title: Case T-731/17: Action brought on 30 October 2017 — Escribà Serra and Others v SRB

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/48

         Action brought on 30 October 2017 — Escribà Serra and Others v SRB
   (Case T-731/17)
   (2018/C 022/63)
   Language of the case: Spanish

      Parties

      Applicants: Juan Escribà Serra (Girona, Spain) and eight other applicants (represented by: R. Vallina Hoset and A. Lois Perreau de Pinninck, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that the Single Resolution Board has incurred non-contractual liability and order it to repair the harm suffered by the applicants as a result of both its actions and its omissions which resulted in the applicants losing in full their investments in surbordinated bonds of the Banco Popular Español, S.A.;

               —

               Order the Board to pay EUR 1 726 504 to the applicants as compensation for the harm suffered (‘the amount due’), broken down as follows:

                           —

                           Ramón Romaguera Amat: EUR 1 071 602,94;

                           —

                           Cerámica Puigdemont: EUR 260 437,16;

                           —

                           Maria Dolors Guell Parnau: EUR 52 524,35;

                           —

                           Enrique Escribà Nadal: EUR 70 838,57;

                           —

                           Joan Escribà Serra and Maria Dolors Nadal Casaponsa: EUR 151 796,93;

                           —

                           Laia Escribà Nadal and Maria Dolors Nadal Casaponsa: EUR 25 299,49;

                           —

                           José Sabater Comas and Ma Inmaculada Urgellés Bosch: EUR 94 004,56;

               —

               Increase the amount due with compensatory interest as of 7 June 2017 until delivery of the judgment disposing of the present case;

               —

               Increase the amount due with corresponding default interest as of the date of delivery of judgment until its payment in full, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points.

               —

               Order the SRB to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those relied on in Case T-659/17 Vallina Fonseca v SRB.


title: Case C-691/15 P: Judgment of the Court (Sixth Chamber) of 22 November 2017 — European Commission v Bilbaína de Alquitranes, SA and Others (Appeal — Environment — Regulation (EC) No 1272/2008 — Classification, labelling and packaging of certain substances and mixtures — Regulation (EU) No 944/2013 — Classification of pitch, coal tar, high-temperature — Categories of acute aquatic toxicity (H400) and chronic aquatic toxicity (H410) — Duty to act diligently — Manifest error of assessment)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/5

         Judgment of the Court (Sixth Chamber) of 22 November 2017 — European Commission v Bilbaína de Alquitranes, SA and Others
   (Case C-691/15 P) (1)

   ((Appeal - Environment - Regulation (EC) No 1272/2008 - Classification, labelling and packaging of certain substances and mixtures - Regulation (EU) No 944/2013 - Classification of pitch, coal tar, high-temperature - Categories of acute aquatic toxicity (H400) and chronic aquatic toxicity (H410) - Duty to act diligently - Manifest error of assessment))
   (2018/C 022/06)
   Language of the case: English

      Parties

      Appellant: European Commission (represented by K. Talabér-Ritz and P.-J. Loewenthal, acting as Agents)

      Other parties to the proceedings: Bilbaína de Alquitranes, SA, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica, SA, SGL Carbon GmbH, SGL Carbon GmbH, SGL Carbon, SGL Carbon, SA, SGL Carbon Polska S.A., ThyssenKrupp Steel Europe AG, Tokai erftcarbon GmbH (represented by: K. Van Maldegem, C. Mereu and M. Grunchard, avocats, and by P. Sellar, Advocate); European Chemicals Agency (ECHA) (represented by N. Herbatschek, W. Broere and M. Heikkilä, acting as Agents), GrafTech Iberica, SL (represented by: C. Mereu, K. Van Maldegem and M. Grunchard, avocats, and by P. Sellar, Advocate)

      Interveners in support of the applicant: Kingdom of Denmark (represented by: C. Thorning and M. N. Lyshøj, acting as Agents), Federal Republic of Germany (represented by: T. Henze, J. Möller and R. Kanitz, acting as Agents), Kingdom of the Netherlands (represented by: M. Bulterman, C.S. Schillemans and J. Langer, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Commission to pay, in addition to its own costs, those incurred by Bilbaína de Alquitranes SA, Deza a.s., Industrial Química del Nalón SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica SA, SGL Carbon GmbH (Germany), SGL Carbon GmbH (Austria), SGL Carbon, SGL Carbon SA, SGL Carbon Polska S.A., ThyssenKrupp Steel Europe AG and Tokai erftcarbon GmbH, including the costs relating to the interlocutory proceedings that gave rise to the order of the Vice-President of the Court of 7 July 2016, Commission v Bilbaína de Alquitranes and Others (C-691/15 P–R, not published, EU:C:2016:597);

               3.

               Orders the Kingdom of Denmark, the Federal Republic of Germany and the Kingdom of the Netherlands to bear their own costs;

               4.

               Orders GrafTech Iberica SL and the European Chemicals Agency to bear their own costs.

      (1)  OJ C 106, 21.3.2016.


title: Case T-31/16: Judgment of the General Court of 28 November 2017 — adp Gauselmann v EUIPO (Juwel) (European Union trade mark — Application for EU word mark Juwel — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/33

         Judgment of the General Court of 28 November 2017 — adp Gauselmann v EUIPO (Juwel)
   (Case T-31/16) (1)

   ((European Union trade mark - Application for EU word mark Juwel - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 022/45)
   Language of the case: German

      Parties

      Applicant: adp Gauselmann GmbH (Espelkamp, Germany) (represented by: P. Koch Moreno, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Schifko and A. Söder, acting as Agents)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 16 November 2015 (Case R 2571/2014-1) concerning an application for registration of word mark Juwel as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders adp Gauselmann GmbH to pay the costs.

      (1)  OJ C 106, 21.3.2016.


title: Case C-122/16 P: Judgment of the Court (Grand Chamber) of 14 November 2017 — British Airways plc v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — European airfreight market — Commission decision concerning agreements and concerted practices in respect of several elements of the pricing of airfreight services — Defective statement of reasons — Plea involving a matter of public policy raised by the EU courts of their own motion — Prohibition on ruling ultra petita — Form of order set out in the application at first instance seeking the partial annulment of the decision at issue — The General Court of the European Union prohibited from annulling the decision at issue in its entirety — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/6

         Judgment of the Court (Grand Chamber) of 14 November 2017 — British Airways plc v European Commission
   (Case C-122/16 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - European airfreight market - Commission decision concerning agreements and concerted practices in respect of several elements of the pricing of airfreight services - Defective statement of reasons - Plea involving a matter of public policy raised by the EU courts of their own motion - Prohibition on ruling ultra petita - Form of order set out in the application at first instance seeking the partial annulment of the decision at issue - The General Court of the European Union prohibited from annulling the decision at issue in its entirety - Article 47 of the Charter of Fundamental Rights of the European Union - Right to an effective remedy))
   (2018/C 022/07)
   Language of the case: English

      Parties

      Appellant: British Airways plc (represented by: J. Turner QC and R. O’Donoghue, Barrister, instructed by A. Lyle-Smythe, Solicitor)

      Other party to the proceedings: European Commission (represented by: N. Khan and A. Dawes, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders British Airways plc to pay the costs.

      (1)  OJ C 191, 30.5.2016.


title: Case C-597/17: Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 16 October 2017 — Belgisch Syndicaat van Chiropraxie and Others

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/19

         Request for a preliminary ruling from the Grondwettelijk Hof (Belgium) lodged on 16 October 2017 — Belgisch Syndicaat van Chiropraxie and Others
   (Case C-597/17)
   (2018/C 022/29)
   Language of the case: Dutch

      Referring court

   Grondwettelijk Hof

      Parties to the main proceedings

      Applicants: Belgisch Syndicaat van Chiropraxie, Bart Vandendries, Belgische Unie van Osteopaten and Others, Plast.Surg. and Others, Belgian Society for Private Clinics and Others

      Other party: Ministerraad

      Questions referred

               1.

               Should Article 132(1)(c) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that that provision reserves the exemption to which it refers, in the case of both conventional and non-conventional practices, to practitioners of a medical or a paramedical profession that is subject to national legislation governing the healthcare professions and who meet the requirements laid down by that national legislation, and that persons who do not meet those requirements, but who are affiliated to a professional association of chiropractors or osteopaths and who meet the requirements laid down by that association, are excluded from that exemption?

               2.

