title: Corrigendum to the communication to the Official Journal in Case C-457/18 (OJ C 399, 5.11.2018)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/105

      Corrigendum to the communication to the Official Journal in Case C-457/18
      (
            Official Journal of the European Union C 399 of 5 November 2018
         )
      (2018/C 427/141)
      In the communication to the Official Journal in Case C-457/18 Republic of Slovenia v Republic of Croatia, the text must be replaced with the following:

               ‘Action brought on 13 July 2018 — Republic of Slovenia v Republic of Croatia
               (Case C-457/18)
               (2018/C 427/141)
               Language of the case: Croatian

                  Parties

                  Applicant: Republic of Slovenia (represented by: M. Menard)

                  Defendant: Republic of Croatia

                  Form of order sought

               The applicant claims that the Court should declare that the defendant has infringed:

                           —

                           Article 2 TEU and Article 4(3) TEU;

                           —

                           Article 5(2) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, together with Annex I thereto, configuring the European Union system for controlling, verifying and implementing the rules of the Common Fisheries Policy as established by Regulation No 1224/2009 and by Implementing Regulation No 404/2011;

                           —

                           Articles 4 and 17 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), read in conjunction with Article 13 thereof; and

                           —

                           Article 2(4) and Article 11(1) of Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning.

                     The applicant also claims that the Court should:

                           —

                           order the defendant to put an end to the infringements mentioned above without delay; and

                           —

                           order the defendant to pay the costs.

                  Pleas in law and main arguments

               In support of its action, the applicant raises the following pleas in law.
               First plea in law:

                           By unilaterally falling short of the commitment, which it made during the EU accession process, to comply with the arbitration award and thus with the boundary delimited by that award and the other obligations imposed thereby, the Republic of Croatia refuses to respect the rule of law, which is a fundamental value of the European Union (Article 2 TEU).

                     Second plea in law:

                           By unilaterally refusing to fulfil its obligations under the arbitration award, while at the same time preventing Slovenia from fully exercising its sovereignty over certain parts of its territory under the Treaties, the Republic of Croatia is in breach of its duty of sincere cooperation with the European Union and with the Republic of Slovenia as laid down in Article 4(3) TEU. The Republic of Croatia’s conduct is jeopardising the attainment of the objectives of the European Union, namely peace-building and an ever closer union between nations, and the objectives of the Union rules relating to the territory of the Member States (first subparagraph of Article 4(3) TEU). In addition, the Republic of Croatia is making it impossible for the Republic of Slovenia to implement EU law throughout its mainland and marine territory and to act in accordance with that law, and in particular in compliance with the secondary Union rules relating to the territory of the Member States (first subparagraph of Article 4(3) TEU).

                     Third plea in law:

                           The Republic of Croatia is infringing Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, and in particular the mutual access regime laid down in Article 5 thereof and Annex I thereto. The regime, which applies to Croatia and Slovenia since 30 December 2017, grants 25 fishing vessels from each country free access to the other country’s territorial waters, as determined according to international law, that is, under the arbitration award. The Republic of Croatia is not permitting the Republic of Slovenia to exercise its rights under that regime and is thus infringing Article 5 of that regulation due to the fact that: (i) it is refusing to implement the mutual access regime; (ii) it is refusing to recognise the validity of the legislation adopted by the Republic of Slovenia for that purpose; and (iii) by systematically applying fines, it is denying Slovenian fishing vessels free access to the waters which the arbitration award of 2017 has defined as Slovenian, and, a fortiori, free access to Croatian waters falling within the scope of the mutual access regime.

                     Fourth plea in law:

                           The Republic of Croatia is infringing Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy and Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011. Croatian police patrol boats, without authorisation from the Republic of Slovenia, are accompanying Croatian fishing vessels when they fish in Slovenian waters, thereby preventing Slovenian fishing inspectors from carrying out controls. At the same time, the Croatian authorities are imposing fines on Slovenian fishing vessels for unlawful boundary crossing and illegal fishing when they fish in Slovenian waters which Croatia claims for itself. In addition, Croatia is not sending Slovenia any data regarding the activities of Croatian vessels in Slovenian waters, as is required by the two regulations referred to above. Thus, the Republic of Croatia is preventing the Republic of Slovenia from carrying out controls in waters under its sovereignty and jurisdiction and is not respecting Slovenia’s exclusive jurisdiction as a coastal State in its territorial waters, thereby infringing Regulation (EC) No 1224/2009 and Regulation (EU) No 404/2011.

                     Fifth plea in law:

                           The Republic of Croatia has infringed and continues to infringe Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). Croatia does not recognise the boundary established by the arbitration award as a common boundary with Slovenia, is not cooperating with Slovenia to monitor that ‘external border’, and is not in a position to guarantee adequate surveillance of that border, thereby infringing Articles 13 and 17 of that regulation, and Article 4 thereof, which requires borders to be established in accordance with international law.

                     Sixth plea in law:

                           The Republic of Croatia has infringed and continues to infringe Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning, which is to apply to the ‘marine waters’ of the Member States, as defined in accordance with the relevant provisions of the United Nations Convention on the Law of the Sea (Unclos) (Article 2(4) of the directive). The Republic of Croatia rejects the arbitration award which has established that delimitation of the boundaries and — on the contrary — includes Slovenian waters in its own maritime spatial planning: consequently, it does not allow for harmonisation with the geographical maps of the Republic of Slovenia, thereby infringing that directive, in particular Articles 8 and 11 thereof.’


title: Case C-589/18 P: Appeal brought on 20 September 2018 by Furukawa Electric Co. Ltd against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-444/14: Furukawa Electric v Commission

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/20

      Appeal brought on 20 September 2018 by Furukawa Electric Co. Ltd against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-444/14: Furukawa Electric v Commission
      (Case C-589/18 P)
      (2018/C 427/28)
      Language of the case: English

         Parties

         Appellant: Furukawa Electric Co. Ltd (represented by: C. Pouncey, A. Luke, Solicitors)

         Other parties to the proceedings: European Commission, Viscas Corp.

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment in Case T-444/2014, Furukawa Electric v Commission, to the extent that it rejected: (i) the first part of Furukawa's fifth plea in law; and (ii) the third part of Furukawa's third plea in law; in relation to the calculation of the amount of the fine imposed on Furukawa and the order for Furukawa to pay the costs;

                  —

                  annul Article 2(n) of the Commission Decision C(2014) 2139 final (1) insofar as it sets the amount of the fine imposed on Furukawa at EUR 8 858 000;

                  —

                  set the fine imposed on Furukawa in Article 2(n) of the Commission's decision at EUR 4 844 000;

                  —

                  in the event the Court sets aside the judgment in Case T-422/2014, Viscas v Commission, and reduces the fine imposed on Viscas under Article 2(p) of the Commission Decision C(2014) 2139 final, grant Furukawa an equivalent reduction in the amount of the fine for which it is jointly and severally liable in accordance with paragraph 291 of the General Court's judgment in Case T-444/2014; and

                  —

                  order the Commission to pay Furukawa's costs in these proceedings and in the proceedings before the General Court.

         Pleas in law and main arguments

      The appellant submits that the General Court's judgment should be set aside on the following grounds:
      First, the General Court erred in law in its interpretation of Point 18 of the Fining Guidelines (2) in considering that the European Commission was entitled to take into account, when determining the relevant value of sales for the appellant for the period 18 February 1999 — 30 September 2001, sales made by Fujikura Ltd. given that no structural, organisational, or legal links existed between that entity and the appellant during this period. The appellant and Fujikura Ltd. did not form a single undertaking during this time period and it was therefore not legally correct to take such sales into account when calculating the value of sales for the appellant. The inclusion of such sales breached the principle of personal responsibility and led to an increase in the amount of the fine imposed on the appellant of over EUR 200 000.
      Second, the General Court erred in law by misapplying the rules on equal treatment in considering that the Commission was entitled to apply Point 18 of the Fining Guidelines to all addressees of the Commission's decision in ‘Power Cables’ despite the fundamentally different situations of the parties. The European producers participated in a worldwide market sharing cartel as well as a European cartel, whereas the Japanese and Korean producers (including the appellant) participated in worldwide market sharing cartel only. In light of the breach of equal treatment that arises from the blanket application of Point 18 of the Fining Guidelines to all addressees which rewarded the European producers with a reduction to their respective values of sales (and hence their fines) of 44 %, and further to the Court's judgment in Case 580/12 P, Guardian Industries and Guardian Europe v Commission, the appellant requests that the Court rectify the violation by granting a reduction in the fine imposed on the appellant of 44 %.

