word mark revolutionary air pulse technology — Application for registration No 17 025 231

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2018 in Case R 2721/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs, including those incurred in the appeal proceedings before EUIPO.

         Pleas in law

                  —

                  Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-640/18: Action brought on 29 October 2018 — Intercontact Budapest v CdT

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/35

      Action brought on 29 October 2018 — Intercontact Budapest v CdT
      (Case T-640/18)
      (2019/C 4/47)
      Language of the case: Hungarian

         Parties

         Applicant: Intercontact Budapest Fordító és Pénzügyi Tanácsadó Kft (Intercontact Budapest Kft) (Budapest, Hungary) (represented by: É. Subasicz, lawyer)

         Defendant: Translation Centre for the Bodies of the European Union (CdT)

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  Primarily, declare whether the evaluation points awarded to the various tenderers are realistic on the basis of a comparison of the tenders submitted, and whether they comply with the principles of equal treatment, non-discrimination, proportionality and transparency;

                  —

                  In the alternative, declare that the defendant’s legal interpretation is erroneous with regard to Article 113(3) of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002, and that the publication of the prices of the tenders in the public procurement procedure is not contrary to the regulation invoked;

                  —

                  In the further alternative, annul the decision reached by the defendant in respect of Lot 12 of Procedure FL/FIN17, together with the administrative procedure in so far as it relates to that lot;

                  —

                  In the even further alternative, identify the procedural act (legal act in force) in the public procurement procedure, which is the subject matter of the appeal, from the notification of which the period for appeal laid down in Article 263 of the Treaty on the Functioning of the European Union begins to run.

                  —

                  Order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of the principles of equal treatment, non-discrimination, proportionality and transparency, inasmuch as the defendant applied different evaluation criteria to the tenderers in the public procurement procedures. (1)

                  2.

                  Second plea in law, alleging misuse of power in so far as the defendant failed to send the applicant the information that it sought in the public procurement procedures. (2)

                  3.

                  Third plea in law, alleging that the defendant infringed the directive on public procurement by failing to give notice of the time limit for review, thus limiting the possibility of review. (3)

                  4.

                  Fourth plea in law, alleging that the defendant impeded the exercise of the applicant’s right to bring an appeal against the CdT. (4)

         (1)  Recitals 1 and 90 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

         (2)  Article 113 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

         (3)  Annex V, Part D, paragraph 16 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

         (4)  Article 263, sixth paragraph, of the Treaty on the Functioning of the European Union.


title: Case T-642/18: Action brought on 29 October 2018 — August Wolff v EUIPO — Faes Farma (DermoFaes Atopimed)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/36

      Action brought on 29 October 2018 — August Wolff v EUIPO — Faes Farma (DermoFaes Atopimed)
      (Case T-642/18)
      (2019/C 4/48)
      Language of the case: English

         Parties

         Applicant: Dr. August Wolff GmbH & Co. KG Arzneimittel (Bielefeld, Germany) (represented by: A. Thünken, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Faes Farma, SA (Lamiaco-Leioa, Spain)

         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 DermoFaes Atopimed — Application for registration No 15 069 396

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 11 July 2018 in Case R 1365/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the opposition and reject the contested application;

                  —

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

         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-644/18: Action brought on 29 October 2018 — August Wolff v EUIPO — Faes Farma (DermoFaes Atopiderm)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/37

      Action brought on 29 October 2018 — August Wolff v EUIPO — Faes Farma (DermoFaes Atopiderm)
      (Case T-644/18)
      (2019/C 4/49)
      Language of the case: English

         Parties

         Applicant: Dr. August Wolff GmbH & Co. KG Arzneimittel (Bielefeld, Germany) (represented by: A. Thünken, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Faes Farma, SA (Lamiaco-Leioa, Spain)

         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 DermoFaes Atopiderm — Application for registration No 15 069 438

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 11 July 2018 in Case R 1305/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the opposition and reject the contested application;

