title: Case C-21/17: Judgment of the Court (Fifth Chamber) of 6 September 2018 (request for a preliminary ruling from the Nejvyšší soud České republiky — Czech Republic) — Catlin Europe SE v O.K. Trans Praha spol. s r.o. (Reference for a preliminary ruling — Judicial cooperation in civil and commercial matters — European order for payment procedure — Regulation (EC) No 1896/2006 — Issue of an order for payment together with the application for the order — No translation of the application for the order — European order for payment declared enforceable — Application for review after expiry of the period for opposition — Service of judicial and extrajudicial documents — Regulation (EC) No 1393/2007 — Applicability — Article 8 and Annex II — Informing the addressee of the right to refuse to accept a document instituting proceedings that has not been translated — Lack of the standard form — Consequences)

text:
               5.11.2018

               EN

               Official Journal of the European Union

               C 399/7

      Judgment of the Court (Fifth Chamber) of 6 September 2018 (request for a preliminary ruling from the Nejvyšší soud České republiky — Czech Republic) — Catlin Europe SE v O.K. Trans Praha spol. s r.o.
      (Case C-21/17) (1)

      ((Reference for a preliminary ruling - Judicial cooperation in civil and commercial matters - European order for payment procedure - Regulation (EC) No 1896/2006 - Issue of an order for payment together with the application for the order - No translation of the application for the order - European order for payment declared enforceable - Application for review after expiry of the period for opposition - Service of judicial and extrajudicial documents - Regulation (EC) No 1393/2007 - Applicability - Article 8 and Annex II - Informing the addressee of the right to refuse to accept a document instituting proceedings that has not been translated - Lack of the standard form - Consequences))
      (2018/C 399/08)
      Language of the case: Czech

         Referring court

      Nejvyšší soud České republiky

         Parties to the main proceedings

         Appellant (defendant at first instance): Catlin Europe SE

         Applicant at first instance: O.K. Trans Praha spol. s r.o.

         Operative part of the judgment

      Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure and Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 must be interpreted as meaning that, where a European order for payment is served on the defendant without the application for the order, annexed to the order, being written in or accompanied by a translation into a language he is deemed to understand, as required by Article 8(1) of Regulation No 1393/2007, the defendant must be duly informed, by means of the standard form in Annex II to Regulation No 1393/2007, of his right to refuse to accept the document in question.
      If that formal requirement is omitted, the procedure must be regularised in accordance with the provisions of Regulation No 1393/2007, by communicating to the addressee the standard form in Annex II to that regulation.
      In that case, as a result of the procedural irregularity affecting the service of the European order for payment together with the application for the order, the order does not become enforceable and the period in which the defendant may lodge a statement of opposition cannot start to run, so that Article 20 of Regulation No 1896/2006 cannot apply.

         (1)  OJ C 112, 10.4.2017.


title: Case C-237/18: Order of the Court (Third Chamber) of 18 July 2018 (request for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Pauline Stiernon and Others v Etat belge, SPF Santé publique, Communauté française de Belgique (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Freedom of movement for workers — Freedom to choose an occupation — Articles 20, 21 and 45 TFEU — Charter of Fundamental Rights of the European Union — Article 15 — Profession of psychomotor therapist not included in the national list of allied health professions)

text:
               5.11.2018

               EN

               Official Journal of the European Union

               C 399/17

      Order of the Court (Third Chamber) of 18 July 2018 (request for a preliminary ruling from the Tribunal de première instance de Liège — Belgium) — Pauline Stiernon and Others v Etat belge, SPF Santé publique, Communauté française de Belgique
      (Case C-237/18) (1)

      ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Freedom of movement for workers - Freedom to choose an occupation - Articles 20, 21 and 45 TFEU - Charter of Fundamental Rights of the European Union - Article 15 - Profession of psychomotor therapist not included in the national list of allied health professions))
      (2018/C 399/23)
      Language of the case: French

         Referring court

      Tribunal de première instance de Liège

         Parties to the main proceedings

         Applicants: Pauline Stiernon, Marion Goraguer, Muriel Buccarello, Clémentine Vasseur, Manon Pirotton, Anissa Quotb

         Defendants: Etat belge, SPF Santé publique, Communauté française de Belgique

         Operative part of the order

      Article 45 TFEU must be interpreted as not precluding, in circumstances such as those of the main proceedings, legislation of a Member State establishing a list of allied health professions that does not include the profession of psychomotor therapist in that list, even though an undergraduate degree in psychomotor therapy has been established in that Member State.

         (1)  OJ C 190, 4.6.2018.


title: Case C-598/18 P: Appeal brought on 21 September 2018 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 13 July 2018 in Case T-786/14: Eleni Pavlikka Bourdouvali and Others v Council of the European Union and Others

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/25

      Appeal brought on 21 September 2018 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 13 July 2018 in Case T-786/14: Eleni Pavlikka Bourdouvali and Others v Council of the European Union and Others
      (Case C-598/18 P)
      (2018/C 427/33)
      Language of the case: English

         Parties

         Appellant: Council of the European Union (represented by: A. de Gregorio Merino, E. Chatziioakeimidou, I. Gurov, Agents)

         Other parties to the proceedings: Eleni Pavlikka Bourdouvali and Others, European Commission, European Central Bank, Euro Group, represented by the Council of the European Union, European Union, represented by the European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the parts of the contested judgments in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group;

                  —

                  and order the respondents to pay the costs of the appeal.

         Pleas in law and main arguments

      The appeal of the Council seeks to set aside the parts of the contested judgment in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group and is based on the following grounds:

                  —

                  the General Court has erred in law in deciding that the Euro Group is a ‘body of the Union formally established by the Treaties’;

                  —

                  the General Court has erred in law in dismissing the plea of inadmissibility of the Council while failing to identify any ‘powers’ conferred on the Euro Group by the Treaties;

                  —

                  the General Court has erred in law in deciding that the admission of the plea of inadmissibility, submitted by the Council, would result in ‘the establishment, within the legal system of the European Union itself, of entities whose acts and conduct could not result in the European Union incurring liability’.


title: Case T-312/17: Judgment of the General Court of 5 December 2018 — Campbell v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents concerning an infringement procedure brought by the Commission against the Republic of Lithuania — Refusal of access — Exception relating to the protection of inspections, investigations and audits — General presumption — Overriding public interest)

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/31

      Judgment of the General Court of 5 December 2018 — Campbell v Commission
      (Case T-312/17) (1)

      ((Access to documents - Regulation (EC) No 1049/2001 - Documents concerning an infringement procedure brought by the Commission against the Republic of Lithuania - Refusal of access - Exception relating to the protection of inspections, investigations and audits - General presumption - Overriding public interest))
      (2019/C 44/39)
      Language of the case: English

         Parties

         Applicant: Liam Campbell (Dundalk, Ireland) (represented by: J. MacGuill and E. Martin-Vignerte, Solicitors)

         Defendant: European Commission (represented by: C. Ehrbar and M. Konstantinidis, acting as Agents)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2017) 2448 final of 7 April 2017 refusing access to documents relating to infringement procedure 2013/0406 against the Republic of Lithuania regarding the application of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Liam Campbell and the European Commission each to bear their own costs.

         (1)  OJ C 249, 31.7.2017.


title: Case C-759/18: Request for a preliminary ruling from the Judecătoria Rădăuţi (Romania) lodged on 3 December 2018 — OF v PG

text:
               18.2.2019

               EN

               Official Journal of the European Union

               C 65/26

      Request for a preliminary ruling from the Judecătoria Rădăuţi (Romania) lodged on 3 December 2018 — OF v PG
      (Case C-759/18)
      (2019/C 65/35)
      Language of the case: Romanian

         Referring court

      Judecătoria Rădăuţi

         Parties to the main proceedings

         Applicant: OF

         Defendant: PG

         Questions referred

                  1.

