title: Case T-624/18: Action brought on 18 October 2018 — Gres de Aragón/EUIPO (GRES ARAGÓN)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/23

      Action brought on 18 October 2018 — Gres de Aragón/EUIPO (GRES ARAGÓN)
      (Case T-624/18)
      (2018/C 445/28)
      Language of the case: Spanish

         Parties

         Applicant: Gres de Aragón (Alcalñiz, Spain) (represented by: J. Learte Álvarez, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: European Union figurative mark GRES ARAGÓN — Application for registration No 16 311 938

         Contested decision: Decision of the First Board of Appeal of EUIPO of 16 August 2018 in Case R 2269/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision refusing European Union trade mark application No 16 311 938 GRES ARAGÓN in connection with some of the goods/services covered by the application;

                  —

                  Resume the processing of the application in respect of all the goods and services covered by the original application;

                  —

                  order EUIPO to pay the costs.

         Plea in law

      Infringement of Article 7(1)(b) and (c), and Article 7(2) and (3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-629/18: Action brought on 18 October 2018 — mobile.de v EUIPO (Representation of a car in a speech bubble)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/23

      Action brought on 18 October 2018 — mobile.de v EUIPO (Representation of a car in a speech bubble)
      (Case T-629/18)
      (2018/C 445/29)
      Language in which the application was lodged: German

         Parties

         Applicant: mobile.de GmbH (Dreilinden, Germany) (represented by: T. Lührig, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for EU figurative mark (Representation of a car in a speech bubble) — Application No 15 598 931

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 7 August 2018 in Case R 2653/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 49(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of the second sentence of Article 71(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of the fourth sentence of Article 68(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 23(1)(d) of Commission Delegated Regulation (EU) 2018/625;

                  —

                  Infringement of the fourth sentence of Article 68(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 23(1)(e) and Article 22(1)(b) of Commission Delegated Regulation (EU) 2018/625.


title: Case C-638/18: Action brought on 12 October 2018 — European Commission v Romania

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/11

      Action brought on 12 October 2018 — European Commission v Romania
      (Case C-638/18)
      (2018/C 445/14)
      Language of the case: Romanian

         Parties

         Applicant: European Commission (represented by: L. Nicolae and K. Petersen, acting as Agents)

         Defendant: Romania

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare that, by systematically and constantly failing, since 2007, to comply with the daily limit values for concentrations of PM10 and by constantly and systematically failing, from 2007 to 2014 inclusive, with the exception of 2013, to comply with the annual limit values for concentrations of PM10 in Zone RO32101, Bucharest, Romania has failed to fulfil its obligations under Article 13(1) of Directive 2008/50/EC, (1) read in conjunction with Annex XI thereto;

                  —

                  declare that, with regard to Zone RO32101, Bucharest, Romania has, since 11 June 2010, failed to fulfil the obligations laid down in Article 23(1) of Directive 2008/50/EC, read in conjunction with Section A of Annex XV thereto, in particular the obligation laid down in the second subparagraph of that provision to ensure that the period of exceeding the limit values for PM10 be as short as possible;

                  —

                  order Romania to pay the costs.

         Pleas in law and main arguments

      Since 2007, the daily limit values for concentrations of PM10 have been systematically and constantly exceeded in Zone RO32101, Bucharest. Moreover, from 2007 to 2014 inclusive, with the exception of 2013, the annual limit values for concentrations of PM10 have been exceeded in that zone. Those exceedances are sufficient for a finding of infringement of Article 13(1) of Directive 2008/50/EC, read in conjunction with Annex XI thereto.
      Despite those exceedances, Romania has not established plans for that zone which comply with Article 23(1) of that directive, in particular the obligation to adopt appropriate measures so that the period of exceeding the limit values for PM10 may be as short as possible. That failure to fulfil obligations is a result of the prolonged period during which the exceedances were recorded, the lengthy timeframes laid down for putting an end to the exceedances, the lack of some of the elements set out in Section A of Annex XV to the directive, and the fact that the plans do not address all the main causes of the exceedances of the limit values and also do not lay down sufficient mandatory measures to ensure compliance with those limit values.

         (1)  OJ 2008 L 152, p. 1.


title: Case C-614/18: Action brought on 28 September 2018 — European Commission v Slovak Republic

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/8

      Action brought on 28 September 2018 — European Commission v Slovak Republic
      (Case C-614/18)
      (2018/C 445/10)
      Language of the case: Slovak

         Parties

         Applicant: European Commission (represented by: A. Tokár and C. Cattabriga, acting as Agents)

         Defendant: Slovak Republic

         Form of order sought

      The European Commission claims that the Court should:

                  —

                  declare that the Slovak Republic, by denying third-country nationals who are not family members of EU citizens, whose visa application has been refused or whose visa has been annulled or revoked, the right to institute court proceedings as defined in EU law, has failed to fulfil its obligations under Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 32(3), Article 34(7) and Article 35(7) of Regulation (EC) No 810/2009 (1) (Visa Code);

                  —

                  order Slovak Republic to pay the costs.

         Pleas in law and main arguments

      In support of its action, the Commission submits that the legal questions at issue in the present case have been clearly resolved by the judgment of the Court in Case C-403/16, El Hassani, in which the Court ruled that Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, (2) read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal.
      The Commission therefore concludes that the arguments put forward by the Slovak Republic during the pre-litigation procedure in the present case cannot succeed, and reiterates its own position that the Slovak Republic is failing to fulfil its obligations as set out in the application.

         (1)  Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243, p. 1).

         (2)  Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), the Convention implementing the Schengen Agreement, Council Regulations (EC) No 1683/95 and (EC) No 539/2001 and Regulations (EC) No 767/2008 and (EC) No 810/2009 of the European Parliament and of the Council (OJ 2013 L 182, p. 1).


title: Case C-442/18 P: Appeal brought on 5 July 2018 by the European Central Bank against the judgment of the General Court (Sixth Chamber) delivered on 26 April 2018 in Case T-251/15: Espírito Santo Financial (Portugal) v European Central Bank

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/2

      Appeal brought on 5 July 2018 by the European Central Bank against the judgment of the General Court (Sixth Chamber) delivered on 26 April 2018 in Case T-251/15: Espírito Santo Financial (Portugal) v European Central Bank
      (Case C-442/18 P)
      (2018/C 445/02)
      Language of the case: English

         Parties

         Appellant: European Central Bank (represented by: F. Malfrère, M. Ioannidis, Agents, H.-G. Kamman, Rechtsanwalt)

         Other party to the proceedings: Espírito Santo Financial (Portugal), SGPS, SA

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside order No. 1 of the judgment of the General Court of 26 April 2018, Espírito Santo Financial (Portugal), SGPS, SA v ECB, T-251/15, EU:T:2018:234;

                  —

                  dismiss the application also as concerns the ECB’s refusal to disclose the amount of credit in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014;

                  —

                  in the alternative to No. 2, refer the case back to the General Court of the European Union for it to give judgment;

                  —

                  order the applicant at first instance and respondent to pay two thirds (2/3), and the ECB to pay one third (1/3) of the costs of the proceedings.

         Pleas in law and main arguments

      First and only ground of appeal: infringement of Article 10.4 of the Statute of the European System of Central Banks and of the European Central Bank (‘Statute’) and the first indent of Article 4(1)(a) of Decision 2004/258 (1)

      The ECB submits that the General Court erroneously interpreted and applied Article 10.4 of the Statute and the first indent of Article 4(1)(a) of Decision 2004/258, by holding in the judgment under appeal, in particular in paragraphs 55, 75-81 as well as 124 and 161, that the Governing Council’s discretion regarding the disclosure of its minutes ‘must be exercised in accordance with the conditions and limits laid down in Decision 2004/258’ (paragraph 80), meaning, in the particular case, that the ECB is obliged to provide a statement of reasons explaining how disclosure of information contained in minutes of Governing Council proceedings recording Governing Council decisions specifically and actually undermine the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.
      Article 10.4 of the Statute establishes the presumption that information which is part of Governing Council proceedings needs to be kept confidential in order to protect ECB independence and effectiveness. This primary-law rule, which cannot be deviated from by secondary law, also applies to parts of the minutes recording Governing Council decisions. It is restated in the first indent of Article 4(1)(a) of Decision 2004/258. It follows from the general principle of confidentiality of Governing Council proceedings, including decisions, as set by Article 10.4 of the Statute, that the ECB does not need to subject its decision to make the outcome of its deliberations public to the substantive and procedural standards set out in Decision 2004/258. In particular, it does not need to explain why disclosure of such Governing Council minutes would specifically and actually undermine the public interest as regards the confidentiality of the Governing Council proceedings.