                  —

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

         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-649/18: Action brought on 29 October 2018 — ruwido austria v EUIPO (transparent pairing)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/38

      Action brought on 29 October 2018 — ruwido austria v EUIPO (transparent pairing)
      (Case T-649/18)
      (2019/C 4/50)
      Language of the case: German

         Parties

         Applicant: ruwido austria GmbH (Neumarkt am Wallersee, Austria) (represented by: A. Ginzburg, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Mark at issue: Application for EU word mark transparent pairing — Application for registration No 16 581 118

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 30 August 2018 in Case R 2487/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Failure to state reasons in the contested decision;

                  —

                  Incorrect substantive interpretation of the sign applied for.


title: Case T-651/18: Action brought on 30 October 2018 — Balani Balani and Others v EUIPO — Play Hawkers (HAWKERS)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/39

      Action brought on 30 October 2018 — Balani Balani and Others v EUIPO — Play Hawkers (HAWKERS)
      (Case T-651/18)
      (2019/C 4/51)
      Language in which the application was lodged: Spanish

         Parties

         Applicants: Sonu Gangaram Balani Balani, Anup Suresh Balani Shivdasani and Amrit Suresh Balani Shivdasani (Las Palmas de Gran Canaria, Spain) (represented by: A. Díaz Marrero, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Play Hawkers, SL (Elche, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union figurative mark HAWKERS — Application for registration No 15 746 209

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 2 August 2018 in Case R 396/2018-2

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul the contested decision and give judgment declaring that the trade mark applied for, under No 15 746 209, and which was granted in part, is also granted for the rest of the goods applied for: Watches; Chronometers (watches); Sports watches; Jewellery; Imitation jewellery; Jewellery, including imitation jewellery and costume jewellery; Clocks and watches; Horological goods; Cases for clocks and watches;

                  —

                  Order the defendant to pay the costs.

         Plea in law

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


title: Case T-652/18: Action brought on 30 October 2018 — Porus v EUIPO (oral Dialysis)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/39

      Action brought on 30 October 2018 — Porus v EUIPO (oral Dialysis)
      (Case T-652/18)
      (2019/C 4/52)
      Language of the case: German

         Parties

         Applicant: Porus GmbH (Monheim am Rhein, Germany) (represented by: C. Weil, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: EU word mark ‘oral Dialysis’ — Application for registration No 16 774 259

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 14 September 2018 in Case R 1375/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the application;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-656/18: Action brought on 2 November 2018 — Jareš Procházková and Jareš v EUIPO — Elton Hodinářská (MANUFACTURE PRIM 1949)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/40

      Action brought on 2 November 2018 — Jareš Procházková and Jareš v EUIPO — Elton Hodinářská (MANUFACTURE PRIM 1949)
      (Case T-656/18)
      (2019/C 4/53)
      Language in which the application was lodged: Czech

         Parties

         Applicants: Hana Jareš Procházková a Antonín Jareš (Prague, Czech Republic) (represented by: M. Kyjovský, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Elton Hodinářská a.s. (Nové Město nad Metují, Czech Republic)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union figurative mark MANUFACTURE PRIM 1949 — European Union trade mark No 3 531 662

         Procedure before EUIPO: Proceedings for a declaration of invalidity

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 7 September 2018 in Case R 1159/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 60(2), Article 60(3), Article 64(5) and Article 70(2) of Regulation 2017/1001;

                  —

                  Infringement of Article 27(4) and Article 55 of Regulation No 2018/625.


title: Case T-659/18: Action brought on 30 October 2018 — ZS v BEI

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/41

      Action brought on 30 October 2018 — ZS v BEI
      (Case T-659/18)
      (2019/C 4/54)
      Language of the case: English

         Parties

         Applicant: ZS (represented by: B. Maréchal, lawyer)

         Defendant: European Investment Bank

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decisions of the EIB of 27 September 2017 and 28 December 2017;

                  —

                  order a total compensation of the loss suffered by the applicant.