                  Should Article 3(1) of Regulation (EC) No 2201/2003 (1) be interpreted as meaning that a failure on the part of the defendant to raise an objection that the Romanian courts lack international jurisdiction to give a ruling on a case concerning a ‘divorce involving a minor’ amounts to his giving tacit consent to the case being decided by the court seised by the applicant, where the parties have their habitual residence in another Member State [of the European Union] (in the present case, Italy) and the divorce proceedings have been brought before a court of the State of which the parties are nationals?

                  2.

                  Should [Article] 3(1) and [Article] 17 of Regulation (EC) No 2201/2003 be interpreted as meaning that a court may or must raise, of its own motion, an objection that the Romanian courts lack international jurisdiction to give a ruling on a case concerning a ‘divorce involving a minor’, where there has been no agreement between the parties, who are resident in another Member State [of the European Union] (in the present case, Italy), regarding the choice of the court having jurisdiction (resulting in the action being dismissed as not falling within the jurisdiction of the Romanian courts), which has priority over Article 915(2) of the Codul de procedură civilă (Code of Civil Procedure), pursuant to which an objection may be raised that the Judecătoria Rădăuţi (Court of First Instance, Rădăuţi) does not have exclusive territorial jurisdiction (resulting in its declining jurisdiction to give a ruling on the case in favour of the Judecătoria Sectorului 5 Bucureşti (Court of First Instance, Sector 5, Bucharest) and the case being decided on the merits), especially given that those provisions are less favourable than the provision of national legislation concerned (Article 915(2) of the Codul de procedură civilă (Code of Civil Procedure))?

                  3.

                  Should the expression contained in Article 12(1)(b) of Regulation (EC) No 2201/2003, namely ‘the jurisdiction of the courts has been accepted … otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised’, be interpreted as meaning that, where the parties, who are habitually resident in another Member State [of the European Union] (in the present case, Italy), choose as the court having jurisdiction to give a ruling in divorce proceedings a court of the State of which they are nationals (the Judecătoria Rădăuţi (Court of First Instance, Rădăuţi) in Romania), that court automatically also has jurisdiction to rule on heads of claim concerning ‘the exercise of parental authority, the child’s place of habitual residence and the determination of parental contributions towards the costs of the child’s care and upbringing’?

                  4.

                  Should the concept of ‘parental responsibility’ referred to in Article 2(7) and Article 12 of Regulation (EC) No 2201/2003 be interpreted as also including the concepts of ‘parental authority’ referred to in Article 483 of the Codul civil (Civil Code), ‘the child’s place of habitual residence’ covered by Article 400 of the Codul civil (Civil Code), and ‘parental contributions towards the costs of the child’s care and upbringing’ covered by Article 402 of the Codul civil (Civil Code)?

         (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).


title: Case C-463/18 P: Appeal brought on 13 July 2018 by CeramTec GmbH against the judgment of the General Court (Eighth Chamber) delivered on 3 May 2018 in Case T-193/17: CeramTec GmbH v EUIPO

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/20

      Appeal brought on 13 July 2018 by CeramTec GmbH against the judgment of the General Court (Eighth Chamber) delivered on 3 May 2018 in Case T-193/17: CeramTec GmbH v EUIPO
      (Case C-463/18 P)
      (2019/C 93/28)
      Language of the case: English

         Parties

         Appellant: CeramTec GmbH (represented by: A. Renck, Rechtsanwalt)

         Other party to the proceedings: European Union Intellectual Property Office
      By order of 15 January 2019 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.


title: Case T-412/16: Judgment of the General Court of 16 January 2019 — Bena Properties v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Rights of the defence — Right to effective judicial protection — Obligation to state reasons — Manifest error of assessment — Right to respect for one’s good name and reputation — Right to property — Presumption of innocence — Proportionality)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/41

      Judgment of the General Court of 16 January 2019 — Bena Properties v Council
      (Case T-412/16) (1)

      ((Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Rights of the defence - Right to effective judicial protection - Obligation to state reasons - Manifest error of assessment - Right to respect for one’s good name and reputation - Right to property - Presumption of innocence - Proportionality))
      (2019/C 93/51)
      Language of the case: French

         Parties

         Applicant: Bena Properties Co. SA (Damascus, Syria) (represented by: E. Ruchat, lawyer)

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

         Re:

      Application pursuant to Article 263 TFEU seeking 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 the subsequent measures implementing it, 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 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 concern the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Declares that Bena Properties Co. SA is to bear its own costs and orders it to pay those incurred by the Council of the European Union.

         (1)  OJ C 364, 3.10.2016.


title: Case T-526/16: Judgment of the General Court of 14 December 2018 — FZ 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 30 of Annexe XIII to the Staff Regulations — Administrators in transition (AD 13) — Administrators (AD 12) — Promotion under Article 45 of the Staff Regulations only allowed within the career streams corresponding to the type of post occupied — Access to the type of post ‘Head of Unit or equivalent’ or ‘Adviser or equivalent’ 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 93/44

      Judgment of the General Court of 14 December 2018 — FZ and Others v Commission
      (Case T-526/16) (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 30 of Annexe XIII to the Staff Regulations - Administrators in transition (AD 13) - Administrators (AD 12) - Promotion under Article 45 of the Staff Regulations only allowed within the career streams corresponding to the type of post occupied - Access to the type of post ‘Head of Unit or equivalent’ or ‘Adviser or equivalent’ 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 93/54)
      Language of the case: French

         Parties

         Applicants: FZ, and the 9 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 L. Radu Bouyon, acting as Agents)

         Interveners in support of the defendant: European Parliament (represented initially by N. Chemaï and M. Dean, subsequently by L. Deneys, J. Steele 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 ‘administrator in transition’ or ‘administrator’ types 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, 17 July and 6 August 2014.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders FZ 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-113/14 and transferred to the General Court of the European Union on 1.9.2016).


title: Case T-111/17: Judgment of the General Court of 15 January 2019 — Computer Market v EUIPO (COMPUTER MARKET) (EU trade mark — Application for the EU figurative mark COMPUTER MARKET — Absolute ground for refusal — Late filing of the notice of appeal — Inadmissibility of the appeal before the Board of Appeal — Article 60 of Regulation (EC) No 207/2009 (now Article 68 of Regulation (EU) 2017/1001) — Rule 49(1) of Regulation (EC) No 2868/95 (now Article 23(1)(b) of Delegated Regulation (EU) 2018/625))

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/49

      Judgment of the General Court of 15 January 2019 — Computer Market v EUIPO (COMPUTER MARKET)
      (Case T-111/17) (1)

      ((EU trade mark - Application for the EU figurative mark COMPUTER MARKET - Absolute ground for refusal - Late filing of the notice of appeal - Inadmissibility of the appeal before the Board of Appeal - Article 60 of Regulation (EC) No 207/2009 (now Article 68 of Regulation (EU) 2017/1001) - Rule 49(1) of Regulation (EC) No 2868/95 (now Article 23(1)(b) of Delegated Regulation (EU) 2018/625)))
      (2019/C 93/60)
      Language of the case: English

         Parties

         Applicant: Computer Market (Sofia, Bulgaria) (represented by: B. Dimitrova, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: J. Ivanauskas, Agent)

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 13 December 2016 (Case R 1778/2016-2), relating to an application for registration of the figurative sign COMPUTER MARKET as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Computer Market to pay the costs.

         (1)  OJ C 213, 3.7.2017.


title: Case C-322/17: Judgment of the Court (Third Chamber) of 7 February 2019 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — Eugen Bogatu v Minister for Social Protection (Reference for a preliminary ruling — Social security — Regulation (EC) No 883/2004 — Article 67 — Application for family benefits submitted by a person who has ceased to pursue an activity as an employed person in the competent Member State but continues to reside there — Entitlement to family benefits for family members resident in another Member State — Eligibility conditions)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/5

      Judgment of the Court (Third Chamber) of 7 February 2019 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — Eugen Bogatu v Minister for Social Protection
      (Case C-322/17) (1)

      (Reference for a preliminary ruling - Social security - Regulation (EC) No 883/2004 - Article 67 - Application for family benefits submitted by a person who has ceased to pursue an activity as an employed person in the competent Member State but continues to reside there - Entitlement to family benefits for family members resident in another Member State - Eligibility conditions)
      (2019/C 131/05)
      Language of the case: English

         Referring court

      High Court (Ireland)

         Parties to the main proceedings

         Applicant: Eugen Bogatu

         Defendant: Minister for Social Protection

         Operative part of the judgment

      Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and, in particular, Article 67, read in conjunction with Article 11(2) thereof, must be interpreted as meaning that, in a situation such as that in the main proceedings, in order to be eligible to receive family benefits in the competent Member State, it is not necessary for a person either to pursue an activity as an employed person in that Member State or to be in receipt of cash benefits from that Member State because or as a consequence of such activity.