         (1)  Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10)

         (2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2)


title: Case C-353/18: Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 30 May 2018 — SC Beny Alex SRL v Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/15

      Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 30 May 2018 — SC Beny Alex SRL v Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni
      (Case C-353/18)
      (2018/C 436/19)
      Language of the case: Romanian

         Referring court

      Consiliul Național de Soluționare a Contestațiilor

         Parties to the main proceedings

         Applicant-Objector: SC Beny Alex SRL

         Contracting entity: Organizația Utilizatorilor de Apă pentru Irigații (OUAI) Săveni
      By order of 17 October 2018, the Court (Eighth Chamber) declared the request for a preliminary ruling to be manifestly inadmissible.


title: Case C-507/18: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 2 August 2018 — NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/16

      Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 2 August 2018 — NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford
      (Case C-507/18)
      (2018/C 436/20)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main proceedings

         Appellant: NH

         Respondent: Associazione Avvocatura per i diritti LGBTI — Rete Lenford

         Questions referred

                  1.

                  Must Article 9 of Directive 2000/78/EC (1) be interpreted as meaning that an association composed of lawyers specialised in the judicial protection of LGBTI persons, the statutes of which state that its objective is to promote LGBTI culture and respect for the rights of LGBTI persons, automatically, as a legal person having a collective interest and as a non-profit association, has standing to bring proceedings, including in respect of a claim for damages, in circumstances of alleged discrimination against LGBTI persons?

                  2.

                  On a proper construction of Articles 2 and 3 of Directive 2000/78/EC, does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm nor wish to use the services of such persons, fall within the scope of the anti-discrimination rules laid down in that directive, even if that statement does not relate to any current or planned recruitment procedure by the interviewee?

         (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-207/16: Judgment of the Court (Grand Chamber) of 2 October 2018 (request for a preliminary ruling from the Audiencia Provincial de Tarragona — Spain) — Proceedings brought by Ministerio Fiscal (Reference for a preliminary ruling — Electronic communications — Processing of personal data — Directive 2002/58/EC — Articles 1 and 3 — Scope — Confidentiality of electronic communications — Protection — Article 5 and Article 15(1) — Charter of Fundamental Rights of the European Union — Articles 7 and 8 — Data processed in connection with the provision of electronic communications services — Access of national authorities to the data for the purposes of an investigation — Threshold of seriousness of an offence capable of justifying access to the data)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/2

      Judgment of the Court (Grand Chamber) of 2 October 2018 (request for a preliminary ruling from the Audiencia Provincial de Tarragona — Spain) — Proceedings brought by Ministerio Fiscal
      (Case C-207/16) (1)

      ((Reference for a preliminary ruling - Electronic communications - Processing of personal data - Directive 2002/58/EC - Articles 1 and 3 - Scope - Confidentiality of electronic communications - Protection - Article 5 and Article 15(1) - Charter of Fundamental Rights of the European Union - Articles 7 and 8 - Data processed in connection with the provision of electronic communications services - Access of national authorities to the data for the purposes of an investigation - Threshold of seriousness of an offence capable of justifying access to the data))
      (2018/C 436/02)
      Language of the case: Spanish

         Referring court

      Audiencia Provincial de Tarragona

         Party to the main proceedings

      Ministerio Fiscal

         Operative part of the judgment

      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the Charter of Fundamental Rights, which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.

         (1)  OJ C 251, 11.7.2016.


title: Case T-33/18: Order of the General Court of 3 October 2018 — Pracsis and Conceptexpo Project v Commission and EACEA (Action for annulment and for damages — Public service contracts — Administrative appeal before the Commission — Purely confirmatory act — Deadline for bringing an appeal — Act not open to challenge — Inadmissibility)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/51

      Order of the General Court of 3 October 2018 — Pracsis and Conceptexpo Project v Commission and EACEA
      (Case T-33/18) (1)

      ((Action for annulment and for damages - Public service contracts - Administrative appeal before the Commission - Purely confirmatory act - Deadline for bringing an appeal - Act not open to challenge - Inadmissibility))
      (2018/C 436/73)
      Language of the case: French

         Parties

         Applicants: Pracsis SPRL (Brussels, Belgium) and Conceptexpo Project (Wavre, Belgium) (represented by: J.-N. Louis, lawyer)

         Defendants: European Commission (represented by: D. Martin, A Katsimerou and I. Rubene, acting as Agents), Education, Audiovisual and Culture Executive Agency (EACEA) (initially represented by: H. Monet and A. Kisylyczko, then by: H. Monet and N. Durand, acting as Agents)

         Re:

      First, application based on Article 263 TFEU seeking annulment of the Commission’s decision of 13 November 2017 dismissing the administrative appeal brought against the decisions of EACEA of 17 July and 11 August 2017 and, ‘in so far as is necessary’, the annulment of those decisions of EACEA and its ‘decision’ to sign a contract with the tenderer ranked in first position, inasmuch as those decisions rank the tender of the applicants’ consortium in second position according to the cascade mechanism in the call for tenders EACEA/2017/01, regarding event organisation services and promotional campaigns in the audiovisual field and, second, application based on Article 268 TFEU seeking compensation for the damage which the applicants allegedly suffered due to those decisions.

         Operative part of the order

                  1.

                  The action is dismissed as inadmissible.

                  2.

                  Pracsis SPRL and Conceptexpo Project are ordered to bear their own costs and those incurred by the European Commission and by the Education, Audiovisual and Culture Executive Agency (EACEA).

         (1)  OJ C 112, 26.3.2018.


title: Case T-10/17: Judgment of the General Court of 16 October 2018 — Proof IT v EIGE (Public service contracts — Tender procedure — Request for services that were split into two lots — Website services — Rejection of the tender submitted by a tenderer — Award criteria — Transparency — Equal treatment — Manifest error of assessment — Non-contractual liability)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/40

      Judgment of the General Court of 16 October 2018 — Proof IT v EIGE
      (Case T-10/17) (1)

      ((Public service contracts - Tender procedure - Request for services that were split into two lots - Website services - Rejection of the tender submitted by a tenderer - Award criteria - Transparency - Equal treatment - Manifest error of assessment - Non-contractual liability))
      (2018/C 436/55)
      Language of the case: English

         Parties

         Applicant: Proof IT SIA (Riga, Latvia) (represented by: J. Jerņeva and D. Pāvila, lawyers)

         Defendant: European Institute for Gender Equality (represented by: J. Stuyck, V. Ost and M. Vanderstraeten, lawyers)

         Re:

      Application, first, under Article 263 TFEU for annulment of EIGE’s decision rejecting the tender submitted by the applicant in the context of Lot 1 relating to invitation to tender EIGE/2016/OPER/03 entitled ‘Framework contract for online services’, and awarding the framework contract to another tenderer, and, second, under Article 268 TFEU seeking compensation for the damage allegedly suffered by the applicant on account of loss of opportunity or loss of the contract itself.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Proof IT SIA to pay the costs.