               Should Article 132(1)(b), (c) and (e), Article 134 and Article 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with points 3 and 4 of Annex III to that directive, in particular from the point of view of the principle of fiscal neutrality, be interpreted as meaning:

                           (a)

                           that they preclude a national provision which provides for a reduced rate of VAT to be applicable to medicinal products and medical aids supplied in connection with an operation or treatment of a therapeutic nature, whereas medicinal products and medical aids supplied in connection with an operation or treatment of a purely aesthetic nature, and closely related thereto, are subject to the normal rate of VAT;

                           (b)

                           or that they permit or require equal treatment of both the aforementioned cases?

               3.

               Is there an obligation on the Constitutional Court to maintain, on a temporary basis, the effects of the … provisions to be annulled, as well as those of the provisions which, if necessary, must be annulled in whole or in part, if it follows from the answer to the first or the second question to be referred that those provisions are contrary to EU law, in order to enable the legislature to bring them into line with EU law?

      (1)  OJ 2006, L 347, p. 1.


title: Case T-773/17: Action brought on 27 November 2017 — Café del Mar and Others v EUIPO — Guiral Broto (Café del Mar)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/60

         Action brought on 27 November 2017 — Café del Mar and Others v EUIPO — Guiral Broto (Café del Mar)
   (Case T-773/17)
   (2018/C 022/80)
   Language in which the application was lodged: Spanish

      Parties

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

      Defendant: European Union Intellectual Property Office (EUIPO)

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

      Details of the proceedings before EUIPO

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

      Trade mark at issue: European Union figurative mark containing the word elements ‘Café del Mar’ — European Union trade mark No 1 054 303

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 4 September 2017 in Case R 1542/2015-5

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision;

               —

               declare European Union figurative mark No 1 054 303 containing the word elements ‘Café del Mar’ invalid;

               —

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

      Plea in law

               —

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


title: Case T-738/17: Action brought on 3 November 2017 — STIF-IDF v Commission

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/49

         Action brought on 3 November 2017 — STIF-IDF v Commission
   (Case T-738/17)
   (2018/C 022/65)
   Language of the case: French

      Parties

      Applicant: Syndicat Transport Île-de-France (STIF-IDF) (Paris, France) (represented by: B. Le Bret and C. Rydzynski, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               partially annul the contested decision to the extent that, in Article 3, it classifies ‘the C2 contributions awarded by STIF under CT2’ as an ‘unlawfully implemented aid scheme’ but compatible with the internal market;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of Article 107(1) TFEU vitiating the contested decision in the present case, namely Commission Decision (EU) 2017/1470 of 2 February 2017 on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France Region (OJ 2017 L 209, p. 24). Such an infringement was committed by the Commission in so far as it classified the C2 contribution of CT2 as State aid, considering that the measure conferred an economic advantage on its beneficiaries.
               The applicant considers moreover that the Commission, in its analysis, commits several errors of law and assessment when it concluded that the fourth criterion of the Altmark case-law was not fulfilled in the present case.

               2.

               Second plea in law, alleging a failure to state reasons for the contested decision, relating to the failure to comply with the fourth criterion of the Altmark case-law and of the existence of an economic advantage.


title: Case C-598/17: Request for a preliminary ruling from the Gerechtshof ’s-Hertogenbosch (Netherlands) lodged on 16 October 2017 — A-Fonds v Inspecteur van de Belastingdienst

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/20

         Request for a preliminary ruling from the Gerechtshof ’s-Hertogenbosch (Netherlands) lodged on 16 October 2017 — A-Fonds v Inspecteur van de Belastingdienst
   (Case C-598/17)
   (2018/C 022/30)
   Language of the case: Dutch

      Referring court

   Gerechtshof ’s-Hertogenbosch

      Parties to the main proceedings

      Applicant: A-Fonds

      Defendant: Inspecteur van de Belastingdienst

      Questions referred

               1)

               Is the extension of the scope of an existing system of aid as a result of a taxable person successfully invoking the right to the free movement of capital as laid down in Article 56 of the EC Treaty (now: Article 63 TFEU) to be regarded as a new system of aid resulting from an alteration to existing aid?

               2)

               If so, does the task to be performed by the national court under Article 108(3) TFEU preclude the taxable person from being granted a tax advantage which that taxable person claims under Article 56 of the EC Treaty (now: Article 63 TFEU), or should a proposed judicial decision to grant that advantage be notified to the Commission, or should the national court take any other action or implement any other measure, in view of the supervisory task assigned to it under Article 108(3) TFEU?


title: Case C-165/16: Judgment of the Court (Grand Chamber) of 14 November 2017 (request for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Toufik Lounes v Secretary of State for the Home Department (Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Directive 2004/38/EC — Beneficiaries — Dual nationality — Union citizen having acquired the nationality of the host Member State while retaining her nationality of origin — Right of residence in that Member State of a third-country national who is a family member of the Union citizen)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/7

         Judgment of the Court (Grand Chamber) of 14 November 2017 (request for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) — United Kingdom) — Toufik Lounes v Secretary of State for the Home Department
   (Case C-165/16) (1)

   ((Reference for a preliminary ruling - Citizenship of the Union - Article 21 TFEU - Directive 2004/38/EC - Beneficiaries - Dual nationality - Union citizen having acquired the nationality of the host Member State while retaining her nationality of origin - Right of residence in that Member State of a third-country national who is a family member of the Union citizen))
   (2018/C 022/08)
   Language of the case: English

      Referring court

   High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicant: Toufik Lounes

      Defendant: Secretary of State for the Home Department

      Operative part of the judgment

   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 must be interpreted as meaning that, in a situation in which a citizen of the European Union (i) has exercised his freedom of movement by moving to and residing in a Member State other than that of which he is a national, under Article 7(1) or Article 16(1) of that directive, (ii) has then acquired the nationality of that Member State, while also retaining his nationality of origin, and (iii) several years later, has married a third-country national with whom he continues to reside in that Member State, that third-country national does not have a derived right of residence in the Member State in question on the basis of Directive 2004/38. The third-country national is however eligible for a derived right of residence under Article 21(1) TFEU, on conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.

      (1)  OJ C 191, 30.5.2016.


title: Case T-748/17: Action brought on 15 November 2017 — TrekStor v EUIPO — Beats Electronics (i.Beat)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/50

         Action brought on 15 November 2017 — TrekStor v EUIPO — Beats Electronics (i.Beat)
   (Case T-748/17)
   (2018/C 022/66)
   Language in which the application was lodged: English

      Parties

      Applicant: TrekStor Ltd (Hong-Kong, China) (represented by: O. Spieker, M. Alber, A. Schönfleisch, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Beats Electronics LLC (Culver City, California, United States)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘i.Beat’– EU trade mark No 5 009 139

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 12 September 2017 in Joined Cases R 2175/2016-4 and R 2213/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision insofar as it dismisses the appeal of the Applicant against the decision of the Defendant’s Cancellation Division dated September 29th, 2016 and thus upholds the Cancellation Applicant’s application for revocation and revokes the Applicant’s rights in respect of European Union trade mark No 005009139

               —

               dismiss of Cancellation Applicant’s application for revocation;

               —

               order the Cancellation Applicant and EUIPO to pay the costs of the proceedings including the costs necessarily incurred by the Applicant before the Board of the European Union Intellectual Property Office (EUIPO).

      Pleas in law

               —

               Infringement of Article 58(1)(a), of Regulation No 2017/1001;

               —

               Infringement of Article 18(1)(a) of Regulation No 2017/1001.


title: Case C-601/17: Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 18 October 2017 — Dirk Harms and Others v Vueling Airlines SA

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/21

         Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 18 October 2017 — Dirk Harms and Others v Vueling Airlines SA
   (Case C-601/17)
   (2018/C 022/31)
   Language of the case: German

      Referring court

   Amtsgericht Hamburg

      Parties to the main proceedings

      Applicants: Dirk Harms, Ann-Kathrin Harms, Nick-Julius Harms, Tom-Lukas Harms, Lilly-Karlotta Harms, Emma-Matilda Harms, the latter four represented by their parents Dirk Harms und Ann-Kathrin Harms

      Defendant: Vueling Airlines SA

      Question referred

   Must the concept of ‘reimbursement … by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought’ in accordance with Article 8(1)(a) of Regulation No 261/2004 (1) be interpreted as referring to the amount paid by the passenger for the ticket in question, or is it the amount which the defendant air carrier has actually received, where an intermediary undertaking is involved in the booking process and collects the difference between what the passenger pays and what the air carrier receives without disclosing this?