                  —

                  in this respect, the applicant requests that EIB be ordered to pay him:

                              —

                              EUR 30 000 as unpaid salary for 42 days of annual leave and 40,5 days in the TSA-A, amounting to a total of 82,5 leave entitlements;

                              —

                              EUR 30 000 illegally deducted from the sums upon his departure;

                              —

                              EUR 50 000 as 3 % contribution of the annual salary into the OSPS (RCVP) until the normal age of retirement;

                              —

                              EUR 35 000 as the applicant’s bonus entitlement;

                              —

                              EUR 15 000 as damages in relation to the moral prejudice suffered by the applicant;

                              —

                              his legal fees for the proceedings amounting to a provisional amount of EUR 15 000;

                              —

                              the costs of proceedings and all the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the applicant’s absences were not unjustified and that in any case, the EIB should have reacted earlier given the five years period of absences. Such allegations ignore the oral agreement between the applicant and the defendant as to the filling of time-management sheets. Furthermore, there is no legal ground for the employer to proceed with a set-off or deduction of the alleged unjustified absences, with regard to the applicant’s leave entitlements or the sums due to him upon departure.

                  2.

                  Second plea in law, alleging several faults towards the applicant by the defendant characterised as illegal administrative acts, such as the grievances of unjustified absences, the loss of 82,5 leave entitlements without any legal ground where no set-off or deduction is authorised, the illegal deduction of so-called unjustified absences in the sums due upon departure that do not include the OSPS (RCVP), which directly caused him to suffer loss and an additional moral prejudice.


title: Case T-660/18: Action brought on 8 November 2018 — VodafoneZiggo Group v Commission

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/42

      Action brought on 8 November 2018 — VodafoneZiggo Group v Commission
      (Case T-660/18)
      (2019/C 4/55)
      Language of the case: English

         Parties

         Applicant: VodafoneZiggo Group BV (Utrecht, Netherlands) (represented by: W. Knibbeler and A. Pliego Selie, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the defendant’s decision of 30 August 2018 concerning Cases NL/2018/2099 and NL/2018/2100: Wholesale fixed access market in the Netherlands, with reference C(2018) 5848 final; and

                  —

                  order the defendant to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging a misapplication and misreading of Articles 7 and 7a of Directive 2002/21/EC (1) on a common regulatory framework for electronic communications networks and services (the Framework Directive)
                  In this regard, the applicant submits that the contested decision presents a number of critical findings in relation to the Dutch national regulatory authority’s draft decision (the 2018 WFA Decision), which are qualified as comments but which in fact unequivocally fulfil the criteria for a finding of serious doubts. The applicant further claims that each of these observations in fact concern, by any objective standard, serious doubts requiring the Commission to conduct an in-depth investigation pursuant to Articles 7(4) and 7a(1) of the Framework Directive.

                  2.

                  Second plea in law, alleging evident errors of assessment, a misapplication of Article 7 of the Framework Directive and a lack of diligent investigation

                              —

                              In this regard, the applicant submits that by accepting, in the contested decision, the joint significant market power (the joint SMP) findings in the 2018 WFA Decision, whereas these manifestly raise serious doubts within the meaning of Article 7(4) of the Framework Directive, the Commission misapplied Articles 7 and 7a of the Framework Directive and committed manifest errors of assessment.

                              —

                              Alternatively, the applicant claims that the Commission should in any event have diligently investigated the matter, in view of (i) the manifest insufficiency of the joint SMP analysis by the Dutch national regulatory authority if set off against the joint SMP assessment framework as established by the Commission in its guidelines (evident error of assessment) and (ii) the Commission’s own decisional precedents, which demonstrate that there is no scope for any finding of joint SMP on the relevant markets (inconsistency).

                  3.

