title: Case C-547/16: Judgment of the Court (Third Chamber) of 23 November 2017 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Gasorba SL, Josefa Rico Gil, Antonio Ferrándiz González v Repsol Comercial de Productos Petrolíferos SA (Competition — Article 101 TFEU — Agreements between undertakings — Business relationships between service station operators and oil companies — Long-term exclusive supply agreement for fuel — European Commission decision making an undertaking’s commitments binding — Extent to which national courts are bound by a commitment decision adopted by the Commission — Articles 9(1) and 16(1) of Regulation (EC) No 1/2003)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/15

         Judgment of the Court (Third Chamber) of 23 November 2017 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Gasorba SL, Josefa Rico Gil, Antonio Ferrándiz González v Repsol Comercial de Productos Petrolíferos SA
   (Case C-547/16) (1)

   ((Competition - Article 101 TFEU - Agreements between undertakings - Business relationships between service station operators and oil companies - Long-term exclusive supply agreement for fuel - European Commission decision making an undertaking’s commitments binding - Extent to which national courts are bound by a commitment decision adopted by the Commission - Articles 9(1) and 16(1) of Regulation (EC) No 1/2003))
   (2018/C 022/19)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicants: Gasorba SL, Josefa Rico Gil, Antonio Ferrándiz González

      Defendant: Repsol Comercial de Productos Petrolíferos SA

      Operative part of the judgment

   Article 16(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] must be interpreted as meaning that a commitment decision concerning certain agreements between undertakings, adopted by the European Commission under Article 9(1) of that regulation, does not preclude national courts from examining whether those agreements comply with the competition rules and, if necessary, declaring those agreements void pursuant to Article 101(2) TFEU.

      (1)  OJ C 22, 23.1.2017.


title: Case T-759/17: Action brought on 17 November 2017 — Perfect Bar/EUIPO (PERFECT Bar)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/54

         Action brought on 17 November 2017 — Perfect Bar/EUIPO (PERFECT Bar)
   (Case T-759/17)
   (2018/C 022/71)
   Language of the case: English

      Parties

      Applicant: Perfect Bar LLC (San Diego, California, United States) (represented by: F. Miazzetto, J. Gracia Albero, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU figurative mark containing the word elements‘PERFECT Bar’ — Application for registration No 15 376 064

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 5 September 2017 in Case R 2440/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and allow the registration of the trade mark applied for, this is, the European Union Trademark application no. 015376064 ‘PERFECT BAR’;

               —

               order EUIPO to pay the costs derived from the procedure before the General Court and the EUIPO.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case C-618/17: Request for a preliminary ruling from the Tribunal d’instance de Limoges (France) lodged on 30 October 2017 — BNP Paribas Personal Finance SA v Roger Ducloux, Josée Ducloux, née Lecay

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/25

         Request for a preliminary ruling from the Tribunal d’instance de Limoges (France) lodged on 30 October 2017 — BNP Paribas Personal Finance SA v Roger Ducloux, Josée Ducloux, née Lecay
   (Case C-618/17)
   (2018/C 022/37)
   Language of the case: French

      Referring court

   Tribunal d’instance de Limoges

      Parties to the main proceedings

      Applicant: BNP Paribas Personal Finance SA, successor in title to Solfea

      Defendants: Roger Ducloux, Josée Ducloux, née Lecay

      Question referred

   Where the annual percentage rate of credit is 5,97377 %, does the rule provided for in Directives 98/7/EC of 16 February 1998 (1) and 2008/48/EC of 23 April 2008, (2) according to which, in the French version, ‘Le résultat du calcul est exprimé avec une exactitude d’au moins une décimale. Si le chiffre de la décimale suivante est supérieur ou égal à 5, le chiffre de la première décimale sera augmenté de 1’ [translated in literal terms as ‘[t]he result of the calculation shall be expressed correct to at least one decimal place; if the figure at the following decimal place is greater than or equal to 5, the figure at [the first] decimal place shall be increased by one’] allow a stated annual percentage rate of charge of 5,95 % to be considered correct?

      (1)  Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1998 L 101, p. 17).

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


title: Case T-895/16: Judgment of the General Court of 30 November 2017 — Toontrack Music v EUIPO (SUPERIOR DRUMMER) (European Union trade mark — Application for EU word mark SUPERIOR DRUMMER — Absolute ground for refusal — Descriptive — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/39

         Judgment of the General Court of 30 November 2017 — Toontrack Music v EUIPO (SUPERIOR DRUMMER)
   (Case T-895/16) (1)

   ((European Union trade mark - Application for EU word mark SUPERIOR DRUMMER - Absolute ground for refusal - Descriptive - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001)))
   (2018/C 022/53)
   Language of the case: Swedish

      Parties

      Applicant: Toontrack Music AB (Umeå, Sweden) (represented by: L.-E. Ström, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, acting as Agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 3 October 2016 (Case R 2438/2015-5) concerning the registration of the word mark SUPERIOR DRUMMER as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Toontrack Music AB to pay the costs.

      (1)  OJ C 46, 13.2.2017.


title: Case C-424/17 P: Appeal brought on 14 July 2017 by Vilislav Andreev Kaleychev against the order of the General Court (First Chamber) delivered on 22 June 2017 in Case T-58/17: Kaleychev v European Court of Human Rights

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/16

         Appeal brought on 14 July 2017 by Vilislav Andreev Kaleychev against the order of the General Court (First Chamber) delivered on 22 June 2017 in Case T-58/17: Kaleychev v European Court of Human Rights
   (Case C-424/17 P)
   (2018/C 022/20)
   Language of the case: English

      Parties

      Appellant: Vilislav Andreev Kaleychev (represented by: K. Mladenova, адвокат)

      Other party to the proceedings: European Court of Human Rights
   By order of 22 November 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.


title: Case T-909/16: Judgment of the General Court of 28 November 2017 — Laboratorios Ern v EUIPO — Sharma (NRIM Life Sciences) (EU trade mark — Opposition proceedings — Application for EU word mark NRIM Life Sciences — Earlier national word mark RYM — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/2001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/39

         Judgment of the General Court of 28 November 2017 — Laboratorios Ern v EUIPO — Sharma (NRIM Life Sciences)
   (Case T-909/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark NRIM Life Sciences - Earlier national word mark RYM - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/2001)))
   (2018/C 022/54)
   Language of the case: English

      Parties

      Applicant: Laboratorios Ern, SA (Barcelona, Spain) (represented by: S. Correa Rodríguez, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO: Anil K. Sharma (Hillingdon, United Kingdom)

      Re:

   Action for annulment of the decision of the Fifth Board of Appeal of EUIPO of 26 September 2016 (Case R 2376/2015-5), concerning opposition proceedings between Laboratorios Ern and Mr Sharma.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Laboratorios Ern, SA, to pay the costs.

      (1)  OJ C 53, 20.2.2017.


title: Case C-619/17: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 3 November 2017 — Ministerio de Defensa v Ana de Diego Porras

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/26

         Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 3 November 2017 — Ministerio de Defensa v Ana de Diego Porras
   (Case C-619/17)
   (2018/C 022/38)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Appellant: Ministerio de Defensa

      Other party: Ana de Diego Porras

      Questions referred

               1.

               Must Clause 4 of the Framework Agreement on fixed-term work, contained in the Annex to Directive 1999/70, (1) be interpreted as precluding national legislation that does not provide for any compensation for termination of a temporary replacement contract, to replace another worker who has a reserved right to his post, when such termination is due to the reinstatement of the replaced worker, but does provide for compensation when the contract of employment is terminated on other legal grounds?

               2.

               If the answer to Question 1 is in the negative, does Clause 5 of the Framework Agreement cover a measure such as that introduced by the Spanish legislature, consisting of fixing compensation of 12 days’ salary for every year of service, to be received by the worker at the end of a temporary contract even if the temporary employment has been limited to a single contract?

               3.

               If the answer to question 2 is in the affirmative, is a legal provision granting fixed-term workers compensation of 12 days’ salary for every year of service at the end of the contract, but excluding fixed-term workers from that measure when the contract is a temporary replacement contract to replace a worker who has a reserved right to his post, contrary to Clause 5 of the Framework Agreement?

