title: Case C-520/18: Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 2 August 2018 — Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX v Conseil des ministres

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/39

      Request for a preliminary ruling from the Cour constitutionnelle (Belgium) lodged on 2 August 2018 — Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX v Conseil des ministres
      (Case C-520/18)
      (2018/C 408/52)
      Language of the case: French

         Referring court

      Cour constitutionnelle

         Parties to the main proceedings

         Applicants: Ordre des barreaux francophones et germanophone, Académie Fiscale ASBL, UA, Liga voor Mensenrechten ASBL, Ligue des Droits de l’Homme ASBL, VZ, WY, XX

         Defendant: Conseil des ministres

         Questions referred

                  1.

                  Must Article 15(1) of Directive 2002/58/EC, (1) read in conjunction with the right to security, guaranteed by Article 6 of the Charter of Fundamental Rights of the European Union, and the right to respect for personal data, as guaranteed by Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union, be interpreted as precluding national legislation such as that at issue, which lays down a general obligation for operators and providers of electronic communications services to retain the traffic and location data within the meaning of Directive 2002/58/EC, generated or processed by them in the context of the supply of those services, national legislation whose objective is not only the investigation, detection and prosecution of serious criminal offences but also the safeguarding of national security, the defence of the territory and of public security, the investigation, detection and prosecution of offences other than serious crime or the prevention of the prohibited use of electronic communication systems, or the attainment of another objective identified by Article 23(1) of Regulation (EU) 2016/679 (2) and which, furthermore, is subject to specific guarantees in that legislation in terms of data retention and access to those data?

                  2.

                  Must Article 15(1) of Directive 2002/58/EC, in conjunction with Articles 4, 7, 8, 11 and 52(1) of the Charter of Fundamental Rights of the European Union, be interpreted as precluding national legislation such as that at issue, which lays down a general obligation for operators and providers of electronic communications services to retain the traffic and location data within the meaning of Directive 2002/58/EC, generated or processed by them in the context of the supply of those services, if the object of that legislation is, in particular, to comply with the positive obligations borne by the authority under Articles 4 and 8 of the Charter, consisting in providing for a legal framework which allows the effective criminal investigation and the effective punishment of sexual abuse of minors and which permits the effective identification of the perpetrator of the offence, even where electronic communications systems are used?

                  3.

                  If, on the basis of the answers to the first or the second question, the Cour constitutionnelle (Constitutional Court) should conclude that the contested law fails to fulfil one or more obligations arising under the provisions referred to in these questions, might it maintain on a temporary basis the effects of the Law of 29 May 2016 on the collection and retention of data in the electronic communications sector in order to avoid legal uncertainty and to enable the data previously collected and retained to continue to be used for the objectives pursued by the law?

         (1)  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).

         (2)  Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).


title: Case C-523/18: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 8 August 2018 — Engie Cartagena, S.L. v Ministerio para la Transición Ecológica (formerly, Ministerio de Industria, Energía y Turismo)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/40

      Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 8 August 2018 — Engie Cartagena, S.L. v Ministerio para la Transición Ecológica (formerly, Ministerio de Industria, Energía y Turismo)
      (Case C-523/18)
      (2018/C 408/53)
      Language of the case: Spanish

         Referring court

      Audiencia Nacional

         Parties to the main proceedings

         Applicant: Engie Cartagena, S.L.

         Defendant: Ministerio para la Transición Ecológica (formerly, Ministerio de Industria, Energía y Turismo)

         Questions referred

                  1.

                  Does the statutory provision laid down in the third additional provision of Real Decreto-Ley 14/2010 Financiación de planes de ahorro y eficiencia energética para los años 2011, 2012 y 2013 (Royal Decree-Law 14/2010 on the funding of savings and efficiency plans for the years 2011, 2012 and 2013) constitute a public service obligation for the purposes of Article 3(2) of Directives 2003/54/EC (1) and 2009/72/EC (2):

                              ‘1.

                                 The amounts payable from the electricity system for the purpose of funding the 2008-2012 Action Plan, approved [by] Acuerdo de Consejo de Ministros de 8 de julio de 2005, por el que se concretan las medidas del documento de “Estrategia de ahorro y eficiencia energética en España 2004-2012” aprobado por Acuerdo de Consejo de Ministros de 28 de noviembre de 2003 (Decision of the Council of Ministers of 8 July 2005 giving concrete expression to the measures referred to in the document entitled “Savings and Energy Efficiency Strategy in Spain, 2004-2012”, approved by Decision of the Council of Ministers of 28 November 2003), forecast for the years 2011 and 2012 as EUR 270 million and EUR 250 million respectively, shall be financed through a contribution from each generating undertaking in the proportions set out in the following table:

                                                Undertaking

                                                Percentage

                                             Endesa Generación, S.A.

                                          34,66

                                             Iberdrola Generación, S.A.

                                             32,71

                                             GAS Natural S.D.G, S.A.

                                             16,37

                                             Hidroeléctrica del Cantábrico, S.A.

                                             4,38

                                             E.ON Generación, S.L.

                                             2,96

                                             AES Cartagena, S.R.L.

                                             2,07

                                             Bizkaia Energía, S.L.

                                             1,42

                                             Castelnou Energía, S.L.

                                             1,58

                                             Nueva Generadora del Sur, S.A.

                                             1,62

                                             Bahía de Bizkaia Electricidad, S.L.

                                             1,42

                                             Tarragona Power, S.L.

                                             0,81

                                             Total

                                             100,00 ’

                  2.

                  If that provision does actually constitute a public service obligation, is that obligation clearly defined, transparent, non-discriminatory and verifiable?

         (1)  Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC — Statements made with regard to decommissioning and waste management activities (OJ 2003 L 176, p. 37).

         (2)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).


title: Case T-488/17: Judgment of the General Court of 20 September 2018 — Ghost — Corporate Management v EUIPO (Dry Zone) (EU trade mark — Application for the EU word mark Dry Zone — Period for bringing an action — Lateness — Inadmissibility of the appeal brought before the Board of Appeal — Article 60 of Regulation (EC) No 207/2009 (now Article 68 of Regulation (EU) 2017/1001) — No force majeure or unforeseeable circumstances — Obligations of care and diligence — Legitimate expectations)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/54

      Judgment of the General Court of 20 September 2018 — Ghost — Corporate Management v EUIPO (Dry Zone)
      (Case T-488/17) (1)

      ((EU trade mark - Application for the EU word mark Dry Zone - Period for bringing an action - Lateness - Inadmissibility of the appeal brought before the Board of Appeal - Article 60 of Regulation (EC) No 207/2009 (now Article 68 of Regulation (EU) 2017/1001) - No force majeure or unforeseeable circumstances - Obligations of care and diligence - Legitimate expectations))
      (2018/C 408/70)
      Language of the case: Portuguese

         Parties

         Applicant: Ghost — Corporate Management SA (Lisbon, Portugal) (represented by: S. de Barros Araújo, lawyer)

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

         Re:

      Action brought against the decision of the Second Board of Appeal of EUIPO of 5 June 2017 (Case R 683/2017-2) concerning an application for registration of the word sign Dry Zone as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Ghost — Corporate Management SA to pay the costs.

         (1)  OJ C 309, 18.9.2017.


title: Case C-312/17: Judgment of the Court (Third Chamber) of 19 September 2018 (request for a preliminary ruling from the Landesarbeitsgericht Hamm — Germany) — Surjit Singh Bedi v Bundesrepublik Deutschland, Bundesrepublik Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und Nordirland (Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(2) — Prohibition of any discrimination on grounds of disability — Collective agreement on social security — Bridging assistance paid to former civilian employees of the Allied forces in Germany — Termination of the payment of that assistance when the recipient becomes entitled to early payment of a retirement pension for disabled persons under the statutory pension scheme)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/23

      Judgment of the Court (Third Chamber) of 19 September 2018 (request for a preliminary ruling from the Landesarbeitsgericht Hamm — Germany) — Surjit Singh Bedi v Bundesrepublik Deutschland, Bundesrepublik Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und Nordirland
      (Case C-312/17) (1)

      ((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(2) - Prohibition of any discrimination on grounds of disability - Collective agreement on social security - Bridging assistance paid to former civilian employees of the Allied forces in Germany - Termination of the payment of that assistance when the recipient becomes entitled to early payment of a retirement pension for disabled persons under the statutory pension scheme))
      (2018/C 408/29)
      Language of the case: German

         Referring court

      Landesarbeitsgericht Hamm

         Parties to the main proceedings

         Applicant: Surjit Singh Bedi

         Defendants: Bundesrepublik Deutschland, Bundesrepublik Deutschland in Prozessstandschaft für das Vereinigte Königreich von Großbritannien und Nordirland

         Operative part of the judgment

      Article 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted, in a case such as that in the main proceedings, as precluding a provision in a collective agreement under which the payment of bridging assistance — granted with the aim of ensuring a reasonable means of subsistence to a worker who has lost his job until he is entitled to a retirement pension under the statutory pension scheme — must cease once that worker is entitled to early payment of a retirement pension for severely disabled persons under that scheme.

