title: Case T-504/18: Action brought on 24 August 2018 — XG v Commission

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/17

      Action brought on 24 August 2018 — XG v Commission
      (Case T-504/18)
      (2018/C 373/19)
      Language of the case: French

         Parties

         Applicant: XG (represented by: S. Kaisergruber and A. Brughelle-Vernet, lawyers)

         Defendant: European Commission

         Form of order sought

                  —

                  Declare the application admissible and well founded;

            Consequently:

                  —

                  Annul the decision of 3 July 2018 adopted by [confidential] (1) the European Commission to maintain the refusal of access to the applicant to Commission premises;

                  —

                  Order the Commission to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the author of the contested act did not have the power to adopt it.

                  2.

                  Second plea in law, alleging infringement of Article 3 of Commission Decision (EU, Euratom) 2015/443 of 13 March 2015 on Security in the Commission (OJ 2015 L 72, p. 41; ‘Decision 2015/443’) and the absence of legal basis of the contested act.

                  3.

                  Third plea in law, alleging infringement of the fundamental rights of the applicant, in particular breach of Article 67 TFEU, Article 6 TEU, Article 3 of Decision 2015/443 and Articles 6, 7, 8, 15, 27, 31, 41, 42, 47, 48 and 49 of the Charter of Fundamental Rights. This plea is divided into three parts:

                              —

                              first part, alleging infringement of the rights to freedom, privacy, protection of personal data and the right freely to exercise a profession;

                              —

                              second part, alleging infringement of the right to sound administration, transparency, access to documents and an effective remedy and infringement of the presumption of innocence and the rights of the defence;

                              —

                              third part, alleging infringement of the principle of proportionality and of Article 49 of the Charter of Fundamental Rights.

                  4.

                  Fourth plea in law, raised in the alternative, alleging infringement of Article 296 TFEU, Article 41(2) of the Charter of Fundamental Rights and of the principles of the formal and material statement of reasons of unilateral acts. This plea is divided into two parts:

                              —

                              first part, alleging a lack of formal reasoning of the contested act;

                              —

                              second part, alleging a lack of substantive reasoning of the contested act.

         (1)  Confidential data redacted.


title: Case C-423/18: Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 27 June 2018 — Südzucker AG v Hauptzollamt Karlsruhe

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/2

      Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 27 June 2018 — Südzucker AG v Hauptzollamt Karlsruhe
      (Case C-423/18)
      (2018/C 373/02)
      Language of the case: German

         Referring court

      Finanzgericht Baden-Württemberg

         Parties to the main proceedings

         Applicant: Südzucker AG

         Defendant: Hauptzollamt Karlsruhe

         Questions referred

                  1.

                  Should the first sentence of Article 3(2) of Regulation (EC) No 967/2006 (1) be interpreted to mean that the time-limit stated therein also applies to the amendment of a timely notification of the levy following an amended determination of the attributable quantity of surplus sugar after the passing of the time-limit based on a check under Article 10 of Regulation (EC) No 952/2006? (2)

                  2.

                  If the answer to Question 1 is in the affirmative,
                  In that case, where a timely notification is amended on the basis of findings made during checks, do the conditions established by the judgment of the Court of Justice of the European Union of 10 January 2002 in British Sugar, C-101/99, EU:C:2002:7, for exceeding the notification time-limit stipulated in Article 3(2) of Regulation (EEC) No 2670/81, as amended by Regulation (EEC) No 3559/91, (3) also apply for exceeding a notification time-limit under Article 3(2) of Regulation (EC) No 967/2006?

                  3.

                  If the first sentence of Article 3(2) of Regulation (EC) No 967/2006 does not apply to amending notifications based on checks (see Question 1) or if the conditions for exceeding the time-limit are fulfilled (see Question 2), should the time-limit by which the amendment to the levy must be notified be 1 May of the following year or should national law apply?

                  4.

                  If the answer to Question 3 is that neither 1 May of the following year nor national law applies:
                  Is it compatible with the general principles of EU law, which include the principles of proportionality, legal certainty and the protection of legitimate expectations, if, in a case such as the present, the levy for the 2007/2008 sugar marketing year was notified on 20 October 2010 or 27 October 2011 due to the time needed for checks and the time needed for preparation and evaluation of the inspection report? Is objection by the sugar producer to the determination of the surplus quantities relevant in this context?

         (1)  Commission Regulation (EC) No 967/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards sugar production in excess of the quota (OJ 2006 L 176, p. 22).

         (2)  Commission Regulation (EC) No 952/2006 of 29 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 318/2006 as regards the management of the Community market in sugar and the quota system (OJ 2006 L 178, p. 39).

         (3)  Commission Regulation (EEC) No 3559/91 of 6 December 1991 amending Regulation (EEC) No 2670/81 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1991 L 336, p. 26).


title: Case T-500/18: Action brought on 20 August 2018 — Puma v EUIPO — Destilerias MG (MG PUMA)

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/15

      Action brought on 20 August 2018 — Puma v EUIPO — Destilerias MG (MG PUMA)
      (Case T-500/18)
      (2018/C 373/16)
      Language of the case: English

         Parties

         Applicant: Puma SE (Herzogenaurach, Germany) (represented by: P. Trieb and M. Schunke, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Destilerias MG SL (Vilanova i la Geltru, Spain)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union trade mark MG PUMA — Application for registration No 15 108 848

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 6 June 2018 in Case R 2019/2017-2.

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs, including those incurred before the Board of Appeal.

         Plea in law

                  —

                  Infringement of Art. 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case C-429/18: Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) lodged on 28 June 2018 — Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán v Consejería de Sanidad de la Comunidad de Madrid

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/3

      Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) lodged on 28 June 2018 — Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán v Consejería de Sanidad de la Comunidad de Madrid
      (Case C-429/18)
      (2018/C 373/03)
      Language of the case: Spanish

         Referring court

      Juzgado de lo Contencioso-Administrativo de Madrid

         Parties to the main proceedings

         Applicant: Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán

         Defendant: Consejería de Sanidad de la Comunidad de Madrid

         Questions referred

                  1.

                  Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC (1) correct and is it correct to take the view that the employment of the applicants on temporary appointments constitutes abuse in so far as the public employer uses different contractual models, all of which are temporary, to ensure, on a permanent and stable basis, performance of the ordinary duties of permanent regulated staff and to cover structural defects and needs which are, in fact, not temporary but fixed and permanent? Is the type of temporary appointment described therefore not justified as an objective reason for the purposes of clause 5(1)(a) of the Framework Agreement, in that such use of fixed-term contracts conflicts directly with the second paragraph of the preamble of the Framework Agreement and with general considerations 6 and 8 of that agreement, since there are no circumstances which would justify the use of such fixed-term employment contracts?

                  2.

                  Is this court’s interpretation of the Framework Agreement annexed to Directive 1999/70/EC correct and is it correct to take the view that, in line with that interpretation, the holding of a conventional selection process, with the features described, is not an equivalent measure and cannot be regarded as a penalty, since it is not proportional to the abuse committed, the consequence of which is the termination of the temporary worker’s appointment, in breach of the objectives of the directive, and the continued unfavourable situation of temporary regulated employees, nor can it be regarded as an effective measure in so far as it does not create any detriment to the employer, and nor does it fulfil any deterrent function, and therefore it is not compatible with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?

                  3.

                  Is this court’s interpretation of the first paragraph of Article 2 of Directive 1999/70 and of the judgment of the Court of Justice of the European Union of 14 September 2016 in Case C-16/15 (2) correct and is it correct to take the view that, in line with that interpretation, the holding of a selection process that is open to external candidates is not an appropriate measure to penalise abuse arising from the use of successive temporary appointments, since Spanish legislation does not provide for an effective, dissuasive penalty mechanism which puts an end to the abuse arising from the appointment of temporary regulated staff and does not enable those permanent posts created to be filled by the staff who were the victims of the abuse, such that the precarious situation of those workers continues?

                  4.