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


title: Case T-50/17: Judgment of the General Court of 30 November 2017 — Mackevision Medien Design v EUIPO (TO CREATE REALITY) (EU trade mark — Application for EU word mark TO CREATE REALITY — Trade mark consisting in an advertising slogan — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 [now Article 7(1)(b) of Regulation (EU) 2017/1001])

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/40

         Judgment of the General Court of 30 November 2017 — Mackevision Medien Design v EUIPO (TO CREATE REALITY)
   (Case T-50/17) (1)

   ((EU trade mark - Application for EU word mark TO CREATE REALITY - Trade mark consisting in an advertising slogan - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 [now Article 7(1)(b) of Regulation (EU) 2017/1001]))
   (2018/C 022/55)
   Language of the case: German

      Parties

      Applicant: Mackevision Medien Design GmbH Stuttgart (Stuttgart, Germany) (represented by: E. Stolz, U. Stelzenmüller and J. Weiser, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: A. Graul and S. Hanne, acting as Agents)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 20 December 2016 (Case R 995/2016-5) concerning an application for registration of the word sign TO CREATE REALITY as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mackevision Medien Design GmbH Stuttgart to pay the costs.

      (1)  OJ C 104, 3.4.2017.


title: Case C-620/17: Request for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 2 November 2017 — Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/26

         Request for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 2 November 2017 — Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék
   (Case C-620/17)
   (2018/C 022/39)
   Language of the case: Hungarian

      Referring court

   Székesfehérvári Törvényszék

      Parties to the main proceedings

      Applicant: Hochtief Solutions AG Magyarországi Fióktelepe

      Defendant: Fővárosi Törvényszék

      Questions referred

               1.

               Are the basic principles and rules of EU law (in particular Article 4(3) TEU, and the requirement for uniform interpretation), as interpreted by the Court of Justice of the European Union, especially in the judgment in Köbler, to be interpreted as meaning that the declaration of liability of the court of the Member State ruling at final instance in a judgment which infringes EU law may be based exclusively on national law or on the criteria laid down by national law? If not, are the basic principles and rules of EU law, particularly the three criteria laid down by the Court of Justice of the European Union in Köbler for declaring the liability of the ‘State’ to be interpreted as meaning that whether the conditions for liability of the Member State for infringement of EU law by the courts of that State are met is to be assessed on the basis of national law?

               2.

               Are the basic principles and rules of EU law (in particular Article 4(3) TEU and the requirement for effective judicial protection), particularly the judgements of the Court of Justice of the European Union concerning the liability of the Member State delivered inter alia in Francovich, Brasserie du pécheur and Köbler, to be interpreted as meaning that the force of res judicata attaching to judgments which infringe EU law delivered by courts of the Member States ruling at final instance precludes a declaration that the Member State is liable for damages?

               3.

               In the light of Directive 89/665/EEC, as amended by Directive 2007/66/EC (1), and of Directive 92/13/EEC, are the review procedure concerning the award of public contracts of a value greater than the Community thresholds and the judicial review of the administrative decision adopted in that procedure relevant for the purposes of EU law? If so, are EU law and the case-law of the Court of Justice of the European Union (inter alia, the judgments in Kühne & Heitz, Kapferer, and especially Impresa Pizzarotti) regarding the need to grant review, as an extraordinary appeal, which derives from national law on judicial review of the administrative decision adopted in the aforementioned review procedure concerning the award of public contracts, relevant for the purposes of EU law?

               4.

               Are the Directives on review procedures concerning the award of public contracts (namely, Directive 89/665/EEC, as amended in the meantime by Directive 2007/66/EC, and Directive 92/13/EEC) to be interpreted as meaning that national legislation under which the national courts before which the dispute in the main proceedings is brought may disregard a fact which should be examined in accordance with a judgment of the Court of Justice of the European Union — delivered in a preliminary ruling procedure in connection with a review procedure concerning the award of public contracts — a fact which is also not taken into account by the national courts ruling in proceedings instituted as a result of the review procedure brought against the decision adopted in the main proceedings, is compatible with those directives?

               5.

               Are Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, in particular Article 1(1) and (3) thereof, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, in particular Articles 1 and 2 thereof — particularly in the light of the judgments delivered in Willy Kempter, Pannon GSM and VB Pénzügyi Lízing, and also Kühne & Heitz, Kapferer and Impresa Pizzarotti — to be interpreted as meaning that national legislation, or an application thereof, under which, although a judgment of the Court of Justice of the European Union delivered in a preliminary ruling procedure before judgment in the proceedings at second instance establishes a relevant interpretation of the rules of EU law, the court hearing the case rejects its on the grounds that it is out of time and subsequently the court hearing the application for review does not consider the review admissible, is compatible with the aforementioned Directives and with the requirements of effective judicial protection and with the principles of equivalence and effectiveness?

               6.

               If, under national law, review must be granted in order to re-establish constitutionality by means of a new decision of the Constitutional Court, should review not be granted, in accordance with the principle of equivalence and the principle laid down in the judgment in Transportes Urbanos, if it has not been possible to take into account a judgment of the Court of Justice of the European Union in the main proceedings owing to the provisions of national law concerning procedural time limits?

               7.

               Are Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, in particular Article 1(1) and (3) thereof, and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, in particular Articles 1 and 2 thereof, in the light of the judgment of the Court of Justice of the European Union in Willy Kempter, C-2/06, EU:C:2008:78, according to which an individual does not have to rely specifically on the case-law of the Court of Justice, to be interpreted as meaning that the review procedures concerning the award of public contracts governed by the aforementioned Directives may be initiated only by an action which contains an express description of the infringement concerning the award of public contracts invoked and, furthermore, expressly states the procurement rule which has been infringed — the specific article and paragraph —, that is to say, that in a review procedure concerning the award of public contracts it is only possible to examine the infringements which the applicant has indicated by reference to the procurement provision which has been infringed — the specific article and paragraph —, whereas in any other administrative and civil procedure it is sufficient for the individual to present the facts and the evidence which supports them, and the competent authority or court gives a ruling according to their content?

               8.

               Is the requirement of a sufficiently serious infringement laid down in the judgments in Köbler and Traghetti to be interpreted as meaning that such infringement does not exist if the court ruling at final instance, in clear contravention of the established case-law, cited with maximum detail, of the Court of Justice of the European Union — which is also supported by various legal opinions — refuses an individual's request for a reference for a preliminary ruling concerning the need to grant a review, on the absurd grounds that EU law — in this case, in particular, Directives 89/665/EEC and 92/13/EEC — do not contain rules governing review, in spite of the fact that, for that purpose, reference has also been made with maximum detail to the relevant case-law of the Court of Justice of the European Union, also including the judgment in Impresa Pizzarotti, which specifically states the need for review in relation to the public procurement procedure? In the light of the judgment of the Court of Justice of the European Union in CILFIT, 283/81, EU:C:1982:335, with what degree of detail must the national court which does not grant the review justify its decision to depart from the authoritative legal interpretation given by the Court of Justice?

               9.

               Are the principles of effective judicial protection and of equivalence in Article 19 TEU and Article 4(3) TEU, freedom of establishment and freedom to provide services laid down in Article 49 TFEU, and Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, and also Directives 89/665/EEC, 92/13/EEC and 2007/66/EC, to be interpreted as meaning that they do not preclude the competent authorities and courts, in manifest disregard of the applicable EU law, from dismissing one after another the appeals brought by the applicant because he has been unable to participate in a public procurement procedure, appeals for which it is necessary to prepare, depending on the circumstances, multiple documents with considerable investment of time and money or to participate at hearings, and, although it is true that it is in theory possible to declare liability for damage caused in the exercise of judicial functions, the relevant legislation prevents the applicant from claiming from the court compensation for harm suffered as a consequence of the unlawful measures?

               10.

               Are principles laid down in the judgments in Köbler, Traghetti and Saint Giorgio to be interpreted as meaning that compensation cannot be paid for damage caused by the fact that, in infringement of the established case-law of the Court of Justice, the court of the Member State ruling at final instance has not granted the review requested within the proper time by the individual, in which he would have been able to claim compensation for the costs incurred?