         (1)  OJ C 78, 13.3.2017.


title: Case C-571/16: Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Nikolay Kantarev v Balgarska Narodna Banka (Reference for a preliminary ruling — Deposit guarantee schemes — Directive 94/19/EC — Article 1(3)(i) — Article 10(1) — Definition of ‘unavailable deposit’ — Liability of a Member State for harm caused to individuals by breaches of EU law — Sufficiently serious breach of EU law — Procedural autonomy of the Member States — Principle of sincere cooperation — Article 4(3) TEU — Principles of equivalence and effectiveness)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/3

      Judgment of the Court (Fifth Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad — Varna — Bulgaria) — Nikolay Kantarev v Balgarska Narodna Banka
      (Case C-571/16) (1)

      ((Reference for a preliminary ruling - Deposit guarantee schemes - Directive 94/19/EC - Article 1(3)(i) - Article 10(1) - Definition of ‘unavailable deposit’ - Liability of a Member State for harm caused to individuals by breaches of EU law - Sufficiently serious breach of EU law - Procedural autonomy of the Member States - Principle of sincere cooperation - Article 4(3) TEU - Principles of equivalence and effectiveness))
      (2018/C 436/03)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad — Varna

         Parties to the main proceedings

         Applicant: Nikolay Kantarev

         Defendant: Balgarska Narodna Banka

         Operative part of the judgment

                  1.

                  Article 1(3) and Article 10(1) of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes, as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009, must be interpreted as precluding, first, national legislation according to which the determination that deposits have become unavailable is concomitant with the insolvency of that credit institution and the withdrawal of that institution’s banking licence and, second, derogation from the time limits provided by those provisions for the purposes of determining that deposits have become unavailable and of reimbursing those deposits on the ground that the credit institution must be placed under special supervision.

                  2.

                  Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as meaning that the unavailability of deposits within the meaning of that provision must be determined expressly by the competent national authority and cannot be inferred from other acts of the national authorities — such as the decision of the Balgarska Narodna Banka (Bulgarian Central Bank) to place Korporativna Targovska Banka under special supervision — nor presumed from circumstances such as those in the case in the main proceedings.

                  3.

                  Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, must be interpreted as meaning that a determination that a bank deposit is unavailable, within the meaning of that provision, cannot be subject to the condition that the account holder must first make an unsuccessful request for payment of funds from the credit institution.

                  4.

                  Article 1(3)(i) of Directive 94/19, as amended by Directive 2009/14, has direct effect and constitutes a rule of law intended to confer rights on individuals allowing depositors to bring an action for damages for the harm sustained by late repayment of deposits. It is for the referring court to ascertain, first, whether the failure to determine that deposits were unavailable within the time limit of five working days laid down in that provision, despite the fact that the conditions which were clearly set out in that provision were satisfied, on the facts of the case in the main proceedings, amounts to a sufficiently serious breach, within the meaning of EU law and, second, whether there is a direct causal link between that breach and the harm sustained by a depositor, such as Mr Nikolay Kantarev.

                  5.

                  Article 4(3) TEU and the principles of equivalence and effectiveness must be interpreted as, in the absence of a specific procedure in Bulgaria holding that Member State liable for harm caused by a national authority’s breach of EU law:

                              —

                              not precluding national legislation which provides for two different remedies falling within the jurisdiction of different courts subject to different conditions, provided that the referring court ascertains whether, in respect of national law, a national authority such as the Bulgarian Central Bank must be held liable on the basis of the Zakon za otgovornostta na darzhavata i obshtinite za vredi (Law on Liability of the State and of Municipalities for Damage) or the Zakon za zadalzheniata i dogovorite (Law on Obligations and Contracts) and that each of the two remedies complies with the principles of equivalence and effectiveness;

                              —

                              precluding national legislation which subjects the right of individuals to obtain damages to the additional condition that the national authority in question intended to cause the harm;

                              —

                              not precluding national legislation which subjects the right of individuals to obtain damages to the duty of providing proof of fault provided that, which it is for the referring court to ascertain, the concept of ‘fault’ does not go beyond that of a ‘sufficiently serious breach’;

                              —

                              not precluding national legislation which provides for the payment of a fixed-fee or fee proportional to the value in dispute provided that, which it is for the referring court to ascertain, the payment of a fixed-fee or fee proportional to the value in dispute is not contrary to the principle of effectiveness, in the light of the amount and level of the fee, whether or not that fee might represent an insurmountable obstacle to access to the courts, whether it is mandatory and of the possibilities of exemption; and

                              —

                              not precluding national legislation which subjects the right of individuals to obtain damages to prior annulment of the administrative measure which caused the harm, provided that, which it is for the referring court to ascertain, that requirement may reasonably be required of the injured party.

         (1)  OJ C 38, 6.2.2017.


title: Case C-592/18: Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 21 September 2018 — Darie B.V. v Staatssecretaris van Infrastructuur en Milieu

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/27

      Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 21 September 2018 — Darie B.V. v Staatssecretaris van Infrastructuur en Milieu
      (Case C-592/18)
      (2018/C 436/37)
      Language of the case: Dutch

         Referring court

      College van Beroep voor het Bedrijfsleven

         Parties to the main proceedings

         Applicant: Darie B.V.

         Defendant: Staatssecretaris van Infrastructuur en Milieu

         Questions referred

                  1.

                  Should the term ‘biocidal products’ in Article 3 of Regulation 528/2012 (1) be interpreted as also referring to substances which consist of one or more types of bacteria, enzymes or other constituents, given that, due to the specific way in which they act, they have no direct effect on the harmful organism for which they are intended, but on the creation or maintenance of the potential habitat of that harmful organism, and what requirements must then, where appropriate, be imposed on such an effect?

                  2.

                  In answering question 1, is it relevant whether the situation in which such a product is used is free of the harmful organism, and, if so, what criterion should be used to assess whether the latter is present?

                  3.

                  In answering question 1, does the period within which the effect takes place have any relevance?

         (1)  Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products Text with EEA relevance (OJ 2012 L 167, p. 1).


title: Case T-549/18: Action brought on 19 September 2018 — Hexal/EMA

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/52

      Action brought on 19 September 2018 — Hexal/EMA
      (Case T-549/18)
      (2018/C 436/74)
      Language of the case: English

         Parties

         Applicant: Hexal AG (Holzkirchen, Germany) (represented by: M. Martens, N. Carbonnelle, lawyers and S. Faircliffe, Solicitor)

         Defendant: European Medicines Agency (EMA)

         Form of order sought

      The applicants claim that the Court should:

                  —

                  declare that the plea of illegality raised by the applicant against the conclusion of the CHMP that Sanofi’s Teriflunomide has NAS status, as quoted in the Commission decision of 26 August 2013 granting marketing authorization for ‘AUBAGIO® — Teriflunomide’, is admissible and well founded;

                  —

                  annul the decision of EMA of 5 July 2018 not to validate the Hexal’s MA application for a generic version of the medicinal product Aubagio®;

                  —

                  order the EMA to pay the costs.

         Pleas in law and main arguments

      The contested decision refuses to validate Hexal’s marketing authorisation application for Teriflunomide Hexal, given that Aubagio®, a previously authorised medicine still benefits from regulatory data protection, according to the Commission implementing decision of 26 August 2013, against which the applicant raises an exception of illegality under Article 277 TFEU. In support of the action, the applicant relies on two pleas in law:

                  1.

                  Under a first plea in law against the challenged decision of the European Medicine’s Agency, Hexal submits that, the exception of illegality being well-founded, the statement of reasons of the contested decision is not legally admissible because the EMA erred in fact and law and failed to fulfil its duty to state reasons and to perform a careful and thorough assessment, as provided under Article 296 TFEU;

                  2.

                  Under a second plea in law, the legality of the challenged decision is also contested given that the ‘new active substance’ status should have been examined again upon the filing of Hexal’s generic market authorisation application, which was not the case. Thus, the EMA has allegedly failed to perform its duties appropriately, in particular its duty to perform an effective and careful assessment and to state reasons, pursuant to Article 296 TFUE, which in turn renders the contested decision illegal.


title: Case C-513/18: Request for a preliminary ruling from the Commissione Tributaria Provinciale di Palermo (Italy) lodged on 3 August 2018 — Autoservizi Giordano società cooperativa v Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/16

      Request for a preliminary ruling from the Commissione Tributaria Provinciale di Palermo (Italy) lodged on 3 August 2018 — Autoservizi Giordano società cooperativa v Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo
      (Case C-513/18)
      (2018/C 436/21)
      Language of the case: Italian

         Referring court

      Commissione Tributaria Provinciale di Palermo

         Parties to the main proceedings

         Applicant: Autoservizi Giordano società cooperativa

         Defendant: Agenzia delle Dogane e dei Monopoli — Ufficio di Palermo

         Questions referred

                  1.