                  Is it correct to take the view, as this court does, that the conversion of a temporary worker who has been the victim of the misuse of temporary appointments into a worker having a appointment ‘of indefinite duration but not permanent’ is not an effective penalty, in so far as a worker classified in this way may have his appointment terminated either because his post has been filled in a selection process or because his post has been abolished, and therefore that penalty is incompatible with the Framework Agreement for the purposes of preventing misuse of fixed-term contracts, since it does not comply with the first paragraph of Article 2 of Directive 1999/70 in that it does not ensure that the Spanish State achieves the results imposed by the directive?
                  In the light of that situation, it is necessary in the circumstances described to repeat the following questions, included in the reference for a preliminary ruling made on 30 January 2018 in Expedited Proceedings 193/2017 before J[uzgado] C[ontencioso-]A[dministrativo] n.o 8 de Madrid (Administrative Court No 8, Madrid): (3)

                  5.

                  If the national courts find that there is abuse arising from the use of successive appointments of temporary regulated staff to cover vacancies in the Madrid Health Service and that they are being used to cover permanent structural needs in the provision of services by permanent regulated employees, given that domestic law contains no effective or deterrent measure to penalise such misuse and eliminate the consequences of the breach of EU legislation, must Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC be interpreted as requiring the national courts to adopt effective deterrent measures to ensure the effectiveness of the Framework Agreement, and therefore to penalise that misuse and eliminate the consequences of the breach of that EU legislation, disapplying the rule of domestic law that prevents it from being effective?
                  If the answer should be affirmative, as held by the Court of Justice of the European Union in paragraph 41 of its judgment of 14 September 2016 in Cases C-184/15 and C-197/15: (4)

                  As a measure to prevent and penalise the misuse of successive temporary appointments and to eliminate the consequence of the breach of EU law, would it be consistent with the objectives pursued by Directive 1999/70/EC to convert the temporary interim/occasional/replacement regulated relationship into a stable regulated relationship, the employee being classified as a permanent official or an official with an appointment of indefinite duration, with the same security of employment as comparable permanent regulated employees, on the basis that the national legislation prohibits absolutely, in the public sector, the conversion into a contract of indefinite duration of a succession of fixed-term employment contracts, since no other effective measure exists to prevent and, where relevant, penalise the misuse of successive fixed-term employment contracts?

                  6.

                  If there is abuse of successive temporary appointments, can the conversion of the temporary regulated relationship into an indefinite or permanent relationship be regarded as satisfying the objectives of Directive 1999/70/EC and its Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards social security, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated staff?

                  7.

                  Taking into account the existence, if any, of improper use of temporary appointments to meet permanent staffing needs for no objective reason and in a manner inconsistent with the urgent and pressing need that warrants recourse to them, and for want of any effective penalties or limits in Spanish national law, would it be consistent with the objectives pursued by Directive 1999/70/EC to grant, as a means of preventing abuse and eliminating the consequence of infringing EU law, compensation comparable to that for unfair dismissal, that is to say, compensation that serves as an adequate, proportional, effective and dissuasive penalty, in circumstances where an employer does not offer a worker a permanent post?

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

         (2)  Judgment of 14 September 2016, Pérez López (C-16/15, EU:C:2016:679).

         (3)  Case C-103/18, Sánchez Ruiz.

         (4)  Judgment of 14 September 2016, Martínez Andrés and Castrejana López (C-184/15 and C-197/15, EU:C:2016:680).


title: Case T-671/16: Judgment of the General Court of 5 September 2018 — Villeneuve v Commission (Civil Service — Recruitment — Open competition — Competition notice EPSO/AD/303/15 (AD 7) — Verification by EPSO of the conditions for admission to the competition — Professional experience of a period shorter than the minimum period required — Nature of the check of the condition for admission relating to professional experience — Obligation to state reasons — Manifest error of assessment by the selection board of the competition — Equal treatment)

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/11

      Judgment of the General Court of 5 September 2018 — Villeneuve v Commission
      (Case T-671/16) (1)

      ((Civil Service - Recruitment - Open competition - Competition notice EPSO/AD/303/15 (AD 7) - Verification by EPSO of the conditions for admission to the competition - Professional experience of a period shorter than the minimum period required - Nature of the check of the condition for admission relating to professional experience - Obligation to state reasons - Manifest error of assessment by the selection board of the competition - Equal treatment))
      (2018/C 373/11)
      Language of the case: French

         Parties

         Applicant: Vincent Villeneuve (Montpellier, France) (represented by: C. Mourato, lawyer)

         Defendant: European Commission (represented by: G. Gattinara and L. Radu Bouyon, acting as Agents)

         Re:

      Application on the basis of Article 270 TFEU seeking the annulment of the decision of 5 November 2015 of the selection board rejecting the applicant’s application for open competition, based on qualifications and tests, EPSO/AD/303/15 — Development cooperation and management of aid to non-EU countries (AD 7).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Vincent Villeneuve to pay the costs.

         (1)  OJ C 419, 14.11.2016.


title: Case C-431/18: Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 29 June 2018 — María Pilar Bueno Ruiz, Zurich Insurance PL, Sucursal de España v Irene Conte Sánchez

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/5

      Request for a preliminary ruling from the Audiencia Provincial de Zaragoza (Spain) lodged on 29 June 2018 — María Pilar Bueno Ruiz, Zurich Insurance PL, Sucursal de España v Irene Conte Sánchez
      (Case C-431/18)
      (2018/C 373/04)
      Language of the case: Spanish

         Referring court

      Audiencia Provincial de Zaragoza

         Parties to the main proceedings

         Applicants: María Pilar Bueno Ruiz, Zurich Insurance PL, Sucursal de España

         Defendant: Irene Conte Sánchez

         Question referred

      Does Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, (1) preclude an interpretation whereby the compulsory insurance cover includes the loss or injury caused by the dangerous situation created by the leakage of fluid from a vehicle onto the parking space in which it is parked or while the vehicle is being parked, in a private parking space situated in a housing complex, in respect of third party users of that complex?

         (1)  OJ 2009 L 263, p. 11.


title: Case T-418/18: Action brought on 6 July 2018 — PT v European Investment Bank (EIB)

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/11

      Action brought on 6 July 2018 — PT v European Investment Bank (EIB)
      (Case T-418/18)
      (2018/C 373/12)
      Language of the case: Swedish

         Parties

         Applicant: PT (represented by: E. Nordh, lawyer)

         Defendant: European Investment Bank (EIB)

         Form of order sought

                  —

                  Annul the decision of the EIB of 4 April 2018 dismissing the applicant;

                  —

                  Order the defendant to compensate the applicant for material harm amounting at present to EUR 2 240,31 and non-material harm evaluated at EUR 50 000, and

                  —

                  Order the defendant to pay the costs of the action.

         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 disregard of the rights of the defence

                              —

                              The applicant claims that the defendant did not give the applicant the opportunity of defending himself against its allegations under the best possible conditions. The applicant is of the opinion that his right to sound administration was thereby breached.

                  2.

                  Second plea in law, alleging manifest errors of assessment

                              —

                              The applicant claims that, in connection with the defendant’s disregard of his rights of the defence, it also committed a number of manifest errors of assessment.


title: Case T-517/18: Action brought on 3 September 2018 — Zott v EUIPO — TSC Food Products (Baked products)

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/19

      Action brought on 3 September 2018 — Zott v EUIPO — TSC Food Products (Baked products)
      (Case T-517/18)
      (2018/C 373/22)
      Language in which the application was lodged: German

         Parties

         Applicant: Zott SE & Co. KG (Mertingen, Germany) (represented by: E. Schalast, R. Lange and C. Böhler, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: TSC Food Products GmbH (Wels, Austria)

         Details of the proceedings before EUIPO

         Proprietor of the design at issue: Applicant

         Design at issue: Community design No 2487983-0001

         Contested decision: Decision of the Third Board of Appeal of EUIPO of 27 June 2018 in Case R 1341/2017-3

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

                  Infringement of Article 4, in conjunction with Article 6(1) and Article 7, of Council Regulation (EC) No 6/2002.


title: Corrigendum to the notice in the Official Journal in Case T-445/16 (OJ C 364, 3.10.2016)

text:
               15.10.2018

               EN

               Official Journal of the European Union

               C 373/21

      Corrigendum to the notice in the Official Journal in Case T-445/16
      (
            Official Journal of the European Union C 364 of 3 October 2016
         )
      (2018/C 373/23)
      The notice in the Official Journal in Case T-445/16 —Schniga v CPVO (Gala Schnico), should read as follows:

               ‘Action brought on 5 August 2016 — Schniga v CPVO (Gala Schnico)
               (Case T-445/16)
               (2016/C 364/25)
               Language of the case: German

                  Parties

                  Applicant: Schniga GmbH (Bolzano, Italy) (represented by: G. Würtenberger and R. Kunze)

                  Defendant: Community Plant Variety Office (CPVO)

                  Details of the proceedings before CPVO

                  Community plant variety right at issue: Gala Schnico — Community plant variety right application No 2009/1807

                  Contested decision: Decision of the Board of Appeal of CPVO of 22 April 2016 in Case A005/2014.