         (1)  OJ C 309, 18.9.2017.


title: Case C-685/16: Judgment of the Court (Fifth Chamber) of 20 September 2018 (request for a preliminary ruling from the Finanzgericht Münster — Germany) — EV v Finanzamt Lippstadt (Reference for a preliminary ruling — Articles 63 to 65 TFEU — Free movement of capital — Deduction of taxable profits — Shareholdings of a parent company in a capital company whose management and registered office are located in a non-member State — Dividends distributed to the parent company — Tax deductibility subject to stricter conditions than deduction of profits from shareholdings in a non-tax-exempt capital company governed by national law)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/9

      Judgment of the Court (Fifth Chamber) of 20 September 2018 (request for a preliminary ruling from the Finanzgericht Münster — Germany) — EV v Finanzamt Lippstadt
      (Case C-685/16) (1)

      ((Reference for a preliminary ruling - Articles 63 to 65 TFEU - Free movement of capital - Deduction of taxable profits - Shareholdings of a parent company in a capital company whose management and registered office are located in a non-member State - Dividends distributed to the parent company - Tax deductibility subject to stricter conditions than deduction of profits from shareholdings in a non-tax-exempt capital company governed by national law))
      (2018/C 408/09)
      Language of the case: German

         Referring court

      Finanzgericht Münster

         Parties to the main proceedings

         Applicant: EV

         Defendant: Finanzamt Lippstadt

         Operative part of the judgment

      Articles 63 to 65 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which subjects a deduction of profits from shareholdings in a capital company with its management and head office in a non-member State to stricter conditions than a deduction of profits from shareholdings in a non-exempt capital company governed by national law.

         (1)  OJ C 144, 8.5.2017.


title: Case C-327/18 PPU: Judgment of the Court (First Chamber) of 19 September 2018 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — Execution of European arrest warrants issued with respect to R O (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Police and judicial cooperation in criminal matters — European arrest warrant — Framework Decision 2002/584/JHA — Grounds for non-execution — Article 50 TEU — Warrant issued by the judicial authorities of a Member State that has initiated the procedure for withdrawal from the European Union — Uncertainty as to the law applicable to the relationship between that State and the Union following withdrawal)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/33

      Judgment of the Court (First Chamber) of 19 September 2018 (request for a preliminary ruling from the High Court (Ireland) — Ireland) — Execution of European arrest warrants issued with respect to R O
      (Case C-327/18 PPU) (1)

      ((Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Grounds for non-execution - Article 50 TEU - Warrant issued by the judicial authorities of a Member State that has initiated the procedure for withdrawal from the European Union - Uncertainty as to the law applicable to the relationship between that State and the Union following withdrawal))
      (2018/C 408/43)
      Language of the case: English

         Referring court

      High Court (Ireland)

         Party to the main proceedings

      R O

         Operative part of the judgment

      Article 50 TEU must be interpreted as meaning that mere notification by a Member State of its intention to withdraw from the European Union in accordance with that article does not have the consequence that, in the event that that Member State issues a European arrest warrant with respect to an individual, the executing Member State must refuse to execute that European arrest warrant or postpone its execution pending clarification of the law that will be applicable in the issuing Member State after its withdrawal from the European Union. In the absence of substantial grounds to believe that the person who is the subject of that European arrest warrant is at risk of being deprived of rights recognised by the Charter of Fundamental Rights of the European Union and Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, following the withdrawal from the European Union of the issuing Member State, the executing Member State cannot refuse to execute that European arrest warrant while the issuing Member State remains a member of the European Union.

         (1)  OJ C 349, 16.7.2018.


title: Case C-241/17 P: Order of the Court (Tenth Chamber) of 12 September 2018 — Holistic Innovation Institute, SLU v Research Executive Agency (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Projects financed by the European Union in the area of research — Seventh Framework programme for research and technological development (2007-2013) — Inachus and ZONeSEC projects — Decision not to allow the appellant to take part — Action for annulment and declaration of liability)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/34

      Order of the Court (Tenth Chamber) of 12 September 2018 — Holistic Innovation Institute, SLU v Research Executive Agency
      (Case C-241/17 P) (1)

      ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Projects financed by the European Union in the area of research - Seventh Framework programme for research and technological development (2007-2013) - Inachus and ZONeSEC projects - Decision not to allow the appellant to take part - Action for annulment and declaration of liability))
      (2018/C 408/44)
      Language of the case: Spanish

         Parties

         Appellant: Holistic Innovation Institute, SLU (represented by: J.J. Marín López, abogado)

         Other party to the proceedings: Research Executive Agency (represented by: S. Payan-Lagrou, V. Canetti, acting as Agents, and J. Rivas Andrés, abogado)

         Operative part of the order

                  1.

                  The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

                  2.

                  Holistic Innovation Institute SLU shall pay the costs.

         (1)  OJ C 221, 10.7.2017.


title: Case C-539/17 P: Order of the Court (Tenth Chamber) of 13 September 2018 — Talanton AE — Simvouleftiki-Ekapideftiki Etaireia Dianomon, Parochis Ipiresion Marketing kai Dioikisis Epicheiriseon v European Commission (Appeal — Article 181 of the Rules of Procedure of the Court — Seventh Framework Programme of the European Community for Research, Technological Development and Demonstration 2007-2013 — Grant agreement — Non-eligible costs — European Commission decision on recovery — Action brought by the recipient before the General Court of the European Union on the basis of Article 272 TFEU — Appeal manifestly unfounded)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/35

      Order of the Court (Tenth Chamber) of 13 September 2018 — Talanton AE — Simvouleftiki-Ekapideftiki Etaireia Dianomon, Parochis Ipiresion Marketing kai Dioikisis Epicheiriseon v European Commission
      (Case C-539/17 P) (1)

      ((Appeal - Article 181 of the Rules of Procedure of the Court - Seventh Framework Programme of the European Community for Research, Technological Development and Demonstration 2007-2013 - Grant agreement - Non-eligible costs - European Commission decision on recovery - Action brought by the recipient before the General Court of the European Union on the basis of Article 272 TFEU - Appeal manifestly unfounded))
      (2018/C 408/45)
      Language of the case: Greek

         Parties

         Appellant: Talanton AE — Simvouleftiki-Ekapideftiki Etaireia Dianomon, Parochis Ipiresion Marketing kai Dioikisis Epicheiriseon (represented by: K. Damis, dikigoros)

         Other party to the proceedings: European Commission (represented by: A. Kyratsou and R. Lyal, acting as Agents)

         Operative part of the order

                  1.

                  The appeal is dismissed as manifestly unfounded.

                  2.

                  Talanton AE — Simvouleftiki-Ekapideftiki Etaireia Dianomon, Parochis Ipiresion Marketing kai Dioikisis Epicheiriseon shall pay the costs.

         (1)  OJ C 374, 6.11.2017.


title: Case C-41/17: Judgment of the Court (Fifth Chamber) of 19 September 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Isabel González Castro v Mutua Umivale, Prosegur España SL, Instituto Nacional de la Seguridad Social (INSS) (Reference for a preliminary ruling — Directive 92/85/EEC — Articles 4, 5 and 7 — Protection of the safety and health of workers — Worker who is breastfeeding — Night work — Shift work performed in part at night — Risk assessment of her work — Prevention measures — Challenge by the worker concerned — Directive 2006/54/EC — Article 19 — Equal treatment — Discrimination on grounds of sex — Burden of proof)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/10

      Judgment of the Court (Fifth Chamber) of 19 September 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Isabel González Castro v Mutua Umivale, Prosegur España SL, Instituto Nacional de la Seguridad Social (INSS)
      (Case C-41/17) (1)

      ((Reference for a preliminary ruling - Directive 92/85/EEC - Articles 4, 5 and 7 - Protection of the safety and health of workers - Worker who is breastfeeding - Night work - Shift work performed in part at night - Risk assessment of her work - Prevention measures - Challenge by the worker concerned - Directive 2006/54/EC - Article 19 - Equal treatment - Discrimination on grounds of sex - Burden of proof))
      (2018/C 408/11)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de Galicia

         Parties to the main proceedings

         Applicant: Isabel González Castro

         Defendants: Mutua Umivale, Prosegur España SL, Instituto Nacional de la Seguridad Social (INSS)

         Operative part of the judgment

                  1.