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


title: Case T-239/16: Judgment of the General Court of 28 November 2017 — Polskie Zdroje v EUIPO (perlage) (European Union trade mark — Application for EU word mark perlage — Absolute ground for refusal — Descriptive — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — No distinctive character acquired by use — Article 7(3) of Regulation (EC) No 207/2009 (now Article 7(3) of Regulation (EU) 2017/1001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/34

         Judgment of the General Court of 28 November 2017 — Polskie Zdroje v EUIPO (perlage)
   (Case T-239/16) (1)

   ((European Union trade mark - Application for EU word mark perlage - Absolute ground for refusal - Descriptive - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) - No distinctive character acquired by use - Article 7(3) of Regulation (EC) No 207/2009 (now Article 7(3) of Regulation (EU) 2017/1001)))
   (2018/C 022/46)
   Language of the case: Polish

      Parties

      Applicant: Polskie Zdroje sp. z o.o. sp.k. (Warsaw, Poland) (represented by: T. Gawrylczyk, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 16 March 2016 (Case R 1129/2015-5) concerning an application for registration of word sign perlage as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Polskie Zdroje sp. z o.o. sp.k. to pay the costs.

      (1)  OJ C 243, 4.7.2016.


title: Case C-224/16: Judgment of the Court (Tenth Chamber) of 22 November 2017 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Asotsiatsia na balgarskite predpriyatia za mezhdunarodni prevozi i patishtata (Aebtri) v Nachalnik na Mitnitsa Burgas (Reference for a preliminary ruling — Customs union — External transit — Road freight transport operation carried out under cover of a TIR carnet — Article 267 TFEU — Jurisdiction of the Court to interpret Articles 8 and 11 of the TIR Convention — TIR operation not discharged — Liability of the guaranteeing association — Article 8(7) of the TIR Convention — Duty of the competent authorities to require payment so far as possible from the person or persons directly liable before making a claim against the guaranteeing association — Explanatory notes annexed to the TIR Convention — Regulation (EEC) No 2454/93 — Article 457(2) — Community Customs Code — Articles 203 and 213 — Persons who acquired or held the goods and who were aware or should reasonably have been aware that they had been removed from customs supervision)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/8

         Judgment of the Court (Tenth Chamber) of 22 November 2017 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Asotsiatsia na balgarskite predpriyatia za mezhdunarodni prevozi i patishtata (Aebtri) v Nachalnik na Mitnitsa Burgas
   (Case C-224/16) (1)

   ((Reference for a preliminary ruling - Customs union - External transit - Road freight transport operation carried out under cover of a TIR carnet - Article 267 TFEU - Jurisdiction of the Court to interpret Articles 8 and 11 of the TIR Convention - TIR operation not discharged - Liability of the guaranteeing association - Article 8(7) of the TIR Convention - Duty of the competent authorities to require payment so far as possible from the person or persons directly liable before making a claim against the guaranteeing association - Explanatory notes annexed to the TIR Convention - Regulation (EEC) No 2454/93 - Article 457(2) - Community Customs Code - Articles 203 and 213 - Persons who acquired or held the goods and who were aware or should reasonably have been aware that they had been removed from customs supervision))
   (2018/C 022/09)
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Asotsiatsia na balgarskite predpriyatia za mezhdunarodni prevozi i patishtata (Aebtri)

      Defendant: Nachalnik na Mitnitsa Burgas

      Operative part of the judgment

               1.

               The Court has jurisdiction to give preliminary rulings on the interpretation of Articles 8 and 11 of the Customs Convention on the international transport of goods under cover of TIR carnets, signed in Geneva on 14 November 1975, and approved on behalf of the European Economic Community by Council Regulation (EEC) No 2112/78 of 25 July 1978, in its amended and consolidated version published by Council Decision 2009/477/EC of 28 May 2009.

               2.

               Article 8(7) of the Customs Convention on the international transport of goods under cover of TIR carnets, approved on behalf of the Community by Regulation No 2112/78, in its amended and consolidated version published by Decision 2009/477, must be interpreted as meaning that, in a situation such as that in the main proceedings, the customs authorities have fulfilled the obligation laid down in that provision to require payment of the import duties and taxes concerned, so far as possible, from the holder of the TIR carnet as the person directly liable for those sums, before bringing a claim against the guaranteeing association.

               3.

               The third indent of Article 203(3) and Article 213 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that the fact that a recipient acquired or held goods which he knew to have been conveyed under cover of a TIR carnet and the fact that it has not been established that those goods were presented and declared to the customs office of destination, are not sufficient, in themselves, for it to be concluded that such a recipient was aware or should reasonably have been aware that those goods had been removed from customs supervision within the meaning of the first of those provisions and must therefore be held jointly and severally liable for the customs debt pursuant to the second of those provisions.

      (1)  OJ C 243, 4.7.2016.


title: Case T-749/17: Action brought on 14 November 2017 — TrekStor v EUIPO — Beats Electronics (i.Beat jess)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/50

         Action brought on 14 November 2017 — TrekStor v EUIPO — Beats Electronics (i.Beat jess)
   (Case T-749/17)
   (2018/C 022/67)
   Language in which the application was lodged: English

      Parties

      Applicant: TrekStor Ltd (Hong-Kong, China) (represented by: O. Spieker, M. Alber, A. Schönfleisch, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Beats Electronics LLC (Culver City, California, United States)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘i.Beat jess’– EU trade mark No 4 728 895

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 12 September 2017 in Case R 2234/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision insofar as it upholds the Cancellation Applicant’s application for revocation and revokes the Applicant’s rights in respect of European Union trade mark No 4 728 895;

               —

               dismiss the Cancellation Applicant’s application for revocation;

               —

               order EUIPO to bear the costs of the proceedings including the costs necessarily incurred by the Applicant before the Board of Appeal of the European Union Intellectual Property Office (EUIPO).

      Pleas in law

               —

               Infringement of Article 58(1)(a) of Regulation No 2017/1001;

               —

               Infringement of Article 18(1)(a) of Regulation No 2017/1001.


title: Case C-604/17: Request for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria) lodged on 23 October 2017 — PM v AH

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/21

         Request for a preliminary ruling from the Varhoven kasatsionen sad (Bulgaria) lodged on 23 October 2017 — PM v AH
   (Case C-604/17)
   (2018/C 022/32)
   Language of the case: Bulgarian

      Referring court

   Varhoven kasatsionen sad

      Parties to the main proceedings

      Appellant: PM

      Respondent: AH

      Question referred

   Does Regulation (EC) No 2201/2003 (1) permit the examination of cases concerning parental responsibility, where the conditions laid down in Articles 8 and 12 of that regulation have not been fulfilled, by a court of a Member State which has jurisdiction to examine the divorce case under Article 3 of the regulation, where the national legislation of that Member State requires the court to rule ex officio on the exercise of parental rights, measures concerning access, maintenance and use of the marital home, at the same time as the divorce application?

      (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 T-254/16: Judgment of the General Court of 28 November 2017 — Steel Invest & Finance (Luxembourg) v Commission (State aid — Iron and steel industry — Aid granted by Belgium in favour of several undertakings in the iron and steel industry — Decision declaring the aid incompatible with the internal market and ordering its recovery — Obligation to state reasons — Concept of State aid — Advantage — Private investor test)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/35

         Judgment of the General Court of 28 November 2017 — Steel Invest & Finance (Luxembourg) v Commission
   (Case T-254/16) (1)

   ((State aid - Iron and steel industry - Aid granted by Belgium in favour of several undertakings in the iron and steel industry - Decision declaring the aid incompatible with the internal market and ordering its recovery - Obligation to state reasons - Concept of State aid - Advantage - Private investor test))
   (2018/C 022/47)
   Language of the case: French

      Parties

      Applicant: Steel Invest & Finance (Luxembourg) SA (Strassen, Luxembourg) (represented by: E. van den Broucke, lawyer)

      Defendant: European Commission (represented by: initially, É. Gippini Fournier and K. Herrmann, and, subsequently, É. Gippini Fournier, V. Bottka and G. Luengo, acting as Agents)

      Re:

   Application pursuant to Article 263 TFEU and seeking partial annulment of Commission Decision (EU) 2016/2041 of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) granted by Belgium to Duferco (OJ 2016 L 314, p. 22).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Steel Invest & Finance (Luxembourg) SA to bear its own costs;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 251, 11.7.2016.


title: Case C-246/16: Judgment of the Court (First Chamber) of 23 November 2017 (request for a preliminary ruling from the Commissione tributaria provinciale di Siracusa — Italy) — Enzo Di Maura v Agenzia delle Entrate — Direzione Provinciale di Siracusa (Reference for a preliminary ruling — Value added tax (VAT) — Taxable amount — Sixth Directive 77/388/EEC — Second subparagraph of Article 11C(1) — Restriction of the right to reduce the taxable amount in the event of non-payment by the other party to the contract — Scope for implementation by the Member States — Proportionality of the period of pre-financing by the trader)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/9

         Judgment of the Court (First Chamber) of 23 November 2017 (request for a preliminary ruling from the Commissione tributaria provinciale di Siracusa — Italy) — Enzo Di Maura v Agenzia delle Entrate — Direzione Provinciale di Siracusa
   (Case C-246/16) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Taxable amount - Sixth Directive 77/388/EEC - Second subparagraph of Article 11C(1) - Restriction of the right to reduce the taxable amount in the event of non-payment by the other party to the contract - Scope for implementation by the Member States - Proportionality of the period of pre-financing by the trader))
   (2018/C 022/10)
   Language of the case: Italian

      Referring court

   Commissione tributaria provinciale di Siracusa

      Parties to the main proceedings

      Applicant: Enzo Di Maura

      Defendant: Agenzia delle Entrate — Direzione Provinciale di Siracusa

      Operative part of the judgment

   Article 11C(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the law of the Member State relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a Member State may not make the reduction of the VAT taxable amount in the event of total or partial non-payment subject to the condition that insolvency proceedings have been unsuccessful when such proceedings may last longer than ten years.