         (1)  Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004, L 80, p. 42).


title: Case T-631/18: Action brought on 17 October 2018 — Herholz Vertrieb v EUIPO (#)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/24

      Action brought on 17 October 2018 — Herholz Vertrieb v EUIPO (#)
      (Case T-631/18)
      (2018/C 445/30)
      Language in which the application was lodged: German

         Parties

         Applicant: Herholz Vertrieb GmbH & Co. KG (Ahaus, Germany) (represented by: D. Sprenger, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: EU word mark # — Application for registration No 16 967 267

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 August 2018 in Case R 445/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  vary the contested decision by registering the EU trade mark as applied for;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case C-642/18: Action brought on 12 October 2018 — European Commission v Kingdom of Spain

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/12

      Action brought on 12 October 2018 — European Commission v Kingdom of Spain
      (Case C-642/18)
      (2018/C 445/15)
      Language of the case: Spanish

         Parties

         Applicant: European Commission (represented by: S. Pardo Quintillán, E. Sanfrutos Cano and F. Thiran, acting as Agents)

         Defendant: Kingdom of Spain

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare, in accordance with the first paragraph of Article 258 of the Treaty on the Functioning of the European Union,

                              —

                              that, by not adopting waste management plans in accordance with the requirements of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, (1) or by not having revised those plans in accordance with Directive 2008/98/EC concerning the Autonomous Communities of Aragon, the Balearic Islands, the Canary Islands, Madrid and the Autonomous City of Ceuta, the Kingdom of Spain has failed to fulfil its obligations under Article 28(1) and Article 30(1) of Directive 2008/98/EC; and

                              —

                              that, by not officially informing the Commission of the adoption or revision of the waste management plans concerning the Autonomous Communities of Aragon, the Balearic Islands, the Canary Islands, Madrid and the Autonomous City of Ceuta, the Kingdom of Spain has failed to fulfil its obligations under Article 33(1) of Directive 2008/98/EC;

                  —

                  order the Kingdom of Spain to pay the costs.

         Pleas in law and main arguments

      The Commission submits that the Kingdom of Spain has failed to fulfil its obligations under the abovementioned subparagraphs and articles of Directive 2008/98/EC by not adopting the required measures before 14 September 2017, the date laid down in its reasoned opinion of 14 July 2017.

         (1)  OJ 2008 L 312, p. 3.


title: Case C-506/18 P: Appeal brought on 1 August 2018 by the European Parliament against the judgment of the General Court (Sixth Chamber) delivered on 17 May 2018 in Case T-566/16: Josefsson v European Parliament

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/3

      Appeal brought on 1 August 2018 by the European Parliament against the judgment of the General Court (Sixth Chamber) delivered on 17 May 2018 in Case T-566/16: Josefsson v European Parliament
      (Case C-506/18 P)
      (2018/C 445/03)
      Language of the case: English

         Parties

         Appellant: European Parliament (represented by: Í. Ní Riagáin Düro, V. Montebello-Demogeot, Agents)

         Other party to the proceedings: Erik Josefsson

         Form of order sought

      The appellant claims that the Court should:

                  —

                  annul the judgment under appeal;

                  —

                  consequently, dismiss the application at first instance;

                  —

                  order the parties to bear their own costs in the present proceedings;

                  —

                  order Mr Josefsson to pay the costs at first instance.

         Pleas in law and main arguments

      In its appeal, Parliament relies on the following grounds:

                  (i)

                  error of law, distortion of the facts and failure to state reasons in the finding that the requirement of a qualification in law was the cause of the applicant's dismissal;

                  (ii)

                  error of law in its finding that the adoption of an organigram and the decisions relating to it and the description of the posts therein must be subject to the applicant's right to be heard;

                  (iii)

                  distortion of the facts, manifest error of assessment and lack of reasoning in the conclusion that, if the applicant had also been heard on the question of his possession of a qualification in law, that hearing could have effectively changed the result of the decision-making process in question.


title: Case T-477/16: Judgment of the General Court of 24 October 2018 — Epsilon International v Commission (Arbitration clause — Contracts concluded under the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) — Interest in bringing proceedings — Eligible costs — Suspension of payment — Application for annulment — Decision to register the applicant in the central database of the Early Detection and Exclusion System (EDES) — Act not open to challenge — Inadmissibility)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/15

      Judgment of the General Court of 24 October 2018 — Epsilon International v Commission
      (Case T-477/16) (1)

      ((Arbitration clause - Contracts concluded under the Seventh Framework Programme for research, technological development and demonstration activities (2007-2013) - Interest in bringing proceedings - Eligible costs - Suspension of payment - Application for annulment - Decision to register the applicant in the central database of the Early Detection and Exclusion System (EDES) - Act not open to challenge - Inadmissibility))
      (2018/C 445/19)
      Language of the case: English

         Parties

         Applicant: Epsilon International SA (Marousi, Greece) (represented by: D. Bogaert and A. Guillerme, lawyers)

         Defendant: European Commission (represented by: J. Estrada de Solà, A. Katsimerou and A. Kyratsou, acting as Agents)

         Re:

      Application, first, under Article 272 TFEU for a declaration (i) that the amounts paid by the Commission under the Briseide, i-SCOPE and Smart-Islands grant agreements constitute eligible costs; (ii) that the Commission’s decisions to suspend payments in respect of the i-Locate, eENV-Plus, GeoSmartCity and c-Space projects are unfounded; (iii) that the Commission’s unlawful conduct caused damage to the applicant; and, second, (i) under Article 263 TFEU for annulment of the decision of the Commission of 17 June 2016 (Ares (2016) 2835215) registering EPSILON in the Early Detection and Exclusion System (EDES) database and (ii) under Article 268 TFEU for the award of compensation in respect of the damage allegedly suffered by the applicant as a result of that act.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Epsilon International SA to pay the costs.

         (1)  OJ C 402, 31.10.2016.


title: Case C-527/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 13 August 2018 — Gesamtverband Autoteile-Handel e.V. v KIA Motors Corporation

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/4

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 13 August 2018 — Gesamtverband Autoteile-Handel e.V. v KIA Motors Corporation
      (Case C-527/18)
      (2018/C 445/04)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Applicant and appellant on a point of law: Gesamtverband Autoteile-Handel e.V.

         Defendant and respondent on a point of law: KIA Motors Corporation

         Questions referred

                  1.

                  Do manufacturers have to supply the information to be provided to independent operators under the first sentence of Article 6(1) of Regulation (EC) No 715/2007 (1) in a form amenable to onward electronic processing?

                  2.

                  Is discrimination against independent operators as prohibited under the first sentence of Article 6(1) of Regulation (EC) No 715/2007 present in the case where a manufacturer, by engaging an information service provider, opens a further channel for information on the sale of original replacement parts by authorised dealers and repairers?

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


title: Case T-63/17: Judgment of the General Court of 24 October 2018 — Grupo Orenes v EUIPO — Akamon Entertainment Millenium (Bingo VIVA! Slots) (European Union trade mark — Opposition proceedings — Application for European Union figurative mark Bingo VIVA! Slots — Earlier European Union figurative mark vive bingo — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Subject matter of the dispute)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/16

      Judgment of the General Court of 24 October 2018 — Grupo Orenes v EUIPO — Akamon Entertainment Millenium (Bingo VIVA! Slots)
      (Case T-63/17) (1)

      ((European Union trade mark - Opposition proceedings - Application for European Union figurative mark Bingo VIVA! Slots - Earlier European Union figurative mark vive bingo - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Subject matter of the dispute))
      (2018/C 445/20)
      Language of the case: Spanish

         Parties

         Applicant: Grupo Orenes (Murcia, Spain) (represented by: M. J. Sanmartín Sanmartín, lawyer)

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

         Other party to the proceedings before the Board of Appeal of EUIPO: Akamon Entertainment Millenium (Barcelona, Spain)

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 7 November 2016 (Case R 453/2016-2) concerning opposition proceedings between Grupo Orenes and Akamon Entertainment Millenium.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Grupo Orenes to pay the costs.