                  Form of order sought

               The applicant claims that the Court should:

                           —

                           annul the contested decision;

                           —

                           order CPVO to pay the costs.

                  Plea in law

                           —

                           Infringement of Articles 76, 8, 57(3) and 75 of Regulation No 2100/94.’


title: Case C-619/18: Action brought on 2 October 2018 — European Commission v Republic of Poland

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/30

      Action brought on 2 October 2018 — European Commission v Republic of Poland
      (Case C-619/18)
      (2018/C 427/39)
      Language of the case: Polish

         Parties

         Applicant: European Commission (represented by K. Banks, H. Krämer and S. Kaleda, acting as Agents)

         Defendant: Republic of Poland

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare that by lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) and applying it to judges appointed to the Supreme Court before 3 April 2018, and by granting the President of the Republic of Poland discretion to extend the active mandate of Supreme Court judges, the Republic of Poland has failed to fulfil its obligation under the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union;

                  —

                  order the Republic of Poland to pay the costs.

         Pleas in law and main arguments

      First, the Commission claims that the provisions of the Law of 8 December 2017 on the Supreme Court (ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym), lowering the retirement age of judges currently in office, appointed to the Supreme Court before the date of entry into force of that law (3 April 2018), infringes the principle of security of tenure of judges.
      Second, the Commission maintains that the provisions of the Law on the Supreme Court, granting the President of the Republic of Poland discretion to extend the active mandate of Supreme Court judges, infringes the principle of judicial independence.


title: Case T-589/18: Action brought on 1 October 2018 — Vins el Cep v EUIPO — Rotkäppchen-Mumm Sektkellereien (MIM NATURA)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/96

      Action brought on 1 October 2018 — Vins el Cep v EUIPO — Rotkäppchen-Mumm Sektkellereien (MIM NATURA)
      (Case T-589/18)
      (2018/C 427/126)
      Language of the case: English

         Parties

         Applicant: Vins el Cep, SL (Sant Sadurní d’Anoia, Spain) (represented by: J. Vázquez Salleras and G. Ferrer Gonzalvez, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Rotkäppchen-Mumm Sektkellereien GmbH (Eltville, Germany)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union figurative mark MIM NATURA — Application for registration No 15 322 761

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the First Board of Appeal of EUIPO of 12 July 2018 in Case R 2270/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  accept the application against the contested decision;

                  —

                  declare null and void the contested decision;

                  —

                  impose the costs of the proceedings to the EUIPO.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-150/17: Judgment of the General Court of 4 October 2018 — Asolo v EUIPO — Red Bull (FLÜGEL) (European Union trade mark — Invalidity proceedings — European Union word mark FLÜGEL — Earlier national word marks …VERLEIHT FLÜGEL and RED BULL VERLEIHT FLÜÜÜGEL — Relative grounds for refusal — Extinction of rights due to acquiescence — Article 54(2) of Regulation (EC) No 207/2009 (now Article 61(2) of Regulation (EU) 2017/1001) — Absence of likelihood of confusion — Absence of similarity between the goods — Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001) — Article 8(1) of Regulation No 207/2009 (now Article 8(1) of Regulation 2017/1001))

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/52

      Judgment of the General Court of 4 October 2018 — Asolo v EUIPO — Red Bull (FLÜGEL)
      (Case T-150/17) (1)

      (European Union trade mark - Invalidity proceedings - European Union word mark FLÜGEL - Earlier national word marks …VERLEIHT FLÜGEL and RED BULL VERLEIHT FLÜÜÜGEL - Relative grounds for refusal - Extinction of rights due to acquiescence - Article 54(2) of Regulation (EC) No 207/2009 (now Article 61(2) of Regulation (EU) 2017/1001) - Absence of likelihood of confusion - Absence of similarity between the goods - Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001) - Article 8(1) of Regulation No 207/2009 (now Article 8(1) of Regulation 2017/1001))
      (2018/C 427/67)
      Language of the case: English

         Parties

         Applicant: Asolo LTD (Limassol, Cyprus) (represented by: W. Pors and N. Dorenbosch, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Red Bull GmbH (Fuschl am See, Austria) (represented by: A. Renck and S. Petivlasova, lawyers)

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 17 November 2016 (Case R 282/2015-5), relating to invalidity proceedings between Red Bull and Asolo.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 17 November 2016 (Case R 282/2015-5), in so far as it dismisses the appeal against the decision of the Cancellation Division declaring the EU trade mark FLÜGEL invalid for the goods ‘alcoholic beverages (except beers)’ and ‘alcoholic essences; alcoholic extracts; fruits extracts (alcoholic)’ in Class 33 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders EUIPO and Red Bull GmbH to bear, in addition to their own costs, those incurred by Asolo Ltd.

         (1)  OJ C 129, 24.4.2017.


title: Case T-590/18: Action brought on 2 October 2018 — Antonakopoulos v Parliament

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/97

      Action brought on 2 October 2018 — Antonakopoulos v Parliament
      (Case T-590/18)
      (2018/C 427/127)
      Language of the case: French

         Parties

         Applicant: Leonidas Antonakopoulos (Athens, Greece) (represented by: S. Pappas, lawyer)

         Defendant: European Parliament

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision to suspend him from his duties;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of the rights of the defence and of the principle of sound administration inasmuch as the administration did not hear him before adopting the decision, even though it would have been possible to hold a hearing without damage to the interests of the investigation or the service.

                  2.

                  Second plea in law, alleging infringement of the obligation to state adequate reasons inasmuch as the allegation of serious misconduct on which the contested decision is based is terse and vague and neither accompanied by reasons nor substantiated by precise information revealing the existence of adequate suspicions such as to lead to the conclusion that the applicant failed to honour his obligations under the Staff Regulations.

                  3.

                  Third plea in law, alleging infringement of the principle of proportionality, inasmuch as the administration could have adopted more lenient measures while satisfying the needs of the inquiry.

                  4.

                  Fourth plea in law, alleging infringement of the duty to have regard to the welfare of officials inasmuch as, first, the administration failed to weigh up the interests of the applicant against those of the service, in particular the fact that the applicant has worked for the Parliament for almost 30 years, has excellent relations with his line managers and has had very good appraisal reports and, secondly, the fact that that decision was rapidly publicised undermines his personality and his reputation.


title: Case T-186/17: Judgment of the General Court of 3 October 2018 — Unipreus v EUIPO — Wallapop (wallapop) (EU trade mark — Opposition proceedings — Application for EU figurative mark wallapop — Prior national figurative mark wala w — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Similarity of the services)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/53

      Judgment of the General Court of 3 October 2018 — Unipreus v EUIPO — Wallapop (wallapop)
      (Case T-186/17) (1)

      (EU trade mark - Opposition proceedings - Application for EU figurative mark wallapop - Prior national figurative mark wala w - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Similarity of the services)
      (2018/C 427/68)
      Language of the case: Spanish

         Parties

         Applicant: Unipreus, SL (Lleida, Spain) (represented by: C. Rivadulla Oliva, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO) (represented by: D. Bernabeu, D. Gája and J. Crespo Carrillo, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Wallpop, SL, (Barcelona, Spain) (represented by: X. Fàbrega Sabaté and J. Sánchez Sánchez-Crespo, lawyers)

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 18 January 2017 (Case R 2350/2015-5) concerning opposition proceedings between Unipreus and Wallapop.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Fifth Board of Appeal of EUIPO of 18 January 2017, in so far as it found that the services at issue in Case R 2350/2015-5 were different;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders EUIPO to bear its own costs and to pay those incurred by Unipreus, SL;

                  4.

                  Orders Wallapop, SL, to bear its own costs.