      (1)  OJ C 260, 18.7.2016.


title: Case T-475/16: Judgment of the General Court of 30 November 2017 — FTI Touristik v EUIPO — Prantner and Giersch (FI) (European Union trade mark — Opposition proceedings — Application for EU figurative mark FI — Prior EU figurative mark fly.de — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/35

         Judgment of the General Court of 30 November 2017 — FTI Touristik v EUIPO — Prantner and Giersch (FI)
   (Case T-475/16) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU figurative mark FI - Prior EU figurative mark fly.de - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 022/48)
   Language of the case: German

      Parties

      Applicant: FTI Touristik GmbH (Munich, Germany) (represented by: A. Parr, lawyer)

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

      Other parties to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Harald Prantner (Hamburg, Germany) and Daniel Giersch (Monaco, Monaco) (represented by: S. Eble and Y.-A. Wolff, lawyers)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 16 June 2016 (Case R 480/2015-5) concerning opposition proceedings between FTI Touristik and Messrs Prantner and Giersch.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders FTI Touristik GmbH to pay the costs.

      (1)  OJ C 383, 17.10.2016.


title: Case C-606/17: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 October 2017 — IBA Molecular Italy Srl v Azienda ULSS n. 3 and Others

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/22

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 20 October 2017 — IBA Molecular Italy Srl v Azienda ULSS n. 3 and Others
   (Case C-606/17)
   (2018/C 022/33)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: IBA Molecular Italy Srl

      Defendants: Azienda ULSS n. 3, Regione Veneto, Ministero della Salute, Ospedale dell’Angelo di Mestre

      Questions referred

               1.

               Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of Directive 2004/18/EC (1), include within their scope complex operations whereby a public contracting authority means to award directly to a given economic operator specific-purpose funding, the sole purpose of which is the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier; and, consequently, do the abovementioned rules of EU law preclude national rules which permit the direct award of specific-purpose funding for the manufacture of products intended to be supplied free of charge, without any subsequent tendering procedure, to various authorities which are not required to make any payment to the supplier?

               2.

               Do the EU rules on the award of public works contracts, public service contracts and public supply contracts, and in particular Articles 1 and 2 of Directive 2004/18/EC and Articles 49, 56 and 105 et seq. of the EU Treaty, preclude national rules which treat private ‘classified’ hospitals as the equivalent of public hospitals, by bringing them within the system of national public healthcare planning, governed by special agreements that are distinct from ordinary accreditation relationships with other private parties that participate in the system of provision of healthcare services, in the absence of the requirements for recognition as a body governed by public law and the requirements for direct awards in accordance with the ‘in-house provision’ model, and thereby take them outside the scope of national and EU rules on public contracts, including in cases where such classified hospitals are entrusted with the manufacture and supply, free of charge, to public healthcare establishments of specific products which are necessary for the provision of healthcare services and where, at the same time, they receive specific-purpose public funding for the purpose of providing such supplies?

      (1)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).


title: Case T-633/16: Judgment of the General Court of 29 November 2017 — Bilde v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Parliamentary assistance allowance — Recovery of sums wrongfully paid — Power of the Secretary — General — Electa una via — Rights of the defence — Burden of proof — Obligation to state reasons — Legitimate expectations — Political rights — Equal treatment — Misuse of power — Independence of the Members — Error of fact — Proportionality)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/36

         Judgment of the General Court of 29 November 2017 — Bilde v Parliament
   (Case T-633/16) (1)

   ((Rules governing the payment of expenses and allowances to Members of the European Parliament - Parliamentary assistance allowance - Recovery of sums wrongfully paid - Power of the Secretary — General - Electa una via - Rights of the defence - Burden of proof - Obligation to state reasons - Legitimate expectations - Political rights - Equal treatment - Misuse of power - Independence of the Members - Error of fact - Proportionality))
   (2018/C 022/49)
   Language of the case: French

      Parties

      Applicant: Dominique Bilde (Lagarde, France) (represented by: G. Sauveur, lawyer)

      Defendant: European Parliament (represented by: G. Corstens and S. Seyr, acting as Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: M. Bauer, R. Meyer and A. Jensen, acting as Agents)

      Re:

   Application on the basis of Article 263 TFEU seeking the annulment of the decision of the Secretary-General of the Parliament of 23 June 2016 concerning the recovery of a sum of EUR 40 320 wrongfully paid as parliamentary assistance allowance, of the notification and measures implementing that decision contained in the letters of the Director-General for Finance of the Parliament of 30 June and July 2016 and the debit note of 29 June 2016 relating thereto and application on the basis of Article 268 TFEU seeking compensation of the loss which the applicant allegedly suffered due, in particular, to that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ms Dominique Bilde to bear her own costs and to pay those incurred by the European Parliament;

               3.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 383, 17.10.2016.


title: Case C-612/17: Request for a preliminary ruling from the Corte dei Conti (Italy) lodged on 24 October 2017 — Federazione Italiana Golf (FIG) v Istituto Nazionale di Statistica — ISTAT, Ministero dell’Economia e delle Finanze

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/23

         Request for a preliminary ruling from the Corte dei Conti (Italy) lodged on 24 October 2017 — Federazione Italiana Golf (FIG) v Istituto Nazionale di Statistica — ISTAT, Ministero dell’Economia e delle Finanze
   (Case C-612/17)
   (2018/C 022/34)
   Language of the case: Italian

      Referring court

   Corte dei Conti

      Parties to the main proceedings

      Applicant: Federazione Italiana Golf (FIG)

      Defendants: Istituto Nazionale di Statistica — ISTAT, Ministero dell’Economia e delle Finanze

      Questions referred

               1.

               Must the concept of ‘public intervention in the form of general regulations applicable to all units working in the same activity’ referred to in Paragraph 20.15 of [Annex A to] Regulation (EU) No 549/2013 (1) (‘the ESA 2010’) be understood broadly as covering also the powers of guidance of a sporting nature (so-called soft law) and the powers of recognition, laid down by law, for the purposes of acquiring legal personality and enablement powers in the sports sector, both powers relating generally to all Italian national sports federations?

               2.

               Must the general indicator of control referred to in Paragraph 20.15 of [Annex A to] Regulation (EU) No 549/2013 (‘the ESA 2010’) (‘the ability to determine the general policy or programme of [a non-profit institution]’) be interpreted in a substantive sense as the ability to manage, constrain and influence the management activity of the non-profit institution or can it be understood in a non-technical sense as also covering powers of external supervision other than those defined by the specific indicators of control referred to in subparagraphs (a), (b), (c), (d) and (e) of Paragraph 20.15 (such as, for example, powers to approve budgets, appoint auditors, and approve statutes and certain types of regulations, sports guidelines or recognition for the purposes of sport)?

               3.

               On the basis of the combined provisions of Paragraphs 20.15, 4.125 and 4.126 of [Annex A to] Regulation (EU) No 549/2013 (‘the ESA 2010’), can account be taken of membership fees for the purposes of establishing the existence or otherwise of public control, specifying whether a high level of such fees, together with other own revenues, can demonstrate, in the light of the particular features of the case at issue, that the non-profit institution has significant ability to exercise self-determination?