      (1)  Both Directives were amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ L 335, 20.12.2007, p. 31).


title: Case T-670/16: Order of the General Court of 22 November 2017 — Digital Rights Ireland v Commission (Action for annulment — Area of freedom, justice and security — Protection of natural persons with regard to the processing of personal data — Transfer of personal data to the United States — Not-for-profit company incorporated under Irish law — No protection of personal data for legal persons — Controller — Action in the name of members and supporters — Action in the public interest — Inadmissible)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/40

         Order of the General Court of 22 November 2017 — Digital Rights Ireland v Commission
   (Case T-670/16) (1)

   ((Action for annulment - Area of freedom, justice and security - Protection of natural persons with regard to the processing of personal data - Transfer of personal data to the United States - Not-for-profit company incorporated under Irish law - No protection of personal data for legal persons - Controller - Action in the name of members and supporters - Action in the public interest - Inadmissible))
   (2018/C 022/56)
   Language of the case: English

      Parties

      Applicant: Digital Rights Ireland Ltd (Bennettsbridge, Ireland) (represented by: E. McGarr, Solicitor)

      Defendant: European Commission (represented by: H. Kranenborg and D. Nardi, acting as Agents)

      Re:

   Application based on Article 263 TFEU and seeking annulment of Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (OJ 2016 L 207, p. 1).

      Operative part of the order

               1.

               The action is inadmissible.

               2.

               There is no longer any need to adjudicate on the applications to intervene of the Czech Republic, the Federal Republic of Germany, Ireland, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Kingdom of the Netherlands, the French Republic, Business Software Alliance (BSA), Microsoft Corporation, La Quadrature du Net, French Data Network, Fédération des Fournisseurs d’Accès à Internet Associatifs and the Union fédérale des consommateurs — Que choisir (UFC — Que choisir).

               3.

               Digital Rights Ireland Ltd shall pay the costs, with the exception of those relating to the applications to intervene.

               4.

               The Czech Republic, the Federal Republic of Germany, Ireland, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Kingdom of the Netherlands, the French Republic, BSA, Microsoft Corporation, La Quadrature du Net, French Data Network, Fédération des Fournisseurs d’Accès à Internet Associatifs and UFC — Que choisir shall bear their own respective costs relating to the applications to intervene.

      (1)  OJ C 410, 7.11.2016.


title: Case C-455/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 31 July 2017 — Benedikt Brisch v TUIfly GmbH

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/16

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 31 July 2017 — Benedikt Brisch v TUIfly GmbH
   (Case C-455/17)
   (2018/C 022/21)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicant: Benedikt Brisch

      Defendant: TUIfly GmbH
   By order of 21 September 2017 the case was removed from the register of the Court of Justice.


title: Case T-762/17: Action brought on 21 November 2017 — Grammer v EUIPO (Representation of a geometric figure)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/55

         Action brought on 21 November 2017 — Grammer v EUIPO (Representation of a geometric figure)
   (Case T-762/17)
   (2018/C 022/73)
   Language of the case: German

      Parties

      Applicant: Grammer AG (Amberg, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the procedure before EUIPO

      Mark at issue: EU figurative mark (Representation of a geometric figure) — Application No 15 389 621

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 6 September 2017 in Case R 2250/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009.


title: Case C-456/17: Request for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 31 July 2017 — Gabriela Verena Glanzmann, Sara Glanzmann, Loris Glanzmann v Deutsche Lufthansa AG

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/16

         Request for a preliminary ruling from the Oberlandesgericht Köln (Germany) lodged on 31 July 2017 — Gabriela Verena Glanzmann, Sara Glanzmann, Loris Glanzmann v Deutsche Lufthansa AG
   (Case C-456/17)
   (2018/C 022/22)
   Language of the case: German

      Referring court

   Oberlandesgericht Köln

      Parties to the main proceedings

      Applicants: Gabriela Verena Glanzmann, Sara Glanzmann, Loris Glanzmann

      Defendant: Deutsche Lufthansa AG
   By order of 6 October 2017, the case was removed from the Register of the Court of Justice.


title: Case C-621/17: Request for a preliminary ruling from the Kúria (Hungary) lodged on 3 November 2017 — Gyula Kiss v CIB Bank Zrt., Emil Kiss, Gyuláné Kiss

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/29

         Request for a preliminary ruling from the Kúria (Hungary) lodged on 3 November 2017 — Gyula Kiss v CIB Bank Zrt., Emil Kiss, Gyuláné Kiss
   (Case C-621/17)
   (2018/C 022/40)
   Language of the case: Hungarian

      Referring court

   Kúria (Hungary)

      Parties to the main proceedings

      Applicant: Gyula Kiss

      Defendants: CIB Bank Zrt., Emil Kiss, Gyuláné Kiss

      Questions referred

               (1)

               Must the requirement that contracts be drafted in plain, intelligible language, laid down in Articles 4(2) and 5 of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts (‘the Directive’), be interpreted as meaning that, in a loan contract concluded with a consumer, that requirement is satisfied by a contractual term not individually negotiated that specifies the exact amount of the charges, commissions and other costs (collectively ‘charges’) to be borne by the consumer, their method of calculation and the time when they have to be paid but does not, however, stipulate in return what specific services are covered by those charges, or must that requirement instead be interpreted as meaning that the contract also has to indicate what those specific services are? In the latter case, is it sufficient that the content of the service provided may be inferred from the description of the charge?

               (2)

               Must Article 3(1) of the Directive be interpreted as meaning that the contractual term used in the instant case in relation to charges, when it cannot be unequivocally determined, on the basis of the contract, what specific services are provided in return for those charges, causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer?

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


title: Case T-423/17 R: Order of the President of the General Court of 23 November 2017 — Nexans France and Nexans v Commission (Interim relief — Competition — Power cables — Rejection of the request for confidential treatment of certain information contained in a decision establishing an infringement of Article 101 TFEU — Application for interim measures — Lack of urgency)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/41

         Order of the President of the General Court of 23 November 2017 — Nexans France and Nexans v Commission
   (Case T-423/17 R)
   ((Interim relief - Competition - Power cables - Rejection of the request for confidential treatment of certain information contained in a decision establishing an infringement of Article 101 TFEU - Application for interim measures - Lack of urgency))
   (2018/C 022/57)
   Language of the case: English

      Parties

      Applicants: Nexans France (Courbevoie, France), Nexans (Courbevoie) (represented by: G. Forwood, A. Rogers, A. Oh and M. Powell, lawyers)

      Defendant: European Commission (represented by: H. van Vliet, G. Meessen and I. Zaloguin, acting as Agents)

      Re:

   Application based on Articles 278 TFEU and 279 TFEU, seeking, first, a suspension of operation of Commission Decision C(2017) 3051 final of 2 May 2017 relating to a request for confidential treatment (Case COMP/AT.39610 — Power Cables) in so far as that request is refused in respect of the material seized from the applicants and another economic operator and, second, an order requiring the Commission to refrain from publishing a version of its Decision C(2014) 2139 final of 2 April 2014 (Case COMP/AT.39610 — Power Cables), which contains that material.

      Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               The order of 12 July 2017, Nexans France and Nexans v Commission (T-423/17 R) is set aside.

               3.

               The costs are reserved.


title: Case C-470/17: Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 7 August 2017 — Teresa Coria Garcia and Others v Austrian Airlines AG

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/17

         Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 7 August 2017 — Teresa Coria Garcia and Others v Austrian Airlines AG
   (Case C-470/17)
   (2018/C 022/23)
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicants: Teresa Coria Garcia, Marina Velasco Coria, Miriam Coria Garcia

      Defendant: Austrian Airlines AG
   The case was removed from the Register of the Court of Justice by order of the Court of 25 October 2017.


title: Case C-623/17: Reference for a preliminary ruling from the Investigatory Powers Tribunal — London (United Kingdom) made on 31 October 2017 — Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/29

         Reference for a preliminary ruling from the Investigatory Powers Tribunal — London (United Kingdom) made on 31 October 2017 — Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others
   (Case C-623/17)
   (2018/C 022/41)
   Language of the case: English

      Referring court

   Investigatory Powers Tribunal — London

      Parties to the main proceedings

      Applicant: Privacy International

      Defendants: Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service Srl, Secret Intelligence Service

      Questions referred

   In circumstances where:

               a)

               the SIAs’ (1) capabilities to use BCD (2) supplied to them are essential to the protection of the national security of the United Kingdom, including in the fields of counter-terrorism, counter-espionage and counter-nuclear proliferation;

               b)

               a fundamental feature of the SIA’s use of the BCD is to discover previously unknown threats to national security by means of non-targeted bulk techniques which are reliant upon the aggregation of the BCD in one place. Its principal utility lies in swift target identification and development, as well as providing a basis for action in the face of imminent threat;

               c)

               the provider of an electronic communications network is not thereafter required to retain the BCD (beyond the period of their ordinary business requirements), which is retained by the State (the SIAs) alone;

               d)

               the national court has found (subject to certain reserved issues) that the safeguards surrounding the use of BCD by the SIAs are consistent with the requirements of the ECHR (3); and

               e)

               the national court has found that the imposition of the requirements specified in § § 119-125 of the judgment of the Grand Chamber in joined cases C-203/15 and C-698/15, Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Watson and Others […] (‘the Watson Requirements’), if applicable, would frustrate the measures taken to safeguard national security by the SIAs, and thereby put the national security of the United Kingdom at risk;

               1.