         (1)  OJ C 161, 22.5.2017.


title: Case C-483/18: Request for a preliminary ruling from the Sąd Okręgowy w Opolu (Poland) lodged on 24 July 2018 — Profi Credit Polska S.A., whose seat is in Bielsko-Biała, v OH

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/7

      Request for a preliminary ruling from the Sąd Okręgowy w Opolu (Poland) lodged on 24 July 2018 — Profi Credit Polska S.A., whose seat is in Bielsko-Biała, v OH
      (Case C-483/18)
      (2018/C 427/11)
      Language of the case: Polish

         Referring court

      Sąd Okręgowy w Opolu

         Parties to the main proceedings

         Appellant: Profi Credit Polska S.A., whose seat is in Bielsko-Biała

         Respondent: OH

         Question referred

      Should Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (1) in particular Article 3(1) and (2), Article 6(1) and Article 7(1) thereof, and Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, (2) in particular Article 22(3) thereof, be interpreted as precluding an interpretation of Article 10, in conjunction with Article 17, of the ustawa z dnia 28 kwietnia 1936 r. prawo wekslowe (Law of 28 April 1936 on Bills of Exchange and Promissory Notes) according to which a court is not permitted to act of its own motion in a situation where it has a strong and justified belief, based on materials not originating from the parties to the case, that the contract giving rise to the basic legal relationship is at least partially invalid, and the applicant pursues his claim under a blank promissory note while the defendant raises no pleas and behaves passively?

         (1)  OJ 1993 L 95, p. 29.

         (2)  OJ 2008 L 133, p. 66.


title: Case T-219/17: Judgment of the General Court of 27 September 2018 — M J Quinlan & Associates v EUIPO — Intersnack Group (Shape of a kangaroo) (EU trade mark — Revocation proceedings — Three-dimensional trade mark in the shape of a kangaroo — Declaration of revocation — Genuine use of the mark — Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) — Proof of genuine use — Nature of use)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/54

      Judgment of the General Court of 27 September 2018 — M J Quinlan & Associates v EUIPO — Intersnack Group (Shape of a kangaroo)
      (Case T-219/17) (1)

      (EU trade mark - Revocation proceedings - Three-dimensional trade mark in the shape of a kangaroo - Declaration of revocation - Genuine use of the mark - Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) - Proof of genuine use - Nature of use)
      (2018/C 427/69)
      Language of the case: German

         Parties

         Applicant: M J Quinlan & Associates Pty Ltd (Hope Island, Queensland, Australia) (represented by: M. Freiherr von Welser and A. Bender, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Intersnack Group GmbH & Co. KG (Düsseldorf, Germany) (represented by: T. Lampel, J. Heidenreich and M. Pfaff, lawyers)

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 27 January 2017 (Case R 218/2016-2) relating to revocation proceedings between M J Quinlan & Associates Pty and Intersnack Group.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders M J Quinlan & Associates Pty Ltd to pay the costs.

         (1)  OJ C 178, 6.6.2017.


title: Case T-715/17: Order of the General Court of 11 September 2018 — Hermann Biederlack v EUIPO (Feeling home) (European Union trade mark — Application for EU word mark Feeling home — 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] — Action manifestly lacking any basis in law)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/74

      Order of the General Court of 11 September 2018 — Hermann Biederlack v EUIPO (Feeling home)
      (Case T-715/17) (1)

      (European Union trade mark - Application for EU word mark Feeling home - 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] - Action manifestly lacking any basis in law)
      (2018/C 427/99)
      Language of the case: German

         Parties

         Applicant: Hermann Biederlack (Greven, Germany) (represented by: T. Seifried, lawyer)

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

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 24 June 2017 (Case R 252/2017-5), concerning an application for registration of the word sign Feeling home as an EU trade mark.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  Hermann Biederlack GmbH & Co. KG is ordered to pay the costs.

         (1)  OJ C 412, 4.12.2017.


title: Case T-854/16: Judgment of the General Court of 20 November 2018 — Barata v Parliament (Civil service — Officials — Promotion — 2015 promotion procedure — Certification procedure — Exclusion from the definitive list of officials authorised to follow the training programme — Article 45a of the Staff Regulations — Obligation to state reasons — Manifest error of assessment — Equal treatment — Rights of the defence)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/39

      Judgment of the General Court of 20 November 2018 — Barata v Parliament
      (Case T-854/16) (1)

      ((Civil service - Officials - Promotion - 2015 promotion procedure - Certification procedure - Exclusion from the definitive list of officials authorised to follow the training programme - Article 45a of the Staff Regulations - Obligation to state reasons - Manifest error of assessment - Equal treatment - Rights of the defence))
      (2019/C 25/49)
      Language of the case: English

         Parties

         Applicant: João Miguel Barata (Evere, Belgium) (represented by: G. Pandey, D. Rovetta, lawyers, and J. Grayston, solicitor)

         Defendant: European Parliament (represented by: D. Nessaf and Í. Ní Riagáin Düro, agents)

         Re:

      Application on the basis of Article 270 TFEU and seeking annulment, first, of the Parliament’s decision dated 29 January 2016 and the confirmatory decision dated 29 March 2016 not to include the applicant’s name on the list of officials authorised to participate in 2015 in the training programme in respect of the 2015 certification procedure, secondly, of the decision dated 25 August 2016 rejecting the complaint, thirdly, of Notice of internal competition 2015/023, communicated to the staff on 18 September 2015, and, fourthly, of the draft list of officials selected to participate in the training programme in question.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr João Miguel Barata to pay the costs.

         (1)  OJ C 38, 6.2.2017.


title: Case C-580/18 P: Appeal brought on 18 September 2018 by Nestlé Unternehmungen Deutschland GmbH against the judgment of the General Court (Ninth Chamber) delivered on 12 July 2018 in Case T-41/17, Lotte Co. Ltd. v European Union Intellectual Property Office

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/15

      Appeal brought on 18 September 2018 by Nestlé Unternehmungen Deutschland GmbH against the judgment of the General Court (Ninth Chamber) delivered on 12 July 2018 in Case T-41/17, Lotte Co. Ltd. v European Union Intellectual Property Office
      (Case C-580/18 P)
      (2019/C 25/18)
      Language of the case: German

         Parties to the proceedings

         Appellant: Nestlé Unternehmungen Deutschland GmbH (represented by: A. Jaeger-Lenz and C. Elkemann, Rechtsanwältinnen, and A. Lambrecht, Rechtsanwalt)

         Other parties to the proceedings: Lotte Co. Ltd, European Union Intellectual Property Office

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of the General Court (Ninth Chamber) of 12 July 2018 (T-41/17) and dismiss the action brought against the decision of the Fourth Board of Appeal of the [European Union Intellectual Property Office (EUIPO)] of 28 October 2016 (Case R 250/2016-5);

                  —

                  in the alternative, set aside the General Court’s judgment under appeal and refer the case back to the General Court;

                  —

                  order the applicant (Lotte Co. Ltd) to pay the costs of the proceedings.

         Grounds of appeal and main arguments

      The appellant relies on the following grounds of appeal:

                  1.

                  The General Court erred in law when it used its power to alter the contested decision under Article 65(3) of Regulation No 207/2009, (1) notwithstanding the fact that the Board of Appeal had not made any sufficient findings of fact with regard to the frequency and temporal consistency of use. This undermined the appellant’s interests, as the General Court’s findings do not go far enough and fail to take into consideration the relevant evidence. If corresponding findings had already been made by the Board of Appeal, the appellant would have been able to challenge these in an action before the General Court.

                  2.

                  In its assessment of ‘genuine use’ referred to in Article 42(2) and (3) of Regulation No 207/2009, the General Court finds it to be decisive that, when compared with the turnover figures included in the affidavit submitted, the turnover figures used for the purposes of calculations were too low. However, the General Court ought at most to have taken into account the objective production and sales capacities for that sector. The current, subjective circumstances of a particular undertaking should be irrelevant for the purposes of establishing use. Further, the use of a particular mark can be classified as genuine even where it is insignificant in quantitative terms, as there are no absolute minimum levels. It is not appropriate to carry out an assessment of the business strategy and of the commercial success of the goods in question. All that is relevant is whether the use is purely symbolic.

                  3.

                  The General Court also misinterpreted the constituent elements of ‘genuine use’ under Article 42(2) and (3) of Regulation No 207/2009, as it generalised the size of the overall market without taking into account the objective production and sales capacities for that sector and the degree of diversification of the undertakings on the market concerned.