                  Third plea in law, alleging a failure to state reasons resulting in an infringement of Article 296 TFEU

                              —

                              In this regard, the applicant submits that the contested decision contains insufficient reasoning in regard of critical elements of the 2018 WFA Decision.

                              —

                              Moreover, the applicant claims that on other determinative findings, the contested decision is overly brief or contradictory.

         (1)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ L 108, 24.4.2002, p. 33).


title: Case T-662/18: Action brought on 9 November 2018 — romwell v EUIPO (twistpac)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/43

      Action brought on 9 November 2018 — romwell v EUIPO (twistpac)
      (Case T-662/18)
      (2019/C 4/56)
      Language of the case: German

         Parties

         Applicant: romwell GmbH & Co. KG (Breitscheidt, Germany) (represented by: C. Spintig, S. Pietzcker and M. Prasse, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Mark at issue: Application for EU word mark twistpac — Application for registration No 17 219 163

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 August 2018 in Case R 336/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs of the proceedings, including those of the applicant.

         Pleas in law

                  —

                  Infringement of Article 7(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Corrigendum to the Official Journal notice concerning Case T-531/18 (OJ C 399, 5.11.2018)

text:
               7.1.2019

               EN

               Official Journal of the European Union

               C 4/45

      Corrigendum to the Official Journal notice concerning Case T-531/18
      (
            Official Journal of the European Union C 399 of 5 November 2018
         )
      (2019/C 4/57)
      The Official Journal notice concerning Case T-531/18 LL-Carpenter
         v
         Commission should read as follows:

               ‘Action brought on 1 September 2018 — LL-Carpenter v Commission
               (Case T-531/18)
               (2018/C 399/60)
               Language of the case: Czech

                  Parties

                  Applicant: LL-Carpenter s.r.o. (Prague, Czech Republic) (represented by: J. Buřil, lawyer)

                  Defendant: European Commission

                  Form of order sought

                           —

                           annul Decision C(2018) 4138 final of the European Commission of 26 June 2018 in Case AT.40037 — Carpenter/Subaru rejecting, in accordance with Article 13 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation (EC) No 1/2003”) and Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (“Regulation (EC) No 773/2004”), the applicant’s complaint pursuant to Article 7 of Regulation (EC) No 1/2003 dated 6 September 2012 alleging infringement of Article 101 of the Treaty on the Functioning of the European Union, and

                           —

                           order the European Commission to pay the costs.

                  Pleas in law and main arguments

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

                           1.

                           First plea in law, alleging that the contested decision is vitiated by an error consisting in incorrect legal assessment and manifestly incorrect assessment of the facts.

                                       —

                                       The European Commission assessed the facts incorrectly in reaching the conclusion that the anti-competitive conduct of which the applicant was accused (as far as the Czech Republic was concerned) had been dealt with by the national economic competition authority in the Czech Republic, and made an incorrect legal assessment of the case to the effect that the conditions for the application of Article 13 of Regulation (EC) No 1/2003 were satisfied (as far as the Czech Republic was concerned).

                                       —

                                       The European Commission did not examine thoroughly all the factual and legal circumstances communicated to it by the applicant, and for that reason assessed the facts incorrectly in reaching the conclusion that the applicant’s written observations did not lead to a different evaluation of the complaint and that the probability that the occurrence of an infringement of Article 101 TFEU would be ascertained appeared to be low, and made an incorrect legal assessment of the case to the effect that the conditions for the application of Article 7(2) of Regulation (EC) No 773/2004 were satisfied.

                           2.

                           Second plea in law, alleging that the contested decision is vitiated by procedural error consisting in the fact that the European Commission does not set out appropriate reasoning in the decision.

                                       —

                                       The European Commission did not state what priorities it proceeded from in deciding that it would not carry out further investigations in the case, merely referring to the anticipated high cost of further investigations.

                                       —

                                       The European Commission did not explain how it assessed the evidence or for what reason it did not take into consideration the factual and legal circumstances communicated to it by the applicant, or why it based its decision to reject the complaint solely on assertions taken from the written observations of the company against which the complaint was directed.’