                  Article 7 of Directive 2003/96/EC (1) to be interpreted as including within its scope all undertakings and operators, whether public or private, in the sector for the conveyance of passengers by bus and coach, including by way of the hire of buses and coaches with a driver, and as precluding national legislation implementing the directive in so far as it does not treat operators which hire buses and coaches with a driver as operators using commercial gas oil?

                  2.

                  Does the discretion which the Member States are allowed, as referred to in Article 7(2) of Directive 2003/96/EC (‘Member States may differentiate between commercial and non-commercial use of gas oil used as propellant, provided that the Community minimum levels are observed and the rate for commercial gas oil used as propellant does not fall below the national level of taxation in force on 1 January 2003’), render the provision which includes, within the definition of commercial gas oil, that used for ‘the carriage of passengers by occasional service’, not immediately effective and unconditional?

                  3.

                  Is the content of Article 7 of the directive sufficiently precise and unconditional for individuals to be able to rely on it directly against the authorities of the Member State in question?

         (1)  Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51)


title: Case T-26/17: Judgment of the General Court of 17 October 2018 — Jahlk v Parliament (Privileges and immunities — Member of the European Parliament — Decision to waive parliamentary immunity — Connection with the duties of a Member of the European Parliament — Equal treatment — Legal certainty — Legitimate expectations — Procedure for waiving immunity — Rights of defence — Misuse of powers — Non-contractual liability)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/40

      Judgment of the General Court of 17 October 2018 — Jahlk v Parliament
      (Case T-26/17) (1)

      ((Privileges and immunities - Member of the European Parliament - Decision to waive parliamentary immunity - Connection with the duties of a Member of the European Parliament - Equal treatment - Legal certainty - Legitimate expectations - Procedure for waiving immunity - Rights of defence - Misuse of powers - Non-contractual liability))
      (2018/C 436/56)
      Language of the case: French

         Parties

         Applicant: Jean-François Jalkh (Gretz-Armainvilliers, France) (represented initially by J.-P. Le Moigne, subsequently by M. Ceccaldi, and finally by F. Wagner, lawyers)

         Defendant: European Parliament (represented initially by M. Dean and S. Alonso de León, and subsequently by S. Alonso de León, N. Görlitz and S. Seyr, acting as Agents)

         Re:

      First, application based on Article 263 TFEU seeking annulment of Decision P8_TA(2016)0430 of the Parliament of 22 November 2016 waiving the applicant’s parliamentary immunity and, second, application based on Article 268 TFEU seeking compensation in respect of the harm allegedly suffered by the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Jean-François Jalkh to bear his own costs and to pay those incurred by the European Parliament, including those relating to the application for interim measures.

         (1)  OJ C 70, 6.3.2017.


title: Case C-515/18: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 6 August 2018 — Autorità Garante della Concorrenza e del Mercato v Regione autonoma della Sardegna

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/17

      Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 6 August 2018 — Autorità Garante della Concorrenza e del Mercato v Regione autonoma della Sardegna
      (Case C-515/18)
      (2018/C 436/22)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per la Sardegna

         Parties to the main proceedings

         Applicant: Autorità Garante della Concorrenza e del Mercato

         Defendant: Regione autonoma della Sardegna

         Questions referred

                  1.

                  Must Article 7(2) of Regulation (EC) No 1370/2007 (1) of 23 October 2007 be interpreted as meaning that the competent authority which intends directly to award a contract must take the necessary steps to publish or communicate to all operators potentially interested in operating the service the information necessary to allow such operators to submit a serious and reasonable offer?

                  2.

                  Must Article 7(4) of Regulation (EC) No 1370/2007 of 23 October 2007 be interpreted as meaning that, before directly awarding the contract, the competent authority must carry out a comparative assessment of all bids to operate the service which may have been received following publication of the prior information notice under that Article 7(4)?

         (1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).


title: Case C-593/18 P: Appeal brought on 21 September 2018 by ABB Ltd, ABB AB against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-445/14: ABB Ltd, ABB AB v European Commission

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/27

      Appeal brought on 21 September 2018 by ABB Ltd, ABB AB against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-445/14: ABB Ltd, ABB AB v European Commission
      (Case C-593/18 P)
      (2018/C 436/38)
      Language of the case: English

         Parties

         Appellants: ABB Ltd, ABB AB (represented by: I. Vandenborre, advocaat, S. Dionnet, avocat)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellants claim that the Court should:

                  —

                  annul the Judgment or take such other action as justice may require, and

                  —

                  order the Commission to pay the costs

         Pleas in law and main arguments

      First plea-in-law. The General Court erred in law in concluding that the Commission met its burden of proof in establishing an infringement on the part of the appellant that included all underground power cables and accessories with voltages between 110 kV and 220 kV. The General Court failed to verify whether the Decision (1) identified the infringement with ‘sufficient precision’ and according to the requisite legal standard. The General Court also failed to properly apply the conditions to find sufficient awareness to conclude participation in the infringement on the part of the appellant.
      Second plea-in-law. The General Court failed to apply the principle of equal treatment and the presumption of innocence when it confirmed the Commission's finding that the infringement period for the appellant started on 1 April 2000.
      Third plea-in-law. The General Court breached its duty to state sufficient reasons in relation to its assessment of the appellant's plea of unequal treatment, erroneously concluding that the appellant had accepted such distinction during the administrative proceeding, and rendering such acceptance as a material consideration in its assessment.

         (1)  Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10).


title: Case T-27/17: Judgment of the General Court of 17 October 2018 — Jalkh v Parliament (Privileges and immunities — Member of the European Parliament — Decision to waive parliamentary immunity — Relation with parliamentary duties — Equal treatment — Legal certainty — Legitimate expectation — Procedure for waiving immunity — Rights of the defence — Abuse of power — Non-contractual liability)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/41

      Judgment of the General Court of 17 October 2018 — Jalkh v Parliament
      (Case T-27/17) (1)

      ((Privileges and immunities - Member of the European Parliament - Decision to waive parliamentary immunity - Relation with parliamentary duties - Equal treatment - Legal certainty - Legitimate expectation - Procedure for waiving immunity - Rights of the defence - Abuse of power - Non-contractual liability))
      (2018/C 436/57)
      Language of the case: French

         Parties

         Applicant: Jean-François Jalkh (Gretz-Armainvilliers, France) (represented by: initially J.-P. Le Moigne, then M. Ceccaldi, and finally F. Wagner, lawyers)

         Defendant: Parliament (represented by: initially M. Dean and S. Alonso de León, then S. Alonso de León, N. Gorlitz and S. Syer, acting as Agents)

         Re:

      First, action brought under Article 263 TFEU seeking the annulment of Decision P8_TA(2016)9429 of the Parliament of 22 November 2016 waiving the applicant’s immunity; and, secondly, action brought under Article 268 TFEU seeking compensation for the harm which the applicant claimed to have suffered.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Jean-François Jalkh to bear his own costs and pay those incurred by the European Parliament, including the costs relating to the application for interim measures.