                  4.

                  The General Court distorted the factual information relating to genuine use of the earlier mark by overlooking decisive information in the affidavit, in particular with regard to the temporal consistency of use.

                  5.

                  The fact that, when assessing the question of use giving rise to certain rights, the General Court took the subjective circumstances of the appellant’s licensee to be decisive and considered, in particular, that the scope of the business activities and the production and sales capacities of the licensee were decisive, constitutes an infringement of the general principle of equal treatment.

                  6.

                  The fact that the General Court departed from earlier decisions taken by itself and by the Court of Justice in which the General Court or the Court of Justice had established genuine use in comparable factual circumstances also constitutes an infringement of the general principle of equal treatment.

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


title: Case T-672/18: Action brought on 13 November 2018 — Pyke v EUIPO — Paglieri (CLIOMAKEUP)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/50

      Action brought on 13 November 2018 — Pyke v EUIPO — Paglieri (CLIOMAKEUP)
      (Case T-672/18)
      (2019/C 25/65)
      Language in which the application was lodged: Italian

         Parties

         Applicant: Pyke Srl (Milan, Italy) (represented by: P. Roncaglia, F. Rossi, N. Parrotta and R. Perotti, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Paglieri SpA (Alessandria, Italy)

         Details of the proceedings before EUIPO

         Applicant for the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for EU figurative mark CLIOMAKEUP — Application for registration No 11 698 446

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 August 2018 in Case R 2675/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs;

                  —

                  order Paglieri to pay the costs.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-674/18: Action brought on 14 November 2018 — Vattenfall Europe Nuclear Energy v Commission

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/51

      Action brought on 14 November 2018 — Vattenfall Europe Nuclear Energy v Commission
      (Case T-674/18)
      (2019/C 25/66)
      Language of the case: German

         Parties

         Applicant: Vattenfall Europe Nuclear Energy GmbH (Hamburg, Germany) (represented by: U. Karpenstein and R. Sangi, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the European Commission’s letter of 4 July 2018 in the State aid proceedings SA.51169 (2018/PN) — 16 Atomgesetz-Änderungsgesetz (Law on the Amendment to the Nuclear Energy Law; ‘16. AtG-Novelle’);

                  —

                  order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments

      The action is based on the following grounds:

                  1.

                  Infringement of Article 107(1) TFEU (in conjunction with Article 108(3) TFEU)
                  The applicant claims that the contested letter infringes Article 107(1) TFEU, in conjunction with Article 108(3) TFEU, because — on the assumption that it is intended to be binding —, it exempts a national indemnification law from the obligation to notify State aid, despite the fact that one of the applicant’s competitors, which, according to a judgment of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), had no right to indemnification, was selected to be supported by State funds on the basis of that legislation.

                  2.

                  Infringement of Article 4(2) of Council Regulation (EU) 2015/1589 (1)

                  The applicant claims that, where a Member State forms the view that a measure taken by it does not constitute aid, Regulation 2015/1589 envisages a formal decision in accordance with Article 288 TFEU, provided that the Commission comes to the conclusion, after a preliminary review, that the measure granted does not constitute aid. The letter at issue infringes those guidelines.

         (1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).


title: Joined Cases C-626/15 and C-659/16: Judgment of the Court (Grand Chamber) of 20 November 2018 — European Commission v Council of the European Union (C-626/15), European Commission v Council of the European Union (C-659/16) (Actions for annulment — Decision of the Permanent Representatives Committee (Coreper) — Decision approving the submission of a reflection paper to an international body — Admissibility — Challengeable act — Exclusive, shared or complementary competence of the European Union — Action of the European Union alone in an international body or participation of the Member States alongside it — Conservation of marine biological resources — Fisheries — Protection of the environment — Research — Marine protected areas (MPAs) — Antarctic Treaty — Convention on the Conservation of Antarctic Marine Living Resources — Weddell Sea and Ross Sea)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/2

      Judgment of the Court (Grand Chamber) of 20 November 2018 — European Commission v Council of the European Union (C-626/15), European Commission v Council of the European Union (C-659/16)
      (Joined Cases C-626/15 and C-659/16) (1)

      ((Actions for annulment - Decision of the Permanent Representatives Committee (Coreper) - Decision approving the submission of a reflection paper to an international body - Admissibility - Challengeable act - Exclusive, shared or complementary competence of the European Union - Action of the European Union alone in an international body or participation of the Member States alongside it - Conservation of marine biological resources - Fisheries - Protection of the environment - Research - Marine protected areas (MPAs) - Antarctic Treaty - Convention on the Conservation of Antarctic Marine Living Resources - Weddell Sea and Ross Sea))
      (2019/C 25/02)
      Language of the case: French

         Parties

      (C-626/15)

         Applicant: European Commission (represented by: A. Bouquet, E. Paasivirta and C. Hermes, acting as Agents)

         Defendant: Council of the European Union (represented by: A. Westerhof Löfflerová, R. Liudvinaviciute-Cordeiro and M. Simm, acting as Agents)

         Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze, J. Möller, K. Stranz and S. Eisenberg, acting as Agents), Hellenic Republic (represented by: G. Karipsiadis and K. Boskovits, acting as Agents), Kingdom of Spain (represented by: M.A. Sampol Pucurull, acting as Agent), French Republic (represented by: F. Fize, D. Colas, G. de Bergues and B. Fodda, acting as Agents), Kingdom of the Netherlands (represented by: M. Gijzen, M. Bulterman and M. Noort, acting as Agents), Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo and M.L. Duarte, acting as Agents), Republic of Finland (represented by: J. Heliskoski, acting as Agent), Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, U. Persson, N. Otte Widgren, L. Zettergren and L. Swedenborg, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: C. Brodie, acting as Agent, and J. Holmes QC)
      (C-659/16)

         Applicant: European Commission (represented by: A. Bouquet, E. Paasivirta and C. Hermes, acting as Agents)

         Defendant: Council of the European Union (represented by: A. Westerhof Löfflerová, R. Liudvinaviciute-Cordeiro and M. Simm, acting as Agents)

         Interveners in support of the defendant: Kingdom of Belgium (represented by: J. Van Holm, C. Pochet and L. Van den Broeck, acting as Agents), Federal Republic of Germany (represented by: T. Henze, J. Möller and S. Eisenberg, acting as Agents), Kingdom of Spain (represented by: M.A. Sampol Pucurull, acting as Agent), French Republic (represented by: D. Colas and B. Fodda, acting as Agents), Grand Duchy of Luxembourg (represented by: D. Holderer, acting as Agent), Kingdom of the Netherlands (represented by: B. Koopman, M. Bulterman and M. Noort, acting as Agents), Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo and L. Medeiros, acting as Agents), Republic of Finland (represented by: J. Heliskoski, acting as Agent), Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, H. Shev and L. Zettergren, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: C. Brodie and G. Brown, acting as Agents, J. Holmes QC and J. Gregory, Barrister)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the actions;

                  2.

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

                  3.

                  Orders the Kingdom of Belgium, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

         (1)  OJ C 59, 15.2.2016.

         OJ C 38, 6.2.2017.


title: Case C-648/16: Judgment of the Court (Fourth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Commissione Tributaria Provinciale di Reggio Calabria — Italy) — Fortunata Silvia Fontana v Agenzia delle Entrate — Direzione provinciale di Reggio Calabria (Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Article 273 — Tax adjustment — Method of calculating the taxable amount by extrapolation — Right to deduct VAT — Presumption — Principles of neutrality and proportionality — National law basing the calculation of VAT on presumed turnover)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/3

      Judgment of the Court (Fourth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Commissione Tributaria Provinciale di Reggio Calabria — Italy) — Fortunata Silvia Fontana v Agenzia delle Entrate — Direzione provinciale di Reggio Calabria
      (Case C-648/16) (1)

      ((Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Article 273 - Tax adjustment - Method of calculating the taxable amount by extrapolation - Right to deduct VAT - Presumption - Principles of neutrality and proportionality - National law basing the calculation of VAT on presumed turnover))
      (2019/C 25/03)
      Language of the case: Italian

         Referring court

      Commissione Tributaria Provinciale di Reggio Calabria

         Parties to the main proceedings

         Applicant: Fortunata Silvia Fontana

         Defendant: Agenzia delle Entrate — Direzione provinciale di Reggio Calabria

         Operative part of the judgment

      Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, and the principles of fiscal neutrality and proportionality, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which authorises tax authorities, in the event of serious differences between declared revenue and revenue estimated on the basis of sector studies, to use extrapolation, based on such sector studies, in order to determine the amount of turnover achieved by a taxable person and, consequently, to carry out a tax adjustment requiring the payment of additional value added tax (VAT), provided that that legislation and its application enable the taxable person, in compliance with the principles of fiscal neutrality, proportionality and the right of defence, to challenge the results obtained by that method, on the basis of all of the evidence to the contrary available to him, and to exercise his right of deduction in accordance with the provisions in Title X of Directive 2006/2012, which it is for the referring court to verify.