               10.1.2019

               EN

               Official Journal of the European Union

               C 9/8

      Action brought on 9 November 2018 by the EFTA Surveillance Authority against Iceland
      (Case E-5/18)
      (2019/C 9/09)
      An action against Iceland was brought before the EFTA Court on 9 November 2018 by the EFTA Surveillance Authority, represented by Carsten Zatschler, Catherine Howdle, and Ingibjörg Ólöf Vilhjálmsdóttir, acting as Agents of the EFTA Surveillance Authority, 35 Rue Belliard, B-1040 Brussels.
      The EFTA Surveillance Authority requests the EFTA Court to:

                  1.

                  Declare that Iceland has failed to fulfil its obligations under the Act referred to at points 7d, 7f and 7k of Annex XIX to the Agreement on the European Economic Area (Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC), as adapted to the EEA Agreement by Protocol 1 and under Article 7 of the EEA Agreement, by failing to adopt the measures necessary to implement the Act within the time prescribed, or in any event, by failing to inform the EFTA Surveillance Authority thereof.

                  2.

                  Order Iceland to bear the costs of these proceedings.

         Legal and factual background and pleas in law adduced in support:

                  —

                  The application addresses Iceland’s failure to comply, no later than 23 April 2018, with a reasoned opinion delivered by the EFTA Surveillance Authority on 21 February 2018 regarding that State’s failure to implement into its national legal order Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, as referred to at points 7d, 7f and 7k of Annex XIX to the Agreement on the European Economic Area, and as adapted to that Agreement by way of Protocol 1 thereto (‘the Act’).

                  —

                  The EFTA Surveillance Authority submits that Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement by failing to adopt the measures necessary to implement the Act within the time prescribed.


title: Case C-547/18: Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) lodged on 23 August 2018 — Dong Yang Electronics Sp. z o.o. v Dyrektor Izby Administracji Skarbowej we Wrocławiu

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/7

      Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) lodged on 23 August 2018 — Dong Yang Electronics Sp. z o.o. v Dyrektor Izby Administracji Skarbowej we Wrocławiu
      (Case C-547/18)
      (2019/C 44/10)
      Language of the case: Polish

         Referring court

      Wojewódzki Sąd Administracyjny we Wrocławiu

         Parties to the main proceedings

         Applicant: Dong Yang Electronics Sp. z o.o.

         Defendant: Dyrektor Izby Administracji Skarbowej we Wrocławiu

         Questions referred

                  1.

                  Can it be inferred, from the mere fact that a company established outside the European Union has a subsidiary in the territory of Poland, that a fixed establishment exists in Poland within the meaning of Article 44 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) and Article 11(1) of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax? (2)

                  2.

                  If the first question is answered in the negative, is a third party required to examine contractual relationships between a company established outside the European Union and its subsidiary in order to determine whether the former company has a fixed establishment in Poland?

         (1)  OJ 2006 L 347, p. 1.

         (2)  OJ 2011 L 77, p. 1.


title: Case T-552/16: Order of the General Court of 16 November 2018 — OT v Commission (Civil service — Members of the temporary staff — Candidature submitted for the post of Director of the EMCDDA — Rejection of the candidature — Opinion of the CCA — Non-challengeable act — Manifest inadmissibility)

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/56

      Order of the General Court of 16 November 2018 — OT v Commission
      (Case T-552/16) (1)

      ((Civil service - Members of the temporary staff - Candidature submitted for the post of Director of the EMCDDA - Rejection of the candidature - Opinion of the CCA - Non-challengeable act - Manifest inadmissibility))
      (2019/C 44/71)
      Language of the case: English

         Parties

         Applicant: OT (represented by: D. Sobor, lawyer)

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

         Re:

      Application on the basis of Article 270 TFEU and seeking, first, annulment of ‘the [d]ecision of 26 September 2014 of [the Commission] refusing to accept the [a]pplicant’s candidature for the post of Director of the European Monitoring Centre for Drugs and Drug Addiction’ (EMCDDA) and, secondly, compensation in respect of the material and non-material harm the applicant has allegedly suffered.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  OT shall pay the costs.