         (1)  OJ C 277, 21.8.2017.


title: Case C-345/17: Judgment of the Court (Second Chamber) of 14 February 2019 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Proceedings brought by Sergejs Buivids (Reference for a preliminary ruling — Processing of personal data — Directive 95/46/EC — Article 3 — Scope — Video recording of police officers carrying out procedural measures in a police station — Publication on a video website — Article 9 — Processing of personal data solely for journalistic purposes — Meaning — Freedom of expression — Protection of privacy)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/6

      Judgment of the Court (Second Chamber) of 14 February 2019 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Proceedings brought by Sergejs Buivids
      (Case C-345/17) (1)

      (Reference for a preliminary ruling - Processing of personal data - Directive 95/46/EC - Article 3 - Scope - Video recording of police officers carrying out procedural measures in a police station - Publication on a video website - Article 9 - Processing of personal data solely for journalistic purposes - Meaning - Freedom of expression - Protection of privacy)
      (2019/C 131/06)
      Language of the case: Latvian

         Referring court

      Augstākā tiesa

         Parties to the main proceedings

      Sergejs Buivids

         Other party: Datu valsts inspekcija

         Operative part of the judgment

                  1.

                  Article 3 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the recording of a video of police officers in a police station, while a statement is being made, and the publication of that video on a video website, on which users can send, watch and share videos, are matters which come within the scope of that directive.

                  2.

                  Article 9 of Directive 95/46 must be interpreted as meaning that factual circumstances such as those of the case in the main proceedings, that is to say, the video recording of police officers in a police station, while a statement is being made, and the publication of that recorded video on a video website, on which users can send, watch and share videos, may constitute a processing of personal data solely for journalistic purposes, within the meaning of that provision, in so far as it is apparent from that video that the sole object of that recording and publication thereof is the disclosure of information, opinions or ideas to the public, this being a matter which it is for the referring court to determine.

         (1)  OJ C 277, 21.8.2017.


title: Case C-423/17: Judgment of the Court (Sixth Chamber) of 14 February 2019 (request for a preliminary ruling from the Gerechtshof Den Haag — Netherlands) — Staat der Nederlanden v Warner-Lambert Company LLC (Reference for a preliminary ruling — Medicinal products for human use — Directive 2001/83/EC — Article 11 — Generic medicinal products — Summary of product characteristics — Exclusion of references referring to indications or dosage forms still covered by patent law at the time when the generic medicine was marketed)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/6

      Judgment of the Court (Sixth Chamber) of 14 February 2019 (request for a preliminary ruling from the Gerechtshof Den Haag — Netherlands) — Staat der Nederlanden v Warner-Lambert Company LLC
      (Case C-423/17) (1)

      (Reference for a preliminary ruling - Medicinal products for human use - Directive 2001/83/EC - Article 11 - Generic medicinal products - Summary of product characteristics - Exclusion of references referring to indications or dosage forms still covered by patent law at the time when the generic medicine was marketed)
      (2019/C 131/07)
      Language of the case: Dutch

         Referring court

      Gerechtshof Den Haag

         Parties to the main proceedings

         Applicant: Staat der Nederlanden

         Defendant: Warner-Lambert Company LLC

         Operative part of the judgment

      The second paragraph of Article 11 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012, must be interpreted as meaning that, in a marketing authorisation procedure such as that at issue in the main proceedings, communication to the competent national authority by the applicant or holder of a marketing authorisation for a generic medicinal product of the package leaflet or a summary of the product characteristics of that medicinal product which does not include any reference to indications or dosage forms which were still covered by patent law at the time that medicinal product was placed on the market constitutes a request to limit the scope of the marketing authorisation of the generic medicinal product in question.

         (1)  OJ C 318, 25.9.2017.


title: Case C-531/17: Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Vetsch Int. Transporte GmbH (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Article 143(1)(d) — Exemptions from VAT on importation — Imports followed by an intra-Community transfer — Subsequent intra-Community supply — Tax evasion — Refusal of the exemption — Conditions)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/8

      Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Vetsch Int. Transporte GmbH
      (Case C-531/17) (1)

      (Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Article 143(1)(d) - Exemptions from VAT on importation - Imports followed by an intra-Community transfer - Subsequent intra-Community supply - Tax evasion - Refusal of the exemption - Conditions)
      (2019/C 131/09)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

      Vetsch Int. Transporte GmbH

         Other party: Zollamt Feldkirch Wolfurt

         Operative part of the judgment

      Article 143(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and Article 143(1)(d) of that directive, as amended by Council Directive 2009/69/EC of 25 June 2009, must be interpreted as meaning that the exemption from import value added tax laid down in those provisions may not be refused in respect of an importer designated or recognised as liable for payment of that tax, within the meaning of Article 201 of Directive 2006/112, in a situation, such as that in the main proceedings, in which, first, the recipient of the intra-Community transfer of goods effected after that import commits tax evasion in connection with a transaction which is subsequent to that transfer and is not linked to that transfer and, secondly, there is no evidence to support the conclusion that the importer knew or ought to have known that that subsequent transaction entailed tax evasion on the part of the recipient.

         (1)  OJ C 412, 4.12.2017.


title: Case C-554/17: Judgment of the Court (Third Chamber) of 14 February 2019 (request for a preliminary ruling from the Svea hovrätt — Sweden) — Rebecka Jonsson v Société du Journal L’Est Républicain (Reference for a preliminary ruling — Judicial cooperation in civil matters — European small claims procedure — Regulation (EC) No 861/2007 — Article 16 — ‘Unsuccessful party’ — Costs of proceedings — Apportionment — Article 19 — Procedural law of the Member States)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/9

      Judgment of the Court (Third Chamber) of 14 February 2019 (request for a preliminary ruling from the Svea hovrätt — Sweden) — Rebecka Jonsson v Société du Journal L’Est Républicain
      (Case C-554/17) (1)

      (Reference for a preliminary ruling - Judicial cooperation in civil matters - European small claims procedure - Regulation (EC) No 861/2007 - Article 16 - ‘Unsuccessful party’ - Costs of proceedings - Apportionment - Article 19 - Procedural law of the Member States)
      (2019/C 131/11)
      Language of the case: Swedish

         Referring court

      Svea hovrätt

         Parties to the main proceedings

         Applicant: Rebecka Jonsson

         Defendant: Société du Journal L’Est Républicain

         Operative part of the judgment

      Article 16 of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure must be interpreted as not precluding national legislation under which, where a party succeeds only in part, the national court may order each of the parties to the proceedings to bear its own procedural costs or may apportion those costs between those parties. In such a situation, the national court remains, theoretically, free to apportion the amount of those costs, provided that the national procedural rules on the apportionment of procedural costs in small cross-border claims are not less favourable than the procedural rules governing similar situations subject to domestic law and that the procedural requirements relating to the apportionment of those procedural costs do not result in the persons concerned foregoing the use of that European small claims procedure by requiring an applicant, when he has been largely successful, nonetheless to bear his own procedural costs or a substantial portion of those costs.