         (1)  OJ C 86, 20.3.2017.


title: Case C-679/18: Request for a preliminary ruling from the Okresní soud v Ostravě (Czech Republic) lodged on 5 November 2018 — OPR-Finance s.r.o. v GK

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/26

      Request for a preliminary ruling from the Okresní soud v Ostravě (Czech Republic) lodged on 5 November 2018 — OPR-Finance s.r.o. v GK
      (Case C-679/18)
      (2019/C 25/33)
      Language of the case: Czech

         Referring court

      Okresní soud v Ostravě

         Parties to the main proceedings

         Applicant: OPR-Finance s.r.o.

         Defendant: GK

         Questions referred

                  1.

                  Do the combined provisions of Article 8 and Article 23 of Directive 2008/48/EC (1) of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC preclude national legislation which specifies that the penalty for failure to fulfil the creditor’s obligation to assess the consumer’s creditworthiness before the conclusion of the credit agreement shall be the nullity of the credit agreement linked with an obligation on the consumer to return the principal sum to the creditor at a time appropriate to the consumer’s financial capacity, where such a penalty (the nullity of the credit agreement) is however applicable only in the event that the consumer invokes it (that is, raises an objection of nullity in relation to the agreement) within a three-year limitation period?

                  2.

                  Do the combined provisions of Article 8 and Article 23 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC require a national court to apply of its own motion the penalty laid down in national legislation for failure to fulfil the creditor’s obligation to assess the consumer’s creditworthiness (that is, even in the event that the consumer does not actively invoke the penalty)?

         (1)  OJ 2008 L 133, p. 66.


title: Case C-664/16: Judgment of the Court (Fourth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Curtea de Apel Alba Iulia — Romania) — Lucreţiu Hadrian Vădan v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Direcţia Generală Regională a Finanţelor Publice Braşov — Administraţia Judeţeană a Finanţelor Publice Alba (Reference for a preliminary ruling — Common system of value added tax — Directive 2006/112/EC — Articles 167, 168, 178 and 273 — Scope of the right of deduction — Absence of invoices — Recourse to a court-commissioned expert report — Burden of proof of the right of deduction — Principles of fiscal neutrality and proportionality)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/4

      Judgment of the Court (Fourth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Curtea de Apel Alba Iulia — Romania) — Lucreţiu Hadrian Vădan v Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Direcţia Generală Regională a Finanţelor Publice Braşov — Administraţia Judeţeană a Finanţelor Publice Alba
      (Case C-664/16) (1)

      ((Reference for a preliminary ruling - Common system of value added tax - Directive 2006/112/EC - Articles 167, 168, 178 and 273 - Scope of the right of deduction - Absence of invoices - Recourse to a court-commissioned expert report - Burden of proof of the right of deduction - Principles of fiscal neutrality and proportionality))
      (2019/C 25/04)
      Language of the case: Romanian

         Referring court

      Curtea de Apel Alba Iulia

         Parties to the main proceedings

         Applicant: Lucreţiu Hadrian Vădan

         Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală de Soluționare a Contestațiilor, Direcţia Generală Regională a Finanţelor Publice Braşov — Administraţia Judeţeană a Finanţelor Publice Alba

         Operative part of the judgment

      Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 167, 168, 178(a) and 179, and the principles of the neutrality of value added tax (VAT) and proportionality, must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a taxable person who is unable to provide evidence of the amount of input VAT he has paid, by producing invoices or any other document, cannot benefit from a right to deduct VAT solely on the basis of an assessment resulting from an expert report commissioned by a national court.

         (1)  OJ C 104, 3.4.2017.


title: Case T-790/17: Judgment of the General Court of 20 November 2018 — St. Andrews Links v EUIPO (ST ANDREWS) (EU trade mark — Application for the EU word mark ST ANDREWS — Absolute ground for refusal — Descriptive character — Geographical origin — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/40

      Judgment of the General Court of 20 November 2018 — St. Andrews Links v EUIPO (ST ANDREWS)
      (Case T-790/17) (1)

      ((EU trade mark - Application for the EU word mark ST ANDREWS - Absolute ground for refusal - Descriptive character - Geographical origin - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001)))
      (2019/C 25/51)
      Language of the case: English

         Parties

         Applicant: St. Andrews Links Ltd (St Andrews, United Kingdom) (represented by: B. Hattier, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: K. Kompari, Agent)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 October 2017 (Case R 92/2017-4), relating to an application for registration of the word sign ST ANDREWS as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders St. Andrews Links Ltd to pay the costs.

         (1)  OJ C 42, 5.2.2018.


title: Case C-646/18: Request for a preliminary ruling from the Juzgado de lo Mercantil de Gerona (Spain) lodged on 15 October 2018 — OD v Ryanair D.A.C.

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/18

      Request for a preliminary ruling from the Juzgado de lo Mercantil de Gerona (Spain) lodged on 15 October 2018 — OD v Ryanair D.A.C.
      (Case C-646/18)
      (2019/C 25/22)
      Language of the case: Spanish

         Referring court

      Juzgado de lo Mercantil de Gerona

         Parties to the main proceedings

         Applicant: OD

         Defendant: Ryanair D.A.C.

         Questions referred

                  1.

                  Does the concept of implied prorogation of jurisdiction laid down in and governed by Article 26 of Regulation (EU) No 1215/2012 (1) require there to be any objective connection between the subject matter of the dispute or the domicile of the applicant and the court with which the claim is lodged?

                  2.

                  Does the concept of implied prorogation of jurisdiction laid down in and governed by Article 26(1) of Regulation (EU) No 1215/2012 require, in all respects, an autonomous interpretation common to all the Member States? Is it therefore unable to be made subject to limitations laid down in Member States’ rules on domestic jurisdiction, such as a provision that such jurisdiction is not valid in proceedings which, because of the small sum involved, are required by the Spanish Law on Civil Procedure to be heard under the simplified procedure?

         (1)  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).


title: Case T-675/18: Action brought on 19 November 2018 — Trifolio-M and Others v EFSA

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/52

      Action brought on 19 November 2018 — Trifolio-M and Others v EFSA
      (Case T-675/18)
      (2019/C 25/67)
      Language of the case: English

         Parties

         Applicants: Trifolio-M GmbH (Lahnau, Germany), Oxon Italia SpA (Milan, Italy) and Mitsui AgriScience International (Woluwe-Saint-Pierre, Belgium) (represented by: C. Mereu and S. Englebert, lawyers)

         Defendant: European Food Safety Authority (EFSA)

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul EFSA’s decision of 11 September 2018 on the assessment of the applicants’ confidentiality claims made in relation to the conclusion on the peer review of the pesticide risk assessment of the active substance Azadirachtin;

                  —

                  order the defendant to pay the costs and expenses of the proceedings.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of Article 63 of Regulation (EC) No 1107/2009. (1)

                              —

                              The applicants allege that the defendant misinterpreted what amounts to information involving industrial and commercial secrets that merit confidential treatment, and misapplied Article 63 of Regulation 1107/2009 based on a manifest error of assessment of the applicants 'confidentiality claims.

                  2.

                  Second plea in law, alleging breach of the fundamental principles of EU law to the extent that the defendant failed to state reasons for its decision, to conform to the uniform application of EU law or to abide by the principle of proportionality.