         (1)  OJ C 383, 17.10.2016 (case initially registered before the European Union Civil Service Tribunal under number F-75/15 and transferred to the General Court of the European Union on 1.9.2016).


title: Case C-632/17: Order of the Court of 28 November 2018 (request for a preliminary ruling from the Sąd Rejonowy w Siemianowicach Śląskich — Poland) — Powszechna Kasa Oszczędności (PKO) Bank Polski S.A. v Jacek Michalski (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Directive 2008/48/EC — Order for payment procedure based on bank ledger excerpts — Impossible for the court, in the absence of an action brought by a consumer, to examine the unfairness of the contractual terms)

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/2

      Order of the Court of 28 November 2018 (request for a preliminary ruling from the Sąd Rejonowy w Siemianowicach Śląskich — Poland) — Powszechna Kasa Oszczędności (PKO) Bank Polski S.A. v Jacek Michalski
      (Case C-632/17) (1)

      ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Directive 2008/48/EC - Order for payment procedure based on bank ledger excerpts - Impossible for the court, in the absence of an action brought by a consumer, to examine the unfairness of the contractual terms))
      (2019/C 54/02)
      Language of the case: Polish

         Referring court

      Sąd Rejonowy w Siemianowicach Śląskich

         Parties to the main proceedings

         Applicant: Powszechna Kasa Oszczędności (PKO) Bank Polski S.A.

         Defendant: Jacek Michalski

         Operative part of the order

      Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and Article 10 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which permits the issue of an order for payment, based on a bank ledger excerpt, as evidence of the existence of a debt arising from a consumer credit agreement, where the court dealing with an application for an order for payment does not have the power to examine whether the terms of that agreement are unfair and to ensure that, in that examination, the information referred to in Article 10 is made available, if the detailed rules for exercising the right to lodge an objection against such an order do not enable observance of the rights which the consumer derives from that directive to be ensured.

         (1)  OJ C 104, 19.3.2018.


title: Case C-48/18 P: Order of the Court (Sixth Chamber) of 13 November 2018 — Toontrack Music AB v European Union Intellectual Property Office (EUIPO) (Appeal — Article 181 of the Rules of Procedure of the Court — European Union trade mark — Application for registration of the word mark EZMIX — Rejection of the application — Regulation (EC) No 207/2009 — Article 7(1)(b) and (c) — Articles 65, 75 and 76 — Descriptive character — Perception of the relevant public — Right to a hearing — Principle of examination by EUIPO of its own motion — Obligation to state reasons — Distortion — Evidence presented for the first time before the General Court)

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/3

      Order of the Court (Sixth Chamber) of 13 November 2018 — Toontrack Music AB v European Union Intellectual Property Office (EUIPO)
      (Case C-48/18 P) (1)

      ((Appeal - Article 181 of the Rules of Procedure of the Court - European Union trade mark - Application for registration of the word mark EZMIX - Rejection of the application - Regulation (EC) No 207/2009 - Article 7(1)(b) and (c) - Articles 65, 75 and 76 - Descriptive character - Perception of the relevant public - Right to a hearing - Principle of examination by EUIPO of its own motion - Obligation to state reasons - Distortion - Evidence presented for the first time before the General Court))
      (2019/C 54/03)
      Language of the case: Swedish

         Parties

         Appellant: Toontrack Music AB (represented by: L.-E. Ström, advokat)

         Other party to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: A. Folliard-Monguiral, acting as Agent)

         Operative part of the order

                  1.

                  The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

                  2.

                  Toontrack Music AB shall pay the costs.