      (1)  Regulation (EU) No 549/2013 of the European Parliament and the Council of 21 May 2013 on the European system of national and regional accounts in the European Union (Text with EEA relevance) (OJ 2013 L 174, p. 1).


title: Case C-250/16 P: Judgment of the Court (Tenth Chamber) of 16 November 2017 — Ludwig-Bölkow-Systemtechnik GmbH v European Commission (Appeal — Arbitration clause — Sixth framework programme for research, technological development and demonstration activities (2002-2006) — Partial repayment of the sums paid to the appellant — Liquidated damages)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/9

         Judgment of the Court (Tenth Chamber) of 16 November 2017 — Ludwig-Bölkow-Systemtechnik GmbH v European Commission
   (Case C-250/16 P) (1)

   ((Appeal - Arbitration clause - Sixth framework programme for research, technological development and demonstration activities (2002-2006) - Partial repayment of the sums paid to the appellant - Liquidated damages))
   (2018/C 022/11)
   Language of the case: German

      Parties

      Appellant: Ludwig-Bölkow-Systemtechnik GmbH (represented by: M. Núñez Müller, Rechtsanwalt)

      Other party to the proceedings: European Commission (represented by: T. Maxian Rusche and F. Moro, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ludwig-Bölkow-Systemtechnik GmbH to pay the costs.

      (1)  OJ C 222, 20.6.2016.


title: Case T-634/16: Judgment of the General Court of 29 November 2017 — Montel v Parliament (Rules governing the payment of expenses and allowances to Members of the European Parliament — Parliamentary assistance allowance — Recovery of sums wrongfully paid — Power of the Secretary-General — Electa una via — Rights of the defence — Burden of proof — Obligation to state reasons — Legitimate expectations — Political rights — Equal treatment — Misuse of power — Independence of the Members — Error of fact — Proportionality)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/37

         Judgment of the General Court of 29 November 2017 — Montel v Parliament
   (Case T-634/16) (1)

   ((Rules governing the payment of expenses and allowances to Members of the European Parliament - Parliamentary assistance allowance - Recovery of sums wrongfully paid - Power of the Secretary-General - Electa una via - Rights of the defence - Burden of proof - Obligation to state reasons - Legitimate expectations - Political rights - Equal treatment - Misuse of power - Independence of the Members - Error of fact - Proportionality))
   (2018/C 022/50)
   Language of the case: French

      Parties

      Applicant: Sophie Montel (Saint-Vit, France) (represented by: G. Sauveur, lawyer)

      Defendant: European Parliament (represented by: G. Corstens and S. Seyr, acting as Agents)

      Intervener in support of the defendant: Council of the European Union (represented by: M. Bauer, R. Meyer and A. Jensen, acting as Agents)

      Re:

   Application on the basis of Article 263 TFEU seeking the annulment of the decision of the Secretary-General of the Parliament of 24 June 2016 concerning the recovery of a sum of EUR 77 276,42 wrongfully paid as parliamentary assistance allowance, of the notification and measures implementing that decision contained in the letters of the Director-General for Finance of the Parliament of 5 and 6 July 2016 and the debit note of 4 July 2016 relating thereto and application on the basis of Article 268 TFEU seeking compensation of the loss which the applicant allegedly suffered due, in particular, to that decision.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Secretary-General of the Parliament of 24 June 2016 concerning the recovery from Ms Sophie Montel of a sum of EUR 77 276,42 wrongfully paid as parliamentary assistance allowance and the debit note of 4 July 2016 relating thereto insofar as they concern sums paid between February and April 2015;

               2.

               Dismisses the remainder of the action;

               3.

               Orders Ms Montel, the European Parliament and the Council of the European Union each to bear their own costs.

      (1)  OJ C 383, 17.10.2016.


title: Case C-251/16: Judgment of the Court (Fourth Chamber) of 22 November 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — Edward Cussens, John Jennings, Vincent Kingston v T.G. Brosnan (Reference for a preliminary ruling — Common system of value added tax (VAT) — Sixth Directive 77/388/EEC — Article 4(3)(a) and Article 13B(g) — Exemption of the supply of buildings, and of the land on which they stand, other than as described in Article 4(3)(a) — Principle that abusive practices are prohibited — Applicability in the absence of national provisions transposing that principle — Principles of legal certainty and of the protection of legitimate expectations)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/10

         Judgment of the Court (Fourth Chamber) of 22 November 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — Edward Cussens, John Jennings, Vincent Kingston v T.G. Brosnan
   (Case C-251/16) (1)

   ((Reference for a preliminary ruling - Common system of value added tax (VAT) - Sixth Directive 77/388/EEC - Article 4(3)(a) and Article 13B(g) - Exemption of the supply of buildings, and of the land on which they stand, other than as described in Article 4(3)(a) - Principle that abusive practices are prohibited - Applicability in the absence of national provisions transposing that principle - Principles of legal certainty and of the protection of legitimate expectations))
   (2018/C 022/12)
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Appellants: Edward Cussens, John Jennings, Vincent Kingston

      Respondent: T.G. Brosnan

      Operative part of the judgment

               1.

               The principle that abusive practices are prohibited must be interpreted as being capable, regardless of a national measure giving effect to it in the domestic legal order, of being applied directly in order to refuse to exempt from value added tax sales of immovable goods, such as the sales at issue in the main proceedings, carried out before the judgment of 21 February 2006, Halifax and Others (C-255/02, EU:C:2006:121), was delivered, and the principles of legal certainty and of the protection of legitimate expectations do not preclude this.

               2.

               Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that, if the transactions at issue in the main proceedings should be redefined pursuant to the principle that abusive practices are prohibited, those of the transactions which do not constitute such a practice may be subject to value added tax on the basis of the relevant provisions of national legislation providing for such liability.

               3.

               The principle that abusive practices are prohibited must be interpreted as meaning that, in order to determine, on the basis of paragraph 75 of the judgment of 21 February 2006, Halifax and Others (C-255/02, EU:C:2006:121), whether the essential aim of the transactions at issue in the main proceedings is to obtain a tax advantage, account should be taken of the objective of the leases preceding the sales of immovable property at issue in the main proceedings in isolation.

               4.

               The principle that abusive practices are prohibited must be interpreted as meaning that supplies of immovable property such as those at issue in the main proceedings are liable to result in the accrual of a tax advantage contrary to the purpose of the relevant provisions of Sixth Directive 77/388 where the properties had, before their sale to third party purchasers, not yet been actually used by their owner or their tenant. It is for the referring court to verify whether that is the case in the main proceedings.

               5.

               The principle that abusive practices are prohibited must be interpreted as being applicable in a situation such as that at issue in the main proceedings, which concerns the possible exemption of a supply of immovable property from value added tax.

      (1)  OJ C 243, 4.7.2016.


title: Case T-750/17: Action brought on 10 November 2017 — Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/51

         Action brought on 10 November 2017 — Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission
   (Case T-750/17)
   (2018/C 022/68)
   Language of the case: English

      Parties

      Applicant: Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych (Warsaw, Poland) (represented by: P. Hoffman, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 29 August 2017 refusing access to the comments of the European Commission and the detailed opinion of the Republic of Malta, issued in the framework of notification procedure 2016/398/PL concerning an amendment of the Polish Act on games of chance;

               —

               order the Commission to bear its own costs and to pay the costs of the applicant.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging distortion of facts and infringement of Article 296 TFEU

                           —

                           It is argued that the decision is based on a number of factually incorrect statements, including the claims that the notified measure constituted a reply to the Commission’s letter of formal notice and that it was intended to show the steps taken by Poland to remedy a breach that was the subject of that letter, i.e. certain conditions on obtaining licenses for providing gambling services in Poland, even though, in reality, the said conditions were removed by Poland over two years ago, and even though the notified measure had nothing to do with the Commission’s letter of formal notice.

               2.

               Second plea in law, alleging infringement of recitals 3, 7 and 9, of Article 5(4) of Directive 2015/1535, (1) and of Article 4(2), third indent, of Regulation 1049/2001 (2)

                           —

                           It is argued, in the light of the judgment of the Court of Justice in Case C-331/15 P France v Schlyter, (3) that by applying a general presumption and failing to demonstrate that disclosing the requested documents would specifically and actually undermine the infringement proceedings, the Commission infringed the principle of transparency inherent to Directive 2015/1535.

               3.

               Third plea in law, alleging infringement of Article 4(2), third indent, of Regulation 1049/2001 and of Article 296 TFEU

                           —

                           It is argued that, because of the duration of the infringement proceedings and its alleged failure to carry out any actual activities in their framework in a reasonable period, the Commission cannot base its refusal on the need to protect the purpose of those proceedings.

               4.