         (1)  OJ C 402, 27.11.2017.


title: Case C-535/17: Judgment of the Court (First Chamber) of 6 February 2019 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and PI v BNP Paribas Fortis NV (Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation (EC) No 44/2001 and Regulation (EC) No 1346/2000 — Scope of those regulations — Bankruptcy of a bailiff — Action brought by the liquidator in charge of administering and liquidating the bankruptcy)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/9

      Judgment of the Court (First Chamber) of 6 February 2019 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and PI v BNP Paribas Fortis NV
      (Case C-535/17) (1)

      (Reference for a preliminary ruling - Judicial cooperation in civil matters - Jurisdiction and the enforcement of judgments in civil and commercial matters - Regulation (EC) No 44/2001 and Regulation (EC) No 1346/2000 - Scope of those regulations - Bankruptcy of a bailiff - Action brought by the liquidator in charge of administering and liquidating the bankruptcy)
      (2019/C 131/10)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Parties to the main proceedings

         Applicant: NK, liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and PI

         Defendant: BNP Paribas Fortis NV

         Operative part of the judgment

      Article 1(1) and (2)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action, such as that at issue in the main proceedings, concerning a claim for damages arising from liability for a wrongful act, brought by the liquidator in insolvency proceedings and the proceeds of which, if the claim succeeds, accrue to the general body of creditors, is covered by the concept of ‘civil and commercial matters’ within the meaning of Article 1(1), and therefore falls within the material scope of that regulation.

         (1)  OJ C 412, 4.12.2017.


title: Case C-562/17: Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Nestrade SA v Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC) (Reference for a preliminary ruling — Thirteenth Council Directive 86/560/EEC — Arrangements for the refund of value added tax (VAT) — Principles of equivalence and effectiveness — Company not established in the European Union — Preliminary and final decision refusing the refund of VAT — Incorrect VAT identification number)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/10

      Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Audiencia Nacional — Spain) — Nestrade SA v Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)
      (Case C-562/17) (1)

      (Reference for a preliminary ruling - Thirteenth Council Directive 86/560/EEC - Arrangements for the refund of value added tax (VAT) - Principles of equivalence and effectiveness - Company not established in the European Union - Preliminary and final decision refusing the refund of VAT - Incorrect VAT identification number)
      (2019/C 131/12)
      Language of the case: Spanish

         Referring court

      Audiencia Nacional

         Parties to the main proceedings

         Applicant: Nestrade SA

         Defendants: Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)

         Operative part of the judgment

      The provisions of the Thirteenth Council Directive 86/560/EEC of 17 November 1986, on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory, must be interpreted as not precluding a Member State from imposing a time limit on the possibility of rectifying incorrect invoices, for example by the rectification of the VAT identification number originally shown on the invoice, for the purposes of the exercise of the right to a VAT refund, provided that the principles of equivalence and effectiveness are respected, which it is for the referring court to verify.

         (1)  OJ C 437, 18.12.2017.


title: Case C-630/17: Judgment of the Court (Second Chamber) of 14 February 2019 (request for a preliminary ruling from the Općinski sud u Rijeci — Croatia) — Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen (Reference for a preliminary ruling — Articles 56 and 63 TFEU — Freedom to provide services — Free movement of capital — National legislation providing that credit agreements featuring international elements concluded with a non-authorised lender are invalid — Regulation (EU) No 1215/2012 — Article 17(1) — Credit agreement concluded by a natural person with a view to the provision of tourist accommodation services — Concept of ‘consumer’ — Article 24, point 1 — Exclusive jurisdiction in matters relating to rights in rem in immovable property — Action for invalidity of a credit agreement and seeking the removal from the land register of the entry of a security interest)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/11

      Judgment of the Court (Second Chamber) of 14 February 2019 (request for a preliminary ruling from the Općinski sud u Rijeci — Croatia) — Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen
      (Case C-630/17) (1)

      (Reference for a preliminary ruling - Articles 56 and 63 TFEU - Freedom to provide services - Free movement of capital - National legislation providing that credit agreements featuring international elements concluded with a non-authorised lender are invalid - Regulation (EU) No 1215/2012 - Article 17(1) - Credit agreement concluded by a natural person with a view to the provision of tourist accommodation services - Concept of ‘consumer’ - Article 24, point 1 - Exclusive jurisdiction in matters relating to rights in rem in immovable property - Action for invalidity of a credit agreement and seeking the removal from the land register of the entry of a security interest)
      (2019/C 131/13)
      Language of the case: Croatian

         Referring court

      Općinski sud u Rijeci

         Parties to the main proceedings

         Applicant: Anica Milivojević

         Defendant: Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen

         Operative part of the judgment

                  1.

                  Article 56 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which has the effect, inter alia, that credit agreements and legal acts based on those agreements concluded in that Member State between debtors and creditors established in another Member State who do not hold an authorisation, issued by the competent authorities of the first Member State, to operate in that State, are invalid from the date on which they were concluded, even if they were concluded before the entry into force of that legislation.

                  2.

                  Article 4(1) and Article 25 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters preclude legislation of a Member State, such as that at issue in the main proceedings, which, in the context of disputes concerning credit agreements featuring international elements which fall within the scope of that regulation, allows debtors to bring an action against non-authorised lenders either before the courts of the State in which they have their registered office or before the courts of the place where the debtors have their domicile or head office and restricts jurisdiction to hear actions brought by creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether they are consumers or professionals.

                  3.

                  Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services cannot be regarded as a ‘consumer’ within the meaning of that provision, unless, in the light of the context of the transaction, regarded as a whole, for which the contract has been concluded, that contract has such a tenuous link to that professional activity that it appears clear that the contract is essentially for private purposes, which is a matter for the referring court to ascertain.

                  4.

                  The first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must be interpreted as meaning that an action ‘relating to rights in rem in immovable property’ within the meaning of that provision, constitutes an action for the removal from the land register of the mortgage on a building, but that an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement does not fall within that concept.

         (1)  OJ C 22, 22.1.2018.


title: Case C-710/17: Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Consiglio di Stato, Italy) — CCC — Consorzio Cooperative Costruzioni Soc. Cooperativa v Comune di Tarvisio (Reference for a preliminary ruling — Public works contracts — Directive 2004/18/EC — Article 48(3) — Assessment and verification of the technical capacities of economic operators — National provision which cannot be regarded as a transposition of Directive 2004/18 — No direct and unconditional reference to EU law — No request based on the existence of a certain cross-border interest — Inadmissibility of the request for a preliminary ruling)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/12

      Judgment of the Court (Ninth Chamber) of 14 February 2019 (request for a preliminary ruling from the Consiglio di Stato, Italy) — CCC — Consorzio Cooperative Costruzioni Soc. Cooperativa v Comune di Tarvisio
      (Case C-710/17) (1)

      (Reference for a preliminary ruling - Public works contracts - Directive 2004/18/EC - Article 48(3) - Assessment and verification of the technical capacities of economic operators - National provision which cannot be regarded as a transposition of Directive 2004/18 - No direct and unconditional reference to EU law - No request based on the existence of a certain cross-border interest - Inadmissibility of the request for a preliminary ruling)
      (2019/C 131/14)
      Language of the case: Italian

         Referring court

      Consiglio di Stato, Italy

         Parties to the main proceedings

         Applicant: CCC — Consorzio Cooperative Costruzioni Soc. Cooperativa

         Defendant: Comune di Tarvisio

         Interveners: Incos Srl, RTI — Idrotermica F.lli Solera, Gabriele Indovina

         Operative part of the judgment

      The request for a preliminary ruling made by the Consiglio di Stato (Council of State, Italy), by decision of 28 September 2017, is inadmissible.

         (1)  OJ C 112, 26.3.2018.


title: Case C-49/18: Judgment of the Court (Second Chamber) of 7 February 2019 (request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — Carlos Escribano Vindel v Ministerio de Justicia (Reference for a preliminary ruling — Budgetary austerity measures — Reduction of remuneration in the national civil service — Method — Differential impact — Social policy — Equal treatment in employment and occupation — Directive 2000/78/EC — Article 2(1) and (2)(b) — Charter of Fundamental Rights of the European Union — Article 21 — Judicial independence — Second subparagraph of Article 19(1) TEU)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/13

      Judgment of the Court (Second Chamber) of 7 February 2019 (request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña — Spain) — Carlos Escribano Vindel v Ministerio de Justicia
      (Case C-49/18) (1)

      (Reference for a preliminary ruling - Budgetary austerity measures - Reduction of remuneration in the national civil service - Method - Differential impact - Social policy - Equal treatment in employment and occupation - Directive 2000/78/EC - Article 2(1) and (2)(b) - Charter of Fundamental Rights of the European Union - Article 21 - Judicial independence - Second subparagraph of Article 19(1) TEU)
      (2019/C 131/15)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de Cataluña

         Parties to the main proceedings

         Applicant: Carlos Escribano Vindel

         Defendant: Ministerio de Justicia

         Operative part of the judgment

                  1.

