title: Case C-738/18 PP: Appeal brought on 27 November 2018 by Duferco Long Products SA against the judgment delivered on 18 September 2018 in Case T-93/17 Duferco Long Products v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/15

      Appeal brought on 27 November 2018 by Duferco Long Products SA against the judgment delivered on 18 September 2018 in Case T-93/17 Duferco Long Products v Commission
      (Case C-738/18 PP)
      (2019/C 35/19)
      Language of the case: French

         Parties

         Appellant: Duferco Long Products SA (represented by: J.-F. Bellis, R. Luff, M. Favart, Q. Declève, avocats)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court of Justice of the European Union should:

                  1.

                  Set aside the judgment under appeal (T-93/17, EU:T:2018:558);

                  2.

                  Annul Article 1(f), and Article 2 of the Commission Decision of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) implemented by Belgium in favour of Duferco;

                  3.

                  Order the defendant to pay the costs of these proceedings and the costs of the proceedings before the General Court.

         Pleas in law and main arguments

      By its appeal, the appellant submits that the General Court erred in law by refusing to examine two errors of calculation made by the Commission in the context of the assessment of the pari passu nature of the sixth measure referred to in the Commission Decision of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) and in the application of the private investor in a market economy test.
      In particular, the applicant submits that:

                  —

                  The General Court did not carry out an adequate judicial review of the manner in which the Commission applied the private investor in a market economy test

                  —

                  The General Court should have examined, as a matter of priority, the plea alleging errors made by the Commission in assessing the pari passu nature of that sixth measure rather than favouring analysis of the documents provided by Belgium.


title: Case C-328/17: Judgment of the Court (Third Chamber) of 28 November 2018 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Liguria — Italy) — Amt Azienda Trasporti e Mobilità SpA and Others v Atpl Liguria — Agenzia regionale per il trasporto pubblico locale SpA, Regione Liguria (Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Article 1(3) — Directive 92/13/EEC — Article 1(3) — Right to bring proceedings subject to the condition that a tender was submitted in a procurement procedure)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/5

      Judgment of the Court (Third Chamber) of 28 November 2018 (request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Liguria — Italy) — Amt Azienda Trasporti e Mobilità SpA and Others v Atpl Liguria — Agenzia regionale per il trasporto pubblico locale SpA, Regione Liguria
      (Case C-328/17) (1)

      ((Reference for a preliminary ruling - Public procurement - Review procedures - Directive 89/665/EEC - Article 1(3) - Directive 92/13/EEC - Article 1(3) - Right to bring proceedings subject to the condition that a tender was submitted in a procurement procedure))
      (2019/C 35/06)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per la Liguria

         Parties to the main proceedings

         Applicants: Amt Azienda Trasporti e Mobilità SpA, Atc Esercizio SpA, Atp Esercizio Srl, Riviera Trasporti SpA, Tpl Linea Srl

         Defendants: Atpl Liguria — Agenzia regionale per il trasporto pubblico locale SpA, Regione Liguria

         Operative part of the judgment

      Both Article 1(3) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Diretive2007/66/EC of the European Parliament and of the Council of 11 December 2007, and Article 1(3) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which does not allow economic operators to bring an action against the decisions of a contracting authority relating to a tendering procedure in which they have decided not to participate on the ground that the legislation applicable to that procedure made the award to them of the contract concerned very unlikely.
      However, it is for the competent national court to make a detailed assessment, taking account of all the relevant information characterising the context of the case brought before it, as to whether the application of that legislation in practice is liable to affect the right of the economic operators concerned to the right to effective judicial protection.