               Fourth plea in law, alleging infringement of Article 4(2), third indent, of Regulation 1049/2001 and of Article 296 TFEU and distortion of facts

                           —

                           It is argued that the requested documents are not covered by any general presumption. The Commission’s claim that an ‘inextricable link’ between the notification procedure and the infringement proceedings exists is factually incorrect and too vague. In any case it cannot prove that the documents are covered by a general presumption, because that depends solely on them forming part of the infringement file. The correct test of whether a document forms part of that file is whether the Commission acquired its possession in the framework of planned or pending infringement proceedings, i.e. whether it produced, received, commissioned, etc., the document in the framework of such proceedings or with a view to commencing them. This test, it is argued, is not satisfied here.

               5.

               Fifth plea in law, alleging infringement of Article 4(2) of Regulation 1049/2001 and of Article 296 TFEU

                           —

                           The mere fact that the Commission intends to take Malta’s detailed opinion into account and utilise it in its dialogue with Poland in the framework of ongoing infringement proceedings cannot justify a refusal to disclose it.

               6.

               Sixth plea in law, alleging infringement of Article 4(2) of Regulation 1049/2001

                           —

                           It is argued that, given the duration of the infringement proceedings and the content, nature and context of the requested documents, their disclosure cannot in any way undermine the protection of those proceedings, thus rebutting the general presumption of non-disclosure.

               7.

               Seventh plea in law, alleging infringement of Article 4(6) of Regulation 1049/2001 and of Art. 296 TFEU
               It is argued that, in any case, the Commission should have disclosed the requested documents in part, i.e. after having removed references to issues concerning online gambling services which are the subject of infringement proceedings.

               8.

               Eighth plea in law, alleging infringement of Article 4(2) of Regulation 1049/2001 and of Article 296 TFEU
               It is argued that an overriding public interest in knowing the Commission’s reaction to a notified measure that infringes fundamental EU freedoms and rights exists. The Commission, it is argued, failed to explain why it considers this interest less important than the interest in non-disclosure.

      (1)  Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (Text with EEA relevance) (OJ 2015 L 241, p. 1).

      (2)  Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (3)  Judgment of 7 September 2017, France v Schlyter (C-331/15 P, EU: C:2017:639).


title: Case T-687/16: Judgment of the General Court of 30 November 2017 — Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO — Nadal Esteban (STYLO & KOTON) (EU trade mark — Invalidity proceedings — EU figurative mark STYLO & KOTON — Absolute ground for refusal — Article 52(1)(b) of (EC) Regulation No 207/2009 (now Article 59(1)(b) of (EU) Regulation 2017/1001) — No bad faith)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/37

         Judgment of the General Court of 30 November 2017 — Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO — Nadal Esteban (STYLO & KOTON)
   (Case T-687/16) (1)

   ((EU trade mark - Invalidity proceedings - EU figurative mark STYLO & KOTON - Absolute ground for refusal - Article 52(1)(b) of (EC) Regulation No 207/2009 (now Article 59(1)(b) of (EU) Regulation 2017/1001) - No bad faith))
   (2018/C 022/51)
   Language of the case: English

      Parties

      Applicant: Koton Mağazacilik Tekstil Sanayi ve Ticaret AŞ (Istanbul, Turkey) (represented by: J. Güell Serra and E. Stoyanov Edissonov, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: J. Crespo Carrillo, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Joaquín Nadal Esteban (Alcobendas, Spain) (represented by: J. Donoso Romero, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 14 June 2016 (Case R 1779/2015-2), relating to invalidity proceedings between Koton Mağazacilik Tekstil Sanayi ve Ticaret and Mr Nadal Esteban.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Koton Mağazacilik Tekstil Sanayi ve Ticaret AŞ to pay the costs.

      (1)  OJ C 410, 7.11.2016.


title: Case C-308/16: Judgment of the Court (Second Chamber) of 16 November 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Kozuba Premium Selection sp. z o.o. v Dyrektor Izby Skarbowej w Warszawie (Reference for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 12(1) and (2) — Article 135(1)(j) — Taxable transactions — Exemption for the supply of buildings — Concept of ‘first occupation’ — Concept of ‘conversion’)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/11

         Judgment of the Court (Second Chamber) of 16 November 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Kozuba Premium Selection sp. z o.o. v Dyrektor Izby Skarbowej w Warszawie
   (Case C-308/16) (1)

   ((Reference for a preliminary ruling - Taxation - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 12(1) and (2) - Article 135(1)(j) - Taxable transactions - Exemption for the supply of buildings - Concept of ‘first occupation’ - Concept of ‘conversion’))
   (2018/C 022/14)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Kozuba Premium Selection sp. z o.o.

      Defendant: Dyrektor Izby Skarbowej w Warszawie

      Operative part of the judgment

   Articles 12(1)(a) and 135(1)(j) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding a national law, such as that at issue in the main proceedings, which makes the VAT exemption on the supply of buildings subject to the condition that the first occupation thereof arises in the context of a taxable transaction. The same provisions must be interpreted as not precluding such a national law from making that exemption subject to the condition, in the case of the ‘upgrade’ of an existing building, that the costs incurred have not exceeded 30 % of the initial value thereof, provided that that concept of ‘upgrade’ is interpreted in the same way as that of ‘conversion’ in Article 12(2) of Directive 2006/112, namely as meaning that the building concerned must have been subject to substantial modifications intended to modify the use or alter considerably the conditions of occupation.

      (1)  OJ C 335, 12.9.2016.


title: Case T-244/17: Order of the General Court of 17 November 2017 — António Conde & Companhia v Commission

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/62

         Order of the General Court of 17 November 2017 — António Conde & Companhia v Commission
   (Case T-244/17) (1)

   (2018/C 022/84)
   Language of the case: English
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 231, 17.7.2017.


title: Case C-381/16: Judgment of the Court (Tenth Chamber) of 23 November 2017 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Salvador Benjumea Bravo de Laguna v Esteban Torras Ferrazzuolo (Reference for a preliminary ruling — Regulation (EC) No 207/2009 — EU trade mark — Article 16 — Trade mark as an object of property — Dealing with EU trade marks as national trade marks — Article 18 — Transfer of a trade mark registered in the name of the agent or representative of the trade mark’s proprietor — National provision allowing the possibility of bringing an action for recovery of ownership of a national trade mark registered in fraud of the owner’s rights or in breach of a legal or contractual obligation — Whether compatible with Regulation No 207/2009)

text:
               22.1.2018

               EN

               Official Journal of the European Union

               C 22/13

         Judgment of the Court (Tenth Chamber) of 23 November 2017 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Salvador Benjumea Bravo de Laguna v Esteban Torras Ferrazzuolo
   (Case C-381/16) (1)

   ((Reference for a preliminary ruling - Regulation (EC) No 207/2009 - EU trade mark - Article 16 - Trade mark as an object of property - Dealing with EU trade marks as national trade marks - Article 18 - Transfer of a trade mark registered in the name of the agent or representative of the trade mark’s proprietor - National provision allowing the possibility of bringing an action for recovery of ownership of a national trade mark registered in fraud of the owner’s rights or in breach of a legal or contractual obligation - Whether compatible with Regulation No 207/2009))
   (2018/C 022/16)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Salvador Benjumea Bravo de Laguna

      Defendant: Esteban Torras Ferrazzuolo

      Operative part of the judgment

   Articles 16 and 18 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark must be interpreted as not precluding the application to an EU trade mark of a national provision, such as that at issue in the main proceedings, under which a person harmed, by the trade mark registration which was applied for in fraud of his rights or in breach of a legal or contractual obligation, is entitled to claim ownership of that trade mark, provided that the situation concerned does not fall within those covered by Article 18 of that regulation.

      (1)  OJ C 335, 12.9.2016.


title: Order of the Court of 11 October 2017 in Case E-7/12 COSTS — Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority (Taxation of costs — Recoverable costs — Default interest)

text:
               25.1.2018

               EN

               Official Journal of the European Union

               C 27/21

         ORDER OF THE COURT
   of 11 October 2017
   in Case E-7/12 COSTS
   Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority

      (Taxation of costs — Recoverable costs — Default interest)

   (2018/C 27/09)
   In Case E-7/12 COSTS, Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority — APPLICATION for the taxation of costs awarded by the Court in its judgment of 9 July 2013 in Case E-7/12 Schenker North and Others v ESA [2013] EFTA Ct. Rep. 356, the Court, composed of, Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Ása Ólafsdóttir (ad hoc), Judges, gave order of 11 October 2017, the operative part of which is as follows:

               1.

               The total remaining costs to be paid by ESA to the applicants are fixed at EUR 63 095.

               2.

               Default interest shall be due on that amount from the date of notification of the present order until the date of payment; the applicable interest rate shall be calculated on the basis of the interest rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which payment is due, increased by three and a half percentage points.