               Having regard to Article 4 TEU and Article 1(3) of Directive 2002/58/EC (4) on privacy and electronic communications (the ‘e-Privacy Directive’), does a requirement in a direction by a Secretary of State to a provider of an electronic communications network that it must provide bulk communications data to the Security and Intelligence Agencies (SIAs) of a Member State fall within the scope of Union law and of the e-Privacy Directive?

               2.

               If the answer to Question (1) is ‘yes’, do any of the Watson Requirements, or any other requirements in addition to those imposed by the ECHR, apply to such a direction by a Secretary of State? And, if so, how and to what extent do those requirements apply, taking into account the essential necessity of the SIAs to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements?

      (1)  Security and Intelligence Agencies.

      (2)  Bulk Communications Data.

      (3)  European Convention on Human Rights and Fundamental Freedoms.

      (4)  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) (OJ 2002, L 201, p. 37).


title: Case T-765/17: Action brought on 23 November 2017 — Kiku v CPVO — Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Pinova)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/56

         Action brought on 23 November 2017 — Kiku v CPVO — Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Pinova)
   (Case T-765/17)
   (2018/C 022/75)
   Language in which the application was lodged: German

      Parties

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

      Defendant: Community Plant Variety Office (CPVO)

      Other party to the proceedings before the Board of Appeal: Sächsisches Landesamt für Umwelt, Landwirtschaft und Geologie (Dresden, Germany)

      Details of the proceedings before the CPVO

      Proprietor of the contested plant varieties: Other party to the proceedings before the Board of Appeal

      Plant variety at issue: Plant variety right for the apple variety ‘PINOVA’ — Certificate No EU 1298

      Procedure before the CPVO: Nullity proceedings

      Contested decision: Decision of the Board of Appeal of the CPVO of 16 August 2017 in Case A005/2016

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the CPVO to pay the costs.

      Plea in law

               —

               Infringement of Article 20(1)(a), in conjunction with Articles 10 and 116(1), of Regulation No 2100/94.


title: Case C-472/15 P: Judgment of the Court (Ninth Chamber) of 23 November 2017 — Servizi assicurativi del commercio estero SpA (SACE), Sace BT SpA v European Commission, Italian Republic (Appeal — State aid — Export credit insurance — Reinsurance cover provided by a public undertaking to its subsidiary — Capital contributions to cover the subsidiary’s losses — Notion of State aid — Imputability to the State — Private investor test)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/2

         Judgment of the Court (Ninth Chamber) of 23 November 2017 — Servizi assicurativi del commercio estero SpA (SACE), Sace BT SpA v European Commission, Italian Republic
   (Case C-472/15 P) (1)

   ((Appeal - State aid - Export credit insurance - Reinsurance cover provided by a public undertaking to its subsidiary - Capital contributions to cover the subsidiary’s losses - Notion of State aid - Imputability to the State - Private investor test))
   (2018/C 022/02)
   Language of the case: Italian

      Parties

      Appellants: Servizi assicurativi del commercio estero SpA (SACE), Sace BT SpA (represented by: M. Siragusa and G. Rizza, avvocati)

      Other parties to the proceedings: European Commission (represented by: L. Flynn, G. Conte and D. Grespan, acting as Agents) Italian Republic (represented by: G. Palmieri, acting as Agent, and S. Fiorentino, avvocato dello Stato)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA to bear their own costs and to pay those incurred by the European Commission in the appeal;

               3.

               Orders the Italian Republic to bear its own costs.

      (1)  OJ C 381, 16.11.2015.


title: Case T-526/17: Action brought on 7 August 2017 — Ruiz Jayo and Others v SRB

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/42

         Action brought on 7 August 2017 — Ruiz Jayo and Others v SRB
   (Case T-526/17)
   (2018/C 022/58)
   Language of the case: Spanish

      Parties

      Applicants: María Concepción Ruiz Jayo (Madrid, Spain) and 3499 other applicants (represented by: S. Rodríguez Bajón, F. Cremades García and M. Ruiz Núñez, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicants claim that the General Court should:

               —

               Declare this action for annulment admissible and well founded;

               —

               Pursuant to Article 277 TFEU, declare Regulation (EU) No 806/2014 inapplicable or, in the alternative, declare Articles 21, 22(2)(a) and 24 inapplicable, as well as Articles 18 and 23 thereof;

               —

               Annul the contested SRB Decision;

               —

               Order SRB to pay compensation to the applicants in respect of harm caused to them by the implementation of rules contrary to EU law;

               —

               In the alternative, order SRB to pay compensation to the applicants, as shareholders and creditors, based on the consideration that the Banco Popular’s valuation presented by the applicants is the final valuation under Regulation No 806/2014 in order to determine whether shareholders and creditors would have received better treatment had the institution under resolution initiated ordinary insolvency proceedings;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   The present action concerns the Decision of the Single Resolution Board of 7 June 2017 (SRB/EES/2017/08) allowing the resolution of the Banco Popular Español, S.A.
   The pleas in law and main arguments are similar to those put forward in Cases T-478/17, Mutualidad de la Abogacía and Hermandad Nacional de Arquitectos Superiores y Químicos v Single Resolution Board, T-481/17, Fundación Tatiana Pérez de Guzmán el Bueno and SFL v Single Resolution Board, T-482/17, Comercial Vascongada Recalde v Commission and Single Resolution Board, T-483/17, García Suárez and Others v Commission and Single Resolution Board, T-484/17, Fidesban and Others v Single Resolution Board, T-497/17, Sáchez del Valle and Calatrava Real State 2015 v Commission and Single Resolution Board, and T-498/17, Pablo Álvarez de Linera Granda v Commission and Single Resolution Board.


title: Joined Cases C-596/15 P and C-597/15 P: Judgment of the Court (Third Chamber) of 23 November 2017 — Bionorica SE (C-596/15 P), Diapharm GmbH & Co. KG (C-597/15 P) v European Commission (Appeal — Public health — Consumer protection — Regulation (EC) No 1924/2006 — Health claims on foods — Article 13(3) — List of permitted health claims on foods — Botanical substances — Claims on hold — Action for failure to act — Article 265 TFEU — Defined position of the European Commission — Interest in bringing proceedings — Locus standi)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/3

         Judgment of the Court (Third Chamber) of 23 November 2017 — Bionorica SE (C-596/15 P), Diapharm GmbH & Co. KG (C-597/15 P) v European Commission
   (Joined Cases C-596/15 P and C-597/15 P) (1)

   ((Appeal - Public health - Consumer protection - Regulation (EC) No 1924/2006 - Health claims on foods - Article 13(3) - List of permitted health claims on foods - Botanical substances - Claims on hold - Action for failure to act - Article 265 TFEU - Defined position of the European Commission - Interest in bringing proceedings - Locus standi))
   (2018/C 022/03)
   Language of the case: German

      Parties

      Appellants: Bionorica SE (C-596/15 P), Diapharm GmbH & Co. KG (C-597/15 P) (represented by: M. Weidner, T. Guttau and N. Hußmann, Rechtsanwälte)

      Other party to the proceedings: European Commission (represented by: S. Grünheid and M. Wilderspin, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Sets aside the order of the General Court of the European Union of 16 September 2015, Bionorica v Commission (T-619/14, not published, EU:T:2015:723);

               2.