         (1)  OJ C 309, 18.9.2017.


title: Case T-545/11 RENV: Judgment of the General Court of 21 November 2018 — Stichting Greenpeace Nederland and PAN Europe v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the first authorisation of the placing on the market of the active substance ‘glyphosate’ — Partial refusal of access — Exception relating to the protection of the commercial interests of a third party — Article 4(5) of Regulation No 1049/2001 — Overriding public interest — Regulation (EC) No 1367/2006 — Article 6(1) of Regulation No 1367/2006 — Directive 91/414/EEC)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/17

      Judgment of the General Court of 21 November 2018 — Stichting Greenpeace Nederland and PAN Europe v Commission
      (Case T-545/11 RENV) (1)

      ((Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the first authorisation of the placing on the market of the active substance ‘glyphosate’ - Partial refusal of access - Exception relating to the protection of the commercial interests of a third party - Article 4(5) of Regulation No 1049/2001 - Overriding public interest - Regulation (EC) No 1367/2006 - Article 6(1) of Regulation No 1367/2006 - Directive 91/414/EEC))
      (2019/C 35/20)
      Language of the case: English

         Parties

         Applicants: Stichting Greenpeace Nederland (Amsterdam, Netherlands), Pesticide Action Network Europe (PAN Europe) (Brussels, Belgium) (represented by: B. Kloostra and A. van den Biesen, lawyers)

         Defendant: European Commission (represented by: A. Buchet, P. Ondrůšek and L. Pignataro-Nolin, acting as Agents)

         Intervener in support of the applicants: Kingdom of Sweden (represented by: A. Falk, C. Meyer-Seitz, H. Shev, L. Swedenborg and F. Bergius, acting as Agents)

         Interveners in support of the defendant: Federal Republic of Germany (represented by: T. Henze and D. Klebs, acting as Agents), European Chemical Industry Council (Cefic) (Brussels) and Association européenne pour la protection des cultures (ECPA) (Brussels) (represented by: I. Antypas and D. Waelbroeck, lawyers), CropLife International AISBL (CLI) (Brussels) (represented by: R. Cana, E. Mullier, lawyers, and D. Abrahams, Barrister), CropLife America Inc. (Washington, DC, United States), National Association of Manufacturers of the United States of America (NAM) (Washington) and America Chemistry Council Inc. (ACC) (Washington) (represented initially by: M. Abenhaïm and K. Nordlander, lawyers, subsequently by K. Nordlander, lawyer, and M. Zdzieborska, Solicitor, and finally by K. Nordlander and Y.-A. Benizri, lawyers, and M. Zdzieborska, Solicitor), and European Crop Care Association (ECCA) (Brussels) (represented by: S. Pappas, lawyer)

         Re:

      Application under Article 263 TFEU seeking annulment of the Commission decision of 10 August 2011 refusing access to volume 4 of the Draft Assessment Report issued by the Federal Republic of Germany, as rapporteur Member State for the active substance ‘glyphosate’, under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe) to pay the costs;

                  3.

                  Orders the Kingdom of Sweden and the Federal Republic of Germany to bear their own costs.

         (1)  OJ C 355, 3.12.2011.


title: Case C-340/17 P: Judgment of the Court (Ninth Chamber) of 29 November 2018 — Alcohol Countermeasure Systems (International) Inc. v European Union Intellectual Property Office (EUIPO) (Appeal — EU trade mark — Regulation (EC) No 207/2009 — Invalidity proceedings — Declaration of invalidity on the basis of an earlier United Kingdom trade mark — Genuine use — Proof — Effects of the procedure for the withdrawal of the United Kingdom from the European Union on the proceedings before the General Court and the lawfulness of the decision at issue — None)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/6

      Judgment of the Court (Ninth Chamber) of 29 November 2018 — Alcohol Countermeasure Systems (International) Inc. v European Union Intellectual Property Office (EUIPO)
      (Case C-340/17 P) (1)

      ((Appeal - EU trade mark - Regulation (EC) No 207/2009 - Invalidity proceedings - Declaration of invalidity on the basis of an earlier United Kingdom trade mark - Genuine use - Proof - Effects of the procedure for the withdrawal of the United Kingdom from the European Union on the proceedings before the General Court and the lawfulness of the decision at issue - None))
      (2019/C 35/07)
      Language of the case: English

         Parties

         Appellant: Alcohol Countermeasure Systems (International) Inc. (represented by: E. Baud and P. Marchiset, avocats)

         Other party to the proceedings: European Union Intellectual Property Office (represented by: D. Botis and S. Hanne, acting as Agents)

         Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Brodie and Z. Lavery, acting as Agents, and by N. Saunders, Barrister)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Alcohol Countermeasure Systems (International) Inc. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO);

                  3.