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


title: Case C-688/18: Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 6 November 2018 — Criminal proceedings against TX and UW

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/28

      Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 6 November 2018 — Criminal proceedings against TX and UW
      (Case C-688/18)
      (2019/C 25/35)
      Language of the case: Bulgarian

         Referring court

      Spetsializiran nakazatelen sad

         Parties to the main proceedings

      TX and UW

         Question referred

      Is the right of a defendant to be present at the trial pursuant to Article 8(1) and (2) in conjunction with recitals 35 and 44 of Directive (EU) 2016/343 (1) infringed if one of the hearings in criminal proceedings took place in the absence of the defendant, who was duly summoned, informed of the consequences of non-appearance and defended by a lawyer chosen by him, if:

                  (a)

                  he did not appear for a reason within his control (namely he decided not to participate in that specific hearing);

                  (b)

                  he did not appear for a reason beyond his control (namely illness), if he was subsequently informed of the acts carried out in his absence and, with full knowledge of the situation, decided and declared that:

                              —

                              he does not call the legality of those acts into question by relying on his non-appearance and does not request that they be repeated in his presence;

                              —

                              he wishes to participate in these acts, whereupon the court conducted an additional examination of the person specified by the defendant and gave the defendant the opportunity to participate in it to an appropriate extent?

         (1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).


title: Case T-791/17: Judgment of the General Court of 20 November 2018 — St. Andrews Links v EUIPO (ST ANDREWS) (EU trade mark — Application for the EU word mark ST ANDREWS — Absolute ground for refusal — Descriptive character — Geographical origin — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/41

      Judgment of the General Court of 20 November 2018 — St. Andrews Links v EUIPO (ST ANDREWS)
      (Case T-791/17) (1)

      ((EU trade mark - Application for the EU word mark ST ANDREWS - Absolute ground for refusal - Descriptive character - Geographical origin - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001)))
      (2019/C 25/52)
      Language of the case: English

         Parties

         Applicant: St. Andrews Links Ltd (St Andrews, United Kingdom) (represented by: B. Hattier, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: K. Kompari, Agent)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 2 October 2017 (Case R 93/2017-4), relating to an application for registration of the word sign ST ANDREWS as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders St. Andrews Links Ltd to pay the costs.

         (1)  OJ C 42, 5.2.2018.


title: Case T-678/18: Action brought on 13 November 2018 — Società agricola Giusti Dal Col v EUIPO — DMC (GIUSTI WINE)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/53

      Action brought on 13 November 2018 — Società agricola Giusti Dal Col v EUIPO — DMC (GIUSTI WINE)
      (Case T-678/18)
      (2019/C 25/68)
      Language in which the application was lodged: Italian

         Parties

         Applicant: Società agricola Giusti Dal Col Srl (Nervesa della Battaglia, Italy) (represented by: M. Pizzigati and A. Mayr, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: DMC Srl (San Vendemiano, Italy)

         Details of the proceedings before EUIPO

         Proprietor of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: International registration designating the European Union in respect of the word mark GIUSTI WINE

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 3 September 2018 in Case R 1154/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case T-831/17: Judgment of the General Court of 15 November 2018 — DRH Licensing & Managing v EUIPO — Merck (Flexagil) (EU trade mark — Revocation proceedings — EU figurative mark Flexagil — Genuine use of the mark — Article 18(1), second subparagraph,(a) and Article 58(1)(a) of Regulation (EU) 2017/1001 — Form differing in elements which do not alter the distinctive character)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/41

      Judgment of the General Court of 15 November 2018 — DRH Licensing & Managing v EUIPO — Merck (Flexagil)
      (Case T-831/17) (1)

      ((EU trade mark - Revocation proceedings - EU figurative mark Flexagil - Genuine use of the mark - Article 18(1), second subparagraph,(a) and Article 58(1)(a) of Regulation (EU) 2017/1001 - Form differing in elements which do not alter the distinctive character))
      (2019/C 25/53)
      Language of the case: German

         Parties

         Applicant: DRH Licensing & Managing AG (Zurich, Switzerland) (represented by: S. Salomonowitz, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: W. Schramek and M. Fischer, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO: Merck KGaA (Darmstadt, Germany)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 17 October 2017 (Case R 2043/2016-4), relating to revocation proceedings between DRH Licensing & Managing and Merck.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders DRH Licensing & Managing AG to pay the costs.

         (1)  OJ C 52, 12.2.2018.


title: Case C-689/18: Request for a preliminary ruling from the Dioikitiko Protodikeio Patron (Greece) lodged on 5 November 2018 — XT v Elliniko Dimosio

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/28

      Request for a preliminary ruling from the Dioikitiko Protodikeio Patron (Greece) lodged on 5 November 2018 — XT v Elliniko Dimosio
      (Case C-689/18)
      (2019/C 25/36)
      Language of the case: Greek

         Referring court

      Dioikitiko Protodikeio Patron (Greece)

         Parties to the main proceedings

         Applicant: XT

         Defendant: Elliniko Dimosio

         Questions referred

                  1.

                  Does the rule in Article 44(1)(b) of Law 4111/2013, as in force in the 2013 tax year (2012 financial year), under which owners or keepers of private cars (with a cylinder capacity of 1 929 cc or more) more than ten years old by reference to the year when they were first put into circulation in Greece and not to the year of any prior (first) putting into circulation in a Member State of the European Union are exempt from wealthy lifestyle tax, constitute a charge having equivalent effect to a customs duty between the Member States of the European Union, within the meaning of Articles 28 to 30 of the Treaty on the Functioning of the European Union?

                  2.

                  If the answer to the above question is in the negative, does that rule constitute an (indirect) internal tax on products imported from other Member States of the European Union in excess of the taxes imposed on similar domestic products, within the meaning of Article 110 of that Treaty?


title: Case C-151/17: Judgment of the Court (First Chamber) of 22 November 2018 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — Swedish Match AB v Secretary of State for Health (Reference for a preliminary ruling — Approximation of laws — Manufacture, presentation and sale of tobacco products — Directive 2014/40/EU — Article 1(c) and Article 17 — Prohibition on the placing on the market of tobacco products for oral use — Validity)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/6

      Judgment of the Court (First Chamber) of 22 November 2018 (request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — Swedish Match AB v Secretary of State for Health
      (Case C-151/17) (1)

      ((Reference for a preliminary ruling - Approximation of laws - Manufacture, presentation and sale of tobacco products - Directive 2014/40/EU - Article 1(c) and Article 17 - Prohibition on the placing on the market of tobacco products for oral use - Validity))
      (2019/C 25/07)
      Language of the case: English

         Referring court

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

         Parties to the main proceedings

         Applicant: Swedish Match AB

         Defendant: Secretary of State for Health

         Intervener: New Nicotine Alliance

         Operative part of the judgment

      Consideration of the question referred has disclosed nothing capable of affecting the validity of Article 1(c) and Article 17 of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC.

         (1)  OJ C 161, 22.5.2017.


title: Case T-679/18: Action brought on 12 November 2018 — Showroom v EUIPO — E-Gab (SHOWROOM)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/53

      Action brought on 12 November 2018 — Showroom v EUIPO — E-Gab (SHOWROOM)
      (Case T-679/18)
      (2019/C 25/69)
      Language in which the application was lodged: Polish

         Parties

         Applicant: Showroom sp. z o.o. (Warsaw, Poland) (represented by M. Janicka — Kapłon, legal adviser)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: E-Gab NV (Ternat, Belgium)

         Details of the proceedings before EUIPO

         Applicant for the trade mark at issue: Applicant before the General Court/Other party to the proceedings before the Board of Appeal

         Trade mark at issue: European Union word mark SHOWROOM — Application for registration No 11 110 376

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2019 in Case R 1834/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and E-GAB (if the latter decides to intervene in the proceedings) to pay the costs of the proceedings, including those incurred by the applicant in the procedure before the Board of Appeal and before the Opposition Division of EUIPO.

         Pleas in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Union and of the Council.


title: Case C-703/18: Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 12 November 2018 — Healthspan Limited v Commissioners for Her Majesty's Revenue and Customs

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/29

      Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 12 November 2018 — Healthspan Limited v Commissioners for Her Majesty's Revenue and Customs
      (Case C-703/18)
      (2019/C 25/37)
      Language of the case: English

         Referring court

      First-tier Tribunal (Tax Chamber)

         Parties to the main proceedings

         Applicant: Healthspan Limited

         Defendant: Commissioners for Her Majesty's Revenue and Customs

         Questions referred

                  1.