                  Article 21 of the Charter of Fundamental Rights of the European Union and Article 2(1) and (2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted, subject to the verifications to be made by the referring court, as not precluding national legislation, such as that at issue in the main proceedings, which established, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage reductions for those members of the judiciary on two lower pay grades than those members of the judiciary on a higher pay grade, when the former receive a lower salary, are generally younger and generally have a shorter length of service than the latter.

                  2.

                  The second subparagraph of Article 19(1) TEU must be interpreted as meaning that the principle of judicial independence does not preclude the application to the applicant in the main proceedings of national legislation, such as that at issue in the main proceedings, which established, without regard to the nature of the duties performed, length of service or the importance of the tasks performed, in the context of general salary-reduction measures linked to the requirements of eliminating an excessive budget deficit, different percentage reductions for the basic salary and additional remuneration of members of the judiciary, which, according to the referring court has entailed greater percentage salary reductions for those members of the judiciary on two lower pay grades than those members of the judiciary on a higher pay grade, when the former are paid less than the latter, provided that the level of remuneration received by the applicant in the main proceedings after application of the salary reduction at issue is commensurate with the importance of the duties he performs and, accordingly, guarantees his independent judgment, which is a matter for the referring court to ascertain.

         (1)  OJ C 152, 30.4.2018.


title: Case C-577/18 P: Appeal brought on 11 September 2018 by Petrus Kerstens against the order of the General Court (First Chamber) delivered on 26 June 2018 in Case T-757/17 Kerstens v Commission

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/17

      Appeal brought on 11 September 2018 by Petrus Kerstens against the order of the General Court (First Chamber) delivered on 26 June 2018 in Case T-757/17 Kerstens v Commission
      (Case C-577/18 P)
      (2019/C 131/21)
      Language of the case: French

         Parties

         Appellant: Petrus Kerstens (represented by: C. Mourato, lawyer)

         Other party to the proceedings: European Commission
      By order of 22 January 2019, the Court (Sixth Chamber) dismissed the appeal.


title: Case C-711/18: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 November 2018 — Ascopiave SpA and Others v Ministero dello Sviluppo Economico and Others

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/18

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 9 November 2018 — Ascopiave SpA and Others v Ministero dello Sviluppo Economico and Others
      (Case C-711/18)
      (2019/C 131/23)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Appellants: Ascopiave SpA, Bim Belluno Infrastrutture SpA, Centria Srl, Retipiù Srl, Pasubio Distribuizione Gas Srl — Unipersonale, Pasubio Group SpA, Unigas Distribuzione Srl

         Respondents: Ministero dello Sviluppo Economico, Presidenza del Consiglio dei Ministri, Ministero per gli Affari Regionali e le Autonomie

         Questions referred

      Does EU law and, in particular, the common rules governing the internal market in electrical energy and natural gas and the principles of legal certainty and protection of legitimate expectations allow retroactive application of the criteria for determining the amount of the reimbursements payable to former concession holders, thereby affecting previous contractual relationships, or can such application be justified, also in the light of the principle of proportionality, by the need to protect other public interests of European importance, relating to the necessity of improving protection for competition within the market in question and of affording greater protection to service users, who might indirectly bear the burden of an increase in the sums payable to former concession holders?


title: Case C-754/18: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 3 December 2018 — Ryanair Designated Activity Company v Országos Rendőr-főkapitányság

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/18

      Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 3 December 2018 — Ryanair Designated Activity Company v Országos Rendőr-főkapitányság
      (Case C-754/18)
      (2019/C 131/24)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: Ryanair Designated Activity Company

         Defendant: Országos Rendőr-főkapitányság

         Questions referred

                  1.

                  Must Article 5(2), on right of entry, of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (1) be interpreted as meaning that, for the purposes of that directive, both the holding of a valid residence card, as referred to in Article 10 thereof, and the holding of a permanent residence card, as referred to in Article 20 thereof, exempt a family member from the requirement to be in possession of a visa at the time of entry to the territory of a Member State?

                  2.

                  If the answer to question 1 is in the affirmative, must Article 5 of Directive 2004/38, and paragraph 2 thereof, be interpreted in the same way where the person who is a family member of an EU citizen and is not a national of another Member State has acquired the right of permanent residence in the United Kingdom and that is the State which issued the permanent residence card to that person? In other words, does the holding of the permanent residence card provided for in Article 20 of that directive, issued by the United Kingdom, exempt the holder of that card from the requirement to obtain a visa, regardless of the fact that neither Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, to which Article 5(2) of Directive 2004/38 refers, nor 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) is applicable to that Member State?

                  3.

                  If the answers to questions 1 and 2 are in the affirmative, is the holding of a residence card issued in accordance with Article 20 of Directive 2004/38 to be regarded by itself as sufficient proof that the holder of the card is a family member of an EU citizen and is, without the need for any further checking or certification, permitted — as a family member — to enter the territory of another Member State and is exempt from the requirement to obtain a visa pursuant to Article 5(2) of that directive?

                  4.

                  If the Court of Justice should answer question 3 in the negative, must Article 26(1)(b) and (2) of the Convention implementing the Schengen Agreement be interpreted as meaning that an air carrier, in addition to checking travel documents, is required to check that a traveller who intends to travel with the permanent residence card referred to in Article 20 of Directive 2004/38 is in fact genuinely a family member of an EU citizen at the time of entry?

                  5.

                  If the Court of Justice should answer question 4 in the affirmative,

                              (i)

                              where an air carrier is unable to establish that a traveller who intends to travel with the permanent residence card referred to in Article 20 of Directive 2004/38 is actually a family member of an EU citizen at the time of entry, is that carrier required to deny boarding onto the aircraft and to refuse to transport that person to another Member State?

                              (ii)

                              where an air carrier does not check that circumstance or does not refuse to transport a traveller who is unable to provide evidence that he is a family member — and who, moreover, holds a permanent residence card — is it possible to impose a fine on that carrier on that ground pursuant to Article 26(2) of the Convention implementing the Schengen Agreement?

         (1)  OJ 2004 L 158, p. 77.


title: Case C-9/19: Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 3 January 2019 — SC Mitliv Exim SRL v Agenția Națională de Administrare Fiscală and Direcția Generală de Administrare a Marilor Contribuabili

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/22

      Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 3 January 2019 — SC Mitliv Exim SRL v Agenția Națională de Administrare Fiscală and Direcția Generală de Administrare a Marilor Contribuabili
      (Case C-9/19)
      (2019/C 131/28)
      Language of the case: Romanian

         Referring court

      Tribunalul București

         Parties to the main proceedings

         Applicant: SC Mitliv Exim SRL

         Defendants: Agenția Națională de Administrare Fiscală and Direcția Generală de Administrare a Marilor Contribuabili

         Questions referred

                  1.

                  Do Articles 2 and 273 of Council Directive 2006/112 of 28 November 2006 on the common system of value added tax, (1) Article 50 of the Charter of Fundamental Rights of the European Union and Article 325 TFEU, in circumstances such as those in the main proceedings, preclude national legislation, such as that at issue in the main proceedings, which enables the following combination of events to take place:

                              —

                              the payment of criminal damages, imposed during the pre-trial investigation phase on the basis of something other than a tax claim;

                              —

                              the subsequent conducting of a tax inspection, in parallel with the criminal proceedings in which the accused taxpayer has been brought to trial to respond to a charge of tax evasion, which imposes on that taxpayer ancillary tax liabilities for both the period and the amount already made available to the State authorities during the pre-trial investigation phase, while the decision regarding the administrative complaint lodged against the administrative and tax measures issued at the time of the inspection has been stayed pending the final decision in the criminal proceedings;

                              —

                              the closing of the criminal proceedings at first instance with the accused being sentenced, inter alia, jointly to pay the entirety of the amount imposed during the pre-trial investigation phase as being owed by all the accused parties, although only a part of that amount, which has already been paid by the taxpayer concerned, has been ascribed to that taxpayer; and to what extent are all of those events, taken together, excessive with regard to that same taxpayer?