         (1)  OJ C 70, 6.3.2017.


title: Case C-652/16: Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Nigyar Rauf Kaza Ahmedbekova, Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite (Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection — Directive 2011/95/EU — Articles 3, 4, 10 and 23 — Applications for international protection lodged separately by family members — Individual assessment — Taking into account threats in respect of a family member in carrying out the individual assessment of the application for international protection of another family member — More favourable standards capable of being retained or introduced by the Member States for the purpose of extending the refugee or subsidiary protection status of a beneficiary of international protection to family members — Assessment of the reasons for persecution — Involvement of an Azerbaijani national in bringing a complaint against her country before the European Court of Human Rights — Common procedural standards — Directive 2013/32/EU — Article 46 — Right to an effective remedy — Full and ex nunc examination — Reasons for persecution or evidence withheld from the determining authority but invoked in the course of an action against the decision taken by that authority)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/4

      Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Nigyar Rauf Kaza Ahmedbekova, Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite
      (Case C-652/16) (1)

      ((Reference for a preliminary ruling - Common policy on asylum and subsidiary protection - Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection - Directive 2011/95/EU - Articles 3, 4, 10 and 23 - Applications for international protection lodged separately by family members - Individual assessment - Taking into account threats in respect of a family member in carrying out the individual assessment of the application for international protection of another family member - More favourable standards capable of being retained or introduced by the Member States for the purpose of extending the refugee or subsidiary protection status of a beneficiary of international protection to family members - Assessment of the reasons for persecution - Involvement of an Azerbaijani national in bringing a complaint against her country before the European Court of Human Rights - Common procedural standards - Directive 2013/32/EU - Article 46 - Right to an effective remedy - Full and ex nunc examination - Reasons for persecution or evidence withheld from the determining authority but invoked in the course of an action against the decision taken by that authority))
      (2018/C 436/04)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad Sofia-grad

         Parties to the main proceedings

         Applicants: Nigyar Rauf Kaza Ahmedbekova, Rauf Emin Ogla Ahmedbekov

         Defendant: Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite

         Operative part of the judgment

                  1.

                  Article 4 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that, in carrying out the assessment of an application for international protection on an individual basis, account must be taken of the threat of persecution and of serious harm in respect of a family member of the applicant for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to such a threat.

                  2.

                  Directive 2011/95 and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection must be interpreted as not precluding applications for international protection lodged separately by members of a single family from being subject to measures intended to address any interaction between applications, but as precluding those applications from being subject to a single assessment. They also preclude the assessment of one of those applications from being suspended until the conclusion of the examination procedure in respect of another of those applications.

                  3.

                  Article 3 of Directive 2011/95 must be interpreted as permitting a Member State, when granting international protection to a family member pursuant to the system established by that directive, to provide for an extension of the scope of that protection to other family members, provided that they do not fall within the scope of a ground for exclusion laid down in Article 12 of that directive and that their situation is, due to the need to maintain family unity, consistent with the rationale of international protection.

                  4.

                  Article 33(2)(e) of Directive 2013/32 does not cover a situation, such as that at issue in the main proceedings, in which an adult lodges, in her own name and on behalf of her minor child, an application for international protection which is based, inter alia, on a family tie with another person who has lodged a separate application for international protection.

                  5.

                  The involvement of an applicant for international protection in bringing a complaint against his country of origin before the European Court of Human Rights cannot in principle be regarded, for the purposes of assessing the reasons for persecution referred to in Article 10 of Directive 2011/95, as proof of that applicant’s membership of a ‘particular social group’, within the meaning of Article 10(1)(d) of that directive, but must be regarded as a reason for persecution for ‘political opinion’, within the meaning of Article 10(1)(e) of the directive, if there are valid grounds for fearing that involvement in bringing that claim would be perceived by that country as an act of political dissent against which it might consider taking retaliatory action.

                  6.

                  Article 46(3) of Directive 2013/32 read in conjunction with the reference to the appeal procedure contained in Article 40(1) of that directive, must be interpreted as meaning that a court before which an action has been brought against a decision refusing international protection is, in principle, required to examine, as ‘further representations’ and having asked the determining authority for an assessment of those representations, grounds for granting international protection or evidence which, whilst relating to events or threats which allegedly took place before the adoption of the decision of refusal, or even before the application for international protection was lodged, have been relied on for the first time during those proceedings. That court is not, however, required to do so if it finds that those grounds or evidence were relied on in a late stage of the appeal proceedings or are not presented in a sufficiently specific manner to be duly considered or, in respect of evidence, it finds that that evidence is not significant or insufficiently distinct from evidence which the determining authority was already able to take into account.

         (1)  OJ C 86, 20.3.2017.


title: Case C-599/18 P: Appeal brought on 21 September 2018 by Silec Cable SAS, General Cable Corp. against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-438/14: Silec Cable, General Cable v Commission

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/28

      Appeal brought on 21 September 2018 by Silec Cable SAS, General Cable Corp. against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-438/14: Silec Cable, General Cable v Commission
      (Case C-599/18 P)
      (2018/C 436/39)
      Language of the case: English

         Parties

         Appellants: Silec Cable SAS, General Cable Corp. (represented by: I. Sinan, Barrister, C. Renner, Rechtsanwältin)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellants claim that the Court should:

                  —

                  annul the judgment under appeal;

                  —

                  set aside Article 1 of the Decision (1) as it pertains to Silec Cable and General Cable;

                  —

                  in the alternative, amend Article 2 of the Decision and reduce the amount of the fine imposed on Silec Cable and General Cable in light of the arguments put forward in support of the present appeal;

                  —

                  in the alternative, refer the case back to the General Court;

                  —

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

         Pleas in law and main arguments

      With their first plea, the appellants submit that the General Court erred in law in failing to correctly apply the rules relating to evidence and distorted the evidence before it regarding appellant Silec's participation in the alleged infringement.
      The General Court incorrectly used the open and public distancing test to reverse the burden of proof for establishing the appellant Silec's alleged infringement. The appellants submit that the General Court also erred in law in exclusively relying on the subjective perception of other participants in the alleged infringement to prove appellant Silec's participation. The appellants further consider that the General Court distorted the evidence before it, and also violated the obligation of professional secrecy (Article 339 TFEU), when finding that the appellant Silec participated in the alleged infringement.
      With their second plea, the appellants contend that the General Court violated the principle of equal treatment when refusing to qualify the appellant Silec's involvement in the alleged infringement as that of a ‘fringe player.’
      The appellants submit that the General Court unlawfully took account of Safran/Sagem/Sagem Communications' behaviour when assessing the individual involvement of the appellant Silec for the purpose of assessing the amount of the fine. The appellants submit that the General Court itself moreover provides manifestly contradictory reasoning in this regard. The appellants further contend that the General Court compares the wrong factual situations when concluding that the Commission does not discriminate against the appellant Silec when refusing to qualify it as a fringe player.

         (1)  Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10).


title: Case T-109/17: Judgment of the General Court of 18 October 2018 — FCA US v EUIPO — Busbridge (VIPER) (EU trade mark — Invalidity proceedings — EU word mark VIPER — Earlier national word mark VIPER — Genuine use of the earlier mark — Goods for which the earlier mark has been used — Extent of use of the earlier mark — Article 57(2) and (3) of Regulation (EC) No 207/2009 (now Article 64(2) and (3) of Regulation (EU) 2017/1001))

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/41

      Judgment of the General Court of 18 October 2018 — FCA US v EUIPO — Busbridge (VIPER)
      (Case T-109/17) (1)

      ((EU trade mark - Invalidity proceedings - EU word mark VIPER - Earlier national word mark VIPER - Genuine use of the earlier mark - Goods for which the earlier mark has been used - Extent of use of the earlier mark - Article 57(2) and (3) of Regulation (EC) No 207/2009 (now Article 64(2) and (3) of Regulation (EU) 2017/1001)))
      (2018/C 436/58)
      Language of the case: English

         Parties

         Applicant: FCA US LLC (City of Auburn Hills, Michigan, United States) (represented by: C. Morcom, QC)

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

         Other party to the proceedings before the Board of Appeal of EUIPO: Robert Dennis Busbridge (Hookwood, United Kingdom)

         Re:

      Action brought against the decision of the First Board of Appeal of EUIPO of 1 December 2016 (Case R 554/2016-1), relating to invalidity proceedings between R.D. Busbridge and FCA US.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders FCA US LLC to pay the costs.

         (1)  OJ C 121, 18.4.2017.


title: Case C-668/16: Judgment of the Court (Second Chamber) of 4 October 2018 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2006/40/EC — Emissions from air-conditioning systems in motor vehicles — Article 5(4) and (5) — Directive 2007/46/EC — Approval of motor vehicles — Articles 12, 29, 30 and 46 — Vehicles not conforming to technical requirements — Responsibility of the national authorities)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/6

      Judgment of the Court (Second Chamber) of 4 October 2018 — European Commission v Federal Republic of Germany
      (Case C-668/16) (1)

      ((Failure of a Member State to fulfil obligations - Directive 2006/40/EC - Emissions from air-conditioning systems in motor vehicles - Article 5(4) and (5) - Directive 2007/46/EC - Approval of motor vehicles - Articles 12, 29, 30 and 46 - Vehicles not conforming to technical requirements - Responsibility of the national authorities))
      (2018/C 436/05)
      Language of the case: German

         Parties

         Applicant: European Commission (represented by: C. Hermes and D. Kukovec and by C. Becker, acting as Agents,)

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

         Operative part of the judgment

      The Court:

                  1.