                  Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

         (1)  OJ C 347, 16.10.2017.


title: Case T-508/15: Judgment of the General Court of 22 November 2018 — Lithuania v Commission (EAGGF, EAGF and EAFRD — Expenditure excluded from financing — Expenditure by Lithuania — Aid for early retirement — Article 11(1) of Regulation (EC) No 1257/1999 — Article 23 of Regulation (EC) No 1698/2005 — Concept of carrying out a commercial farming activity — Connection with the concept of semi-subsistence farming)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/18

      Judgment of the General Court of 22 November 2018 — Lithuania v Commission
      (Case T-508/15) (1)

      ((EAGGF, EAGF and EAFRD - Expenditure excluded from financing - Expenditure by Lithuania - Aid for early retirement - Article 11(1) of Regulation (EC) No 1257/1999 - Article 23 of Regulation (EC) No 1698/2005 - Concept of carrying out a commercial farming activity - Connection with the concept of semi-subsistence farming))
      (2019/C 35/21)
      Language of the case: Lithuanian

         Parties

         Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, M. Palionis, T. Lozoraitis, R. Krasuckaitė and A. Petrauskaitė, acting as Agents)

         Defendant: European Commission (represented by: J. Aquilina and J. Jokubauskaitė, acting as Agents)

         Re:

      Application based on Article 263 TFEU seeking annulment of Commission Implementing Decision (EU) 2015/1119 of 22 June 2015 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2015 L 182, p. 39), in that that decision imposed on the Republic of Lithuania a flat-rate financial correction of 5 %, thereby excluding the sum of EUR 1 938 300,08 from financing under the ‘Early retirement’ measure during the period from 16 October 2010 to 15 October 2013.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders the Republic of Lithuania to pay the costs.

         (1)  OJ C 371, 9.11.2015.


title: Case C-717/18: Request for a preliminary ruling from the Hof van Beroep te Gent (Belgium) lodged on 15 November 2018 — Procureur General, other party: X

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/12

      Request for a preliminary ruling from the Hof van Beroep te Gent (Belgium) lodged on 15 November 2018 — Procureur General, other party: X
      (Case C-717/18)
      (2019/C 35/15)
      Language of the case: Dutch

         Referring court

      Hof van Beroep te Gent

         Parties to the main proceedings

         Applicant: Procureur-General

         Other party: X

         Questions referred

                  1.

                  Does Article 2(2) EAWFD, (1) as transposed into Belgian law by the Wet EAB, permit, for the purposes of the executing Member State’s assessment of the minimum maximum three year threshold imposed therein, recourse to be had to the criminal legislation that was applicable in the issuing Member State at the point in time at which the European arrest warrant was issued?

                  2.

                  Does Article 2(2) EAWFD, as transposed into Belgian law by the Wet EAB, permit, for the purposes of the executing Member State’s assessment of the minimum maximum three year threshold imposed therein, recourse to be had to criminal legislation, applicable at the point in time of the issue of the European arrest warrant, allowing for a more severe penalty, as compared to the criminal legislation that was applicable in the issuing Member State at the point in time the offences were committed?