         (1)  OJ C 95, 27.3.2017.


title: Case C-528/18 P: Appeal brought on 13 August 2018 by Outsource Professional Services Ltd against the judgment of the General Court (Seventh Chamber) delivered on 31 May 2018 in Case T-340/16: Flatworld Solutions Pvt Ltd v European Union Intellectual Property Office

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/4

      Appeal brought on 13 August 2018 by Outsource Professional Services Ltd against the judgment of the General Court (Seventh Chamber) delivered on 31 May 2018 in Case T-340/16: Flatworld Solutions Pvt Ltd v European Union Intellectual Property Office
      (Case C-528/18 P)
      (2018/C 445/05)
      Language of the case: English

         Parties

         Appellant: Outsource Professional Services Ltd (represented by: A. Kempter, Rechtsanwalt)

         Other parties to the proceedings: European Union Intellectual Property Office, Flatworld Solutions Pvt. Ltd

         Form of order sought

      The appellant claims that the Court should:

                  —

                  annul the judgement of the General Court (Seventh Chamber) of 31 May 2018 in Case T-340/16;

                  —

                  confirm the decision of the Fourth board of Appeal of EUIPO of 15 April 2016 in case number R 611/2015-4;

                  —

                  order Flatworld Solutions Pvt. Ltd to pay the costs including the costs necessarily incurred by the EUTM owner/successor/appellant.

         Pleas in law and main arguments

      The appeal is based on the infringement of Union Law by the General Court, namely Article 52(1)b of Council Regulation 207/2009 (1) on the Community trade mark, last amended by Council Regulation 2015/2424 (2).
      The General Court erred in law by finding that the EUTM owner/predecessor was acting in bad faith when it filed an application to register the trade mark No 006035547. The General Court misinterpreted the concept of bad faith. There is nothing dishonest or unethical about using descriptive wording to describe a business. Hence the registration as a trademark was not in bad faith.

         (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009, L 78, p. 1).

         (2)  Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015, L 341, p. 21).


title: Case C-664/18: Action brought on 23 October 2018 — European Commission v United Kingdom of Great Britain and Northern Ireland

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/12

      Action brought on 23 October 2018 — European Commission v United Kingdom of Great Britain and Northern Ireland
      (Case C-664/18)
      (2018/C 445/16)
      Language of the case: English

         Parties

         Applicant: European Commission (represented by: J. Norris-Usher, K. Petersen, Agents)

         Defendant: United Kingdom of Great Britain and Northern Ireland

         The applicant claims that the Court should:

                  —

                  declare that: in continuing to exceed the annual limit values for NO2 in zones UK0001 (Greater London Urban Area); UK0002 (West Midlands Urban Area); UK0003 (Greater Manchester Urban Area); UK 0004 (West Yorkshire Urban Area); UK 0013 (Teesside Urban Area); UK0014 (The Potteries); UK0018 (Kingston upon Hull); UK0019 (Southampton Urban Area); UK0024 (Glasgow Urban Area); UK0029 (Eastern); UK0031 (South East); UK0032 (East Midlands); UK0033 (North West & Merseyside); UK0034 (Yorkshire & Humberside); UK0035 (West Midlands) and UK0036 (North East) as well as with the hourly limit values for NO2 in zone UK0001 (Greater London Urban Area) since the entry in to force on those limit values on 1 January 2010 the United Kingdom of Great Britain and Northern Ireland has failed to comply with Article 13 (1) of Directive 2008/50/EC (1) in conjunction with Annex XI of the Directive;

                  —

                  declare that: since 11 June 2010, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 23 (1) of Directive 2008/50/EC in conjunction with Annex XV of the Directive with regard to the above-mentioned zones and in particular the obligation under subparagraph 2 of Article 23 (1) to keep the exceedance period as short as possible;

                  —

                  order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

         Pleas in law and main arguments

      Since 2010, the annual limits for NO2 have been exceeded in 16 zones and agglomerations and the hourly limits have been exceeded in one zone. These exceedances amount in and of themselves to a violation of Article 13 (1) of Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with annex XI of the same Directive.
      Despite this persistent violation of Article 13 (1) read in conjunction with annex XI, of the Directive, the United Kingdom of Great Britain and Northern Ireland has failed to adopt air quality plans which set out appropriate measures so that the exceedance period can be kept as short as possible. The insufficiency of the measures foreseen by the United Kingdom of Great Britain and Northern Ireland is evidenced by the duration of the period in which the limit values have been exceeded, the magnitude of the exceedances and the compliance trend, as well as a detailed analysis of each of the respective air quality plans pertaining to the 16 zones and agglomerations which are the object of the present application.

         (1)  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008, L 152, p. 1).


title: Case C-584/18: Request for a preliminary ruling from the Eparchiako Dikastirio Larnakas (Cyprus) lodged on 19 September 2018 — D. Z. v Blue Air — Airline Management Solutions SRL

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/5

      Request for a preliminary ruling from the Eparchiako Dikastirio Larnakas (Cyprus) lodged on 19 September 2018 — D. Z. v Blue Air — Airline Management Solutions SRL
      (Case C-584/18)
      (2018/C 445/06)
      Language of the case: Greek

         Referring court

      Eparchiako Dikastirio Larnakas

         Parties to the main proceedings

         Applicant: D. Z.

         Defendant: Blue Air — Airline Management Solutions SRL

         Questions referred

                  1.

                  Should Decision No 565/2014/EU (1) be interpreted as producing direct legal effect in the form, on the one hand, of the right of a third country national without requiring to have a visa to enter the Member State of destination and, on the other hand, an obligation on that Member State of destination not to require him to have such a visa where that national is in possession of a visa or residence permit included in the list of visas and residence permits recognised on the basis of Decision No 565/2014/EU, which the Member State of destination has undertaken to apply?

                  2.

                  Where an air carrier directly and/or through its authorised and designated representatives at the airport of the Member State of departure denies boarding to a passenger, giving as its reason that the authorities of the Member State of destination have refused him entry to that State because he allegedly has no entry visa, can the air carrier be considered as exercising powers and acting as an emanation of that State, such that Decision No 565/2014/EU can be cited against it by the passenger concerned before the courts of the Member State of departure in order to prove that he had a right of entry without requiring an additional visa and to claim compensation for infringement of that right and, by extension, of his contract of carriage?

                  3.

                  Can an air carrier directly and/or through its authorised and designated representatives rely upon a decision by the authorities of the Member State refusing a third country national entry to the territory of that State in order to deny that national boarding, without first issuing and/or giving him a written substantiated decision with respect to the refusal of entry (see Article 14(2) of Regulation (EC) No 2016/399, (2) previously Article 13 of Regulation (EC) No 562/2006, which requires a substantiated decision stating the reasons for refusal of entry), in order to safeguard respect for the fundamental rights and, in particular, legal protection of the rights of the passenger concerned (see Article 4 of that Regulation)?

                  4.

                  Does Article 2(j) of Regulation (EC) No 261/2004 (3) mean that cases of denied boarding are exempt from its scope whenever boarding is denied by decision of the air carrier due to alleged ‘inadequate travel documentation’? Should it be interpreted to mean that denied boarding does fall within the scope of the Regulation where a court finds, based on the particular circumstances of each specific case, that the travel documentation was adequate and that the denial of boarding was unsubstantiated or unlawful in that it infringed EU law?

                  5.

                  Can a passenger be deprived of the right to compensation granted under Article 4(3) of Regulation (EC) No 261/2004 where the air carrier relies upon a clause precluding or limiting its liability in the event of allegedly inadequate travel documentation, where such a clause is included in the standard terms, published in advance, governing the operation of and/or provision of services by the air carrier? Does Article 15, read in combination with Article 14, of that Regulation prevent the application of such clauses precluding and/or refusing the air carrier’s liability?

         (1)  Decision No 565/2014/EU of the European Parliament and of the Council of 15 May 2014 introducing a simplified regime for the control of persons at the external borders based on the unilateral recognition by Bulgaria, Croatia, Cyprus and Romania of certain documents as equivalent to their national visas for transit through or intended stays on their territories not exceeding 90 days in any 180-day period and repealing Decisions No 895/2006/EC and No 582/2008/EC (OJ 2014 L 157, p. 23).

         (2)  Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1).