                  Declares that, the Federal Republic of Germany has failed to fulfil its obligations:

                              —

                              under Directive 2006/40/EC of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, and Articles 12 and 30 of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), as amended by Commission Regulation (EU) No 371/2010 of 16 April 2010, by failing to take the measures necessary, within the period prescribed in the reasoned opinion, to re-establish conformity to their approved types of 133 713 vehicles of types 246, 176 and 117, sold by Daimler between 1 January and 26 June 2013, when they were fitted not with the refrigerant R1234yf declared for those approved types, but a refrigerant having a global warming potential which was greater than 150, contrary to the limit laid down in Article 5(4) of Directive 2006/40, and

                              —

                              under Directive 2006/40 and the combined provisions of Articles 46, 5 and 18 of Directive 2007/46, by failing to take the measures necessary to apply the penalties referred to in Article 46 of Directive 2007/46 within the period prescribed in the reasoned opinion, in order to ensure that manufacturers comply with Articles 5 and 18 of that directive, relating to the conformity of production and the issue of a certificate of conformity;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders the Federal Republic of Germany to bear its own costs and to pay half of the costs incurred by the European Commission;

                  4.

                  Orders the European Commission to bear half of its own costs.

         (1)  OJ C 70, 6.3.2017.


title: Case T-164/17: Judgment of the General Court of 15 October 2018 — Apple and Pear Australia and Star Fruits Diffusion v EUIPO — Pink Lady America (WILD PINK) (EU trade mark — Opposition proceedings — Application for EU word mark WILD PINK — Earlier EU and national word marks PINK LADY — Earlier EU figurative marks Pink Lady — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001))

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/42

      Judgment of the General Court of 15 October 2018 — Apple and Pear Australia and Star Fruits Diffusion v EUIPO — Pink Lady America (WILD PINK)
      (Case T-164/17) (1)

      ((EU trade mark - Opposition proceedings - Application for EU word mark WILD PINK - Earlier EU and national word marks PINK LADY - Earlier EU figurative marks Pink Lady - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)))
      (2018/C 436/59)
      Language of the case: English

         Parties

         Applicants: Apple and Pear Australia Ltd (Victoria, Australia) and Star Fruits Diffusion (Le Pontet, France) (represented by: T. de Haan, P. Péters and H. Abraham, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Pink Lady America LLC (Yakima, Washington, United States) (represented initially by: R. Manno and S. Travaglio, and subsequently by R. Manno, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 January 2017 (Case R 87/2015-4), relating to opposition proceedings between Apple and Pear Australia and Star Fruits Diffusion, on the one hand, and Pink Lady America, on the other.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 January 2017 (Case R 87/2015-4);

                  2.

                  Orders EUIPO to bear its own costs and to pay half the costs incurred by Apple and Pear Australia Ltd and Star Fruits Diffusion, including half the costs necessarily incurred by them for the purposes of the proceedings before the Board of Appeal of EUIPO;

                  3.

                  Orders Pink Lady America LLC to bear its own costs and to pay half the costs incurred by Apple and Pear Australia Ltd and Star Fruits Diffusion, including half the costs necessarily incurred by them for the purposes of the proceedings before the Board of Appeal of EUIPO.

         (1)  OJ C 144, 8.5.2017.


title: Case T-564/18: Action brought on 21 September 2018 — Bernis and Others v ECB

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/53

      Action brought on 21 September 2018 — Bernis and Others v ECB
      (Case T-564/18)
      (2018/C 436/75)
      Language of the case: English

         Parties

         Applicants: Ernests Bernis (Jurmala, Latvia), Oļegs Fiļs (Jurmala), OF Holding SIA (Riga, Latvia) and Cassandra Holding Company SIA (Jurmala) (represented by: O. Behrends, M. Kirchner and L. Feddern, lawyers)

         Defendant: European Central Bank (ECB)

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul decision ECB-SSM-2018-LVABL-2 WOANCA-2018-0007 of 11 July 2018 withdrawing the banking licence of ABLV Bank, AS;

                  —

                  order the defendant to pay all costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the ECB incorrectly assumed that the conditions for a licence withdrawal were met.

                  2.

                  Second plea in law, alleging that the ECB failed to take into account the discretionary nature of the decision.

                  3.

                  Third plea in law, alleging that the ECB violated the principle of proportionality.

                  4.

                  Fourth plea in law, alleging that the ECB committed a misuse of power.

                  5.

                  Fifth plea in law, alleging that the ECB’s decision was not appropriately reasoned.

                  6.

                  Sixth plea in law, alleging a violation of essential procedural requirements.

                  7.

                  Seventh plea in law, alleging a violation of the nemo auditur principle.


title: Case C-519/18: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 August 2018 — TB v Bevándorlási és Menekültügyi Hivatal

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/18

      Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 7 August 2018 — TB v Bevándorlási és Menekültügyi Hivatal
      (Case C-519/18)
      (2018/C 436/23)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: TB

         Defendant: Bevándorlási és Menekültügyi Hivatal

         Questions referred

                  1.

                  Must Article 10(2) of Council Directive 2003/86/EC (1) on the right to family reunification be interpreted as meaning that, if a Member State, under that article, authorises the entry of a family member other than those referred to in Article 4, only the requirement under Article 10(2) (that the family member must be ‘dependent on the refugee’) can be applied to that family member?

                  2.

                  If the first question is answered in the affirmative, does the status of ‘dependent’ person (‘dependency’) as referred to in Article 4(2)(a) of the Directive imply a factual situation in which the various aspects of dependency must all be present, or is it sufficient that any of those aspects is present, depending on the specific circumstances of each case, for there to be dependency? In that context, is it consistent with the requirement established in Article 10(2) (that the family member must be ‘dependent on the refugee’) that a national provision, excluding any individual assessment, takes account of a single factual element, an indicator of dependency (‘[being] objectively unable to provide for [his or her] own needs on account of [his or her] state of health’), as a factor meaning that the requirement in question is satisfied?

                  3.

                  In the event that the first question is answered in the negative and that, therefore, a Member State can apply other requirements in addition to that set out in Article 10(2) (that the family member must be ‘dependent on the refugee’), does this mean that the Member State is entitled, if it sees fit, to establish any requirement, including those laid down in Article 4(2) and (3) in relation to other family members, or can the Member State only apply the requirement contained in Article 4(3) of the Directive? In that case, what factual situation is entailed by the requirement ‘objectively unable to provide for their own needs on account of their state of health’ in Article 4(3) of the Directive? Must it be interpreted as meaning that such family members are unable [to provide] for ‘their own needs’ or that ‘they are unable’ to look after ‘themselves’, or, if applicable, in some other way?

         (1)  Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).


title: Case T-567/18: Action brought on 21 September 2018 — VE v ESMA

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/54

      Action brought on 21 September 2018 — VE v ESMA
      (Case T-567/18)
      (2018/C 436/76)
      Language of the case: English

         Parties

         Applicant: VE (represented by: N. Flandin and L. Levi, lawyers)

         Defendant: European Securities and Markets Authority (ESMA)

         Form of order sought

      The applicant claim that the Court should:

                  —

                  annul the decision of ESMA of 11 June 2018 rejecting the complaint lodged by the applicant challenging the decision of ESMA of 14 November 2017 which terminates the applicant’s employment at ESMA;

                  —

                  together with, and in so far as necessary, annul the decision of ESMA of 14 November 2017;

                  —

                  order the compensation of the moral prejudice suffered by the applicant;

                  —

                  order the defendant to pay all the costs.