               25.1.2018

               EN

               Official Journal of the European Union

               C 27/22

         Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 25 September 2017 in the case of Henrik Kristoffersen v the Norwegian Ski Federation
   (Case E-8/17)
   (2018/C 27/10)
   A request has been made to the EFTA Court by a letter dated 25 September 2017 from Oslo tingrett (the Oslo District Court), which was received at the Court Registry on 25 September 2017, for an Advisory Opinion in the case of Henrik Kristoffersen v the Norwegian Ski Federation on the following questions:

               1.

               Which legal criteria shall be particularly emphasised in the assessment of whether a national sports federation's system of prior control and consent for individual sponsorship contracts of this type — before the rights to such markings are transferred from the federation — shall be deemed a restriction on the athlete's freedom to provide services pursuant to Article 36 EEA or Directive 2006/123/EC (the Services Directive)?

                           (a)

                           To what extent is the restriction test previously described by the Court of Justice of the European Union for the regulatory framework governing sports, inter alia, in Case C-51/96, applicable? Does Article 16 of the Services Directive or other provisions of that directive entail changes to the restriction test?

               2.

               Which legal criteria shall be particularly emphasised in the assessment of whether a national sports federation's concrete refusal to approve professional national team athletes' individual sponsorship contracts for such markings — so that the rights to such markings remain with the federation — shall be deemed a restriction on the athlete's freedom to provide services pursuant to Article 36 EEA or Directive 2006/123/EC (the Services Directive)?

                           (a)

                           What bearing will it have on the assessment that the national sports federation had already entered into a valid contract with the national team's main sponsor for logo exposure of the marking in question on helmets/headgear? Is this of significance in the assessment of whether a restriction exists, alternatively in the assessment of whether there are objective and sufficient grounds for the refusal?

                     Provided that a restriction is deemed to exist;

               3.

               Can the national sports federation's Joint Regulations (approval scheme) for the potential utilisation by athletes of the marking in an individual contract constitute an authorisation scheme within the meaning of Article 4(6) of Directive 2006/123/EC (the Services Directive)?

                           (a)

                           In such case, is the approval scheme regulated by Articles 9 and 10 in Chapter III — on freedom of establishment for service providers — for a Norwegian citizen selected for the national team who engages in financial activity in connection with his participation in the national team subject to the regulatory framework of the national sports federation? Or is the scheme regulated by Article 16; alternatively, what is the legal test for correct classification?

               4.

               In the assessment of the scheme's lawfulness — either pursuant to Article 36 EEA or Articles 9, 10 or 16 of the Services Directive — must the national court consider the provisions of the regulations and the refusal seen in isolation, or shall it also take into consideration:

                           —

                           The federation's grounds for retaining the marketing rights, including consideration for funding of the national teams and what the income is otherwise used for?

                           —

                           The overall possibilities for the athlete to engage in financial activity, including rights to enter into sponsorship contracts with equipment manufacturers and any other marketing contracts?

                           —

                           Whether, in light of this, the approval scheme or refusal to grant consent appears to be legitimately justified and proportional?

               5.

               What bearing does it have on the legality assessment that approval of individual contracts regarding these markings is subject to the free discretion of the federation?

               6.

               What procedural requirements, if any, do Article 13 of Directive 2006/123/EC or Article 36 EEA stipulate for the proceedings and the decisions under a national sports federation's approval scheme for individual marketing contracts (sponsorship contracts) for commercial markings, and what is the consequence under EEA law of failure to comply with any such procedural requirements?


title: Order of the Court of 11 October 2017 in Case E-14/11 COSTS — Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority (Taxation of costs — Recoverable costs — Default interest)

text:
               25.1.2018

               EN

               Official Journal of the European Union

               C 27/21

         ORDER OF THE COURT
   of 11 October 2017
   in Case E-14/11 COSTS
   Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority

      (Taxation of costs — Recoverable costs — Default interest)

   (2018/C 27/08)
   In Case E-14/11 COSTS, Schenker North AB, Schenker Privpak AB and Schenker Privpak AS v EFTA Surveillance Authority — APPLICATION for the taxation of costs awarded by the Court in its judgment of 21 December 2012 in Case E-14/11 Schenker North and Others v ESA [2012] EFTA Ct. Rep. 1178, the Court, composed of, Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Ása Ólafsdóttir (ad hoc), Judges, gave order of 11 October 2017, the operative part of which is as follows:

               1.

               The total remaining costs to be paid by ESA to the applicants are fixed at EUR 95 944.

               2.

               Default interest shall be due on the amount from the date of notification of the present order until the date of payment; the applicable interest rate shall be calculated on the basis of the interest rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which payment is due, increased by three and a half percentage points.


title: Case T-401/11: Judgment of the General Court of 7 December 2017 — Missir Mamachi di Lusignano and Others v Commission (Appeal — Civil service — Officials — Murder of an official and his wife — Rule of correspondence between request, complaint and action regarding compensation — Obligation to ensure the security of staff serving the Union — Causal link — Material damage — Joint and several liability — Consideration of the benefits laid down in the Staff Regulations — Non-material damage — Liability of an institution for the non-material damage of a deceased official — Liability of an institution for the non-material damage of the beneficiaries of a deceased official)

text:
               29.1.2018

               EN

               Official Journal of the European Union

               C 32/19

         Judgment of the General Court of 7 December 2017 — Missir Mamachi di Lusignano and Others v Commission
   (Case T-401/11) (1)

   ((Appeal - Civil service - Officials - Murder of an official and his wife - Rule of correspondence between request, complaint and action regarding compensation - Obligation to ensure the security of staff serving the Union - Causal link - Material damage - Joint and several liability - Consideration of the benefits laid down in the Staff Regulations - Non-material damage - Liability of an institution for the non-material damage of a deceased official - Liability of an institution for the non-material damage of the beneficiaries of a deceased official))
   (2018/C 032/25)
   Language of the case: Italian

      Parties

      Appellants: Stefano Missir Mamachi di Lusignano (Shanghai, China) and the 6 other applicants whose names are listed in the Annex to the judgment (represented by: F. Di Gianni, G. Coppo and A. Scalini, lawyers)

      Other party to the proceedings: European Commission (represented by: G. Gattinara and D. Martin, acting as Agents)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 12 May 2011, Missir Mamachi di Lusignano v Commission (F-50/09, EU:F:2011:55), and asking for annulment of that judgment.

      Operative part of the judgment

   The Court:

               1)

               Quashes the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F-50/09), in so far as the European Union Civil Service Tribunal has upheld the plea of inadmissibility raised by the European Commission against the claim for compensation for the non-material damage suffered by Mr Carlo Missir Mamachi di Lusignano, Ms Giustina Missir Mamachi di Lusignano, Mr Filiberto Missir Mamachi di Lusignano and Mr Tommaso Missir Mamachi di Lusignano, the latter two represented by Ms Anne Sintobin;

               2)

               Quashes the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F-50/09), in so far as the Civil Service Tribunal has upheld the plea of inadmissibility raised by the Commission against the claim for compensation for the non-material damage suffered by Mr Livio Missir Mamachi di Lusignano;

               3)

               Quashes the judgment of 12 May 2011, Missir Mamachi di Lusignano v Commission (F-50/09), in so far as the Civil Service Tribunal has limited the Commission’s liability to 40 % of the material damage suffered by Mr Carlo Missir Mamachi di Lusignano, Ms Giustina Missir Mamachi di Lusignano, Mr Filiberto Missir Mamachi di Lusignano and Mr Tommaso Missir Mamachi di Lusignano, the latter two being represented by Ms Sintobin;

               4)

               Dismisses the appeal as to the remainder;

               5)

               Orders the Commission jointly and severally to pay an amount of EUR 3 million, less statutory benefits considered to be part of that amount paid or payable to Mr Carlo Missir Mamachi di Lusignano, Ms Giustina Missir Mamachi di Lusignano Mr Filiberto Missir Mamachi di Lusignano and Mr Tommaso Missir Mamachi di Lusignano, the latter two being represented by Ms Sintobin, in respect of the material damage suffered by them;

               6)

               Orders the Commission jointly and severally to pay Mr Carlo Missir Mamachi di Lusignano an amount of EUR 100 000 in respect of the non-material damage suffered by him;

               7)

               Orders the Commission jointly and severally to pay Ms Giustina Missir Mamachi di Lusignano an amount of EUR 100 000 in respect of the non-material damage suffered by her;

               8)

               Orders the Commission jointly and severally to pay Mr Tommaso Missir Mamachi di Lusignano, represented by Ms Sintobin, an amount of EUR 100 000 in respect of the non-material damage suffered by him;

               9)

               Orders the Commission jointly and severally to pay Mr Filiberto Missir Mamachi di Lusignano, represented by Ms Sintobin, an amount of EUR 100 000 in respect of the non-material damage suffered by him;

               10)

               Orders the Commission jointly and severally to pay a total amount of EUR 50 000 to Mr Stefano Missir Mamachi di Lusignano and to the other applicants whose names appear in the Annex, in their capacity as heirs of Mr Livio Missir Mamachi di Lusignano, in respect of the non-material damage suffered by them;

               11)

               Orders that the compensation referred to in paragraphs 6 to 10 above shall be increased by default interest, from the delivery of the present judgment until payment in full, at the rate fixed by the European Central Bank for its main refinancing operations, plus two percentage points;

               12)

               Dismisses the appeal as to the remainder;

               13)

               Orders the Commission to pay the costs relating to the appeal proceedings;

               14)

               Orders the Commission to pay the costs relating to the proceedings at first instance.