         (3)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 — Commission Statement (OJ 2004 L 46, p. 1).


title: Case T-162/17 RENV: Judgment of the General Court of 24 October 2018 — Fernández González v Commission (Civil service — Members of the temporary staff — Article 2(c) of the Conditions of Employment of Other Servants of the European Union — Vacancy notice relating to a temporary agent post falling under Article 2(b) of the Conditions of Employment of Other Servants of the European Union — Rejection of application — Plea of illegality — Article 8 of the Conditions of Employment of Other Servants of the European Union — Liability — Loss of opportunity)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/16

      Judgment of the General Court of 24 October 2018 — Fernández González v Commission
      (Case T-162/17 RENV) (1)

      ((Civil service - Members of the temporary staff - Article 2(c) of the Conditions of Employment of Other Servants of the European Union - Vacancy notice relating to a temporary agent post falling under Article 2(b) of the Conditions of Employment of Other Servants of the European Union - Rejection of application - Plea of illegality - Article 8 of the Conditions of Employment of Other Servants of the European Union - Liability - Loss of opportunity))
      (2018/C 445/21)
      Language of the case: French

         Parties

         Applicant: Elia Fernández González (Brussels, Belgium) (represented by: M. Casado García-Hirchfeld and É. Boigelot, lawyers)

         Defendant: European Commission (represented by: G. Berscheid and L. Radu Bouyon, acting as Agents, and D. Waelbroek and A. Duron, lawyers)

         Re:

      Action on the basis of Article 270 TFEU seeking, first, annulment of the Commission decision of 14 November 2014 rejecting the applicant’s application for the temporary agent post that is the subject of vacancy notice COM/2014/2036 and annulment of the decision of 22 May 2015 rejecting the applicant’s administrative complaint and, second, compensation for the harm that the applicant claims to have suffered.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Commission of 14 November 2014 rejecting the application of Ms Fernández González for the temporary agent post that is the subject of vacancy notice COM/2014/2036;

                  2.

                  Orders the Commission to pay to Ms Fernández González the amount of EUR 12 000 plus default interest from the date of delivery of the present judgment until the payment is made at an annual rate equal to the rate set by the European Central Bank (ECB) for principal refinancing operations, increased by 2 percentage points;

                  3.

                  Dismisses the action as to the remainder;

                  4.

                  Orders the Commission to pay the costs.

         (1)  OJ C 354, 26.10.2015 (case initially registered before the European Union Civil Service Tribunal under the number F-121/15 and transferred to the General Court of the European Union on 1.9.2016).


title: Case C-615/18: Request for a preliminary ruling from the Amtsgericht Kehl (Germany) lodged on 28 September 2018 — Criminal proceedings against UY

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/9

      Request for a preliminary ruling from the Amtsgericht Kehl (Germany) lodged on 28 September 2018 — Criminal proceedings against UY
      (Case C-615/18)
      (2018/C 445/11)
      Language of the case: German

         Referring court

      Amtsgericht Kehl

         Parties to the main proceedings

      Staatsanwaltschaft Offenburg
      v
      UY

         Question referred

                  1.

                  Is EU law, in particular Directive 2012/13 (1) and Articles 21, 45, 49 and 56 TFEU, to be interpreted as meaning that it precludes legislation of a Member State which makes it possible, in the course of criminal proceedings, solely because the accused is not resident in that State but in another Member State, to make an order that the accused has to appoint a person authorised to accept service of a penalty order made against him, with the result that the penalty order would acquire the force of res judicata and thus form the legal prerequisite for the criminal liability of any later action taken by the accused (‘Tatbestandswirkung’) even if the accused was not actually aware of the penalty order and the accused actually learning of the penalty order is not guaranteed to the same extent as it would have been if the penalty order been served on the accused had he been resident in that Member State?

                  2.

                  In the event that the first question is answered in the negative: is EU law, in particular Directive 2012/13 and Articles 21, 45, 49 and 56 TFEU, to be interpreted as meaning that it precludes legislation of a Member State which makes it possible, in the course of criminal proceedings, solely because the accused is not resident in that State but in another Member State, to make an order that the accused has to appoint a person authorised to accept service of a penalty order made against him, with the result that the penalty order would acquire the force of res judicata and thus form the legal prerequisite for the criminal liability of any later action taken by the accused (‘Tatbestandswirkung’) and, given that he has to make sure that he actually learns of the penalty order, the accused is subject to more stringent subjective obligations in the prosecution of that criminal offence than he would have been had he been resident in that Member State, resulting in a possible prosecution for negligence on the part of the accused?

         (1)  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).


title: Case T-261/17: Judgment of the General Court of 24 October 2018 — Bayer v EUIPO — UNI-Pharma (SALOSPIR) (EU trade mark — Opposition proceedings — Application for EU figurative mark SALOSPIR — Earlier EU figurative marks representing coloured stripes and earlier national marks Aspirin — Relative grounds for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Reputation — Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001) — Use of a sign of more than mere local significance in the course of trade — Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001))

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/17

      Judgment of the General Court of 24 October 2018 — Bayer v EUIPO — UNI-Pharma (SALOSPIR)
      (Case T-261/17) (1)

      ((EU trade mark - Opposition proceedings - Application for EU figurative mark SALOSPIR - Earlier EU figurative marks representing coloured stripes and earlier national marks Aspirin - Relative grounds for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Reputation - Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001) - Use of a sign of more than mere local significance in the course of trade - Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001)))
      (2018/C 445/22)
      Language of the case: English

         Parties

         Applicant: Bayer AG (Leverkusen, Germany) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

         Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral, S. Pétrequin and D. Walicka, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Uni-Pharma Kleon Tsetis, Farmakeutika Ergastiria AVEE (Kifisia, Greece) (represented by: C. Chrysanthis, P.-V. Chardalia and A. Vasilogamvrou, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 17 February 2017 (Case R 2444/2017-4), relating to opposition proceedings between Bayer and Uni-Pharma Kleon Tsetis, Farmakeutika Ergastiria.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Bayer AG to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Uni-Pharma Kleon Tsetis, Farmakeutika Ergastiria AVEE in the proceedings before the General Court.

         (1)  OJ C 221, 10.7.2017.


title: Case C-621/18: Reference for a preliminary ruling from the Court of Session, Edinburgh (United Kingdom) made on 3 October 2018 — Andy Wightman and Others v Secretary of State for Exiting the European Union

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/10

      Reference for a preliminary ruling from the Court of Session, Edinburgh (United Kingdom) made on 3 October 2018 — Andy Wightman and Others v Secretary of State for Exiting the European Union
      (Case C-621/18)
      (2018/C 445/12)
      Language of the case: English

         Referring court

      Court of Session, Edinburgh

         Parties to the main proceedings

         Applicants: Andy Wightman, Ross Greer, Alyn Smith, David Martin, Catherine Stihler, Jolyon Maugham, Joanna Cherry

         Defendant: Secretary of State for Exiting the European Union

         Other parties to the procedure: Chris Leslie, Tom Brake

         Question referred

      Where, in accordance with Article 50 of the Treaty on European Union, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the European Union?


title: Case T-435/12: Judgment of the General Court of 24 October 2018 — Bacardi v EUIPO — Palírna U Zeleného stromu (42 BELOW) (EU trade mark — Opposition proceedings — Application for the EU figurative mark 42 BELOW — Non-registered earlier national figurative mark VODKA 42 — Relative ground for refusal — Article 8(4) of Regulation (EC) No 207/2009 (now Article 8(4) of Regulation (EU) 2017/1001) — Use in the course of trade — Application of national law by EUIPO)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/14

      Judgment of the General Court of 24 October 2018 — Bacardi v EUIPO — Palírna U Zeleného stromu (42 BELOW)
      (Case T-435/12) (1)

      ((EU trade mark - Opposition proceedings - Application for the EU figurative mark 42 BELOW - Non-registered earlier national figurative mark VODKA 42 - Relative ground for refusal - Article 8(4) of Regulation (EC) No 207/2009 (now Article 8(4) of Regulation (EU) 2017/1001) - Use in the course of trade - Application of national law by EUIPO))
      (2018/C 445/17)
      Language of the case: English

         Parties

         Applicant: Bacardi Co. Ltd (Vaduz, Liechtenstein) (represented initially by M. Reinisch and subsequently by A. Parassina, L. Rigas and L. Lorenc, lawyers)

         Defendant: European Union Intellectual Property Office (represented initially by P. Geroulakos, and subsequently by D. Gája and D. Walicka, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Palírna U Zeleného stromu a.s., formerly Granette & Starorežná Distilleries a.s. (Ústí nad Labem, Czech Republic) (represented by T. Chleboun, lawyer)

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 9 July 2012 (Case R 2100/2011-2), relating to opposition proceedings between Granette & Starorežná Distilleries and Bacardi.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Bacardi Co. Ltd to pay the costs.