         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 there has been no notification to the applicant of the decision to terminate his employment contract in the appropriate notice period, as defined by his contract.

                  2.

                  Second plea in law, alleging a breach of the right to be heard.

                  3.

                  Third plea in law, alleging a breach of the duty to state reasons, according to Article 41(2) of the Charter of Fundamental Rights of the European Union, providing the obligation of the administration to give reasons for its decisions.

                  4.

                  Fourth plea in law, alleging a wrongful legal ground for the decision to reject the applicant’s demands as well as the termination decision, since both are based on the 2016 appraisal report which is vitiated by manifest errors of appreciation.

                  5.

                  Fifth plea in law, alleging a breach of the principle of proportionality.

                  6.

                  Sixth plea in law, alleging a breach of the duty of care falling on the defendant, with regard to the applicant’s health problems and his general working conditions.


title: Case T-171/17: Judgment of the General Court of 16 October 2018 — M & K v EUIPO — Genfoot (KIMIKA) (EU trade mark — Opposition proceedings — Application for EU word mark KIMIKA — Earlier EU word mark KAMIK — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Genuine use — Article 42(2) and (3) of Regulation No 207/2009 (now Article 47(2) and (3) of Regulation 2017/1001))

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/43

      Judgment of the General Court of 16 October 2018 — M & K v EUIPO — Genfoot (KIMIKA)
      (Case T-171/17) (1)

      ((EU trade mark - Opposition proceedings - Application for EU word mark KIMIKA - Earlier EU word mark KAMIK - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Genuine use - Article 42(2) and (3) of Regulation No 207/2009 (now Article 47(2) and (3) of Regulation 2017/1001)))
      (2018/C 436/60)
      Language of the case: English

         Parties

         Applicant: M & K Srl (Prato, Italy) (represented by: initially by F. Caricato, and subsequently by M. Cartella and B. Cartella, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Genfoot, Inc. (Montreal, Quebec, Canada) (represented by: E. Saarmann and P. Baronikians, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 12 January 2017 (Case R 1206/2016-4), relating to opposition proceedings between Genfoot and M & K.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders M & K Srl to pay the costs.

         (1)  OJ C 144, 8.5.2017.


title: Case C-12/17: Judgment of the Court (Grand Chamber) of 4 October 2018 (request for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Tribunalul Botoşani, Ministerul Justiţiei v Maria Dicu (Reference for a preliminary ruling — Social policy — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Directive 2010/18/EU — Revised Framework Agreement on parental leave — Parental leave not regarded as a period of actual work)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/7

      Judgment of the Court (Grand Chamber) of 4 October 2018 (request for a preliminary ruling from the Curtea de Apel Cluj — Romania) — Tribunalul Botoşani, Ministerul Justiţiei v Maria Dicu
      (Case C-12/17) (1)

      ((Reference for a preliminary ruling - Social policy - Organisation of working time - Directive 2003/88/EC - Right to paid annual leave - Directive 2010/18/EU - Revised Framework Agreement on parental leave - Parental leave not regarded as a period of actual work))
      (2018/C 436/06)
      Language of the case: Romanian

         Referring court

      Curtea de Apel Cluj

         Parties to the main proceedings

         Applicants: Tribunalul Botoşani, Ministerul Justiţiei

         Defendant: Maria Dicu

         Intervening parties: Curtea de Apel Suceava, Consiliul Superior al Magistraturii

         Operative part of the judgment

      Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time is to be interpreted as not precluding a provision of national law, such as the provision at issue in the main proceedings, which, for the purpose of determining a worker’s entitlement to paid annual leave, as guaranteed by that article for a worker in respect of a given reference period, does not treat the amount of time spent by that worker on parental leave during that reference period as a period of actual work.

         (1)  OJ C 104, 3.4.2017.


title: Case T-569/18: Action brought on 25 September 2018 — W. Kordes’ Söhne Rosenschulen v EUIPO (Kordes’ Rose Monique)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/54

      Action brought on 25 September 2018 — W. Kordes’ Söhne Rosenschulen v EUIPO (Kordes’ Rose Monique)
      (Case T-569/18)
      (2018/C 436/77)
      Language in which the application was lodged: German

         Parties

         Applicant: W. Kordes’ Söhne Rosenschulen GmbH & Co KG (Klein Offenseth-Sparrieshoop, Germany) (represented by: G. Würtenberger, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for EU word mark Kordes’ Rose Monique — Application for registration No 15 856 743

         Contested decision: Decision of the First Board of Appeal of EUIPO of 12 July 2018 in Case R 1929/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

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

                  —

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


title: Case C-600/18: Request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 September 2018 — UTEP 2006. SRL v Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási Osztály

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/29

      Request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 September 2018 — UTEP 2006. SRL v Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási Osztály
      (Case C-600/18)
      (2018/C 436/40)
      Language of the case: Hungarian

         Referring court

      Szombathelyi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: UTEP 2006. SRL

         Defendant: Vas Megyei Kormányhivatal Hatósági Főosztály, Hatósági, Építésügyi és Oktatási Osztály

         Question referred

      Should [Article] 92 TFEU be interpreted as precluding an interpretation of Article 12/A of the a kis- és középvállalkozásokról, fejlődésük támogatásáról szóló 2004. [évi] XXXIV. törvény (Law No XXXIV of 2004 on small and medium-sized enterprises and aid for their development; ‘KKV Law’) and the practice of the authorities followed in this respect, according to which Article 12/A of the KKV Law cannot be applied to enterprises (legal entities) that are not registered in Hungary, but in another Member State, but that are otherwise in line with the concept of small and medium-sized enterprise laid down by that Law?


title: Case C-602/18 P: Appeal brought on 21 September 2018 by Star Television Productions Ltd against the judgment of the General Court (Sixth Chamber) delivered on 13 July 2018 in Case T-797/17 Star Television Productions v EUIPO — Marc Dorcel (STAR)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/30

      Appeal brought on 21 September 2018 by Star Television Productions Ltd against the judgment of the General Court (Sixth Chamber) delivered on 13 July 2018 in Case T-797/17 Star Television Productions v EUIPO — Marc Dorcel (STAR)
      (Case C-602/18 P)
      (2018/C 436/41)
      Language of the case: French

         Parties

         Appellant: Star Television Productions Ltd (represented by: D. Farnsworth, Solicitor)

         Other parties to the proceedings: European Union Intellectual Property Office, Marc Dorcel
      By order of 18 October 2018, the Court of Justice (Sixth Chamber) dismissed the appeal.


title: Case T-577/18: Action brought on 25 September 2018 — Crédit agricole Corporate and Investment Bank v ECB

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/56

      Action brought on 25 September 2018 — Crédit agricole Corporate and Investment Bank v ECB
      (Case T-577/18)
      (2018/C 436/79)
      Language of the case: French

         Parties

         Applicant: Crédit agricole Corporate and Investment Bank (Montrouge, France) (represented by: A. Champsaur and A. Delors, lawyers)

         Defendant: European Central Bank

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul, on the basis of Articles 256 and 263 TFEU, Decision ECB-SSM-2018-FRCAG-76 adopted by the ECB on 16 July 2018;

                  —

                  order the ECB to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on two pleas in law which are, in essence, identical to those relied on in Case T-576/18, Crédit agricole v ECB.


title: Case C-616/18: Request for a preliminary ruling from the Tribunal d’instance d’Épinal (France) lodged on 1 October 2018 — Cofidis SA v YU, ZT

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/30

      Request for a preliminary ruling from the Tribunal d’instance d’Épinal (France) lodged on 1 October 2018 — Cofidis SA v YU, ZT
      (Case C-616/18)
      (2018/C 436/42)
      Language of the case: French

         Referring court

      Tribunal d’instance d’Épinal

         Parties to the main proceedings

         Applicant: Cofidis SA

         Defendants: YU, ZT

         Question referred

      Does the protection guaranteed to consumers by 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 (1) preclude a national provision which, in an action brought by a seller or supplier against a consumer on the basis of a credit agreement which they have concluded, prohibits the national court, on expiry of a limitation period of five years from the conclusion of the agreement, from finding and penalising, of its own motion or following an objection raised by the consumer, a failure to comply with the provisions relating to the obligation laid down in Article 8 of the directive to verify the creditworthiness of the consumer, a failure to comply with those of Article 10 et seq. of the directive relating to the information which must be included in a clear and concise manner in credit agreements, and, more generally, a failure to comply with all of the consumer-protection provisions set out in that directive?