               Dismisses the action for failure to act lodged by Bionorica SE in Case T-619/14 as inadmissible;

               3.

               Dismisses the appeal in Case C-597/15 P;

               4.

               Orders Bionorica SE and the Commission each to bear their own costs incurred both at first instance in Case T-619/14 and on appeal in Case C-596/15 P;

               5.

               Orders Diapharm GmbH & Co. KG to pay the costs incurred on appeal in Case C-597/15 P.

      (1)  OJ C 16, 18.1.2016.


title: Case T-693/17: Action brought on 5 October 2017 — García Gómez and Others v SRB

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/42

         Action brought on 5 October 2017 — García Gómez and Others v SRB
   (Case T-693/17)
   (2018/C 022/59)
   Language of the case: Spanish

      Parties

      Applicants: Abel García Gómez and Others (Torrevieja, Spain) and 2 199 other applicants (represented by: J. Cremades García, S. Rodríguez Bajón and M. F. Ruiz Núñez, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicants claim that the General Court should:

               —

               Declare this action for annulment admissible and well founded;

               —

               Pursuant to Article 277 TFEU, declare Regulation (EU) No 806/2014 inapplicable or, in the alternative, declare Articles 21, 22(2)(a) and 24 inapplicable, as well as Articles 18 and 23 thereof;

               —

               Annul the contested SRB Decision;

               —

               Order SRB to pay compensation to the applicants in respect of harm caused to them by the implementation of rules contrary to EU law;

               —

               In the alternative, order SRB to pay compensation to the applicants, as shareholders and creditors, based on the consideration that the Banco Popular’s valuation presented by the applicants is the final valuation under Regulation No 806/2014 in order to determine whether shareholders and creditors would have received better treatment had the institution under resolution initiated ordinary insolvency proceedings;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   The present action concerns the Decision of the Single Resolution Board of 7 June 2017 (SRB/EES/2017/08) allowing the resolution of the Banco Popular Español, S.A.
   The pleas in law and main arguments are similar to those put forward in Cases T-478/17, Mutualidad de la Abogacía and Hermandad Nacional de Arquitectos Superiores y Químicos v Single Resolution Board, T-481/17, Fundación Tatiana Pérez de Guzmán el Bueno and SFL v Single Resolution Board, T-482/17, Comercial Vascongada Recalde v Commission and Single Resolution Board, T-483/17, García Suárez and Others v Commission and Single Resolution Board, T-484/17, Fidesban and Others v Single Resolution Board, T-497/17, Sáchez del Valle and Calatrava Real State 2015 v Commission and Single Resolution Board, and T-498/17, Pablo Álvarez de Linera Granda v Commission and Single Resolution Board.


title: Case T-766/17: Action brought on 23 November 2017 — Eglo Leuchten v EUIPO — Di-Ka (Design for lights)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/57

         Action brought on 23 November 2017 — Eglo Leuchten v EUIPO — Di-Ka (Design for lights)
   (Case T-766/17)
   (2018/C 022/76)
   Language in which the application was lodged: German

      Parties

      Applicant: Eglo Leuchten GmbH (Pill, Austria) (represented by: H. Lauf, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Di-Ka Vertriebs GmbH & Co. KG (Arnsberg, Germany)

      Details of the proceedings before EUIPO

      Proprietor of the contested design: Other party to the proceedings before the Board of Appeal

      Design at issue: Community design No 2 435 768-0033

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 26 September 2017 in Case R 738/2016-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 6(1)(b) and Article 6(2) of Regulation No 6/2002.


title: Case C-549/17 P: Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-346/14 DEP: Yanukovych v Council

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/17

         Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-346/14 DEP: Yanukovych v Council
   (Case C-549/17 P)
   (2018/C 022/24)
   Language of the case: English

      Parties

      Appellant: Ukraine (represented by: M. Kostytska, Advocate)

      Other parties to the proceedings: Viktor Fedorovych Yanukovych, Council of the European Union, Republic of Poland, European Commission
   By order of 23 November 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.


title: Case T-767/17: Action brought on 23 November 2017 — Eglo Leuchten v EUIPO — Briloner Leuchten (Wall lighting)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/58

         Action brought on 23 November 2017 — Eglo Leuchten v EUIPO — Briloner Leuchten (Wall lighting)
   (Case T-767/17)
   (2018/C 022/77)
   Language in which the application was lodged: German

      Parties

      Applicant: Eglo Leuchten GmbH (Pill, Austria) (represented by: H. Lauf, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Briloner Leuchten GmbH (Brilon, Germany)

      Details of the proceedings before EUIPO

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

      Design at issue: Community design No 2 435 768-0036

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 26 September 2017 in Case R 746/2016-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 6(1)(b) and Article 6(2) of Regulation No 6/2002.


title: Case C-550/17 P: Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-347/14 DEP: Yanukovych v Council

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/17

         Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-347/14 DEP: Yanukovych v Council
   (Case C-550/17 P)
   (2018/C 022/25)
   Language of the case: English

      Parties

      Appellant: Ukraine (represented by: M. Kostytska, Advocate)

      Other parties to the proceedings: Olga Stanislavivna Yanukovych, as heir of Viktor Viktorovych Yanukovych, Council of the European Union, European Commission
   By order of 23 November 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.


title: Case T-719/17: Action brought on 23 October 2017 — DuPont de Nemours and Others v Commission

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/43

         Action brought on 23 October 2017 — DuPont de Nemours and Others v Commission
   (Case T-719/17)
   (2018/C 022/60)
   Language of the case: English

      Parties

      Applicants: DuPont de Nemours (Deutschland) GmbH (Neu-Isenburg, Germany) and 12 others (represented by: D. Waelbroeck, I. Antypas and A. Accarain, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Commission Regulation (EU) 2017/1496 of 23 August 2017 concerning the non-renewal of approval of the active substance Flupyrsulfuron-Methyl (‘FPS’), and the withdrawal of marketing authorisations for plant protection products containing that substance (1);

               —

               order the defendant to pay all costs and expenses.

      Pleas in law and main arguments

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

               1.

               First plea in law: violation of the PPP Regulation (1107/ 2009) (2), the Renewal Regulation (1141/ 2010) (3), the CLP Regulation (1272/ 2008) (4) and the Animal Testing Directive (2010/ 63) (5):

                           —

                           the applicants submit that the Contested Regulation was adopted in violation of the Renewal Regulation (1141/2010) and Renewal Guidance (SANC0/10387/2010 rev. 8) insofar as the EFSA re-evaluated the hazard profile of FPS despite there being no change in the state of scientific knowledge and in the applicable legal framework;

                           —

                           the applicants submit that the Contested Regulation was adopted in violation of the CLP Regulation (1272/2008) and the Commission Guidance on Groundwater Metabolites (SANC0/221/2000 rev.10) insofar as the EFSA relied on its own hazard classification proposal for FPS to presume the toxicity of three groundwater metabolites;

                           —

                           the applicants submit that the Contested Regulation was adopted in violation of the EU rules on animal testing contained in the PPP Regulation (1107/2009) and the Animal Testing Directive (2010/63) insofar as the EFSA identified a data gap for additional genotoxicity studies without giving proper consideration to the overall weight of evidence and despite there being no demonstrated necessity to perform any further testing.

               2.

               Second plea in law: reliance on new and unestablished guidance in violation of the principle of legal certainty, the rights of the defence and several provisions of EU law:

                           —

                           The applicants submit that the Contested Regulation was adopted in violation of the principle of legal certainty, the renewal applicant's rights of the defense as well as several provisions of EU law in that the EFSA performed the genotoxicity assessment for two FPS metabolites on the basis of a new and unapproved scientific opinion currently under review, which led the EFSA to identify an artificial data gap in the renewal dossier, which they were subsequently given no opportunity to address.

               3.

               Third plea in law: Failure to conduct a complete risk assessment in violation of the rights of the defence and several provisions of EU law:

                           —

                           The applicants submit that the Contested Regulation was adopted in violation of the renewal applicant's rights of the defence and several provisions of EU law in that the Commission relied exclusively on the conclusions drawn by the EFSA to decide to ban FPS, without taking into account all available scientific information evidencing the safety of FPS, and in particular the additional studies spontaneously performed by the renewal applicant to address the alleged data gap and concerns identified by the EFSA, as well as the assessment of the Rapporteur Member State and the other Member States' comments during the renewal review.