                  Article 7 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding must be interpreted as applying to a situation, such as that at issue in the main proceedings, where the worker concerned does shift work during which only part of her duties are performed at night.

                  2.

                  Article 19(1) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) must be interpreted as applying to a situation, such as that at issue in the main proceeding, in which a worker, who has been refused a medical certificate indicating the existence of a risk to breastfeeding posed by her work and, consequently, an allowance in respect of risk during breastfeeding, challenges, before a court or other competent authority of the Member State concerned, the risk assessment of her work, provided that that worker adduces factual evidence to suggest that that evaluation did not include a specific assessment taking into account her individual situation and thus permitting the presumption that there is direct discrimination on the grounds of sex, within the meaning of Directive 2006/54, which it is for the referring court to ascertain. It is then for the respondent to prove that that risk assessment did actually include such a specific assessment and that, accordingly, the principle of non-discrimination was not infringed.

         (1)  OJ C 121, 18.4.2017.


title: Case C-51/17: Judgment of the Court (Second Chamber) of 20 September 2018 (request for a preliminary ruling from the Fővárosi Ítélőtábla — Hungary) — OTP Bank Nyrt., OTP Faktoring Követeléskezelő Zrt v Teréz Ilyés, Emil Kiss (Reference for a preliminary ruling — Consumer protection — Unfair terms — Directive 93/13/EEC — Scope — Article 1(2) — Mandatory statutory or regulatory provisions — Article 3(1) — Concept of ‘contractual term which has not been individually negotiated’ — Term incorporated in the contract after its conclusion following the intervention of the national legislature — Article 4(2) — Plain and intelligible drafting of a term — Article 6(1) — Examination by the national court of its own motion as to whether a term is unfair — Loan contract denominated in a foreign currency concluded between a seller or supplier and a consumer)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/11

      Judgment of the Court (Second Chamber) of 20 September 2018 (request for a preliminary ruling from the Fővárosi Ítélőtábla — Hungary) — OTP Bank Nyrt., OTP Faktoring Követeléskezelő Zrt v Teréz Ilyés, Emil Kiss
      (Case C-51/17) (1)

      ((Reference for a preliminary ruling - Consumer protection - Unfair terms - Directive 93/13/EEC - Scope - Article 1(2) - Mandatory statutory or regulatory provisions - Article 3(1) - Concept of ‘contractual term which has not been individually negotiated’ - Term incorporated in the contract after its conclusion following the intervention of the national legislature - Article 4(2) - Plain and intelligible drafting of a term - Article 6(1) - Examination by the national court of its own motion as to whether a term is unfair - Loan contract denominated in a foreign currency concluded between a seller or supplier and a consumer))
      (2018/C 408/12)
      Language of the case: Hungarian

         Referring court

      Fővárosi Ítélőtábla

         Parties to the main proceedings

         Applicants: OTP Bank Nyrt., OTP Faktoring Követeléskezelő Zrt

         Defendants: Teréz Ilyés, Emil Kiss

         Operative part of the judgment

                  1.

                  The concept of ‘term which has not been individually negotiated’ in Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that it covers inter alia a contractual term amended by a mandatory national statutory provision adopted after the conclusion of a contract with a consumer, for the purpose of removing a term which is null and void from that contract.

                  2.

                  Article 1(2) of Directive 93/13 must be interpreted as meaning that the scope of that directive does not cover terms which reflect mandatory provisions of national law, inserted after the conclusion of a loan contract concluded with a consumer and intended to remove a term which is null and void from that contract, by imposing an exchange rate set by the National Bank. However, a term relating to the foreign exchange risk, such as that at issue in the main proceedings, is not excluded from that scope under that provision.

                  3.

                  Article 4(2) of Directive 93/13 must be interpreted as meaning that the requirement for a contractual term to be drafted in plain intelligible language requires financial institutions to provide borrowers with adequate information to enable them to take well-informed and prudent decisions. In that regard, that requirement means that a term relating to the foreign exchange risk must be understood by the consumer both at the formal and grammatical level and also in terms of its actual effects, so that the average consumer, who is reasonably well informed and reasonably observant and circumspect, would not only be aware of the possibility of a depreciation of the national currency in relation to the foreign currency in which the loan was denominated, but would also be able to assess the potentially significant economic consequences of such a term with regard to his financial obligations.

                  4.

                  Article 4 of Directive 93/13 must be interpreted as requiring that the plainness and intelligibility of the contractual terms be assessed by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract, notwithstanding that some of those terms have been declared or presumed to be unfair and, accordingly, annulled at a later time by the national legislature.

                  5.

                  Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that it is for the national court to identify of its own motion, in the place of the consumer in his capacity as an applicant, any unfairness of a contractual term, provided that it has available to it the legal and factual elements necessary for that task.

         (1)  OJ C 144, 8.5.2017.


title: Case T-558/18: Action brought on 21 September 2018 — Lupu v EUIPO — Et Djili Soy Dzhihangir Ibryam (Djili DS)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/58

      Action brought on 21 September 2018 — Lupu v EUIPO — Et Djili Soy Dzhihangir Ibryam (Djili DS)
      (Case T-558/18)
      (2018/C 408/75)
      Language of the case: English

         Parties

         Applicant: Victor Lupu (Bucharest, Romania) (represented by: P. A. Acsinte, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Et Djili Soy Dzhihangir Ibryam (Dulovo, Bulgaria)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union figurative mark Djili DS — Application for registration No 8 404 551

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 5 June 2018 in Case R 2391/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the opposition against the registration of the mark applied for (EUTM application 8 404 551) and/or cancel/declare the registration invalid.

         Pleas in law

                  —

                  Infringement of Article 1 of the First Protocol of the European Convention on Human Rights and of Article 6 of the European Convention on Human Rights;

                  —

                  Infringement of Rule 20(7)(a) and (c) of the Commission Regulation (EC) no. 2868/95 of 13 December 1995 implementing Council Regulation (EC) no. 40/94 on the Community trade mark;

                  —

                  Infringement of Article 53(2)(c) and (d) of Regulation (EC) no. 207/2009 in respect of Applicant’s copyright for the picture of the package ‘Djili’ written in red letters on a blue package with the figure of a parrot and in respect of Applicant’s rights to use a trade name for products in the sense of the Judgment of the European Court of Justice in the Case C-17/06 ‘Celine’.


title: Case T-571/18: Action brought on 25 September 2018 — YR v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/60

      Action brought on 25 September 2018 — YR v Commission
      (Case T-571/18)
      (2018/C 408/78)
      Language of the case: French

         Parties

         Applicant: YR (represented by: N. de Montigny, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare and adjudge that the individual decision no longer to grant the applicant the reimbursement of the school fees in connection with her child as of the 2017/2018 school year, processed on 13 November 2017 and reflected for the first time in her pay slip for December 2017, is annulled;

                  —

                  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.

                  —

                  First plea in law, alleging infringement of Article 3(1) of Annex VII to the Staff Regulations of Officials of the European Union and of general implementing provisions on the reimbursement of medical fees, in so far as the defendant’s amended interpretation infringed acquired rights, legitimate expectations, legal certainty and the principle of good administration.

                  —

                  Second plea in law, alleging infringement of the rights of the child, the right to family life and the right to education.

                  —

                  Third plea in law, alleging infringement of the principles of equal treatment and non-discrimination.