         (1)  2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1).


title: Case T-587/16: Judgment of the General Court of 21 November 2018 — HM v Commission (Civil service — Officials — Recruitment — Competition notice EPSO/AST-SC/03/15 — Refusal to allow participation in the assessment tests — Request for review — Refusal to forward that request to the selection board for the open competition on the grounds that it was out of time — Division of competences between EPSO and the competition selection board)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/18

      Judgment of the General Court of 21 November 2018 — HM v Commission
      (Case T-587/16) (1)

      ((Civil service - Officials - Recruitment - Competition notice EPSO/AST-SC/03/15 - Refusal to allow participation in the assessment tests - Request for review - Refusal to forward that request to the selection board for the open competition on the grounds that it was out of time - Division of competences between EPSO and the competition selection board))
      (2019/C 35/22)
      Language of the case: German

         Parties

         Applicant: HM (represented by: H. Tettenborn, lawyer)

         Defendant: European Commission (represented by: T. Bohr and G. Gattinara, agents)

         Re:

      Application on the basis of Article 270 TFEU seeking the annulment, first, of the decision of the European Personnel Selection Office (EPSO) dated 17 August 2015 not to take into account the request for review of the decision of the selection board not to allow the applicant to participate in the next stage of Competition EPSO/AST-SC/03/15-3 and, secondly, of the ‘implied decision’ of the selection board not to grant that request.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Personnel Selection Office (EPSO) dated 17 August 2015 not to take into account the request for review of the decision of the selection board not to allow HM to participate in the next stage of Competition EPSO/AST-SC/03/15-3;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders the European Commission to pay the costs.

         (1)  OJ C 191, 30.5.2016 (Case initially registered before the European Union Civil Service Tribunal under number F-17/16 and transferred to the General Court of the European Union on 1 September 2016).


title: Case T-705/18: Action brought on 28 November 2018 — Air Liquide Industriegase v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/31

      Action brought on 28 November 2018 — Air Liquide Industriegase v Commission
      (Case T-705/18)
      (2019/C 35/38)
      Language of the case: German

         Parties

         Applicant: Air Liquide Industriegase GmbH & Co. KG (Düsseldorf, Germany) (represented by: M. Kachel and D. Fouquet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul in full the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 in respect of the years 2012 and 2013;

                  —

                  in the alternative, annul the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 insofar as it orders that, in respect of the years 2012 and 2013, baseload consumers with at least 7 000 hours of full use per year repay more than 20 % of published network charges, baseload consumers with at least 7 500 hours of full use per year repay more than 15 % of published network charges and baseload consumers with at least 8 000 hours of full use per year repay more than 10 % of published network charges;

                  —

                  order the defendant to pay the costs, including lawyers’ fees and travel expenses.

         Pleas in law and main arguments

      In support of the action, the applicant relies on three pleas in law which are, in essence, either identical or similar to the pleas in law relied on in Case T-693/18, ZY v Commission.


title: Case T-603/16: Judgment of the General Court of 22 November 2018 — Brahma v Court of Justice of the European Union (Civil service — Probationary officials — Probationary period — Extension of the probationary period — Dismissal at the end of the probationary period — Article 34 of the Staff Regulations — Misuse of powers — Obligation to state reasons — Article 25(2) of the Staff Regulations — Right to be heard — Article 90(2) of the Staff Regulations — Liability — Formal requirements — Rule of correspondence between the application and the complaint — Admissibility — Material damage — Non-material damage — Causal link)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/19

      Judgment of the General Court of 22 November 2018 — Brahma v Court of Justice of the European Union
      (Case T-603/16) (1)

      ((Civil service - Probationary officials - Probationary period - Extension of the probationary period - Dismissal at the end of the probationary period - Article 34 of the Staff Regulations - Misuse of powers - Obligation to state reasons - Article 25(2) of the Staff Regulations - Right to be heard - Article 90(2) of the Staff Regulations - Liability - Formal requirements - Rule of correspondence between the application and the complaint - Admissibility - Material damage - Non-material damage - Causal link))
      (2019/C 35/23)
      Language of the case: French