                  2.

                  In circumstances such as those in the main proceedings, is the State authorities’ approach of refusing to take into consideration, from a tax perspective, a payment made before the administrative and criminal penalties have become final, in circumstances where the payment covers part of the tax liability imposed on a taxpayer, even in order to guarantee the objective of collecting tax liabilities owed to the State and to combat fraud, compatible with the principles of EU law in general and with the principle of non bis in idem in particular?

                  3.

                  In the light of the answers to Questions [1] and [2] above, should EU law be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not regard as a levying of tax contrary to EU law. a situation where a taxpayer pays criminal damages during the pre-trial investigation phase in order to have the term of the penalty reduced by half, where there is no tax claim from the competent authority, or where no final decision has been handed down by a criminal court, but the tax authorities impose, at the time of the tax inspection, ancillary tax liabilities for both the period and the amount already made available to the State authorities, the fee being levied, without grounds, from the time of the payment until such time as the tax liabilities are imposed on the basis of either a tax claim or a final decision in criminal proceedings?

         (1)  OJ 2006 L 347, p. 1.


title: Case C-32/19: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 18 January 2019 — AT v Pensionsversicherungsanstalt

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/23

      Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 18 January 2019 — AT v Pensionsversicherungsanstalt
      (Case C-32/19)
      (2019/C 131/29)
      Language of the case: German

         Referring court

      Oberster Gerichtshof

         Parties to the main proceedings

         Applicant: AT

         Defendant: Pensionsversicherungsanstalt

         Questions referred

                  1.

                  Is Article 17(1)(a) of Directive 2004/38/EC (1) of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC to be interpreted as meaning that workers who, at the time when they stop working, have reached the age laid down by the law of the State of employment for entitlement to an old age pension must have been working in the State of employment for at least the preceding 12 months and must have resided in the State of employment continuously for at least three years in order to acquire the right of permanent residence before completion of a five-year residence period?

                  2.

                  If Question 1 is answered in the negative:
                  Do workers have the right of permanent residence pursuant to the first alternative in Article 17(1)(a) of Directive 2004/38/EC if they take up employment in another Member State at a point in time at which it is foreseeable that they will be able to engage in their employment for only a relatively short period of time before they reach the statutory retirement age and, because of low income, will in any event be dependent on the host Member State’s social assistance after they stop working?

         (1)  OJ 2004 L 158, p. 77.


title: Case C-47/19: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 25 January 2019 — HA v Finanzamt Hamburg-Barmbek-Uhlenhorst

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/24

      Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 25 January 2019 — HA v Finanzamt Hamburg-Barmbek-Uhlenhorst
      (Case C-47/19)
      (2019/C 131/30)
      Language of the case: German

         Referring court

      Finanzgericht Hamburg

         Parties to the main proceedings

         Applicant: HA

         Defendant: Finanzamt Hamburg-Barmbek-Uhlenhorst

         Questions referred

                  1.

                  Does the concept of school and university education in Article 132(1)(i) and (j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (‘Directive 2006/112’) also include surfing and sailing tuition? Is it sufficient if such tuition is offered in at least one school or university in the Member State?

                  2.

                  In order to find that there is school or university education within the meaning of Article 132(1)(i) and (j) of Directive 2006/112, is it necessary for the tuition to be included as part of the students’ grades, or is it sufficient if the surfing or sailing course takes place in the context of organised school or university activities, such as a class trip?

                  3.

                  Is it possible for a surfing and sailing school to be recognised as an organisation with a similar object, within the meaning of Article 132(1)(i) of Directive 2006/112, on the basis of the regulations regarding school or university law, whereby even external surfing and sailing courses form part of physical education or the university education of physical education teachers where a grade or some other certificate of achievement is awarded, and/or on the basis of a public interest in sporting activities? Is a direct or indirect absorption of the costs of the courses by the school or university necessary for such recognition?

                  4.

                  Do surfing or sailing courses in the context of a class trip represent the supply of a service closely linked to the protection of children and young persons within the meaning of Article 132(1)(h) of Directive 2006/112? If so, is it necessary for that protection to last for a specific period of time?

                  5.

                  Does the wording ‘tuition given privately by teachers and covering school or university education’ in Article 132(1)(j) of Directive 2006/112 require that the taxable person give the tuition himself?

         (1)  OJ 2006 L 347, p. 1.


title: Case C-77/19: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 1 February 2019 — Kaplan International colleges UK Ltd v The Commissioners for Her Majesty's Revenue and Customs

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/25

      Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 1 February 2019 — Kaplan International colleges UK Ltd v The Commissioners for Her Majesty's Revenue and Customs
      (Case C-77/19)
      (2019/C 131/31)
      Language of the case: English

         Referring court

      First-tier Tribunal (Tax Chamber)

         Parties to the main proceedings

         Applicant: Kaplan International colleges UK Ltd

         Defendant: The Commissioners for Her Majesty's Revenue and Customs

         Questions referred

                  1.

                  What is the territorial scope of the exemption contained in Article 132(1)(f) of Council Directive 2006/112/EC (1)? In particular (i) does it extend to a Costs Sharing Group (CSG) which is established in a Member State other than the Member State or Member States of the members of the CSG? And if so, (ii) does it also extend to a CSG which is established outside of the EU?

                  2.

                  If the CSG exemption is in principle available to an entity established in a different Member State from one or more members of the CSG and also to a CSG established outside the EU, how should the criterion that the exemption should not be likely to cause distortion of competition be applied? In particular,

                              a)

                              Does it apply to potential distortion which affects other recipients of similar services which are not members of the CSG or does it only apply to potential distortion which affects potential alternative providers of services to the CSG's members?

                              b)

                              If it applies only to other recipients, can there be a real possibility of distortion if other recipients who are not members of the CSG are able either to apply to join the CSG in question, or to set up their own CSG to obtain similar services, or to obtain equivalent VAT savings by other methods (such as by setting up a branch in the Member State or third stat in question).

                              c)

                              If it applies only to other providers, is the real possibility of distortion to be assessed by determining whether the CSG is assured of keeping its member’s custom, irrespective of the availability of the VAT exemption — and therefore to be assessed by reference to the access of alternative providers to the national market in which the members of the CSG are established? If so, does it matter whether the CSG is assured of keeping its members’ custom because they are part of the same corporate group.

                              d)

                              Should potential distortion be assessed at a national level in relation to alternative providers in the third state where the CSG is established?

                              e)

                              Does the tax authority in the EU which administers the VAT Directive bear an evidential burden to establish the likelihood of distortion?

                              f)

                              Is it necessary for the tax authority in the EU to commission specific expert evaluation of the market of the third state where the CSG is established?

                              g)

                              Can the presence of a real possibility of distortion be established by the identification of a commercial market in the third state?

                  3.

                  Can the CSG exemption apply in the circumstances of this case where the members of the CSG are linked to one another by economic, financial or organisational relationships?

                  4.

                  Can the CSG exemption apply in circumstances where the members have formed a VAT group, which is a single taxable person? Does it make a difference if, KIC, the representative member to whom (as a matter of national law) the services are supplied, is not a member of the CSG? And, if it does make a difference, is this difference eliminated by national law stipulating that the representative member possesses the characteristics and status of the members of the CSG for the purpose of applying the CSG exemption?