                  —

                  Fourth plea in law, alleging the failure properly to balance the applicant’s interests and to comply with the principle of proportionality, which failures vitiate the contested decision.


title: Case C-98/17 P: Judgment of the Court (Fourth Chamber) of 26 September 2018 — Koninklijke Philips NV, Philips France SAS v European Commission (Appeal — Agreements, decisions and concerted practices — European market for smart card chips — Network of bilateral contacts — Exchanges of commercially sensitive information — Restriction of competition ‘by object’ — Single and continuous infringement — Participation in the infringement and awareness, by a participant in some of the bilateral contacts, of the other bilateral contacts — Judicial review)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/15

      Judgment of the Court (Fourth Chamber) of 26 September 2018 — Koninklijke Philips NV, Philips France SAS v European Commission
      (Case C-98/17 P) (1)

      ((Appeal - Agreements, decisions and concerted practices - European market for smart card chips - Network of bilateral contacts - Exchanges of commercially sensitive information - Restriction of competition ‘by object’ - Single and continuous infringement - Participation in the infringement and awareness, by a participant in some of the bilateral contacts, of the other bilateral contacts - Judicial review))
      (2018/C 408/16)
      Language of the case: English

         Parties

         Appellants: Koninklijke Philips NV, Philips France SAS (represented by: J.K. de Pree, A.M. ter Haar and T.M. Snoep, advocaten)

         Other party to the proceedings: European Commission (represented by: A. Biolan, A. Dawes and J. Norris-Usher, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Koninklijke Philips NV and Philips France SAS to pay the costs.

         (1)  OJ C 121, 18.4.2017.


title: Case T-146/17: Judgment of the General Court of 20 September 2018 — Mondi v ACER (Energy — Decision of the Board of Appeal of ACER — Rejection of the application to intervene — Direct and existing interest at the end of the procedure — Right to be heard)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/49

      Judgment of the General Court of 20 September 2018 — Mondi v ACER
      (Case T-146/17) (1)

      ((Energy - Decision of the Board of Appeal of ACER - Rejection of the application to intervene - Direct and existing interest at the end of the procedure - Right to be heard))
      (2018/C 408/62)
      Language of the case: German

         Parties

         Applicant: Mondi AG (Vienna, Austria) (represented by: B. Rajal, lawyer)

         Defendant: Agency for the Cooperation of Energy Regulators (represented by: P. Martinet and E. Tremmel, acting as Agents)

         Intervener in support of the defendant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

         Re:

      Application based on Article 263 TFEU seeking annulment of the decision of the Board of Appeal of ACER of 17 February 2017 rejecting the applicant’s application to intervene in Case A-001-2017 (consolidated).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mondi AG to bear its own costs and to pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER);

                  3.

                  Orders the Republic of Poland to bear its own costs.

         (1)  OJ C 129, 24.4.2017.


title: Case C-411/18 P: Appeal brought on 21 June 2018 by Romantik Hotels & Restaurants AG against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2018 in Case T-213/17, Romantik Hotels & Restaurants AG v European Union Intellectual Property Office

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/36

      Appeal brought on 21 June 2018 by Romantik Hotels & Restaurants AG against the judgment of the General Court (Fourth Chamber) delivered on 25 April 2018 in Case T-213/17, Romantik Hotels & Restaurants AG v European Union Intellectual Property Office

      (Case C-411/18 P)
      (2018/C 408/47)
      Language of the case: German

         Parties

         Appellant: Romantik Hotels & Restaurants AG (represented by: S. Hofmann, W. Göpfert, lawyers)

         Other parties to the proceedings: European Union Intellectual Property Office, Hotel Preidlhof GmbH
      By order of 3 October 2018, the Court of Justice of the European Union (Tenth Chamber) dismissed the appeal as being in part manifestly inadmissible and in part manifestly unfounded and ordered the appellant to bear its own costs.


title: Case C-343/17: Judgment of the Court (Fourth Chamber) of 20 September 2018 (request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel — Belgium) — Fremoluc NV v Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest APB) and Others (Reference for a preliminary ruling — Fundamental freedoms — Articles 21, 45, 49 and 63 TFEU — Directive 2004/38/EC — Articles 22 and 24 — Right of pre-emption of a government body on land located in its operating area with a view to developing social housing — Housing allocated on a priority basis to private individuals who ‘have strong social, economic or socio-cultural ties’ with the area in which that body operates — Situation which is confined in all respects within a single Member State — Inadmissibility of the request for a preliminary ruling)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/25

      Judgment of the Court (Fourth Chamber) of 20 September 2018 (request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel — Belgium) — Fremoluc NV v Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest APB) and Others
      (Case C-343/17) (1)

      ((Reference for a preliminary ruling - Fundamental freedoms - Articles 21, 45, 49 and 63 TFEU - Directive 2004/38/EC - Articles 22 and 24 - Right of pre-emption of a government body on land located in its operating area with a view to developing social housing - Housing allocated on a priority basis to private individuals who ‘have strong social, economic or socio-cultural ties’ with the area in which that body operates - Situation which is confined in all respects within a single Member State - Inadmissibility of the request for a preliminary ruling))
      (2018/C 408/31)
      Language of the case: Dutch

         Referring court

      Nederlandstalige rechtbank van eerste aanleg Brussel

         Parties to the main proceedings

         Applicant: Fremoluc NV

         Defendants: Agentschap voor Grond- en Woonbeleid voor Vlaams-Brabant (Vlabinvest APB), Vlaams Financieringsfonds voor Grond- en Woonbeleid voor Vlaams-Brabant, Vlaamse Maatschappij voor Sociaal Wonen NV (VMSW), Christof De Knop and Others

         Operative part of the judgment

      The request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Dutch-language Court of First Instance, Brussels, Belgium), made by decision of 19 May 2017, is inadmissible.

         (1)  OJ C 300, 11.9.2017.


title: Case C-540/18 P: Appeal brought on 17 August 2018 by HX against the judgment of the General Court delivered on 19 June 2018 in Case T-408/16 HX v Council of the European Union

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/41

      Appeal brought on 17 August 2018 by HX against the judgment of the General Court delivered on 19 June 2018 in Case T-408/16 HX v Council of the European Union
      (Case C-540/18 P)
      (2018/C 408/54)
      Language of the case: Bulgarian

         Parties

         Appellant: HX (represented by S. Koev)

         Other party to the proceedings: Council of the European Union

         Form of order sought

      The appellant claims that the Court should:

                  —

                  Declare the present appeal to be admissible and well founded in its entirety and declare all the grounds of appeal set out in support of the present appeal to be well founded;

                  —

                  Declare that the contested decision of the General Court under appeal may be annulled in its entirety;

                  —

                  Set aside the entirety of judgment of the General Court of the European Union (Fifth Chamber) of 19 June 2018, HX v Council, T-408/16;

                  —

                  Partially annul Council Decision (CFSP) 2016/850 amending Decision 2013/255, Council Implementing Regulation (EU) 2016/840 implementing Regulation (EU) No 36/2012 (OJ 2016, L 141, p. 30), Council Decision (CFSP) 2017/917 amending Decision 2013/255 (OJ 2017, L 139, p. 62) and Council Implementing Regulation (EU) 2017/907 of 29 May 2017 implementing Regulation (EU) No 36/2012 (OJ 2017, L 139, p. 15) in so far as they concern HX;

                  —

                  Order the Council to pay all the appellant’s costs, expenses, fees and other expenditure linked to his defence.

         Grounds of appeal and main arguments

                  1.

                  Error in the application of the law by the General Court, resulting in an infringement of EU law, in so far as it found that the Council correctly applied the presumption that the appellant was a prominent businessman carrying out his business in Syria, given that that presumption has no legal basis and is disproportionate in relation to the legal objective pursued.

                  2.

                  Error in the application of the law, resulting in an infringement of the rules on evidence, on account of the lack of evidence for the purposes of applying the presumption and the refusal to apply Articles 27(3) and 28(3) of Decision 2013/255 amended by Decision 2015/1836.

                  3.

                  Error in the application of the law, resulting in an infringement of procedural rules which adversely affect the interests of the appellant, on account of the refusal to admit new evidence produced in accordance with Article 85(3) of the Rules of Procedure of the General Court.


title: Case T-581/18: Action brought on 27 September 2018 — ND (*) and OE (*) v Commission

text:
                  12.11.2018

                  EN

                  Official Journal of the European Union

                  C 408/62

         Action brought on 27 September 2018 —  ND (*1) and  OE (*1) v Commission
         (Case T-581/18)
         (2018/C 408/81)
         Language of the case: French

            Parties

            Applicants: ND (*1),  OE (*1) (represented by: A. Bove, lawyer)

            Defendant: European Commission

            Form of order sought

                     —

                     Admit the present application for annulment;

                     —

                     On the substance, declare the action well-founded in its pleas, in consequence annul the decision of the European Commission served on 30 July 2018, on the basis of Regulation No 260/68 of the Council of 29 February 1968, and/or of Article 9 of the Treaty on European Union, by way of the action provided for in Article 263 TFEU, and refer the file back to the competent authority;

                     —

                     Order all acts required by the law in the matter;

                     —

                     Order the defendant to pay the costs of the instance;

                     —

                     Reserve to the applicant all other rights, pleas and actions.