         Parties

         Applicant: Zoher Brahma (Thionville, France) (represented by: A. Tymen, lawyer)

         Defendant: Court of Justice of the European Union (represented by: initially, J. Inghelram and L. Tonini Alabiso and, subsequently, J. Inghelram and Á. Almendros Manzano, acting as Agents)

         Re:

      Action brought under Article 270 TFEU seeking, first, annulment of the decision of 17 July 2015 by which the Court of Justice of the European Union decided not to establish the applicant [as an official] and to dismiss him with effect from 31 July 2015 and of the decision of the Complaints Committee of 16 March 2016 rejecting the complaint brought by the applicant against the decision of 17 July 2015 and, second, compensation in respect of the material and non-material harm allegedly suffered by the applicant as a result of those decisions.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Registrar of the Court of Justice of the European Union, in his capacity as Appointing Authority, of 17 July 2015, dismissing Mr Zoher Brahma at the end of his probationary period, with effect from 31 July 2015;

                  2.

                  Annuls the decision of the Complaints Committee of 16 March 2016 rejecting the complaint against the decision of the Registrar of the Court of Justice of the European Union, in his capacity as Appointing Authority, of 17 July 2015, dismissing Mr Zoher Brahma at the end of his probationary period, with effect from 31 July 2015;

                  3.

                  Dismisses the action as to the remainder;

                  4.

                  Orders the Court of Justice of the European Union to pay the costs.

         (1)  OJ C 296 of 16.8.2016 (case initially registered before the European Union Civil Service Tribunal under Case No F-33/16 and transferred to the General Court of the European Union on 1.9.2016).


title: Case C-506/17: Judgment of the Court (Sixth Chamber) of 28 November 2018 — European Commission v Slovenian Republic (Failure of a Member State to fulfil obligations — Environment — Landfilling of waste — Directive 1999/31/EC — Article 14(b) and (c) — Operation permit — Closure of unauthorised sites — Authorisation of necessary work on the basis of the approved site-conditioning plan — Laying down transitional period for completion of the plan)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/6

      Judgment of the Court (Sixth Chamber) of 28 November 2018 — European Commission v Slovenian Republic
      (Case C-506/17) (1)

      ((Failure of a Member State to fulfil obligations - Environment - Landfilling of waste - Directive 1999/31/EC - Article 14(b) and (c) - Operation permit - Closure of unauthorised sites - Authorisation of necessary work on the basis of the approved site-conditioning plan - Laying down transitional period for completion of the plan))
      (2019/C 35/08)
      Language of the case: Slovenian

         Parties

         Applicant: European Commission (represented initially by E. Sanfrutos Cano and M. M. Žebre, and subsequently by E. Sanfrutos Cano, B. Rous Demiri and F. Thiran and, finally, by E. Sanfrutos Cano and B. Rous Demiri, F. Thiran and C. Hermes, acting as Agents)

         Defendant: Republic of Slovenia (represented by: J. Morela and N. Pintar Gosenca, acting as Agents)

         Operative part of the judgment

                  1.

                  By failing to adopt the measures necessary:

                              —

                              to close, by 16 July 2009 at the latest, in accordance with Article 7(g) and Article 13 of Council Directive 1999/31/EC or 26 April 1999 on the landfill of waste, the landfill sites of Dragonja, Dvori, Rakek-Pretržje, Bukovžlak-Cinkarna, Suhadole, Lokovica, Mislinjska Dobrava, Izola, Mozelj, Dolga Poljana, Dolga vas, Jelšane, Volče, Stara gora, Stara vas, Dogoše, Mala gora, Tuncovec-Steklarna, Tuncovec-OKP and Bočna-Podhom, which have not obtained operation permits in accordance with Article 8 of that directive, and

                              —

                              to ensure, by 16 July 2009 at the latest, that the Ostri vrh landfill site complies with the requirements of Directive 1999/31, with the exception of those set out in point 1 of Annex I thereto,
                              the Republic of Slovenia has failed to fulfil its obligations under Article 14(b) and Article 14(c) of Directive 1999/31.