         (1)  OJ 2008 L 133, p. 66.


title: Case T-578/18: Action brought on 25 September 2018 — CA Consumer Finance v ECB

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/56

      Action brought on 25 September 2018 — CA Consumer Finance v ECB
      (Case T-578/18)
      (2018/C 436/80)
      Language of the case: French

         Parties

         Applicant: CA Consumer Finance (Massy, France) (represented by: A. Champsaur and A. Delors, lawyers)

         Defendant: European Central Bank

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul, on the basis of Articles 256 and 263 TFEU, Decision ECB-SSM-2018-FRCAG-76 adopted by the ECB on 16 July 2018;

                  —

                  order the ECB to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on two pleas in law which are, in essence, identical to those relied on in Case T-576/18, Crédit agricole v ECB.


title: Case T-367/17: Judgment of the General Court of 18 October 2018 — Linak v EUIPO -ChangZhou Kaidi Electrical (Electrically operated lifting column) (Community design — Invalidity proceedings — Registered Community design representing an electrically operated lifting column — Earlier Community design — Ground for invalidity — No individual character — Informed user — No different overall impression — Article 6 of Regulation (EC) No 6/2002)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/44

      Judgment of the General Court of 18 October 2018 — Linak v EUIPO -ChangZhou Kaidi Electrical (Electrically operated lifting column)
      (Case T-367/17) (1)

      ((Community design - Invalidity proceedings - Registered Community design representing an electrically operated lifting column - Earlier Community design - Ground for invalidity - No individual character - Informed user - No different overall impression - Article 6 of Regulation (EC) No 6/2002))
      (2018/C 436/61)
      Language of the case: English

         Parties

         Applicant: Linak A/S (Nordborg, Denmark) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

         Defendant: European Union Intellectual Property Office (represented initially by: G. Sakalaite-Orlovskiene and A. Folliard-Monguiral, and subsequently by G. Sakalaite-Orlovskiene and J. Ivanauskas, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO: ChangZhou Kaidi Electrical Co. Ltd (Changzhou, China)

         Re:

      Action brought against the decision of the Third Board of Appeal of EUIPO of 21 March 2017 (Case R 1411/2015-3), relating to invalidity proceedings between Linak and ChangZhou Kaidi Electrical.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Linak A/S to pay the costs.

         (1)  OJ C 249, 31.7.2017.


title: Case C-56/17: Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Bahtiar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite (Reference for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Regulation (EU) No 604/2013 — Article 3 — Determining the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national — Examination of an application for international protection without an express decision on the determination of the Member State responsible for the examination — Directive 2011/95/EU — Articles 9 and 10 — Reasons for persecution based on religion — Evidence — Iranian legislation on apostasy — Directive 2013/32/EU — Article 46(3) — Effective remedy)

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/7

      Judgment of the Court (Second Chamber) of 4 October 2018 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Bahtiar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite
      (Case C-56/17) (1)

      ((Reference for a preliminary ruling - Area of freedom, security and justice - Borders, asylum and immigration - Regulation (EU) No 604/2013 - Article 3 - Determining the Member State responsible for examining an application for international protection made in one of the Member States by a third-country national - Examination of an application for international protection without an express decision on the determination of the Member State responsible for the examination - Directive 2011/95/EU - Articles 9 and 10 - Reasons for persecution based on religion - Evidence - Iranian legislation on apostasy - Directive 2013/32/EU - Article 46(3) - Effective remedy))
      (2018/C 436/07)
      Language of the case: Bulgarian

         Referring court

      Administrativen sad Sofia-grad

         Parties to the main proceedings

         Applicant: Bahtiar Fathi

         Defendant: Predsedatel na Darzhavna agentsia za bezhantsite

         Operative part of the judgment

                  1.

                  Article 3(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, must, in a situation such as that in the main proceedings, be interpreted as not precluding the authorities of a Member State from conducting an examination on the merits of an application for international protection, within the meaning of Article 2(d) of that regulation, where there is no express decision by those authorities determining, on the basis of the criteria laid down by the regulation, that the responsibility for conducting such an examination lies with that Member State.

                  2.

                  Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, must, in a situation such as that in the main proceedings, be interpreted as meaning that, in an action brought by an applicant for international protection against a decision dismissing the applicant’s application for international protection as unfounded, the court or tribunal with jurisdiction of a Member State is not required to examine of its own motion whether the criteria and mechanisms for determining the Member State responsible for examining that application, as provided for by Regulation No 604/2013, were correctly applied.

                  3.

                  Article 10(1)(b) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that an applicant for international protection who claims, in support of his application, that he is at risk of persecution for reasons based on religion does not have to, in order to substantiate his claims concerning his religious beliefs, submit statements or produce documents concerning all the aspects of the concept of ‘religion’, referred to in that provision. The onus is, however, on the applicant to substantiate those claims in a credible manner by submitting evidence which permits the competent authority to satisfy itself that those claims are true.

                  4.

                  Article 9(1) and (2) of Directive 2011/95 must be interpreted as meaning that the prohibition, on pain of execution or imprisonment, of conduct which is contrary to the State religion of the applicant for international protection’s country of origin may constitute an ‘act of persecution’, within the meaning of that article, if that prohibition may, in practice, be enforced by such penalties by the authorities of that country, which is for the referring court to ascertain.

         (1)  OJ C 112, 10.04.2017.


title: Case C-622/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 October 2018 — AR v Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/30

      Request for a preliminary ruling from the Cour de cassation (France) lodged on 4 October 2018 — AR v Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS
      (Case C-622/18)
      (2018/C 436/43)
      Language of the case: French

         Referring court

      Cour de cassation

         Parties to the main proceedings

         Applicant: AR

         Defendants: Cooper International Spirits LLC, Établissements Gabriel Boudier SA, St Dalfour SAS

         Question referred

      Must Article 5(1)(b) and Articles 10 and 12 of Directive 2008/95 EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (1) be interpreted as meaning that a proprietor which has never exploited its trade mark and whose rights over it were revoked on expiry of the period of five years following publication of its registration can obtain compensation for injury caused by infringement, claiming an adverse effect on the essential function of its trade mark, caused by use by a third party, before the effective date of the revocation, of a sign similar to that trade mark to designate goods or services identical or similar to those for which that trade mark was registered?

         (1)  OJ 2008 L 299, p. 25.


title: Case C-73/17: Judgment of the Court (Grand Chamber) of 2 October 2018 — French Republic v European Parliament (Action for annulment — Institutional law — Protocol on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union — European Parliament — Concept of ‘budget session’ held in Strasbourg (France) — Article 314 TFEU — Exercise of budgetary powers during an additional plenary part-session in Brussels (Belgium))

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/8

      Judgment of the Court (Grand Chamber) of 2 October 2018 — French Republic v European Parliament
      (Case C-73/17) (1)

      ((Action for annulment - Institutional law - Protocol on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union - European Parliament - Concept of ‘budget session’ held in Strasbourg (France) - Article 314 TFEU - Exercise of budgetary powers during an additional plenary part-session in Brussels (Belgium)))
      (2018/C 436/08)
      Language of the case: French

         Parties

         Applicant: French Republic (represented by: F. Alabrune, D. Colas, B. Fodda and E. de Moustier, acting as Agents)

         Defendant: European Parliament (represented by: R. Crowe and U. Rösslein, acting as Agents)

         Intervener in support of the applicant: Grand Duchy of Luxembourg (represented by: D. Holderer and C. Schiltz, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders the French Republic to pay, in addition to its own costs, those of the European Parliament;

                  3.

                  Orders the Grand Duchy of Luxembourg to bear its own costs.

         (1)  OJ C 104, 3.4.2017.