               4.

               Fourth plea in law: violation of the principle of proportionality:

                           —

                           The applicants submit that the Contested Regulation is plainly disproportionate to the overall safety profile of FPS and that the Commission could have addressed the alleged concerns underlying the Contested Regulation through less restrictive measures not entailing a ban on the use of FPS, e.g. through the use of the Confirmatory Data Procedure provided for in Article 6(f) of the PPP Regulation (1107/2009) or through risk mitigating measures decided at national level by the EU Member States.

               5.

               Fifth plea in law: Violation of the principle of non-discrimination:

                           —

                           The applicants submit that the Commission infringed the principle of non-discrimination in that the alleged concerns underlying the Contested Regulation have consistently been handled through less restrictive measures in the Commission's past decisional practice. However, the Commission has so far never relied on such concerns to justify an outright ban on the use of a substance.

               6.

               Sixth plea in law: Violation of good administration principles and DuPont's legitimate expectations:

                           —

                           The applicants submit that the Commission failed to properly handle the review process for FPS, which caused DuPont to invest considerable resources into the preparation of scientific dossiers that eventually proved entirely useless as the Commission unexpectedly revised its stance in relation to certain concerns. In addition, the applicants submit that the Contested Regulation undermines the competition policy objectives underlying the divestment of FPS, which the Commission itself imposed on Dow/DuPont to avoid the creation of a dominant position in the EEA market for cereal herbicides. This mishandling of the review process for FPS amounts to a violation of the Commission's duty of care, good administration principles and DuPont's legitimate expectations.

      (1)  Commission Implementing Regulation (EU) 2017/1496 of 23 August 2017 concerning the non-renewal of approval of the active substance DPX KE 459 (flupyrsulfuron-methyl), in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2017 L 218, p. 7)

      (2)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1)

      (3)  Commission Regulation (EU) No 1141/2010 of 7 December 2010 laying down the procedure for the renewal of the inclusion of a second group of active substances in Annex I to Council Directive 91/414/EEC and establishing the list of those substances (OJ 2010 L 322, p. 10)

      (4)  Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1)

      (5)  Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes (OJ 2010 L 276, p. 33)


title: Case T-769/17: Action brought on 20 November 2017 — roelliroelli confectionery schweiz v EUIPO — Tanner (ALPRAUSCH)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/58

         Action brought on 20 November 2017 — roelliroelli confectionery schweiz v EUIPO — Tanner (ALPRAUSCH)
   (Case T-769/17)
   (2018/C 022/78)
   Language in which the application was lodged: German

      Parties

      Applicant: roelliroelli confectionery schweiz GmbH (St. Gallen, Switzerland) (represented by: S. Overhage and R. Böhm, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: André Tanner (Schindellegi, Switzerland)

      Details of the proceedings before EUIPO

      Applicant: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the word mark ‘ALPRAUSCH’ No 1 218 671

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 1 August 2017 in Case R 1596/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Case C-678/17: Action brought on 5 December 2017 — European Commission v Ireland

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/31

         Action brought on 5 December 2017 — European Commission v Ireland
   (Case C-678/17)
   (2018/C 022/43)
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: P.J. Loewenthal, A. Bouchagiar, Agents)

      Defendant: Ireland

      The applicant claims that the Court should:

               —

               declare that, by failing to take, within the prescribed period, all the measures necessary to recover from Apple Sales International and Apple Operations Europe the State aid declared illegal and incompatible with the internal market by Article 1 of Commission decision (EU) 2017/1283 of 30 August 2016 on State aid SA.38373 (2014/C)(ex 2014/NN)(ex 2014/CP) implemented by Ireland to Apple […] (1), Ireland has failed to fulfil its obligations under Articles 2 and 3 of that decision as well as under Article 108(2) TFEU;

               —

               order Ireland to pay the costs.

      Pleas in law and main arguments

   According to the decision of the European Commission of 30 August 2016 in case SA.38373, Ireland should have recovered within four months the unlawful and incompatible State aid granted to Apple Sales International (‘ASI’) and Apple Operations Europe (‘AOE’). The aid resulted from two tax rulings issued by Ireland in favour of ASI and AOE on 29 January 1991 and 23 May 2007, which enabled those companies to determine their corporation tax liability in Ireland on a yearly basis until 2014.
   Ireland did not recover the State aid within four months following the notification of the Commission’s decision, as it was obliged to do. Furthermore, Ireland has still not taken all the measures necessary to implement the Commission’s decision.

      (1)  OJ 2017, L 187, p. 1.


title: Case T-727/17: Action brought on 26 October 2017 — PP and Others v EEAS

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/45

         Action brought on 26 October 2017 — PP and Others v EEAS
   (Case T-727/17)
   (2018/C 022/61)
   Language of the case: French

      Parties

      Applicants: PP, PQ and UQ (represented by: N. de Montigny, lawyer)

      Defendant: European External Action Service

      Form of order sought

               —

               Declare and rule,

                           —

                           the applicants’ calculation sheets of 3 February, 6 February and 20 March 2017 which were sent to them by email by EEAS Human Resources and, insofar as necessary, the salary slips by which payment of the education allowance for their children was granted;

                           —

                           and, finally, insofar as necessary, the decision of the Appointing Authority in the form of an email of 15 December 2016 informing them:

                                       —

                                       that the application for reimbursement of the education expenses above the ceiling for type B education allowance in respect of the 2016/2017 academic year was accepted, and

                                       —

                                       that each amount above the ceiling could not in any event exceed EUR 9 704,16;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, raising a plea of illegality inasmuch as the decision taken by the defendant to cap the amount of the reimbursement of education expenses over the statutory ceiling, disputed in the present case, and the note of 15 April 2016 on which that was based and the Guidelines infringe the Staff Regulations of Officials of the European Union and Annex X thereof.

               2.

               Second plea in law, alleging that the individual decision is unlawful on the following grounds:

                           —

                           infringement of the principles of precaution, legitimate expectations, legal certainty and sound administration and of their acquired rights;

                           —

                           infringement of the right to family and the right to education;

                           —

                           infringement of the principles of equal treatment and non-discrimination;

                           —

                           failure to weigh up the interests and lack of observance of the principle of proportionality of the measure adopted.


title: Case C-551/17 P: Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-348/14 DEP: Yanukovych v Council

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/18

         Appeal brought on 19 September 2017 by Ukraine against the order of the General Court (Sixth Chamber) delivered on 19 July 2017 in Case T-348/14 DEP: Yanukovych v Council
   (Case C-551/17 P)
   (2018/C 022/26)
   Language of the case: English

      Parties

      Appellant: Ukraine (represented by: M. Kostytska, Advocate)

      Other parties to the proceedings: Oleksandr Viktorovych Yanukovych, Council of the European Union, European Commission
   By order of 23 November 2017 the Court of Justice (Tenth Chamber) held that the appeal was inadmissible.


title: Case C-658/15: Judgment of the Court (Fourth Chamber) of 16 November 2017 (request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — Robeco Hollands Bezit NV and Others v Stichting Autoriteit Financiële Markten (AFM) (Reference for a preliminary ruling — Directive 2004/39/EC — Markets in financial instruments — Article 4(1)(14) — Definition of ‘regulated market’ — Scope — System in which the participants are brokers representing investors and ‘open end’ investment fund agents required to execute orders relating to their funds)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/3

         Judgment of the Court (Fourth Chamber) of 16 November 2017 (request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — Robeco Hollands Bezit NV and Others v Stichting Autoriteit Financiële Markten (AFM)
   (Case C-658/15) (1)

   ((Reference for a preliminary ruling - Directive 2004/39/EC - Markets in financial instruments - Article 4(1)(14) - Definition of ‘regulated market’ - Scope - System in which the participants are brokers representing investors and ‘open end’ investment fund agents required to execute orders relating to their funds))
   (2018/C 022/04)
   Language of the case: Dutch

      Referring court

   College van Beroep voor het Bedrijfsleven

      Parties to the main proceedings

      Applicants: Robeco Hollands Bezit NV, Robeco Duurzaam Aandelen NV, Robeco Safe Mix NV, Robeco Solid Mix NV, Robeco Balanced Mix NV, Robeco Growth Mix NV, Robeco Life Cycle Funds NV, Robeco Afrika Fonds NV, Robeco Global Stars Equities, Robeco All Strategy Euro Bonds, Robeco High Yield Bonds, Robeco Property Equities

      Defendant: Stichting Autoriteit Financiële Markten (AFM)

      Operative part of the judgment

   Article 4(1)(14) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC must be interpreted as meaning that the concept of a ‘regulated market’ within the meaning of that provision covers a trading system in which multiple fund agents and brokers represent, respectively, ‘open end’ investment funds and investors, the sole purpose of which is to facilitate those investment funds in their obligation to execute the purchase and selling orders for shares placed by those investors.