         (1)  OJ C 152, 30.4.2018.


title: Case C-630/18: Request for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 8 October 2018 — HK, IJ v Deutsche Lufthansa AG

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/4

      Request for a preliminary ruling from the Landesgericht Linz (Austria) lodged on 8 October 2018 — HK, IJ v Deutsche Lufthansa AG
      (Case C-630/18)
      (2019/C 54/05)
      Language of the case: German

         Referring court

      Landesgericht Linz

         Parties to the main proceedings

         Applicants: HK, IJ

         Defendant: Deutsche Lufthansa AG
      The case was removed from the Register of the Court of Justice by order of the Court of 15 November 2018.


title: Case C-699/18: Request for a preliminary ruling from the Tribunalul Specializat Mureș (Romania) lodged on 7 November 2018 — BRD Groupe Societé Générale SA v KC

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/5

      Request for a preliminary ruling from the Tribunalul Specializat Mureș (Romania) lodged on 7 November 2018 — BRD Groupe Societé Générale SA v KC
      (Case C-699/18)
      (2019/C 54/07)
      Language of the case: Romanian

         Referring court

      Tribunalul Specializat Mureș

         Parties to the main proceedings

         Applicant: BRD Groupe Societé Générale SA

         Defendant: KC

         Questions referred

                  1.

                  Do the provisions of Council Directive 93/13/EEC on unfair terms in consumer contracts, (1) in particular the 12th, 21st and 23rd recitals and Articles 2(b), 6(1), 7(2) and 8 thereof, permit, in accordance with the principle of procedural autonomy and the principle of equivalence and effectiveness, a set of means of legal recourse that consists in an ordinary legal action, not subject to any limitation period, to establish the unfairness of certain terms in a consumer contract and an ordinary legal action of a personal and pecuniary nature that is subject to a limitation period, which is used in pursuit of the directive’s aim of eliminating the effects of all obligations arising and performed under clauses which are found to be unfair to consumers?

                  2.

                  In the event that the first question is answered in the affirmative, do those same provisions preclude an interpretation, derived from application of the principle of the certainty of civil-law legal relationships, according to which the objective point in time by which the consumer must have known or should have known of the existence of the unfair terms is the time at which the loan agreement with that consumer came to an end?

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


title: Case C-707/18: Request for a preliminary ruling from the Tribunalul Timiș (Romania) lodged on 13 November 2018 — Amărăști Land Investment SRL v Direcţia Generală ă a Finanțelor Publice Timișoara, Administraţia Judeţeană a Finanţelor Publice Timiş

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/5

      Request for a preliminary ruling from the Tribunalul Timiș (Romania) lodged on 13 November 2018 — Amărăști Land Investment SRL v Direcţia Generală ă a Finanțelor Publice Timișoara, Administraţia Judeţeană a Finanţelor Publice Timiş
      (Case C-707/18)
      (2019/C 54/08)
      Language of the case: Romanian

         Referring court

      Tribunalul Timiș

         Parties to the main proceedings

         Applicant: Amărăști Land Investment SRL

         Defendants: Direcţia Generală ă a Finanțelor Publice Timișoara, Administraţia Judeţeană a Finanţelor Publice Timiş

         Questions referred

                  1.

                  Is Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax, and in particular Articles 24, 28, 167 and 168(a) thereof, to be interpreted as meaning that, in the context of a transaction for the sale of immovable property which is not included in the national register of immovable property (Land Register) and which is not registered at the time of the supply, the purchaser, who is a taxable person and who assumes a contractual obligation to carry out, at his own expense, the necessary steps for its first registration in the national register of immovable property, carries out a supply of services to the vendor, or instead a purchase of services relating to his investment in immovable property in respect of which he is entitled to deduct VAT?

                  2.