         (1)  OJ C 379, 8.12.2012.


title: Case T-400/17: Judgment of the General Court of 24 October 2018 — Deza v Commission (Environment and protection of human health — Regulation (EC) No 1272/2008 — Classification, labelling and packaging of certain substances — Regulation (EU) 2017/776 — Classification of anthraquinone — Substance which is a presumed human carcinogen — Manifest error of assessment — Concept of substance — Legal certainty — Right to property)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/18

      Judgment of the General Court of 24 October 2018 — Deza v Commission
      (Case T-400/17) (1)

      ((Environment and protection of human health - Regulation (EC) No 1272/2008 - Classification, labelling and packaging of certain substances - Regulation (EU) 2017/776 - Classification of anthraquinone - Substance which is a presumed human carcinogen - Manifest error of assessment - Concept of substance - Legal certainty - Right to property))
      (2018/C 445/23)
      Language of the case: Czech

         Parties

         Applicant: Deza, a.s. (Valašské Meziříčí, Czech Republic) (represented by: P. Dejl, lawyer)

         Defendant: European Commission (represented by: Z. Malůšková, K. Mifsud-Bonnici and R. Lindenthal, acting as Agents)

         Interveners in support of the defendant: Republic of Finland (represented by: S. Hartikainen, acting as Agent), Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, H. Shev, L. Zettergren and A. Alriksson, acting as Agents), European Chemicals Agency (represented by: M. Heikkilä, W. Broere and A. Hautamäki, acting as Agents)

         Re:

      Application on the basis of Article 263 TFEU seeking the annulment of Commission Regulation (EU) 2017/776 of 4 May 2017 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2017 L 116, p. 1), in so far as it classifies anthraquinone as a presumed human carcinogen.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Deza, a.s. to bear its own costs and to pay the costs incurred by the European Commission.

                  3.

                  Orders the Republic of Finland, the Kingdom of Sweden and the European Chemicals Agency (ECHA) to bear their own costs.

         (1)  OJ C 293, 4.9.2017.


title: Case T-299/15: Judgment of the General Court of 24 October 2018 — Nova v Commission (Arbitration clause — Grant agreement concluded in the context of the pilot project seeking to establish a network of contacts and discussions between municipalities on experiences and best practices in respect of the resettlement and integration of refugees — No objective assessment of the outcome of the project — Proportionality — Repayment of the sums paid — Measures of inquiry — Counterclaim)

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/14

      Judgment of the General Court of 24 October 2018 — Nova v Commission
      (Case T-299/15) (1)

      ((Arbitration clause - Grant agreement concluded in the context of the pilot project seeking to establish a network of contacts and discussions between municipalities on experiences and best practices in respect of the resettlement and integration of refugees - No objective assessment of the outcome of the project - Proportionality - Repayment of the sums paid - Measures of inquiry - Counterclaim))
      (2018/C 445/18)
      Language of the case: Italian

         Parties

         Applicant: Nova Onlus Consorzio nazionale di cooperative sociali — Soc. coop. (Trani, Italy) (represented by: M. Astolfi and M. Petrucci, lawyers)

         Defendant: European Commission (represented by: initially, L. Di Paolo and L. Cappelletti, subsequently L. Di Paolo, and finally O. Verheecke and F. Moro, acting as Agents, and A. Dal Ferro, lawyer)

         Re:

      First, application based on Article 272 TFEU seeking, in essence, a declaration that the Commission is not justified in reclaiming from the applicant the sum of EUR 80 242,78 pursuant to the Grant Agreement HOME/2011/PPRS/AG/2176 and a direction requiring the Commission to pay EUR 52 146,36 plus default interest, and, second, counterclaim of the Commission seeking a direction requiring the applicant to repay the sum of EUR 80 242,78 plus default interest in performance of that Grant Agreement.

         Operative part of the judgment

      The Court:

                  1.

                  Declares that the European Commission is not justified, pursuant to the Grant Agreement with the reference HOME/2011/PPRS/AG/2176, to reclaim from Nova Onlus Consorzio nazionale di cooperative sociali — Soc. coop. 15 % of the costs associated with the website of the Transnational Observatory for Refugees’ Resettlement in Europe project, namely EUR 3 002,45;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders Nova Onlus Consorzio nazionale di cooperative sociali to pay to the Commission, pursuant to that agreement, the amount of EUR 77 240,33, increased by default interest at the rate of 3,55 % from 19 May 2015 until full payment of that amount is made;

                  4.

                  Dismisses the counterclaim as to the remainder;

                  5.

                  Orders Nova Onlus Consorzio nazionale di cooperative sociali to bear its own costs and to pay two thirds of those incurred by the Commission;

                  6.

                  Orders the Commission to bear one third of its own costs.

         (1)  OJ C 254, 3.8.2015.


title: Case T-594/18: Action brought on 1 October 2018 — Pharma Mar v Commission

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/18

      Action brought on 1 October 2018 — Pharma Mar v Commission
      (Case T-594/18)
      (2018/C 445/24)
      Language of the case: English

         Parties

         Applicant: Pharma Mar, SA (Colmenar Viejo, Spain) (represented by: M. Merola and V. Salvatore, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Commission Implementing Decision C(2018) 4831 final of 17 July 2018, refusing marketing authorisation under Regulation (EC) No 726/2004 (1) for ‘Aplidin — plitidepsin’, a medicinal product for human use;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging the lack of impartiality of the scientific advisory group on oncology and of their appointment process.

                              —

                              The applicant argues that the duty to examine all relevant aspects of a case carefully and impartially has been breached given that the contested decision is based on an opinion issued by experts who are not impartial.

                              —

                              The breach of the duty to carry out an impartial examination alleged by the applicant also relates to the appointment of experts by the European Medicines Agency (EMA) in a manner that unduly reduced the plurality of views, which should be considered a precondition for an impartial assessment.

                  2.

                  Second plea in law, alleging breach of the principle of good administration.

                              —

                              The applicant refers to the appointment of experts by the EMA in a manner that unduly reduced the plurality of views and claims that this can be regarded as a breach of the principle of good administration.

                  3.

                  Third plea in law, alleging infringement of Article 12 of Regulation (EC) No 726/2004 and the principle of equal treatment.

                              —

                              The applicant argues that the Commission committed a manifest error of appraisal and wrongly concluded that the efficacy of Aplidin was not properly and sufficiently demonstrated, thereby infringing the said Article 12.

                              —

                              In the examination procedure before the EMA, part of the scientific evidence submitted in support of the efficacy of Aplidin was disregarded due to the methodologies applied by the applicant, which is inconsistent with an opinion delivered by an expert working group of the EMA.

                              —

                              The methodologies applied in the present case are the same as those accepted by the EMA in a similar case concerning the marketing authorisation procedure of another medicinal product, which indicates that the principle of equal treatment has been breached.

                  4.

                  Fourth plea in law, alleging infringement of the requirement to provide a statement of reasons.

                              —

                              The applicant argues that no statement of reasons has been provided for the decision to disregard the scientific evidence submitted in support of the efficacy of Aplidin, in particular as regards the reasons for departing from the opinion delivered by an expert working group of the EMA.

                  5.

                  Fifth plea in law, alleging infringement of the right of defence.

                              —

                              The applicant argues that it was prevented from effectively exercising its right of defence in relation to a subject-matter that was crucial to assessing Aplidin’s efficacy, in particular due to the limited time allowed to prepare for oral explanation meetings.

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


title: Case T-720/16: Judgment of the General Court of 29 November 2018 — ARFEA v Commission (State aid — Retroactive public service compensation granted by the Italian authorities — Regional bus transport service provided between 1997 and 1998 on the basis of concessions — Decision declaring the aid incompatible with the internal market and ordering its recovery — Altmark judgment — Temporal application of rules of substantive law)

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/25

      Judgment of the General Court of 29 November 2018 — ARFEA v Commission
      (Case T-720/16) (1)

      ((State aid - Retroactive public service compensation granted by the Italian authorities - Regional bus transport service provided between 1997 and 1998 on the basis of concessions - Decision declaring the aid incompatible with the internal market and ordering its recovery - Altmark judgment - Temporal application of rules of substantive law))
      (2019/C 44/31)
      Language of the case: Italian

         Parties

         Applicant: Aziende reunite filovie ed autolinee Srl (ARFEA) (Alexandria, Italy) (represented by: M. Chiti, V. Angiolini and L. Formilan, lawyers)

         Defendant: European Commission (represented by: L. Armati and D. Recchia, acting as Agents)

         Re:

      Action under Article 263 TFEU seeking annulment of Commission Decision (EU) 2016/2084 of 10 June 2016 concerning State Aid SA.38132 (2015/C) (ex 2014/NN) — additional PSO compensation for ARFEA (OJ 2016 L 321, p. 57).