            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 infringement of Regulation No 260/68 of the Council of 29 February 1968.

                     2.

                     Second plea in law, alleging infringement of Article 9 of the Treaty on European Union, instituting equality between all EU citizens, which was not complied with in the present case.

            (*1)  Information erased or replaced within the framework of protection of personal data and/or confidentiality.


title: Case C-546/16: Judgment of the Court (Fourth Chamber) of 20 September 2018 (request for a preliminary ruling from the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi — Spain) — Montte SL v Musikene (Reference for a preliminary ruling — Article 267 TFEU — Jurisdiction of the Court — Whether the referring body qualifies as a court or tribunal — Directive 2014/24/EU — Public procurement procedures — Open procedure — Award criteria — Technical evaluation — Minimum score threshold — Price-based evaluation)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/7

      Judgment of the Court (Fourth Chamber) of 20 September 2018 (request for a preliminary ruling from the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi — Spain) — Montte SL v Musikene
      (Case C-546/16) (1)

      ((Reference for a preliminary ruling - Article 267 TFEU - Jurisdiction of the Court - Whether the referring body qualifies as a court or tribunal - Directive 2014/24/EU - Public procurement procedures - Open procedure - Award criteria - Technical evaluation - Minimum score threshold - Price-based evaluation))
      (2018/C 408/06)
      Language of the case: Spanish

         Referring court

      Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi

         Parties to the main proceedings

         Appellant: Montte SL

         Respondent: Musikene

         Operative part of the judgment

                  1.

                  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows contracting authorities to lay down, in the documents governing an open procurement procedure, minimum requirements as regards the technical evaluation, so that the tenders submitted which do not reach a predetermined minimum score threshold at the end of that evaluation are excluded from the subsequent evaluation based on both technical criteria and price.

                  2.

                  Article 66 of Directive 2014/24 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows contracting authorities to lay down, in the documents governing an open procurement procedure, minimum requirements as regards the technical evaluation, so that the tenders submitted which do not reach a predetermined minimum score threshold at the end of that evaluation are excluded from the subsequent stages of the procurement procedure, regardless of the number of tenderers remaining.

         (1)  OJ C 22, 23.1.2017.


title: Case C-618/16: Judgment of the Court (Fifth Chamber) of 13 September 2018 (request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber) — United Kingdom — Rafal Prefeta v Secretary of State for Work and Pensions (Reference for a preliminary ruling — Freedom of movement for persons — Article 45 TFEU — 2003 Act of Accession — Chapter 2 of Annex XII — Whether a Member State may derogate from Article 7(2) of Regulation (EU) No 492/2011 and Article 7(3) of Directive 2004/38/EC — Polish national who has not completed a period of 12 months’ registered work in the host Member State)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/9

      Judgment of the Court (Fifth Chamber) of 13 September 2018 (request for a preliminary ruling from the Upper Tribunal (Administrative Appeals Chamber) — United Kingdom — Rafal Prefeta v Secretary of State for Work and Pensions
      (Case C-618/16) (1)

      ((Reference for a preliminary ruling - Freedom of movement for persons - Article 45 TFEU - 2003 Act of Accession - Chapter 2 of Annex XII - Whether a Member State may derogate from Article 7(2) of Regulation (EU) No 492/2011 and Article 7(3) of Directive 2004/38/EC - Polish national who has not completed a period of 12 months’ registered work in the host Member State))
      (2018/C 408/08)
      Language of the case: English

         Referring court

      Upper Tribunal (Administrative Appeals Chamber)

         Parties to the main proceedings

         Appellant: Rafal Prefeta

         Respondent: Secretary of State for Work and Pensions

         Operative part of the judgment

      Chapter 2 of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, must be interpreted as permitting, during the transitional period provided for by that act, the United Kingdom of Great Britain and Northern Ireland to exclude a Polish national, such as Mr Rafal Prefeta, from the benefits of Article 7(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, when that person has not satisfied the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom.

         (1)  OJ C 38, 6.2.2017.


title: Case C-68/17: Judgment of the Court (Grand Chamber) of 11 September 2018 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — IR v JQ (Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment — Occupational activities within churches and other organisations the ethos of which is based on religion or belief — Occupational requirements — Acting in good faith and with loyalty to the ethos of the church or organisation — Definition — Difference of treatment on the basis of religion or belief — Dismissal of an employee of the Catholic faith performing managerial duties due to a second, civil marriage entered into after a divorce)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/13

      Judgment of the Court (Grand Chamber) of 11 September 2018 (request for a preliminary ruling from the Bundesarbeitsgericht — Germany) — IR v JQ
      (Case C-68/17) (1)

      ((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment - Occupational activities within churches and other organisations the ethos of which is based on religion or belief - Occupational requirements - Acting in good faith and with loyalty to the ethos of the church or organisation - Definition - Difference of treatment on the basis of religion or belief - Dismissal of an employee of the Catholic faith performing managerial duties due to a second, civil marriage entered into after a divorce))
      (2018/C 408/14)
      Language of the case: German

         Referring court

      Bundesarbeitsgericht

         Parties to the main proceedings

         Applicant: IR

         Defendant: JQ

         Operative part of the judgment

                  1.

                  The second subparagraph of Article 4(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning:

                              —

                              first, that a church or other organisation the ethos of which is based on religion or belief and which manages a hospital in the form of a private limited company cannot decide to subject its employees performing managerial duties to a requirement to act in good faith and with loyalty to that ethos that differs according to the faith or lack of faith of such employees, without that decision being subject, where appropriate, to effective judicial review to ensure that it fulfils the criteria laid down in Article 4(2) of that directive; and

                              —

                              second, that a difference of treatment, as regards a requirement to act in good faith and with loyalty to that ethos, between employees in managerial positions according to the faith or lack of faith of those employees is consistent with that directive only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief constitutes an occupational requirement that is genuine, legitimate and justified in the light of the ethos of the church or organisation concerned and is consistent with the principle of proportionality, which is a matter to be determined by the national courts.

                  2.

                  A national court hearing a dispute between two individuals is obliged, where it is not possible for it to interpret the applicable national law in a manner that is consistent with Article 4(2) of Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from the general principles of EU law, such as the principle prohibiting discrimination on grounds of religion or belief, now enshrined in Article 21 of the Charter of Fundamental Rights of the European Union, and to guarantee the full effectiveness of the rights that flow from those principles, by disapplying, if need be, any contrary provision of national law.

         (1)  OJ C 144, 8.5.2017.


title: Case C-518/17: Judgment of the Court (Ninth Chamber) of 20 September 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Stefan Rudigier (Reference for a preliminary ruling — Public procurement — Public passenger transport services by rail and by road — Regulation (EC) No 1370/2007 — Article 5(1) — Award of public service contracts — Article 7(2) — Obligation to publish certain information in the Official Journal of the European Union at least one year before the launch of the procedure — Consequences of non-publication — Annulment of the call for tenders — Directive 2014/24/EU — Article 27(1) — Article 47(1) — Directive 2014/25/EU — Article 45(1) — Article 66(1) — Contract notice)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/30

      Judgment of the Court (Ninth Chamber) of 20 September 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Stefan Rudigier
      (Case C-518/17) (1)

      ((Reference for a preliminary ruling - Public procurement - Public passenger transport services by rail and by road - Regulation (EC) No 1370/2007 - Article 5(1) - Award of public service contracts - Article 7(2) - Obligation to publish certain information in the Official Journal of the European Union at least one year before the launch of the procedure - Consequences of non-publication - Annulment of the call for tenders - Directive 2014/24/EU - Article 27(1) - Article 47(1) - Directive 2014/25/EU - Article 45(1) - Article 66(1) - Contract notice))
      (2018/C 408/38)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

         Appellant: Stefan Rudigier

         Other party: Salzburger Verkehrsverbund GmbH

         Operative part of the judgment

      Article 7(2) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 must be interpreted as meaning that

                  —

                  the obligation to provide prior information laid down in that provision applies to contracts for public transport services by bus which are in principle awarded in accordance with the procedures provided for by Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC or by Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC;

                  —

                  an infringement of that obligation to provide prior information does not entail the annulment of the call for tenders concerned, provided that the principles of equivalence, effectiveness and equal treatment are complied with, which is for the referring court to ascertain.