                  Is Directive 2006/112, and in particular Articles 167 and 168(a) thereof, to be interpreted as meaning that the costs incurred by a purchaser, who is a taxable person, in connection with the first registration in the register of immovable property of property in respect of which the purchaser has a claim for the future transfer of ownership and which has been supplied to him by a vendor whose ownership of the property is not recorded in the register of immovable property, can be classified as pre-investment operations in respect of which the taxable person is entitled to deduct VAT?

                  3.

                  Is Directive 2006/112, and in particular Articles 24, 28, 167 and 168(a) thereof, to be interpreted as meaning that the costs incurred by the purchaser, who is a taxable person, in connection with the first registration in the register of immovable property of property which has been supplied to him and in respect of which the purchaser has a contractual claim for the future transfer of ownership from a vendor whose ownership of the property is not recorded in the register of immovable property, are to be classified as the provision of services to the vendor in a context in which the purchaser and the vendor have agreed that the price of the immovable property does not include the value of the land-registration operations?

                  4.

                  For the purposes of Directive 2006/112, must the costs of administrative operations relating to immovable property which has been supplied and in respect of which the purchaser has a claim for the future transfer of ownership from the vendor, including, but not limited to the costs of first registration in the register of immovable property, necessarily be borne by the vendor, or may such costs be borne, pursuant to an agreement between the parties, by the purchaser or by any other of the parties to the transaction, with the result that that person is entitled to deduct the VAT?

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


title: Case C-718/18: Action brought on 16 November 2018 — European Commission v Federal Republic of Germany

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/6

      Action brought on 16 November 2018 — European Commission v Federal Republic of Germany
      (Case C-718/18)
      (2019/C 54/09)
      Language of the case: German

         Parties

         Applicant: European Commission (represented by: M. Noll-Ehlers and O. Beynet, acting as Agents)

         Defendant: Federal Republic of Germany

         Form of order sought

      The applicant claims that the Court should:

                  1.

                  declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (1) and under Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (2) by transposing incorrectly:

                              —

                              Point 21 of Article 2 of Directive 2009/72/EC and point 20 of Article 2 of Directive 2009/73/EC;

                              —

                              Article 19(3), in combination with Article 19(8), of Directives 2009/72/EC and 2009/73/EC;

                              —

                              Article 19(5) of Directives 2009/72/EC and 2009/73/EC; and

                              —

                              Article 37(1)(a) and 37(6)(a) and (b) of Directive 2009/72/EC and Article 41(1)(a) and 41(6)(a) and (b) of Directive 2009/73/EC;

                  2.

                  order the Federal Republic of Germany to pay the costs.

         Pleas in law and main arguments

      The application concerns the deficient transposition of Directives 2009/72 and 2009/73 in respect of the German internal markets in electricity and natural gas by the Energiewirtschaftgesetz (Law on the Energy Industry; ‘EnWG’). The Commission claims that the transposition by the EnWG is inadequate in four respects. First, the definition of a vertically integrated undertaking, which specifies which undertakings fall under those directives’ unbundling provisions, has been transposed only in part into German law. Second, the cooling-off provisions relating to role switching within a vertically integrated undertaking have not been transposed in full. Third, provisions prohibiting the holding of certain interests in or receipt of financial benefits from vertically integrated organisations have been transposed only in part. Finally, the allocation of responsibilities in the EnWG encroaches on the responsibilities reserved exclusively for national authorities, as provided for in the directives.
      The Commission claims that this constitutes an infringement of point 21 of Article 2 of Directive 2009/72/EC and of point 20 of Article 2 of Directive 2009/73/EC, Article 19(3), in combination with Article 19(8), of Directives 2009/72/EC and 2009/73/EC, Article 19(5) of Directives 2009/72/EC and 2009/73/EC, Article 37(1)(a) and 37(6)(a) and (b) of Directive 2009/72/EC, and of Article 41(1)(a) and 41(6)(a) and (b) of Directive 2009/73/EC.

         (1)  OJ 2009 L 211, p. 55.

         (2)  OJ 2009 L 211, p. 94.