      (1)  OJ C 98, 14.3.2016.


title: Case C-577/17: Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 2 October 2017 — Bundesamt für Fremdenwesen und Asyl

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/18

         Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 2 October 2017 — Bundesamt für Fremdenwesen und Asyl
   (Case C-577/17)
   (2018/C 022/27)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

      Appellant on a point of law: Bundesamt für Fremdenwesen und Asyl

      Parties involved in the proceedings: Clinton Osas Alake alias Klenti Solim, Cynthia Nomamidobo and Prince Nomamidobo

      Questions referred

               1.

               Can the requested Member State — and the Member State responsible in accordance with the criteria set out in Chapter III of the Dublin III Regulation (1) — effectively accept the take back request under Article 23(1) of the Dublin III Regulation even though the time limit for replying specified in Article 25(1) of that regulation has already passed and the requested Member State had previously refused the take back request within the time limit and also negatively replied within the time limit to the request for re-examination based on Article 5(2) of the Implementing Regulation? (2)

               If the first question is to be answered in the negative:
               As a consequence of the refusal, communicated within the prescribed period, of the take back request by the Member State responsible in accordance with the criteria set out in Chapter III of the Dublin III Regulation, must the requesting Member State in which the new application was lodged examine that application in order to ensure that the application is examined by a Member State in accordance with Article 3(1) of the Dublin III Regulation?

      (1)  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 (OJ 2013 L 180, p. 31).

      (2)  Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 222, p. 3).


title: Case C-671/15: Judgment of the Court (Grand Chamber) of 14 November 2017 (request for a preliminary ruling from the Cour de cassation — France) — President of the Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE) and Others (Reference for a preliminary ruling — Common agricultural policy — Article 42 TFEU — Regulation (EC) No 2200/96 — Regulation (EC) No 1182/2007 — Regulation (EC) No 1234/2007 — Anticompetitive practices — Article 101 TFEU — Regulation No 26 — Regulation (EC) No 1184/2006 — Producer organisations — Associations of producer organisations — Responsibilities of those organisations and associations — Practice of fixing minimum sale prices — Practice of concertation on quantities placed on the market — Practice of exchanges of strategic information — French endive market)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/4

         Judgment of the Court (Grand Chamber) of 14 November 2017 (request for a preliminary ruling from the Cour de cassation — France) — President of the Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE) and Others
   (Case C-671/15) (1)

   ((Reference for a preliminary ruling - Common agricultural policy - Article 42 TFEU - Regulation (EC) No 2200/96 - Regulation (EC) No 1182/2007 - Regulation (EC) No 1234/2007 - Anticompetitive practices - Article 101 TFEU - Regulation No 26 - Regulation (EC) No 1184/2006 - Producer organisations - Associations of producer organisations - Responsibilities of those organisations and associations - Practice of fixing minimum sale prices - Practice of concertation on quantities placed on the market - Practice of exchanges of strategic information - French endive market))
   (2018/C 022/05)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicant: President of the Autorité de la concurrence

      Defendants: Association des producteurs vendeurs d’endives (APVE), Comité économique régional agricole fruits et légumes de Bretagne (Cerafel), Fraileg SARL, Prim’Santerre SARL, Union des endiviers, formerly Fédération nationale des producteurs d’endives (FNPE), Soleil du Nord SARL, Comité économique fruits et légumes du Nord de la France (Celfnord), Association des producteurs d’endives de France (APEF), Section nationale de l’endive (SNE), Fédération du commerce de l’endive (FCE), France endives société coopérative agricole, Cambrésis Artois-Picardie endives (CAP’Endives) société coopérative agricole, Marché de Phalempin société coopérative agricole, Primacoop société coopérative agricole, Coopérative agricole du marais audomarois (Sipema), Valois-Fruits union de sociétés coopératives agricoles, Groupe Perle du Nord SAS, Ministre de l’Économie, de l’Industrie et du Numérique

      Operative part of the judgment

   Article 101 TFEU, read in conjunction with Article 2 of Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products, Article 11(1) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables, Article 2 of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products, as amended by Council Regulation (EC) No 1234/2007 of 22 October 2007, Article 3(1) of Council Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit and vegetable sector, amending Directives 2001/112/EC and 2001/113/EC and Regulations (EEC) No 827/68, (EC) No 2200/96, (EC) No 2201/96, (EC) No 2826/2000, (EC) No 1782/2003 and (EC) No 318/2006 and repealing Regulation (EC) No 2202/96, as well as the first paragraph of Article 122 and Articles 175 and 176 of Regulation No 1234/2007, as amended by Council Regulation (EC) No 491/2009 of 25 May 2009, must be interpreted as meaning that:

               —

               practices that relate to the collective fixing of minimum sale prices, a concertation on quantities put on the market or exchanges of strategic information, such as those at issue in the main proceedings, cannot escape the prohibition of the agreements, decisions and concerted practices laid down in Article 101(1) TFEU if they are agreed between a number of producer organisations or associations of producer organisations, or are agreed with entities not recognised by a Member State in order to achieve an objective defined by the EU legislature under the common organisation of the market concerned, such as professional organisations not having the status of producer organisation, association of producer organisation or interbranch organisation, within the meaning of EU legislation, and

               —

               practices that relate to a concertation on prices or quantities put on the market or exchanges of strategic information, such as those at issue in the main proceedings, may escape the prohibition of agreements, decisions and concerted practices laid down in Article 101(1) TFEU if they are agreed between the members of the same producer organisation or the same association of producer organisations recognised by a Member State and are strictly necessary for the pursuit of one or more of the objectives assigned to the producer organisation or association of producer organisations concerned in compliance with EU legislation.

      (1)  OJ C 90, 7.3.2016.


title: Case T-772/17: Action brought on 27 November 2017 — Café del Mar and Others v EUIPO — Guiral Broto (Café del Mar)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/59

         Action brought on 27 November 2017 — Café del Mar and Others v EUIPO — Guiral Broto (Café del Mar)
   (Case T-772/17)
   (2018/C 022/79)
   Language in which the application was lodged: Spanish

      Parties

      Applicants: Café del Mar SC (Sant Antoni de Portmany, Spain), José Les Viamonte (Sant Antoni de Portmany) and Carlos Andrea González (Sant Antoni de Portmany) (represented by: F. Miazzetto and J. L. Gracia Albero, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Ramón Guiral Broto (Marbella, Spain)

      Details of the proceedings before EUIPO

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

      Trade mark at issue: European Union figurative mark containing the word elements ‘Café del Mar’ — European Union trade mark No 2 090 520

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 4 September 2017 in Case R 1540/2015-5

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision;

               —

               declare European Union figurative mark No 2 090 520 containing the word elements ‘Café del Mar’ invalid;

               —

               order the defendant to pay the costs of the present proceedings, and order the proprietor of the trade mark at issue to pay the costs incurred in the proceedings before the Cancellation Division and the Boards of Appeal of EUIPO.

      Plea in law

               —

               Infringement of Article 52(1)(b) and Article 53(1)(c) of Regulation No 2017/1001.


title: Case T-728/17: Action brought on 24 October 2017 — Marinvest and Porting v Commission

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/46

         Action brought on 24 October 2017 — Marinvest and Porting v Commission
   (Case T-728/17)
   (2018/C 022/62)
   Language of the case: Italian

      Parties

      Applicants: Marinvest d.o.o. (Izola-Isola, Slovenia) and Porting d.o.o. (Izola-Isola) (represented by: G. Cecovini Amigoni and L. Daniele, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul European Commission Decision of 27.07.2017, C (2017) 5049 final (State Aid SA.45220 (2016/FC) — Slovenia — Alleged aid in favour of Komunala Izola d.o.o.) notified to Marinvest and Porting on 16 August 2017;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   This action is brought against European Commission Decision of 27.07.2017, C (2017) 5049 final (State Aid SA.45220 (2016/FC) — Slovenia — Alleged aid in favour of Komunala Izola d.o.o.) notified to Marinvest and Porting on 16 August 2017.