         Operative part of the judgment

      The Court:

                  1.

                  dismisses the action;

                  2.

                  Aziende reunite filovie ed autolinee Srl (ARFEA) is ordered to pay the costs.

         (1)  OJ C 441, 28.11.2016.


title: Case T-305/18 R: Order of the President of the General Court of 28 November 2018 — Klyuyev v Council (Application for interim measures — Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — Application for suspension of operation of a measure — Prima facie case — No urgency)

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/71

      Order of the President of the General Court of 28 November 2018 — Klyuyev v Council
      (Case T-305/18 R)
      ((Application for interim measures - Common foreign and security policy - Restrictive measures taken in view of the situation in Ukraine - Freezing of funds - Application for suspension of operation of a measure - Prima facie case - No urgency))
      (2019/C 44/93)
      Language of the case: English

         Parties

         Applicant: Andriy Klyuyev (Donetsk, Ukraine) (represented by: B. Kennelly QC, J. Pobjoy, Barrister, R. Gherson and T. Garner, Solicitors)

         Defendant: Council of the European Union (represented by: P. Mahnič and A. Vitro, acting as Agents)

         Re:

      Application pursuant to Articles 278 and 279 TFEU for the suspension of operation of Council Decision (CFSP) 2018/333 of 5 March 2018 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 48) and Council Implementing Regulation (EU) 2018/326 of 5 March 2018 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2018 L 63, p. 5), in so far as they apply to the applicant.

         Operative part of the order

                  1.

                  The application for interim measures is dismissed.

                  2.

                  The costs shall be reserved.


title: Case T-115/18: Judgment of the General Court of 6 December 2018 — Tomasz Kawałko Trofeum v EUIPO — Ferrero (KINDERPRAMS) (EU trade mark — Opposition proceedings — Application for EU word mark KINDERPRAMS — Earlier national figurative marks Kinder — Relative ground for refusal — Likelihood of confusion — Identity or similarity of the goods and services — Similarity of the signs — Article 8(1)(b) of Regulation (EU) 2017/1001)

text:
               18.2.2019

               EN

               Official Journal of the European Union

               C 65/32

      Judgment of the General Court of 6 December 2018 — Tomasz Kawałko Trofeum v EUIPO — Ferrero (KINDERPRAMS)
      (Case T-115/18) (1)

      ((EU trade mark - Opposition proceedings - Application for EU word mark KINDERPRAMS - Earlier national figurative marks Kinder - Relative ground for refusal - Likelihood of confusion - Identity or similarity of the goods and services - Similarity of the signs - Article 8(1)(b) of Regulation (EU) 2017/1001))
      (2019/C 65/40)
      Language of the case: English

         Parties

         Applicant: Tomasz Kawałko Trofeum (Gdynia, Poland) (represented by: P. Moksa, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: S. Bonne and H. O’Neill, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Ferrero SpA (Alba, Italy) (represented by: F. Jacobacci and L. Ghedina, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 14 December 2017 (Case R 1112/2017-4), relating to opposition proceedings between Ferrero and Tomasz Kawałko Trofeum.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Tomasz Kawałko Trofeum to pay the costs.

         (1)  OJ C 161, 7.5.2018.


title: Case C-823/18 P: Appeal brought on 27 December 2018 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 18 October 2018 in Case T-640/16: GEA Group AG v Commission

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/32

      Appeal brought on 27 December 2018 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 18 October 2018 in Case T-640/16: GEA Group AG v Commission
      (Case C-823/18 P)
      (2019/C 93/42)
      Language of the case: English

         Parties

         Appellant: European Commission (represented by: T. Christoforou, P. Rossi, V. Bottka, Agents)

         Other party to the proceedings: Gea Srl

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment under appeal;

                  —

                  order GEA to bear the entirety of the costs of these proceedings and those at first instance.

         Pleas in law and main arguments

      The Commission bases its appeal on the following two grounds of appeal:
      The Commission submits, the General Court committed two errors of law. First, it incorrectly applied the principle of equal treatment, it disregarded the case law on the notion of an undertaking and on joint and several liability, and also erred on the consequences of a fine reduction which can be attributed only to a former subsidiary of the infringing undertaking. Specifically, the Commission considers that, with the judgment under appeal, the General Court has deviated from the Court’s case law according to which the notion of joint liability for the part of the fine that is common to all addressed legal entities is a manifestation of the concept of an undertaking for the purposes of Article 101 TFEU (see C-231/11 P, Siemens Österreich, § 57). Hence, the legal entities belonging to the same undertaking at the time of the infringement are by definition all jointly liable for the fine corresponding to the undertaking’s participation in the infringement (up to the maximum amount for which each legal entity is individually liable). The judgment’s logic is based on an application by analogy of the theory on internal shares of joint liability, which also aimed to exclude co-debtors from liability for parts of the jointly imposed fine. However, that theory was rejected by the Court in Case C-231/11 P, Siemens Österreich and the joined cases C-247/11 P and C-253/11 P, Areva. In addition, the Judgment disregards the case law according to which a parent company cannot benefit from the lower 10 % cap of its own former subsidiary (C-50/12 P, Kendrion, § § 58, 68 and 70). Therefore, the judgment is affected by errors of law in the interpretation and application of established case law of the Court, it creates legal uncertainty, and affects the margin of discretion which the Commission has in setting fines on an undertaking for having violated Article 101 TFEU.
      Second, the Commission considers that the General Court has erred by holding that the time limit for paying the fine for all jointly liable legal entities in the undertaking (including the parent GEA) starts anew from the notification of an amending decision reducing the fine for only one of these legal entities (ACW, a former subsidiary of GEA). This is an error in law because the Commission is entitled to reduce with an amending decision the fine for only one of the legal entities jointly liable, if there is a material error affecting that legal entity only, without having to amend the fines in the other parts of the decision addressed to the remaining legal entities. Equally, the Commission is entitled (but not obliged) in such circumstances to set a new due date for one or more legal entities, which can be at an earlier date than the notification of the latest amending decision. This is because amending the fine does not amount to replacing it. Similarly, when the Court reduces a fine for a legal entity, that does not amount to setting a new fine with a new due date (Case C-523/15 P, WDI, § § 29-48 and 63-68 and Case T-275/94, Groupement des cartes bancaires, § § 60 and 65). If maintained, the errors on which the judgment is based can affect the deterrent effect of the Commission's fines because it would mean that a modification of a fine for one addressee would lead to the loss of interest generated on the maintained part of the fine for the entire undertaking.
      Finally, on both aspects covered by the grounds of the appeal, the judgment is unclear and insufficiently reasoned.


title: Case C-832/18: Request for a preliminary ruling from the Helsingin hovioikeus (Finland) lodged on 21 December 2018 — A and Others v Finnair Oyj

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/33

      Request for a preliminary ruling from the Helsingin hovioikeus (Finland) lodged on 21 December 2018 — A and Others v Finnair Oyj
      (Case C-832/18)
      (2019/C 93/43)
      Language of the case: Finnish

         Referring court

      Helsingin hovioikeus

         Parties to the main proceedings

         Applicants: A and Others

         Defendant: Finnair Oyj

         Questions referred

                  1.

                  Is Regulation No 261/2004 (1) to be interpreted as meaning that a passenger has the right to further compensation in accordance with Article 7(1) if he has received compensation for a cancelled flight, the operating air carrier of the re-routed flight is the same as that of the cancelled flight, and the re-routed flight after the cancelled flight is also delayed beyond the scheduled time of arrival to such an extent that it entitles the passenger to compensation?

                  2.

                  If Question 1 is answered in the affirmative, can the operating air carrier rely on extraordinary circumstances within the meaning of Article 5(3) if, following a technical follow-up by the aircraft manufacturer in relation to aircraft already in use, the part dealt with in that document is in fact treated as a so-called ‘on condition’ part, that is to say as a part that is used until it becomes defective, and the operating air carrier has prepared to replace the part in question by permanently stocking a spare part?

         (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case C-2/19: Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 4 January 2019 — A.P. v Riigiprokuratuur

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/34

      Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 4 January 2019 — A.P. v Riigiprokuratuur
      (Case C-2/19)
      (2019/C 93/44)
      Language of the case: Estonian

         Referring court

      Riigikohus

         Parties to the main proceedings

         Appellant: A.P.