                  Where the customer contracts (a) with the supplier to purchase the goods, and (b) with a third party delivery company (‘the delivery company’) for dispatch and delivery, are the goods deemed to be supplied from the place where they are located at the time dispatch or transport of the goods to the customer begins, so that Article 32 (1) (and not Article 33) always applies?

                  2.

                  If the answer to Question 1 is no, are goods transported ‘by or on behalf of the supplier’ where the customer contracts with the delivery company and one of the following applies, and if so, which one(s):

                              a)

                              The customer has no practical alternative but to use the delivery company.

                              b)

                              The customer has contact only with the supplier and not with the delivery company.

                              c)

                              The supplier and the delivery company agree the price to be charged by the delivery company with no input from the customer.

                              d)

                              The supplier rebates the delivery charge to the customer by way of a discount on the price of the goods.

                              e)

                              The supplier collects the delivery charges from the customer and remits it the third party delivery company.

                              f)

                              The contractual terms which set out when title to the goods passes to the customer do not make commercial sense, but this does not matter in practice, because the supplier makes good to the customer the cost of any damage to the goods during delivery.

                              g)

                              In relation to delivery charges where there is a problem with the original delivery:

                                          i)

                                          under its contract with the customer the supplier is obliged to refund the charges already paid by the customer;

                                          ii)

                                          under its contract with the customer the supplier is not obliged to refund those charges, but does so as a matter of practice;

                                          iii)

                                          in either case, the supplier (and not the delivery company) bears the cost of these refunds; and/or

                                          iv)

                                          under its contract with the customer the supplier is obliged to pay both the costs of sending replacement goods, and the related delivery charge; or

                                          v)

                                          under its contract with the customer the supplier is obliged to pay the cost of sending replacement goods, but not for their delivery, but does so as a matter of practice.

                  3.

                  If the answer to question 2 is no, does the delivery company act on behalf of the supplier if more than one of the above points are satisfied? If so, which factors must be taken into account and what weight is to be given to each factor?

                  4.

                  If the answer to either Question 2 or Question 3 is yes, does the delivery company act on behalf of the supplier where the supplier intervenes directly or indirectly in the transport or dispatch of the goods, as will be the case from 2021 under Directive 2017/2455 (2)? In other words, do the changes introduced by that Directive simply express in clearer language the meaning of Article 33 in its current form?

         (1)  Article 32 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006, L 347, p. 1).

         (2)  Council Directive (EU) 2017/2455 of 5 December 2017 amending Directive 2006/112/EC and Directive 2009/132/EC as regards certain value added tax obligations for supplies of services and distance sales of goods (OJ 2017, L 348, p. 7).


title: Case T-680/18: Action brought on 15 November 2018 — SLL Service v EUIPO — Elfa International (LUMIN8)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/54

      Action brought on 15 November 2018 — SLL Service v EUIPO — Elfa International (LUMIN8)
      (Case T-680/18)
      (2019/C 25/70)
      Language of the case: English

         Parties

         Applicant: SLL Service GmbH (Cologne, Germany) (represented by: C. Schmitt, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Elfa International AB (Västervik, Sweden)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: International registration designating the European Union in respect of the mark LUMIN8 — International registration designating the European Union No 1 276 543

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 28 August 2018 in Case R 2752/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case C-704/18: Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 12 November 2018 — Criminal proceedings against LD, ME, NF, OG, PH and RI

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/30

      Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 12 November 2018 — Criminal proceedings against LD, ME, NF, OG, PH and RI
      (Case C-704/18)
      (2019/C 25/38)
      Language of the case: Bulgarian

         Referring court

      Spetsiliziran nakazatelen sad

         Parties to the main proceedings

      LD, ME, NF, OG, PH and RI

         Question referred

      Must Article 267 TFEU be interpreted as authorising a national court not to apply a preliminary ruling in the main proceedings with regard to which it was issued in reliance on the factual circumstances taken into account by the Court when it gave the preliminary ruling?


title: Case C-648/18: Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 17 October 2018 — Autoritatea națională de reglementare în domeniul energiei (ANRE) v Societatea de Producere a Energiei Electrice în Hidrocentrale Hidroelectrica SA

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/19

      Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 17 October 2018 — Autoritatea națională de reglementare în domeniul energiei (ANRE) v Societatea de Producere a Energiei Electrice în Hidrocentrale Hidroelectrica SA
      (Case C-648/18)
      (2019/C 25/23)
      Language of the case: Romanian

         Referring court

      Tribunalul București

         Parties to the main proceedings

         Appellant: Autoritatea națională de reglementare în domeniul energiei (ANRE)

         Respondent: Societatea de Producere a Energiei Electrice în Hidrocentrale Hidroelectrica SA

         Question referred

      Does Article 35 TFEU preclude an interpretation of Article 23(1) and Article 28(c) of the Legea energiei electrice și a gazelor naturale nr. 123/2012 according to which electricity producers in Romania are obliged to trade all the electricity they produce exclusively on a centralised competitive market in Romania, given that there is the possibility of exporting energy, albeit not directly but through trading companies?


title: Joined Cases T-202/10 RENV II and T-203/10 RENV II: Judgment of the General Court of 15 November 2018 — Stichting Woonlinie and Others v Commission (State aid — Social housing — Aid scheme for housing corporations — Existing aids — Member State commitments — Decision declaring the aid compatible with the internal market — Article 17 of Regulation (EC) No 659/1999 — Service of general economic interest — Article 106(2) TFEU — Definition of the public service mission)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/31

      Judgment of the General Court of 15 November 2018 — Stichting Woonlinie and Others v Commission
      (Joined Cases T-202/10 RENV II and T-203/10 RENV II) (1)

      ((State aid - Social housing - Aid scheme for housing corporations - Existing aids - Member State commitments - Decision declaring the aid compatible with the internal market - Article 17 of Regulation (EC) No 659/1999 - Service of general economic interest - Article 106(2) TFEU - Definition of the public service mission))
      (2019/C 25/39)
      Language of the case: Dutch

         Parties

         Applicants in Case T-202/10 RENV II: Stichting Woonlinie (Woudrichem, Netherlands), Woningstichting Volksbelang (Wijk bij Duurstede, Netherlands) and Stichting Woonstede (Ede, Netherlands) (represented by: L. Hancher, E. Besselink, J. de Kok, Y. de Vries and F. van Orden, lawyers)

         Applicants in Case T-203/10 RENV II: Stichting Woonpunt (Maastricht, Netherlands), Woningstichting Haag Wonen (The Hague, Netherlands) and Stichting Woonbedrijf SWS.Hhvl (Eindhoven, Netherlands) (represented by: L. Hancher, E. Besselink, J. de Kok, Y. de Vries and F. van Orden, lawyers)

         Defendant: European Commission (represented by: S. Noë and P.J. Loewenthal, acting as Agents)

         Intervener in support of the applicants: Kingdom of Belgium (represented by: J.-C. Halleux and L. Van den Broeck, acting as Agents)

         Intervener in support of the defendant: Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) (Voorburg, Netherlands) (represented by: M. Meulenbelt and B. Natens, lawyers)

         Re:

      Application under Article 263 TFEU seeking the partial annulment of Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid No E 2/2005 and N 642/2009 — The Netherlands — Existing and special project aid to housing corporations.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the actions.

                  2.

                  Stichting Woonlinie, Woningstichting Volksbelang and Stichting Woonstede are ordered to bear their own costs, those incurred by the European Commission in Cases T-202/10, T-202/10 RENV, T-202/10 RENV II, C-133/12 P and C-414/15 P and those incurred by Vereniging van Institutionele Beleggers in Vastgoed, Nederland (IVBN) in Cases T-202/10, T-202/10 RENV and T-202/10 RENV II.

                  3.

                  Stichting Woonpunt, Woningstichting Haag Wonen and Stichting Woonbedrijf SWS.Hhvl are ordered to bear their own costs, those incurred by the Commission in Cases T-203/10, T-203/10 RENV, T-203/10 RENV II, C-132/12 P and C-415/15 P and those incurred by IVBN in Cases T-203/10, T-203/10 RENV and T-203/10 RENV II.

                  4.

                  The Kingdom of Belgium is ordered to bear its own costs.

         (1)  OJ C 179, 3.7.2010.