         (1)  OJ C 392, 20.11.2017.


title: Case C-175/17: Judgment of the Court (Fourth Chamber) of 26 September 2018 (request for a preliminary ruling from the Raad van State — Netherlands) — X v Belastingdienst/Toeslagen (Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Directive 2005/85/EC — Article 39 — Directive 2008/115/EC — Article 13 — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Right to an effective remedy — Principle of non-refoulement — Decision rejecting an application for asylum and imposing an obligation to return — National legislation providing for a second level of jurisdiction — Automatic suspensory effect limited to the action at first instance)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/19

      Judgment of the Court (Fourth Chamber) of 26 September 2018 (request for a preliminary ruling from the Raad van State — Netherlands) — X v Belastingdienst/Toeslagen
      (Case C-175/17) (1)

      ((Reference for a preliminary ruling - Common policy on asylum and subsidiary protection - Directive 2005/85/EC - Article 39 - Directive 2008/115/EC - Article 13 - Charter of Fundamental Rights of the European Union - Article 18, Article 19(2) and Article 47 - Right to an effective remedy - Principle of non-refoulement - Decision rejecting an application for asylum and imposing an obligation to return - National legislation providing for a second level of jurisdiction - Automatic suspensory effect limited to the action at first instance))
      (2018/C 408/23)
      Language of the case: Dutch

         Referring court

      Raad van State — Netherlands

         Parties to the main proceedings

         Applicant: X

         Defendant: Belastingdienst/Toeslagen

         Operative part of the judgment

      Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and Article 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in the light of Articles 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which, whilst making provision for appeals against judgments delivered at first instance upholding a decision rejecting an application for international protection and imposing an obligation to return, does not confer on that remedy automatic suspensory effect even in the case where the person concerned invokes a serious risk of infringement of the principle of non-refoulement.

         (1)  OJ C 178, 6.6.2017.


title: Case C-516/18: Request for a preliminary ruling from the Amtsgericht Nürnberg (Germany) lodged on 6 August 2018 — QE v Sun Express Germany GmbH

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/38

      Request for a preliminary ruling from the Amtsgericht Nürnberg (Germany) lodged on 6 August 2018 — QE v Sun Express Germany GmbH
      (Case C-516/18)
      (2018/C 408/51)
      Language of the case: German

         Referring court

      Amtsgericht Nürnberg

         Parties to the main proceedings

         Applicant: QE

         Defendant: Sun Express Germany GmbH
      The case was removed from the Register of the Court of Justice by order of the Court of 22 August 2018.


title: Case C-304/17: Judgment of the Court (First Chamber) of 12 September 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Helga Löber v Barclays Bank plc (Reference for a preliminary ruling — Regulation (EC) No 44/2001 — Jurisdiction in civil and commercial matters — Special jurisdiction — Article 5(3) — Jurisdiction in tort, delict or quasi-delict — Place where the harmful event occurred or may occur — Consumer, domiciled in a Member State, who bought, through a bank established in that Member State, securities issued by a bank established in another Member State — Jurisdiction to hear and determine the tort action brought by that consumer against the bank concerned)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/23

      Judgment of the Court (First Chamber) of 12 September 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Helga Löber v Barclays Bank plc
      (Case C-304/17) (1)

      ((Reference for a preliminary ruling - Regulation (EC) No 44/2001 - Jurisdiction in civil and commercial matters - Special jurisdiction - Article 5(3) - Jurisdiction in tort, delict or quasi-delict - Place where the harmful event occurred or may occur - Consumer, domiciled in a Member State, who bought, through a bank established in that Member State, securities issued by a bank established in another Member State - Jurisdiction to hear and determine the tort action brought by that consumer against the bank concerned))
      (2018/C 408/28)
      Language of the case: German

         Referring court

      Oberster Gerichtshof

         Parties to the main proceedings

         Applicant: Helga Löber

         Defendant: Barclays Bank plc

         Operative part of the judgment

      Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted to the effect that in a situation, such as that in the main proceedings, in which an investor brings, on the basis of the prospectus relating to a certificate in which he or she invested, a tort action against the bank which issued that certificate, the courts of that investor’s domicile, as the courts for the place where the harmful event occurred within the meaning of that provision, have jurisdiction to hear and determine that action, where the damage the investor claims to have suffered consists in financial loss which occurred directly in that investor’s bank account with a bank established within the jurisdiction of those courts and the other specific circumstances of that situation also contribute to attributing jurisdiction to those courts.

         (1)  OJ C 269, 14.8.2017.


title: Case T-541/18: Action brought on 12 September 2018 — Changmao Biochemical Engineering v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/57

      Action brought on 12 September 2018 — Changmao Biochemical Engineering v Commission
      (Case T-541/18)
      (2018/C 408/74)
      Language of the case: English

         Parties

         Applicant: Changmao Biochemical Engineering Co. Ltd (Changzhou, China) (represented by: K. Adamantopoulos and P. Billiet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul the contested regulation in so far as the applicant is concerned;

                  —

                  or, in the alterative, annul the contested regulation in its entirety; and

                  —

                  order the European Commission to pay the applicant’s costs.

         Pleas in law and main arguments

      The present action seeks the annulment of Commission Implementing Regulation (EU) 2018/921 (1)

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

                  1.

                  First plea in law, alleging that the Commission failed to provide adequate reasoning and committed a manifest error of assessment of the law and the facts in having recourse to the analogue country methodology.

                  2.

                  Second plea in law, alleging that the Commission committed a manifest error of the law and the facts, infringed the principle of good administration and failed to provide adequate reasoning in concluding that the Union industry remained during the reference period vulnerable to the injurious effects of dumped exports of tartaric acid originating in the People’s Republic of China, as the Commission failed to consider the performance of the by far largest EU producer of tartaric acid, in breach of Articles 11(2) and 3(2) of the Regulation (EU) 2016/1036 (2) and Articles 11(3) and 3(1) of the WTO Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade (‘the WTO Antidumping Agreement’).

                  3.

                  Third plea in law, alleging that the Commission committed a manifest error of assessment of the law and of the facts by concluding that injury of the EU industry would likely recur if the EU antidumping measures against tartaric acid originating in the People’s Republic of China were terminated, since the applied methodology is, firstly, not based on positive evidence but rather unsubstantiated mechanistic assumptions and conjecture and, secondly, entirely fails to take into account the behaviour of Hangzhou Bioking, a major People’s Republic of China producer and the largest People’s Republic of China exporter of tartaric acid to the EU, that has not been subject to any EU antidumping duties since 20 April 2012. Moreover, the applicant submits that the impact of climatic changes on natural tartaric acid production is not taken into account, in breach of Articles 11(2) and 3(2) of Regulation (EU) 2016/1036 and Articles 11(3) and 3(1) of the WTO Antidumping Agreement.

                  4.

                  Fourth plea in law, alleging that the Commission infringed an essential procedural requirement relating to the rights of defence of the applicant in breach of Articles 3(2), 11(2), 16(1), 19(2), 19(4), 20(2), 20(4), 21(5) and 21(7) of Regulation (EU) 2016/1036 as well as Articles 3(1), 5(3), 6(1), 6(1)(2), 9(2), 6(4), 6(5)(1), 6(6), 6(9) and 11(3) of the WTO Antidumping Agreement and of the principle of good administration.

         (1)  Regulation (EU) 2018/921 of the European Commission of 28 June 2018 imposing a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2018, L 164, 29.6.2018, p. 14).

         (2)  Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21).


title: Case T-572/18: Action brought on 25 September 2018 — YS v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/61

      Action brought on 25 September 2018 — YS v Commission
      (Case T-572/18)
      (2018/C 408/79)
      Language of the case: French

         Parties

         Applicant: YS (represented by: N. de Montigny, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare and adjudge that the individual decision no longer to grant the applicant the reimbursement of the school fees in connection with her child as of the 2017/2018 school year, processed on 14 November 2017 and reflected for the first time in her pay slip for December 2017, is annulled;

                  —

                  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 Article 3(1) of Annex VII to the Staff Regulations of Officials of the European Union and of general implementing provisions on the reimbursement of medical fees, in so far as the defendant’s amended interpretation infringed acquired rights, legitimate expectations, legal certainty and the principle of good administration.

                  2.

                  Second plea in law, alleging infringement of the rights of the child, the right to family life and the right to education.

                  3.

                  Third plea in law, alleging infringement of the principles of equal treatment and non-discrimination.