      (1)  OJ C 282, 24.9.2011.


title: Case T-747/17: Action brought on 15 November 2017 — UPF v Commission

text:
               29.1.2018

               EN

               Official Journal of the European Union

               C 32/35

         Action brought on 15 November 2017 — UPF v Commission
   (Case T-747/17)
   (2018/C 032/49)
   Language of the case: French

      Parties

      Applicant: Union des Ports de France — UPF (Paris, France) (represented by: C. Vannini and E. Moraïtou, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action against decision C(2017) 5176 final of the European Commission of 27 July 2017 on aid scheme SA.38398 (2016/C, ex 2015/E) implemented by France (‘the contested decision’), the applicant relies on five pleas in law.

               1.

               First plea in law, alleging that the Commission erred in law by classifying the tax measure in its entirety as State aid, disregarding the criterion relating to the economic nature of the activity of the French ports. In that regard, the applicant considers that, by finding that the tax exemption in favour of French ports constitutes a State aid within the meaning of Article 107(1) of the TFEU, without specifying that the classification of aid is limited to the economic activities only of the ports, the Commission, in principle, vitiated its decision by an error of law.

               2.

               Second plea in law, alleging that the Commission erred in law in relation to the assessment of the economic nature of the activities carried out by the French ports. The applicant claims that the Commission also erred in law in its analysis of the economic nature of the activities carried out by the French ports, in two respects:

                           —

                           In the first place, in that it totally failed to address in the contested decision some of the activities carried out by the French ports;

                           —

                           in the second place, in that, with regard to several other activities of the French ports, it merely reiterated the general principles derived from the case-law of the ECJ concerning public financing of port infrastructures without reaching a conclusion as to whether or not they are economic in nature although that is, it is claimed, the criterion for applying the State aid rules.

               3.

               Third plea in law, alleging an error of law and inadequate reasoning as regards the conditions relating to the distortion of competition and the effect on trade between Member States, insofar as the Commission was wrong to consider that the tax exemption was liable to give rise to distortions of competition and to have an effect on trade between the Member States, as regards French ports in general and, more specifically, island ports and overseas ports. According to the applicant, the contested decision is vitiated by inadequate reasoning in so far as the Commission assumed, without substantiating its position, that those conditions were satisfied in the present case.

               4.

               Fourth plea in law, alleging an error of law in the conduct of the existing aid review procedure and infringement of Article 108(1) and (2) TFEU, combined with the principle of proportionality, in so far as, first, by requiring that the French authorities provide evidence of the compatibility with the internal market of the exemption from corporation tax in favour of the French ports, the Commission reversed the burden of proof and acted as if it had received an application for approval of a new aid scheme. Secondly, by requiring the French authorities to simply abolish the exemption scheme without demonstrating that no modification to that measure could make it compatible with the EU rules on State aid, the Commission infringed Article 108(1) and (2) TFEU, Article 2 of Regulation No 2015/1589 and the principle of proportionality.

               5.

               Fifth plea in law, alleging breach of the principle of sound administration in that the fact that the Commission requires the abolition of the exemption scheme while leaving in place port aid schemes in other Member States does not ensure a level playing field between the various European ports but, on the contrary, leads to further distortions of competition, in direct breach of the role conferred on the Commission as guarantor of the proper functioning of the internal market. The Commission therefore infringed the principle of impartiality which is the necessary corollary of the principle of good administration.


title: Case C-214/16: Judgment of the Court (Fifth Chamber) of 29 November 2017 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — C. King v The Sash Window Workshop Ltd, Richard Dollar (Reference for a preliminary ruling — Protection of the safety and health of workers — Directive 2003/88/EC — Organisation of working time — Article 7 — Allowance in lieu of annual leave paid on termination of the employment relationship — National legislation requiring a worker to take his annual leave without the remuneration in respect of that leave being established)

text:
               29.1.2018

               EN

               Official Journal of the European Union

               C 32/2

         Judgment of the Court (Fifth Chamber) of 29 November 2017 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — C. King v The Sash Window Workshop Ltd, Richard Dollar
   (Case C-214/16) (1)

   ((Reference for a preliminary ruling - Protection of the safety and health of workers - Directive 2003/88/EC - Organisation of working time - Article 7 - Allowance in lieu of annual leave paid on termination of the employment relationship - National legislation requiring a worker to take his annual leave without the remuneration in respect of that leave being established))
   (2018/C 032/02)
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicant: C. King

      Defendants: The Sash Window Workshop Ltd, Richard Dollar

      Operative part of the judgment

               1.

               Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, and the right to an effective remedy set out in Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the case of a dispute between a worker and his employer as to whether the worker is entitled to paid annual leave under the first of those articles, they preclude the worker having to take his leave first before establishing whether he has the right to be paid in respect of that leave.

               2.

               Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

      (1)  OJ C 222, 20.6.2016.


title: Case T-249/15: Judgment of the General Court of 11 December 2017 — JT v EUIPO — Carrasco Pirard (QUILAPAYÚN) (EU trade mark — Opposition proceedings — Application for EU figurative mark QUILAPAYÚN — Relative ground for refusal — Well-known mark — Article 8(2)(c) of Regulation (EC) No 207/2009 (now Article 8(2)(c) of Regulation (EU) 2017/1001) — Proprietor of the mark)

text:
               29.1.2018

               EN

               Official Journal of the European Union

               C 32/20

         Judgment of the General Court of 11 December 2017 — JT v EUIPO — Carrasco Pirard (QUILAPAYÚN)
   (Case T-249/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark QUILAPAYÚN - Relative ground for refusal - Well-known mark - Article 8(2)(c) of Regulation (EC) No 207/2009 (now Article 8(2)(c) of Regulation (EU) 2017/1001) - Proprietor of the mark))
   (2018/C 032/26)
   Language of the case: Spanish

      Parties

      Applicant: JT (represented by: A. Mena Valenzuela, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: E. Zaera Cuadrado, acting as Agent)

      Other parties to the proceedings before the Board of Appeal of EUIPO: Eduardo Carrasco Pirard (Santiago, Chili) and the 7 other parties to the proceedings before the Board of Appeal of EUIPO whose names are listed in the Annex to the judgment

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 13 March 2015 (Case R 354/2014-2), relating to opposition proceedings between, on the one hand, JT, and, on the other, Mr Carrasco Pirard and the other parties to the proceedings before the Board of Appeal whose names are listed in the Annex.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 March 2015 (Case R 354/2014-2);

               2.

               Dismisses the remaining heads of claim in the application;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 337, 12.10.2015.


title: Case T-333/16: Judgment of the General Court of 7 December 2017 — Colgate-Palmolive v EUIPO (360°) (EU trade mark — Application for the EU figurative mark 360° — Absolute grounds for refusal — Descriptiveness — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Distinctive character acquired through use — Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001))

text:
               29.1.2018

               EN

               Official Journal of the European Union

               C 32/28

         Judgment of the General Court of 7 December 2017 — Colgate-Palmolive v EUIPO (360o)
   (Case T-333/16) (1)

   ((EU trade mark - Application for the EU figurative mark 360o - Absolute grounds for refusal - Descriptiveness - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) - Distinctive character acquired through use - Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001)))
   (2018/C 032/37)
   Language of the case: English

      Parties

      Applicant: Colgate-Palmolive Co. (New York, New York, United States) (represented by: M. Zintler and A. Stolz, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 14 April 2016 (Case R 2287/2015-4), concerning an application for registration of the figurative sign 360o as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Colgate-Palmolive Co. to pay the costs.

      (1)  OJ C 296, 16.8.2016.