         Respondent: Riigiprokuratuur

         Question referred

      Is the recognition and supervision of execution of a judgment of a Member State compatible with Council Framework Decision 2008/947/JHA (1) of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions even where the sentenced person has by that judgment been conditionally released without any additional obligations being imposed, so that the person’s only obligation is to avoid committing a new intentional offence during the probation period (this being a suspended sentence within the meaning of Paragraph 73 of the Estonian Criminal Code)?

         (1)  Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ 2008 L 337, p. 102).


title: Case C-5/19: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 4 January 2019 — Оvergaz Mrezhi AD, Non-profit association Bulgarska Gazova Asotsiatsia v Komisia za energiyno i vodno regulirane

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/34

      Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 4 January 2019 — Оvergaz Mrezhi AD, Non-profit association Bulgarska Gazova Asotsiatsia v Komisia za energiyno i vodno regulirane
      (Case C-5/19)
      (2019/C 93/45)
      Language of the case: Bulgarian

         Referring court

      Varhoven administrativen sad

         Parties to the main proceedings

         Applicants: Оvergaz Mrezhi AD, Non-profit association Bulgarska Gazova Asotsiatsia

         Defendant: Komisia za energiyno i vodno regulirane

         Questions referred

                  1.

                  Is a national measure such as the one in issue in this case, provided for in Article 35 of the Zakon za energetikata (Energy Law) and set out in more detail in Article 11 of Naredba No 2 za regulirane na tsenite na prirodnia gaz (Ordinance No 2 on Natural Gas Price Regulation) of the Darzhavnata Komisia za energiyno i vodno regulirane (State Energy and Water Regulatory Commission; ‘KEVR’) of 19 March 2013, according to which the entire financial burden associated with the public service obligations imposed on the energy companies is to be borne by customers, permissible under Articles 36 and 38 of the Charter of Fundamental Rights of the European Union and under Article 3 of Directive 2009/73/EC (1) of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, considering that:

                              (a)

                              the economic burden arising from the public service obligations does not affect all energy companies;

                              (b)

                              the costs of the public service obligations are borne mainly by the end customers, who are unable to contest them, even though they obtain natural gas from the end suppliers at freely determined prices;

                              (c)

                              there is no differentiation of the economic burden arising from the performance of the public service obligations which is borne by different types of customers;

                              (d)

                              there is no time limitation for the application of this measure;

                              (e)

                              the calculation of the value of the public service obligations is made on the basis of the costs accounting method according to a forecast model?

                  2.

                  Is a national legal provision such as Section 5 of the Transitional and Final Provisions of the Zakon za normativnite aktove (Law on Normative Legal Acts), which releases the KEVR from the obligations of Articles 26 to 28 of the Zakon za normativnite aktove and in particular from the obligations that exist when preparing the draft of a sub-statutory normative legal act to observe the principles of necessity, merit, foreseeability, transparency, coherence, subsidiarity, proportionality and stability, to hold a public hearing with citizens and legal persons, to publish the draft in advance together with the reasoning and to set out reasoning, including with regard to compatibility with EU law, permissible under Article 3 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, in consideration of recitals 44, 47, 48 and 49 thereof?

         (1)  OJ 2009 L 211, p. 94.


title: Case T-400/10 RENV: Judgment of the General Court of 14 December 2018 — Hamas v Council (Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Freezing of funds — Possibility for an authority of a non-member State to be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Duty to state reasons — Error of assessment — Right to effective judicial protection — Rights of the defence — Right to property)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/38

      Judgment of the General Court of 14 December 2018 — Hamas v Council
      (Case T-400/10 RENV) (1)

      ((Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Freezing of funds - Possibility for an authority of a non-member State to be classified as a competent authority within the meaning of Common Position 2001/931/CFSP - Factual basis of the decisions to freeze funds - Duty to state reasons - Error of assessment - Right to effective judicial protection - Rights of the defence - Right to property))
      (2019/C 93/48)
      Language of the case: French

         Parties

         Applicant: Hamas (Doha, Qatar) (represented by: L. Glock, lawyer)

         Defendant: Council of the European Union (represented by: B. Driessen, M. Bishop and A. Sikora-Kalėda, acting as Agents)

         Intervener in support of the defendant: French Republic (represented by: D. Colas and F. Fize, acting as Agents), and European Commission (represented initially by F. Castillo de la Torre, M. Konstantinidis and R. Tricot, and subsequently by F. Castillo de la Torre, L. Baumgart and C. Zadra, acting as Agents)

         Re:

      Action under Article 263 TFEU seeking annulment, first, of the Council Notice for the attention of the persons, groups and entities whose names were included in the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2010 C 188, p. 13), of Council Decision 2010/386/CFSP of 12 July 2010 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2010 L 178, p. 28) and of Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 1285/2009 (OJ 2010 L 178, p. 1), in so far as those measures concern the applicant, secondly, of Council Decision 2011/70/CFSP of 31 January 2011 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2011, L 28, p. 57) and of Council Implementing Regulation (EU) No 83/2011 of 31 January 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 610/2010 (OJ 2011, L 28, p. 14), in so far as those measures concern the applicant, thirdly, of Council Decision 2011/430/CFSP of 18 July 2011 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (OJ 2011 L 188, p. 47) and of Council Implementing Regulation (EU) No 687/2011 of 18 July 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulations No 610/2010 and No 83/2011 (OJ 2011 L 188, p. 2), in so far as those measures concern the applicant, fourthly, of Council Decision 2011/872/CFSP of 22 December 2011 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2011/430 (OJ 2011, L 343, p. 54) and of Council Implementing Regulation (EU) No 1375/2011 of 22 December 2011 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 687/2011 (OJ 2011 L 343, p. 10), in so far as those measures concern the applicant, fifthly, of Council Decision 2012/333/CFSP of 25 June 2012 updating the list of persons groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2011/872 (OJ 2012 L 165, p. 72) and of Council Implementing Regulation (EU) No 542/2012 of 25 June 2012 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 1375/2011 (OJ 2012 L 165, p. 12), in so far as those measures concern the applicant, sixthly, of Council Decision 2012/765/CFSP of 10 December 2012 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2012/333 (OJ 2012 L 337, p. 50) and of Council Implementing Regulation (EU) No 1169/2012 of 10 December 2012 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 542/2012 (OJ 2012 L 337, p. 2), in so far as those measures concern the applicant, seventhly, Council Decision 2013/395/CFSP of 25 July 2013 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2012/765 (OJ 2013 L 201, p. 57) and of Council Implementing Regulation (EU) No 714/2013 of 25 July 2013 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 1169/2012 (OJ 2013 L 201, p. 10), in so far as those measures concern the applicant, eighthly, Council Decision 2014/72/CFSP of 10 February 2014 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2013/395 (OJ 2014 L 40, p. 56) and of Council Implementing Regulation (EU) No 125/2014 of 10 February 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 714/2013 (OJ 2014 L 40, p. 9), in so far as those measures concern the applicant, ninthly, Council Decision 2014/483/CFSP of 22 July 2014 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2014/72 (OJ 2014 L 217, p. 35) and of Council Implementing Regulation (EU) No 790/2014 of 22 July 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation No 125/2014 (OJ 2014 L 217, p. 1), in so far as those measures concern the applicant, and tenthly, Council Decision (CFSP) 2017/1426 of 4 August 2017 updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision (CFSP) 2017/154 (OJ 2017 L 204, p. 95) and of Council Implementing Regulation (EU) 2017/1420 of 4 August 2017 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) 2017/150 (OJ 2017 L 204, p. 3), in so far as those measures concern the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Hamas to bear its own costs and to pay those incurred by the Council of the European Union;

                  3.

                  Orders the French Republic and the European Commission to bear their own costs.