                  4.

                  Fourth plea in law, alleging the failure properly to balance the applicant’s interests and to comply with the principle of proportionality, which failures vitiate the contested decision.


title: Case T-573/18: Action brought on 25 September 2018 — Hickies v EUIPO (Shape of a shoe lace)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/62

      Action brought on 25 September 2018 — Hickies v EUIPO (Shape of a shoe lace)
      (Case T-573/18)
      (2018/C 408/80)
      Language of the case: English

         Parties

         Applicant: Hickies, Inc. (New York, New York, United States) (represented by: I. Fowler, Solicitor and J. Schmitt, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for European Union three-dimensional mark (Shape of a shoe lace) — Application for registration No 16 952 962

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 28 June 2018 in Case R 2693/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision insofar as it dismissed the applicant’s appeal in relation to ‘shoe laces; shoe ornaments made of plastic; shoe trimmings; accessories for apparel, sewing articles and decorative textile articles; shoe buckles; shoe fasteners’;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case T-33/17: Judgment of the General Court of 25 September 2018 — Amicus Therapeutics UK and Amicus Therapeutics v EMA (Access to documents — Regulation (EC) No 1049/2001 — Documents held by the EMA and submitted as part of the request for authorisation to place the medicinal product Galafold on the market — Decision to grant a third party access to a document — Exception relating to the protection of commercial interests — No general presumption of confidentiality)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/48

      Judgment of the General Court of 25 September 2018 — Amicus Therapeutics UK and Amicus Therapeutics v EMA
      (Case T-33/17) (1)

      ((Access to documents - Regulation (EC) No 1049/2001 - Documents held by the EMA and submitted as part of the request for authorisation to place the medicinal product Galafold on the market - Decision to grant a third party access to a document - Exception relating to the protection of commercial interests - No general presumption of confidentiality))
      (2018/C 408/60)
      Language of the case: English

         Parties

         Applicants: Amicus Therapeutics UK Ltd (Gerrards Cross, United Kingdom) and Amicus Therapeutics, Inc. (Cranbury, New Jersey, United States) (represented by: L. Tsang, J. Mulryne, Solicitors, and F. Campbell, Barrister)

         Defendant: European Medicines Agency (EMA) (represented by N. Rampal Olmedo, S. Marino, A. Spina, A. Rusanov and T. Jabłoński, acting as Agents)

         Re:

      Action under Article 263 TFEU for the annulment of EMA Decision ASK-22072 of 14 December 2016, granting to a third party, pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), access to a document containing information submitted in the context of a request for marketing authorisation for the medicinal product Galafold.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Amicus Therapeutics UK Ltd and Amicus Therapeutics, Inc. to pay the costs.

         (1)  OJ C 104, 3.4.2017.


title: Case T-182/17: Judgment of the General Court of 25 September 2018 — Novartis v EUIPO — Chiesi Farmaceutici (AKANTO) (EU trade mark — Opposition proceedings — Application for EU word mark AKANTO — Earlier EU word mark KANTOS — 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)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/50

      Judgment of the General Court of 25 September 2018 — Novartis v EUIPO — Chiesi Farmaceutici (AKANTO)
      (Case T-182/17) (1)

      ((EU trade mark - Opposition proceedings - Application for EU word mark AKANTO - Earlier EU word mark KANTOS - 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))
      (2018/C 408/64)
      Language of the case: English

         Parties

         Applicant: Novartis AG (Basel, Switzerland) (represented by: L. Junquera Lara, lawyer)

         Defendant: European Union Intellectual Property Office (represented initially by: P. Duarte Guimarães and J. Ivanauskas, and subsequently by J. Ivanauskas and D. Walicka, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Chiesi Farmaceutici SpA (Parma, Italy) (represented by: T. de Haan, P. Péters, and F. Folmer, lawyers)

         Re:

      Action brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 531/2016-1) relating to opposition proceedings between Chiesi Farmaceutici and Novartis.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Novartis AG to pay the costs.

         (1)  OJ C 161, 22.5.2017.


title: Case C-562/18: Request for a preliminary ruling from the Tribunal d’Instance de Sens (France) lodged on 30 August 2018 — X

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/42

      Request for a preliminary ruling from the Tribunal d’Instance de Sens (France) lodged on 30 August 2018 — X
      (Case C-562/18)
      (2018/C 408/55)
      Language of the case: French

         Referring court

      Tribunal d’Instance de Sens

         Parties to the main proceedings

         Applicant: X

         Other party: Procureur de la République

         Questions referred

                  1.

                  Do (i) Article 21 of the Charter of Fundamental Rights of the European Union, interpreted in the light of the United Nations Convention on the Rights of Persons with Disabilities, and (ii) Article 39(2) of the Charter of Fundamental Rights of the European Union allow the right to vote in European Parliamentary elections to be withdrawn because a guardianship measure has been adopted for a person due to his or her mental disability?

                  2.

                  If the answer is in the affirmative, does European Union law require there to be specific conditions for this withdrawal and, if so, what are they?


title: Case C-575/18 P: Appeal brought on 13 September 2018 by the Czech Republic against the order of the General Court (Seventh Chamber) made on 28 June 2018 in Case T-147/15 Czech Republic v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/43

      Appeal brought on 13 September 2018 by the Czech Republic against the order of the General Court (Seventh Chamber) made on 28 June 2018 in Case T-147/15 Czech Republic v Commission
      (Case C-575/18 P)
      (2018/C 408/56)
      Language of the case: Czech

         Parties

         Appellant: Czech Republic (represented by: M. Smolek, J. Vláčil and O. Serdula, acting as Agents)

         Other party to the proceedings: European Commission

         Form of order sought

                  —

                  set aside the order under appeal;

                  —

                  reject the plea of inadmissibility raised by the European Commission;

                  —

                  refer the case back to the General Court for it to rule on the form of order sought by the Czech Republic in the application; and

                  —

                  order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      In support of its appeal, the appellant puts forward a single ground of appeal, alleging infringement of Article 263 of the Treaty on the Functioning of the European Union (TFEU) in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
      In the order under appeal the General Court incorrectly concluded that the contested act, having regard in particular to the Commission’s lack of power to adopt a decision in the field of traditional own resources, was not an act against which an action could be brought under Article 263 TFEU, which according to the General Court did not conflict with the Czech Republic’s right to effective judicial protection within the meaning of Article 47 of the Charter, in so far as it was possible for the Czech Republic to pay the disputed amount conditionally, express objections to the soundness of the Commission’s legal view, and wait for the Commission to make an application under Article 258 TFEU.
      The General Court’s conclusions are contrary to Article 263 TFU in conjunction with Article 47 of the Charter, as conditional payment does not ensure that the dispute will in future be judged on the merits by the Court of Justice. That follows from the settled case-law of the Court of Justice on the Commission’s discretion in connection with proceedings for failure to fulfil obligations, from the absence of any provision on the concept of conditional payment, and in particular from the previous practice of the Commission in this field.


title: Case C-611/18P: Appeal brought on 21 September 2018 by Pirelli & C. SpA against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-455/14 Pirelli & C. v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/43

      Appeal brought on 21 September 2018 by Pirelli & C. SpA against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-455/14 Pirelli & C. v Commission
      (Case C-611/18P)
      (2018/C 408/57)
      Language of the case: Italian

         Parties

         Appellant: Pirelli & C. SpA (represented by: M. Siragusa, G. Rizza, lawyers)

         Other parties to the proceedings: European Commission, Prysmian Cavi e Sistemi Srl

         Form of order sought

      Pirelli claims that the Court should:
      In accordance with Article 169(1) of the Rules of Procedure, set aside the decision of the General Court contained in the operative part of the judgment of 12 July 2018 in Case T-455/14, Pirelli & C. S.p.A. v Commission, notified to the appellant on that day by means of e-Curia;
      and
      in accordance with Article 170(1) of the Rules of Procedure, uphold, without referring the case back to the General Court, the claims put forward by Pirelli at first instance, mutatis mutandis, and accordingly:
      as a principal claim

                  —

                  annul the Decision (1) in so far as it concerns the appellant, specifically Articles 1(5)(d), 2(g) and 4 thereof, only as regards the inclusion of Pirelli in the list of persons to whom the measure is addressed;

            in the alternative

                  —

                  Allow beneficium ordinis seu excussionis in favour of Pirelli, in the exercise of its unlimited jurisdiction under Article 31 of Council Regulation (EC) No 1/2003 (2) and Article 261 TFEU;

            in the event that Prysmian bring s an appeal before the Court against the decision of the General Court of 12 July 2018 in Case T-475/14 and the Court upholds that appeal:

                  —

                  annul the Decision or amend Article 2(g) thereof, by reducing the fine imposed jointly and severally on Prysmian and Pirelli;

                  —

                  in any event, order the European Commission to pay the costs of the proceedings;

            in the event that the decision of the General Court contained in the operative part of the judgment of 12 July 2018 in Case T 455/14, Pirelli & C. S.p.A. v Commission, is not set aside, allow in any event beneficium ordinis seu excussionis in favour of Pirelli, in the exercise of its unlimited jurisdiction under Article 31 of Regulation (EC) No 1/2003 and Article 261 TFEU.