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


title: Case C-79/19 P: Appeal brought on 1 February 2019 by the Republic of Lithuania against the judgment of the General Court (Fourth Chamber) delivered on 22 November 2018 in Case T-508/15 Republic of Lithuania v European Commission

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/26

      Appeal brought on 1 February 2019 by the Republic of Lithuania against the judgment of the General Court (Fourth Chamber) delivered on 22 November 2018 in Case T-508/15 Republic of Lithuania v European Commission
      (Case C-79/19 P)
      (2019/C 131/32)
      Language of the case: Lithuanian

         Parties

         Appellant: Republic of Lithuania (represented by: R. Krasuckaitė)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of the General Court in Case T-508/15 (1) (‘the judgment under appeal’) in so far as, in that judgment, the General Court dismissed the action for annulment of European Commission Implementing Decision (EU) 2015/1119 of 22 June 2015;

                  —

                  annul European Commission Implementing Decision (EU) 2015/1119 of 22 June 2015 (2) or refer the judgment under appeal back to the General Court for review;

                  —

                  order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      The Republic of Lithuania seeks annulment of the judgment of the General Court in Case T-508/15 on the following legal basis:

                  (1)

                  The General Court erred in law in finding, in paragraph 83 of the judgment under appeal, that the derogation provided for in Article 33m(1) of Regulation No 1257/1999 (3) relates only to the age of the persons transferring the farm, since that provision is clearly related to the milk quota as evidence of commercial agricultural production.

                  (2)

                  The General Court also distorted the facts in paragraphs 74 to 79 of the judgment under appeal by concluding that the Government of the Republic of Lithuania had failed to demonstrate that holding a milk quota meant that the applicant was engaged in commercial agricultural production, which in essence did not correspond to the documents of the case submitted to it.

         (1)  Judgment of the General Court (Fourth Chamber) of 22 November 2018, Republic of Lithuania v European Commission, T-508/15 (EU:T:2018:828).

         (2)  (OJ 2015 L 182, p. 39)

         (3)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).


title: Case C-100/19: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 8 February 2019 — Viasat UK Ltd, Viasat Inc. v Institut belge des services postaux et des télécommunications (IBPT)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/27

      Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 8 February 2019 — Viasat UK Ltd, Viasat Inc. v Institut belge des services postaux et des télécommunications (IBPT)
      (Case C-100/19)
      (2019/C 131/33)
      Language of the case: French

         Referring court

      Cour d’appel de Bruxelles

         Parties to the main proceedings

         Applicants: Viasat UK Ltd, Viasat Inc.

         Defendant: Institut belge des services postaux et des télécommunications (IBPT)

         Interveners: Inmarsat Ventures Ltd, Eutelsat SA

         Questions referred

                  1.

                  Are Article 4(1)(c)(ii), Article 7(1) and Article 8(1) of Decision No 626/2008/EC of the European Parliament and of the Council of 30 June 2008 on the selection and authorisation of systems providing mobile satellite services (MSS) (1) to be interpreted as meaning that, where it is established that the operator selected in accordance with Title II of that decision has not provided mobile satellite services through a mobile satellite system by the deadline set in Article 4(1)(c)(ii) of the decision, the competent authorities of the Member States referred to in Article 8(1) of the decision must refuse to grant authorisations allowing that operator to deploy complementary ground components on the ground that that operator has failed to honour the commitment given in its application?

                  2.

                  If the answer to the first question is in the negative, are those same provisions to be interpreted as meaning that, in the context given, the competent authorities of the Member States referred to in Article 8(1) of the decision may refuse to grant authorisations allowing that operator to deploy complementary ground components on the ground that it has not honoured the commitment to provide certain coverage by 13 June 2016?

         (1)  OJ 2008 L 172, p. 15.


title: Case C-107/19: Request for a preliminary ruling from the Obvodní soud pro Prahu 9 (Czech Republic) lodged on 12 February 2019 — XR v Dopravní podnik hl. m. Prahy, akciová společnost

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/28

      Request for a preliminary ruling from the Obvodní soud pro Prahu 9 (Czech Republic) lodged on 12 February 2019 — XR v Dopravní podnik hl. m. Prahy, akciová společnost
      (Case C-107/19)
      (2019/C 131/34)
      Language of the case: Czech

         Referring court

      Obvodní soud pro Prahu 9

         Parties to the main proceedings

         Applicant: XR

         Defendant: Dopravní podnik hl. m. Prahy, akciová společnost

         Questions referred

                  1.

                  Is a break period in which an employee must be available to his employer within two minutes, in case there is an emergency call out, to be considered ‘working time’ within the meaning of Article 2 of Directive 2003/88/EC (1) of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time?

                  2.

                  Is the assessment to be made in relation to the question above influenced by the fact that such interruption [of the break] in the event of an emergency call out occurs only at random and unpredictably or, as the case may be, by how often such interruption occurs?

                  3.

                  Can a court of first instance, ruling after its decision has been set aside by a higher court and the case referred back to it for further proceedings, fail to comply with a legal opinion pronounced by the higher court and which is binding on the court of first instance, if that opinion conflicts with EU law ?

         (1)  OJ 2003 L 299, p. 9.


title: Case C-119/19 P: Appeal brought on 14 February 2019 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 4 December 2018 in Case T-518/16, Carreras Sequeros and Others v Commission

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/29

      Appeal brought on 14 February 2019 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 4 December 2018 in Case T-518/16, Carreras Sequeros and Others v Commission
      (Case C-119/19 P)
      (2019/C 131/35)
      Language of the case: French

         Parties

         Appellant: European Commission (represented by: T.S. Bohr, G. Gattinara and L. Vernier, acting as Agents)

         Other parties to the proceedings: Francisco Carreras Sequeros, Mariola de las Heras Ojeda, Olivier Maes, Gabrio Marinozzi, Giacomo Miserocchi, Marc Thieme Groen, European Parliament and Council of the European Union

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of 4 December 2018, Carreras Sequeros and Others v Commission, T-518/16;

                  —

                  refer the case back to the General Court for a ruling on the second, third and fourth pleas in law put forward at first instance;

                  —

                  reserve the costs.

         Grounds of appeal and main arguments

      The Commission relies on two grounds of appeal.

                  1.

                  By its first ground of appeal, the Commission claims that the General Court erred in law in its interpretation of Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
                  The first part of that ground alleges an error of law in the interpretation of the content of Article 31(2) of the Charter. The content of the right to an annual period of paid leave, which is enshrined under Article 31(2), is specified in Article 7 of Directive 2003/88. (1) Thus, the General Court erred in law by taking into account other provisions of Directive 2033/88, such as Articles 14 and 23, and considering them to be applicable to the legislature.
                  By the second part of that ground, the Commission alleges an error of law in the interpretation of Article 31(2) of the Charter in so far as the General Court considered that the reduction provided for under Article 6 of Annex X to the Staff Regulations was not compatible with a purported principle of improving the living and working conditions of those concerned. Such a principle has no legal basis.
                  The third part of that ground alleges, in the alternative, an error of law in the interpretation of the other statutory provisions relating to the context of Article 6 of Annex X to the Staff Regulations. The General Court erred in excluding other statutory provisions from its assessment solely on the ground that they existed before the amendment to Article 6 of Annex X to the Staff Regulations. The legislature has broad discretion in the choice of measures to be amended or maintained.

                  2.

                  By its second ground of appeal, the Commission alleges an error of law in the interpretation of Article 52(1) of the Charter. The General Court disregarded the case-law to the effect that the legislature has broad discretion when amending the Staff Regulations and that a breach of the principle of proportionality may be found only where the legislature has manifestly exceeded the limits of that discretion.