         (1)  OJ C 317, 20.11.2010.


title: Case T-298/16: Judgment of the General Court of 14 December 2018 — East West Consulting v Commission (Non-contractual liability — Instrument for Pre-Accession Assistance — Third country — National public procurement — Devolved management — Decision 2008/969/EC, Euratom — Early Warning System (EWS) — Activation of a warning in the EWS — Protection of the financial interests of the European Union — Commission’s refusal to give ex ante approval — Contract not awarded — Jurisdiction of the General Court — Admissibility of evidence — No legal basis for the warning — Rights of defence — Presumption of innocence — Sufficiently serious breach of a rule of law conferring rights on individuals — Causal link — Material and non-material damage — Loss of the contract — Loss of the opportunity to be awarded other contracts)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/40

      Judgment of the General Court of 14 December 2018 — East West Consulting v Commission
      (Case T-298/16) (1)

      ((Non-contractual liability - Instrument for Pre-Accession Assistance - Third country - National public procurement - Devolved management - Decision 2008/969/EC, Euratom - Early Warning System (EWS) - Activation of a warning in the EWS - Protection of the financial interests of the European Union - Commission’s refusal to give ex ante approval - Contract not awarded - Jurisdiction of the General Court - Admissibility of evidence - No legal basis for the warning - Rights of defence - Presumption of innocence - Sufficiently serious breach of a rule of law conferring rights on individuals - Causal link - Material and non-material damage - Loss of the contract - Loss of the opportunity to be awarded other contracts))
      (2019/C 93/49)
      Language of the case: French

         Parties

         Applicant: East West Consulting SPRL (Nandrin, Belgium) (represented by: initially L. Levi and A. Tymen, and subsequently L. Levi, lawyers)

         Defendant: European Commission (represented by: F. Dintilhac and J. Estrada de Solà, acting as Agents)

         Re:

      Application under Article 268 TFEU seeking compensation for the material and non-material harm allegedly suffered by the applicant as a result of a warning being activated against it in the Early Warning System (EWS) and the subsequent refusal, on the basis of that warning, to endorse the contract awarded, following a public procurement procedure, to the consortium which it led and which was to be financed by the European Union in the context of the Instrument for Pre-Accession Assistance (IPA).

         Operative part of the judgment

      The Court:

                  1.

                  Orders the European Commission to pay to East West Consulting SPRL the sum of EUR 20 000;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders each party to bear its own costs.

         (1)  OJ C 270, 25.7.2016.


title: Case T-348/16 OP: Judgment of the General Court of 17 January 2019 — Aristoteleio Panepistimio Thessalonikis v ERCEA (Arbitration clause — Seventh framework programme for research, technological development and demonstration activities — Minatran project — Eligible costs — Compensation — Judgment by default — Application to have a judgment set aside)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/40

      Judgment of the General Court of 17 January 2019 — Aristoteleio Panepistimio Thessalonikis v ERCEA
      (Case T-348/16 OP) (1)

      ((Arbitration clause - Seventh framework programme for research, technological development and demonstration activities - Minatran project - Eligible costs - Compensation - Judgment by default - Application to have a judgment set aside))
      (2019/C 93/50)
      Language of the case: Greek

         Parties

         Applicant: Aristoteleio Panepistimio Thessalonikis (Thessaloniki, Greece) (represented by: V. Christianos and S. Paliou, lawyers)

         Defendant: European Research Council Executive Agency (represented by: M. Pesquera Alonso and F. Sgritta, acting as Agents, and E. Kourakis and P. Dikaiou, lawyers)

         Re:

      Application by ERCEA to set aside the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T-348/16, not published, EU:T:2017:268).

         Operative part of the judgment

      The Court:

                  1.

                  Annuls points 1, 2 and 3 of the operative part of the judgment of 6 April 2017, Aristoteleio Panepistimio Thessalonikis v ERCEA (T-348/16);

                  2.

                  Declares that the claim formulated in debit note No 3241606289 of the European Research Council Executive Agency (ERCEA) of 26 May 2016 for the return by Aristoteleio Panepistimio Thessalonikis of part of the subsidy it received for the Minatran project, amounting to EUR 245 525,43, is unfounded up to an amount of EUR 233 611,75 and that the latter amount corresponds to eligible costs;

                  3.

                  Dismisses the action brought by Aristoteleio Panepistimio Thessalonikis and the application filed by ERCEA as to the remainder;

                  4.

                  Orders ERCEA to bear its own costs and to pay those incurred by Aristoteleio Panepistimio Thessalonikis in Cases T-348/16 and T-348/16 OP;

                  5.

                  Orders ERCEA to bear its own costs and to pay those incurred by Aristoteleio Panepistimio Thessalonikis in Case T-348/16 OP-R.

         (1)  OJ C 296, 16.8.2016.


title: Case T-413/16: Judgment of the General Court of 16 January 2019 — Cham v Council (Common foreign and security policy — Restrictive measures taken against Syria — Freezing of funds — Rights of the defence — Right to effective judicial protection — Obligation to state reasons — Manifest error of assessment — Right to honour and reputation — Right to property — Presumption of innocence — Proportionality)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/42

      Judgment of the General Court of 16 January 2019 — Cham v Council
      (Case T-413/16) (1)

      ((Common foreign and security policy - Restrictive measures taken against Syria - Freezing of funds - Rights of the defence - Right to effective judicial protection - Obligation to state reasons - Manifest error of assessment - Right to honour and reputation - Right to property - Presumption of innocence - Proportionality))
      (2019/C 93/52)
      Language of the case: French

         Parties

         Applicant: Cham Holding (Damascus, Syria) (represented by: E. Ruchat, lawyer)

         Defendant: Council of the European Union (represented by: initially, S. Kyriakopoulou, G. Étienne and A. Vitro, then by S. Kyriakopoulou and A. Vitro, and subsequently by S. Kyriakopoulou, A. Vitro and V. Piessevaux, acting as Agents)

         Re:

      Action pursuant to Article 263 TFEU seeking the annulment of Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2016 L 141, p. 125), and its subsequent implementing acts, of Council Decision (CFSP) 2017/917 of 29 May 2017 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2017 L 139, p. 62), and of Council Decision (CFSP) 2018/778 of 28 May 2018 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2018 L 131, p. 16), in so far as those measures apply to the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Cham Holding to bear its own costs and to pay those incurred by the Council of the European Union.

         (1)  OJ C 364, 3.10.2016.


title: Case T-525/16: Judgment of the General Court of 14 December 2018 — GQ and Others v Commission (Civil service — Officials — Reform of the Staff Regulations — Regulation (EU, Euratom) No 1023/2013 — Types of posts — Transitional rules on grading in the types of posts — Article 31 of Annexe XIII to the Staff Regulations — Assistants in transition — Promotion under Article 45 of the Staff Regulations only allowed within the career streams corresponding to the type of post occupied — Access to the ‘senior assistant’ (AST 10) type of post exclusively in accordance with the procedure under Article 4 and Article 29(1) of the Staff Regulations — Equal treatment — Loss of eligibility for promotion to the next higher grade — Legitimate expectations)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/43

      Judgment of the General Court of 14 December 2018 — GQ and Others v Commission
      (Case T-525/16) (1)

      ((Civil service - Officials - Reform of the Staff Regulations - Regulation (EU, Euratom) No 1023/2013 - Types of posts - Transitional rules on grading in the types of posts - Article 31 of Annexe XIII to the Staff Regulations - Assistants in transition - Promotion under Article 45 of the Staff Regulations only allowed within the career streams corresponding to the type of post occupied - Access to the ‘senior assistant’ (AST 10) type of post exclusively in accordance with the procedure under Article 4 and Article 29(1) of the Staff Regulations - Equal treatment - Loss of eligibility for promotion to the next higher grade - Legitimate expectations))
      (2019/C 93/53)
      Language of the case: French

         Parties

         Applicants: GQ and the 7 other applicants whose names appear in the annex to the judgment (represented by T. Bontinck and A. Guillerme, lawyers)

         Defendant: European Commission (represented initially by J. Currall and G. Gattinara, subsequently by G. Gattinara and C. Berardis-Kayser and finally by G. Gattinara and G. Berscheid, acting as Agents)

         Interveners in support of the defendant: European Parliament (represented initially by M. Dean and N. Chemaï, subsequently by J. Steele, L. Deneys and J. Van Pottelberge, acting as Agents); and the Council of the European Union (represented initially by M. Bauer and E Rebasti and subsequently by M. Bauer and R. Meyer, acting as Agents)

         Re:

      Application based on Article 270 TFEU and seeking annulment of the Commission’s decisions by which the appointing authority of that institution classified the applicants in the ‘senior assistant’ type of post, with the consequence that, with effect from 1 January 2014, they were no longer eligible for promotion to the next higher grade, as confirmed by the decisions of that authority of 3 July 2014 rejecting the complaints lodged by the applicants between 11 and 28 March 2014.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders GQ and the other officials of the European Commission whose names are listed in the annex to pay the costs;

                  3.

                  Orders the European Parliament and the Council of the European Union to bear their own costs.

         (1)  OJ C 7, 12.1.2015 (case initially registered before the European Union Civil Service Tribunal under Case No F-111/14 and transferred to the General Court of the European Union on 1.9.2016).