         Pleas in law and main arguments

         First ground of appeal, alleging infringement by the General Court of its duty to state reasons regarding: the General Court’s finding that Pirelli’s claim alleging failure to state reasons was unfounded; the rejection by the Commission of its detailed arguments concerning the inapplicability in the present case of the presumption of decisive influence, and unequal treatment by the Commission in that it applied the ‘dual basis’ method to Goldman Sachs alone

      The General Court erred in its determination of the purpose and scope of the Commission’s duty to state reasons, by failing to recognise and declare that the statement of reasons in the Decision does not meet the requirements established by the EU judicature. The General Court should have annulled the Decision in so far as it concerns the appellant, since the measure in question does not contain a detailed statement setting out precise, clear and concrete grounds to substantiate the presumption that Pirelli is liable for the infringement, even though Pirelli had adduced evidence that its economic, organisational and legal links with Prysmian did not have the effect of precluding or limiting the degree of autonomy enjoyed by its subsidiary. Furthermore, in the judgment under appeal, Pirelli’s arguments relating to the unequal treatment it suffered were completely disregarded, since the Commission applied only the presumption of the exercise of decisive influence to Pirelli, rather than the attribution method, which involves a dual basis, and which was, however, applied to Prysmian’s other parent company, Goldman Sachs.

         Second ground of appeal, alleging infringement of Articles 48 and 49 of the Nice Charter and inadequate and illogical grounds in the judgment under appeal as regards the breach of the fundamental rights of Pirelli, a legal person, and the Commission’s infringement of the principle of proportionality

      The General Court’s position — according to which Pirelli’s liability established by way of presumption is not strict criminal liability based on the acts of another person, but rather represents the personal liability of the ‘undertaking’ which it constituted with its subsidiary Prysmian, the direct perpetrator of the infringement — is based on the erroneous overlap of two analytical approaches which cannot, however, be overlapped: the application of the rules of competition to undertakings and the protection of the fundamental rights of legal persons against whom legal proceedings are brought. Furthermore, the judgment under appeal did not give any consideration to Pirelli’s argument that the presumption of decisive influence was a dual presumption. In the Decision, in fact, the Commission assumed that Pirelli exercised decisive influence not only over Prysmian’s commercial policies but also, without the applicant being given the opportunity to prove otherwise, over the specific anti-competitive behaviour of the subsidiary. Pirelli complains that the judgment under appeal also fails to state adequate reasons in respect of the argument that the Commission did not weigh up the interests at stake in particular as regards the presumption of decisive influence, taking into account the specific circumstances of the individual case and respect for the rights of the defence, as is required, however, by the case-law of the European Court of Human Rights (ECtHR). Finally, as regards Pirelli’s claim that the presumption of decisive influence was not applied to it in the Decision in a manner proportionate, for the purpose of Article 5(4) TEU, to the achievement of the objectives of ensuring the actual payment of fines and enabling the imposition of more substantial fines as a deterrent, the General Court addressed that claim by referring to irrelevant case-law.

         Third ground, alleging infringement of the principles of joint and several liability, proportionality and equal treatment, and illogical reasoning as regards the substantive error of assessment of the application to Pirelli of the principle of joint and several liability with Prysmian for the purpose of the payment of the fine and failure to state reasons in the judgment under appeal in respect of the failure to apply beneficium ordinis seu excussionis in favour of Pirelli

      Although Pirelli was ordered, like Prysmian, to pay the fine imposed on them by the Decision in full, the appellant’s situation was completely different to that of its former subsidiary, which the Decision clearly identified as the direct perpetrator of the infringement. As the judgment under appeal acknowledges — while providing contradictory reasons — purely secondary and vicarious liability was attributed to Pirelli; that liability is therefore entirely dependent on Prysmian’s liability. The Commission should have mitigated the unreasonable and disproportionate effects, when imposing the fines, of its distorted view of the powers that Pirelli enjoys as a parent company holding all the share capital of its subsidiary, by refraining from applying to it the constraint of joint liability for the fine, or by applying it only to part of the fine imposed on Prysmian, or at least by allowing beneficium ordinis seu excussionis in favour of Pirelli. In addition to failing to provide any reasons in relation Pirelli’s complaint that that benefit was not granted, the General Court infringed the principles of joint and several liability, proportionality and equal treatment.

         Fourth ground, alleging infringement of Article 261 TFEU and Article 31 of Regulation No 1/2003 in relation to the rejection of Pirelli’s claim that it should be allowed beneficium ordinis seu excussionis set out in the heads of claim of its action before the General Court

      In accordance with the provisions referred to above, both the power to vary the amount of the fines imposed by the Commission and the power to vary the methods of payment and enforcement of fines fall within the powers of General Court. The case-law referred to in the judgment under appeal — according to which the Commission’s power to impose penalties does not include the ability to set the respective share of the fines of joint and several debtors in their relations with each other — is not relevant for the purpose of the assessment of the different question raised by Pirelli, which the General Court has thus essentially failed to address, relating to the Commission’s power, and the General Court’s power, when carrying out judicial review of the Commission’s decisions, to allow beneficium ordinis seu excussionis in favour of the parent company holding all the share capital of its subsidiary and which has been found jointly and severally liable for payment of the fine. That benefit does not relate to the internal relationship between those jointly and severally debtors but to the obligations owed by each of them, separately, to the Commission (namely, ‘external relationships’).

         (1)  Decision C(2014) 2139 final of the European Commission of 2 April 2014 (Case AT.39610 — Power cables)

         (2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)


title: Case C-214/17: Judgment of the Court (Sixth Chamber) of 20 September 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Alexander Mölk v Valentina Mölk (Reference for a preliminary ruling — Judicial cooperation in civil matters — Hague Protocol on the law applicable to maintenance obligations — Article 4(3) — Application for maintenance lodged by the maintenance creditor with the competent authority of the State where the debtor has his habitual residence — Decision which has acquired the force of res judicata — Subsequent application, lodged with the same authority by the debtor, seeking a reduction in the amount of maintenance awarded — Appearance entered by the creditor — Determination of the applicable law)

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/21

      Judgment of the Court (Sixth Chamber) of 20 September 2018 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Alexander Mölk v Valentina Mölk
      (Case C-214/17) (1)

      ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Hague Protocol on the law applicable to maintenance obligations - Article 4(3) - Application for maintenance lodged by the maintenance creditor with the competent authority of the State where the debtor has his habitual residence - Decision which has acquired the force of res judicata - Subsequent application, lodged with the same authority by the debtor, seeking a reduction in the amount of maintenance awarded - Appearance entered by the creditor - Determination of the applicable law))
      (2018/C 408/26)
      Language of the case: German

         Referring court

      Oberster Gerichtshof

         Parties to the main proceedings

         Appellant: Alexander Mölk

         Respondent: Valentina Mölk

         Operative part of the judgment

                  1.

                  On a proper construction of Article 4(3) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009, the result of a situation such as that at issue in the main proceedings, where the maintenance to be paid was set by a decision, which has acquired the force of res judicata, in response to an application by the creditor and, pursuant to Article 4(3) of that protocol, on the basis of the law of the forum designated under that provision, is not that that law governs a subsequent application for a reduction in the amount of maintenance lodged by the debtor against the creditor with the courts of the State where that debtor is habitually resident.

                  2.

                  Article 4(3) of the Hague Protocol of 23 November 2007 must be interpreted as meaning that a creditor does not ‘seise’, for the purposes of that article, the competent authority of the State where the debtor has his habitual residence when that creditor, in the context of proceedings initiated by the debtor before that authority, enters an appearance, for the purposes of Article 5 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, contending that the application should be dismissed on the merits.

         (1)  OJ C 283, 28.8.2017.