         (1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).


title: Case C-122/19 P: Appeal brought on 14 February 2019 by Hamas against the judgment of the General Court (First Chamber, Extended Composition) delivered on 14 December 2018 in Case T-400/10 RENV, Hamas v Council

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/30

      Appeal brought on 14 February 2019 by Hamas against the judgment of the General Court (First Chamber, Extended Composition) delivered on 14 December 2018 in Case T-400/10 RENV, Hamas v Council
      (Case C-122/19 P)
      (2019/C 131/36)
      Language of the case: French

         Parties

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

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

         Form of order sought

      The appellant claims the Court should:

                  —

                  Set aside the judgment of 14 December 2018, Hamas v Council, T-400/10 RENV, in so far as it dismisses the application to annul the following measures:

                              —

                              Council Decision 2011/430/CFSP of 18 July 2011 (OJ 2011 L 188, p. 47), 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, Council Decisions 2011/872/CFSP of 22 December 2011 (OJ 2011 L 343, p. 54), 2012/333/CFSP of 25 June 2012 (OJ 2012 L 165, p. 72), 2012/765/CFSP of 10 December 2012 (OJ 2012 L 337, p. 50), 2013/395/CFSP of 25 July 2013 (OJ 2013 L 201, p. 57), 2014/72/CFSP of 10 February 2014 (OJ 2014 L 40, p. 56) and 2014/483/CFSP of 22 July 2014 (OJ 2014 L 217, p. 35) updating and, where appropriate, 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, respectively, Decisions 2011/430, 2011/872, 2012/333, 2012/765, 2013/395 and 2014/72,
                              and

                              —

                              Council Implementing Regulations (EU) No 687/2011 of 18 July 2011 (OJ 2011 L 188, p. 2), No 1375/2011 of 22 December 2011 (OJ 2011 L 343, p. 10), No 542/2012 of 25 June 2012 (OJ 2012 L 165, p. 12), No 1169/2012 of 10 December 2012 (OJ 2012 L 337, p. 2), No 714/2013 of 25 July 2013 (OJ 2013 L 201, p. 10), No 125/2014 of 10 February 2014 (OJ 2014 L 40, p. 9) and No 790/2014 of 22 July 2014 (OJ 2014 L 217, p. 1), 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, respectively, Implementing Regulations (EU) No 83/2011, 687/2011, 1375/2011, 542/2012, 1169/2012, 714/2013 and 125/2014,
                              in so far as those measures concern Hamas, including Hamas-Izz al-Din al-Qassem.

                  —

                  Give final judgment in the matters that are the subject of this appeal;

                  —

                  Order the Council to bear all the costs in Cases T-400/10, T-400/10 RENV, C-79/15 P and in the present case.

         Pleas in law and main arguments

                  1.

                  First plea in law, alleging infringement of the principles governing the shifting of the burden of proof as to the accuracy of the facts:

                              —

                              The General Court infringed the principles on the shifting of the burden of proof as laid down in the judgment Council v Hamas, C-79/15 P, and placed an extremely difficult, indeed impossible, burden of proof on Hamas;

                              —

                              In the alternative, the General Court infringed the principles on the shifting of the burden of proof in holding that Hamas had not made a specific and detailed challenge to the facts established by the Council;

                              —

                              The General Court failed to fulfil its obligation to respond, to the requisite legal standard, to all the arguments raised by the appellant concerning the possibility of attributing terrorist acts to it.

                  2.

                  Second plea in law, alleging infringement of the right to effective judicial review:

                              —

                              The General Court deprived the appellant of the right to effective judicial review by failing to find that the Council had not demonstrated the accuracy of the facts set out in its statements of reasons;

                              —

                              The General Court persisted in the infringement of the right to effective judicial review, despite the fact that a measure of organisation of procedure had confirmed that the contested measures were not taken on a sufficiently solid factual basis;

                              —

                              The General Court rejected the plea alleging an error on the part of the Council as to the accuracy of the facts resulting from unbalanced proceedings, to the detriment of the appellant.

                  3.

                  Third plea in law, alleging that the General Court infringed Article 1(4) of the Common Position by holding that the United Kingdom decision on which the Council relied was a conviction:

                              —

                              The classification as a conviction proposed by the General Court does not comply with the criteria laid down in Common Position 2001/931 and deprives the requirement to give reasons of any substance;

                              —

                              On the basis of that incorrect classification, the General Court also made impossible the judicial review of the classification of facts taken from the national decisions.

                  4.

                  Fourth plea in law: the General Court was not entitled to reject the plea that the Council had not taken sufficient account of the development of the situation owing to the passage of time other than at the price of infringement of the second paragraph of Article 61 of the Statute of the Court of Justice, an unlawful substitution of grounds and on the basis of an incorrect assumption.

                  5.

                  Fifth plea in law: the General Court erred in law in the interpretation of Article 296 TFEU in holding that the facts established independently by the Council and their classification are set out with sufficient precision and detail in the grounds to be challenged by the appellant and reviewed by the court.


title: Case C-126/19 P: Appeal brought on 15 February 2019 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 4 December 2018 in Case T-518/16, Carreras Sequeros and Others v Commission

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/31

      Appeal brought on 15 February 2019 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 4 December 2018 in Case T-518/16, Carreras Sequeros and Others v Commission
      (Case C-126/19 P)
      (2019/C 131/37)
      Language of the case: French

         Parties

         Appellant: Council of the European Union (represented by: M. Bauer, R. Meyer, acting as Agents)

         Other parties to the proceedings: Francisco Carreras Sequeros, Mariola de las Heras Ojeda, Olivier Maes, Gabrio Marinozzi, Giacomo Miserocchi, Marc Thieme Groen, European Commission and European Parliament

         Form of order sought

      The appellant claims that the Court should:

                  —

                  uphold the appeal;

                  —

                  dispose of the case and dismiss the action brought at first instance as unfounded;

                  —

                  order the applicants at first instance to pay the costs incurred by the Council in the course of the present proceedings.

         Grounds of appeal and main arguments

                  1.

                  The first ground of appeal alleges that the General Court erred in law with regard to its jurisdiction. That ground is divided into two parts.

                              —

                              The first part regards the subject-matter of the action. The Council claims that by annulling, in the operative part of the judgment, ‘the decisions reducing in 2014 the amount of annual leave [of the applicants]’, the General Court implicitly ordered the Commission to reinstate, in order to comply with the judgment, the number of leave days the applicants were entitled to before the amendment of the Staff Regulations. By proceeding in that manner and failing to rectify the subject-matter of the action, the General Court exceeded its jurisdiction. Alternatively, if such a rectification was not possible, the action should have been declared inadmissible.

                              —

                              In the second part, the Council claims that in permitting the applicants to contest, by means of objection, the lawfulness of the entire regime of annual leave set out in Article 6 of Annex X to the Staff Regulations, in particular as applicable from 2016, rather than solely the lawfulness of the provision implemented by the Commission in the decision determining the applicants’ leave for 2014, the General Court has exceeded the scope of its jurisdiction, in contradiction of settled case-law to the effect that the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings and that there must be a direct legal connection between the contested individual decision and the act of general application in question.

                  2.

                  The second ground of appeal alleges that the General Court erred in law in finding that the reduction in the number of annual leave days under the new Article 6 of Annex X to the Staff Regulations affects the applicants’ right to annual leave.
                  In the first place, in holding that, in certain circumstances, a directive (in the present case Directive 2003/88) (1) may be invoked against the institutions, the General Court disregarded settled case-law to the effect that directives are addressed to the Member States and not to EU institutions or bodies, with the effect that the provisions of a directive may not be treated as imposing any obligations on the EU institutions in their relations with their staff.
                  In the second place, the General Court erred in law in holding that the legislature is bound by the contents of Directive 2003/88 referred to in the explanations of the Praesidium regarding Article 31(2) of the Charter of Fundamental Rights.
                  In the third place, the General Court misconstrued the scope of Article 31(2) of the Charter of Fundamental Rights, which, contrary to the findings of the General Court, is not intended to improve living and working conditions, but rather to ensure an adequate level of protection for all workers in the European Union.
                  In the fourth place, the General Court erred in law in holding that Article 6 of Annex X to the Staff Regulations infringes the right to annual leave enshrined under Article 31(2) of the Charter of Fundamental Rights, in so far as the number of annual leave days of officials posted to a third country is significantly higher than the minimum of 20 days provided for in Directive 2003/88.

                  3.

                  The third ground of appeal, raised in the alternative, alleges an error of law as regards the justification for an alleged infringement of the right to annual leave. The General Court erred in law by holding that the justifications for the contested measure did not constitute an overriding public interest and by failing to assess whether the restriction on the right to leave constituted, in view of the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the right guaranteed.

         (1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).