               1.

               First plea in law, alleging infringement of the right to be heard resulting from the use, in the contested decision, of entirely new evidence not mentioned by the Commission in its letter of invitation to submit comments, infringement of the fundamental right to good administration provided for in Article 41 of the Charter, infringement of the general principle of the right to be heard, and infringement of Article 24(2) of Regulation 2015/1589

                           —

                           As a departure from the original wording of Article 20(2) of Regulation No 659/1999, Article 24(2) of Regulation 2015/1589 recognises the right of the interested parties (which have lodged a complaint) to submit comments as early as during the preliminary investigation phase. Article 24(2) constitutes a special application of the fundamental right to good administration, provided for in Article 41 of the Charter, and of the general principle of the right to be heard.

                           —

                           In the present case, the rights of Marinvest and Porting guaranteed by Article 24(2) have been severely infringed. It is true that, by its letter of 14 February 2017, the Commission invited the complainants to submit their comments, and that Marinvest and Porting expressed their opinion on the preliminary assessment contained in that letter. However, the Commission then based the final contested decision entirely on evidence that had not even been mentioned in the letter of 14 February 2017 and on which the complainants were not able to adopt a position.

               2.

               Second plea in law, alleging infringement of the right to be heard resulting from denial of access to the file and denial of the opportunity to be heard before the final decision was adopted, infringement of the fundamental right to good administration provided for in Article 41 of the Charter, infringement of the general principle of the right to be heard, infringement of Article 24(2) of Regulation 2015/1589, and existence in the present case of a failure to state reasons

                           —

                           The complainants had asked to access the documentation sent to the Commission by the Slovenian authorities and to meet the Commission’s services in order to provide any clarifications necessary, particularly with regard to the impact that the measures complained of would have on competition and on trade between Member States. The Commission adopted the contested decision without first sending the documents requested and without convening a meeting with the complainants. By acting in this way, the Commission breached Article 24(2) of Regulation 2015/1589, interpreted in accordance with Article 41 of the Charter and with the general principle of the right to be heard.

                           —

                           The ability of the complainants to submit comments on the Commission’s preliminary assessment, in accordance with Article 24(2), necessarily implies the right to access the file and to request a meeting with the Commission. Since they are closely linked, those prerogatives actually represent corollaries of the same fundamental right. There was no justification, in the present case, for the denial of such rights.

               3.

               Third plea in law, alleging misinterpretation of the notion of State aid with regard to the requirement of adverse effect on cross-border trade, infringement of Article 107(1) TFEU, infringement of the Commission Notice on the notion of State aid, infringement of the general principle of the protection of legitimate expectations, and existence in the present case of a failure to state reasons

                           —

                           According to the case-law of the Court of Justice and to the Commission Notice on the notion of State aid, the relatively modest size of the beneficiary undertaking does not preclude a priori the possibility that trade between Member States may be harmed. A public subsidy granted to an undertaking which provides only local or regional services and does not provide any services outside its State of origin may nonetheless have an effect on trade between Member States if such services could be provided by undertakings from other Member States (also through the right of establishment) and that possibility is not merely hypothetical.

                           —

                           The Commission has entirely overlooked the fact that Marinvest and Porting are 100 % controlled by an undertaking established in Italy, Altan Prefabbricati. The latter undertaking has invested heavily in the construction of the Marina d’Isola, which is now managed, under the right of establishment as provided for in Article 49 TFEU, through its subsidiaries.

               4.

               Fourth plea in law, alleging misinterpretation of the notion of State aid with regard to the requirement for competition to have been distorted and cross-border trade to be affected, incorrect assessment of the facts and distortion of the facts, and existence in the present case of a failure to state reasons

                           —

                           In the contested decision, the Commission ruled out any adverse effect on trade between Member States, focusing essentially on the consideration that the services offered by Komunala Izola’s marina would not be appropriate for attracting potential clients for the services offered by the applicants.

                           —

                           The Commission’s assessment of the facts is wrong. Next to Marinvest and Porting’s marina is another marina, managed by an undertaking receiving aid (Komunala Izola), which, with a potential offering of mooring for 505 boats, provides similar services which are promoted, also in the Italian language, to all potential customers via a website.


title: Joined Cases T-101/15 and T-102/15: Judgment of the General Court of 30 November 2017 — Red Bull v EUIPO — Optimum Mark (Combination of the colours blue and silver) (EU trade mark — Invalidity proceedings — EU trade mark consisting of a combination of the colours blue and silver — Absolute ground for refusal — Graphic representation that is sufficiently clear and precise — Need for a systematic arrangement associating the colours in a predetermined and uniform way — Legitimate expectations — Article 4 and Article 7(1)(a) of Regulation (EC) No 207/2009 (now Article 4 and Article 7(1)(a) of Regulation (EU) 2017/1001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/33

         Judgment of the General Court of 30 November 2017 — Red Bull v EUIPO — Optimum Mark (Combination of the colours blue and silver)
   (Joined Cases T-101/15 and T-102/15) (1)

   ((EU trade mark - Invalidity proceedings - EU trade mark consisting of a combination of the colours blue and silver - Absolute ground for refusal - Graphic representation that is sufficiently clear and precise - Need for a systematic arrangement associating the colours in a predetermined and uniform way - Legitimate expectations - Article 4 and Article 7(1)(a) of Regulation (EC) No 207/2009 (now Article 4 and Article 7(1)(a) of Regulation (EU) 2017/1001)))
   (2018/C 022/44)
   Language of the case: English

      Parties

      Applicant: Red Bull GmbH (Fuschl am See, Austria) (represented by: A. Renck, lawyer)

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

      Intervener in support of the applicant: Marques (Leicester, United Kingdom) (represented by: initially R. Mallinson and F. Delord, Solicitors, and subsequently R. Mallinson, Solicitor)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Optimum Mark sp. z o.o. (Warsaw, Poland) (represented by: R. Skubisz, M. Mazurek, J. Dudzik and E. Jaroszyńska-Kozłowska, lawyers)

      Re:

   Two actions brought against two decisions of the First Board of Appeal of EUIPO of 2 December 2014 (Case R 2037/2013-1 and Case R 2036/2013-1, respectively), relating to invalidity proceedings between Optimum Mark and Red Bull.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Red Bull GmbH to pay the costs, including those incurred by the European Union Intellectual Property Office (EUIPO) and by Optimum Mark sp. z o.o.;

               3.

               Orders Marques to bear its own costs.

      (1)  OJ C 138, 27.4.2015.


title: Case C-589/17: Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 10 October 2017 — Prenatal S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/19

         Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 10 October 2017 — Prenatal S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)
   (Case C-589/17)
   (2018/C 022/28)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Cataluña

      Parties to the main proceedings

      Applicant: Prenatal S.A.

      Defendant: Tribunal Económico Administrativo Regional de Cataluña (TEARC)

      Questions referred

               1)

               Where an application for remission has been made and the Commission notifies its decision that the case has elements of fact and law similar to a previous case already resolved by the Commission or its decision that there is a comparable case pending resolution, is either of those decisions to be regarded as an act with legal content which is binding on the authorities of the Member State in which application for remission is made and is therefore open to appeal by the person seeking remission [Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1)] or requesting that there be no entry in the accounts (Article 220(2)(b) of the Community Customs Code)?

               2)

               If it is not to be regarded as a Commission decision with binding legal content, is it then for the national authorities to evaluate whether there are comparable elements of fact or law in the case?

               3)

               In the event of an affirmative reply, if that analysis has been made and led to the conclusion that such elements are not present, is it necessary to apply Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code and, therefore, must the Commission issue a decision with legal content binding on those national authorities?

               4)

               In the event of an affirmative reply, does the use of the term ‘the Member State’ in Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (2) mean that every authority, including the judicial authority, is under an obligation to request the Commission to take a decision?

      (1)  OJ 1992 L 302, p. 1.

      (2)  OJ 1993 L 253, p. 1.