                  2.

                  The Republic of Slovenia is ordered to pay the costs.

         (1)  OJ C 357, 23.10.2017.


title: Case T-82/17: Judgment of the General Court of 21 November 2018 — PepsiCo v EUIPO — Intersnack Group (Exxtra Deep) (EU trade mark — Invalidity proceedings — EU word mark Exxtra Deep — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/20

      Judgment of the General Court of 21 November 2018 — PepsiCo v EUIPO — Intersnack Group (Exxtra Deep)
      (Case T-82/17) (1)

      ((EU trade mark - Invalidity proceedings - EU word mark Exxtra Deep - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001)))
      (2019/C 35/24)
      Language of the case: English

         Parties

         Applicant: PepsiCo, Inc. (New York, United States) (represented by: V. von Bomhard and J. Fuhrmann, lawyers)

         Defendant: European Union Intellectual Property Office (represented by: M. Rajh and D. Walicka, acting as Agents)

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

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 24 November 2016 (Case R 482/2016-4), concerning invalidity proceedings between PepsiCo and Intersnack Group.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 November 2016 (Case R 482/2016-4);

                  2.

                  Orders EUIPO to bear its own costs and to pay those incurred by PepsiCo, Inc.;

                  3.

                  Orders Intersnack Group GmbH & Co. KG to bear its own costs.

         (1)  OJ C 121, 18.4.2017.


title: Case C-724/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 21 November 2018 — Cali Apartments SCI v Procureur général at the Cour d’appel de Paris, Ville de Paris

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/12

      Request for a preliminary ruling from the Cour de cassation (France) lodged on 21 November 2018 — Cali Apartments SCI v Procureur général at the Cour d’appel de Paris, Ville de Paris
      (Case C-724/18)
      (2019/C 35/16)
      Language of the case: French

         Referring court

      Cour de cassation

         Parties to the main proceedings

         Appellant in cassation: Cali Apartments SCI

         Respondents in cassation: Procureur général at the Cour d’appel de Paris, Ville de Paris

         Questions referred

                  1.

                  Having regard to the definition of the purpose and scope of application of Directive 2006/123/EC of 12 December 2006, (1) as set out in Articles 1 and 2 thereof, does that directive apply to the repeated letting for short periods, against consideration, including on a non-professional basis, of furnished accommodation for residential use, not constituting the lessor’s main residence, to a transient clientele which does not take up residence there, particularly in the light of the concepts of ‘providers’ and ‘services’?

                  2.

                  If the above question is answered in the affirmative, does national legislation such as that provided for in Article L. 631-7 of the Code de la construction et de l’habitation (Construction and Housing Code) constitute an authorisation scheme for the abovementioned activity for the purposes of Articles 9 to 13 of Directive 2006/123 of 12 December 2006, or solely a requirement subject to the provisions of Articles 14 and 15?
                  In the event that Articles 9 to 13 of Directive 2006/123/EC of 12 December 2006 are applicable:

                  3.

                  Should Article 9(b) of that directive be interpreted as meaning that the objective of tackling the shortage of rental housing constitutes an overriding reason relating to the public interest capable of justifying a national measure which requires authorisation to be obtained, in certain geographical areas, for the repeated letting of furnished accommodation for residential use for short periods to a transient clientele which does not take up residence there?

                  4.

                  If so, is such a measure proportionate to the objective pursued?

                  5.

                  Does Article 10(2)(d) and (e) of the Directive preclude a national measure which requires authorisation to be obtained for the ‘repeated’ letting of furnished accommodation for residential use for ‘short periods’ to a ‘transient clientele which does not take up residence there’?

                  6.

                  Does Article 10(2)(d) to (g) of the Directive preclude an authorisation scheme whereby the conditions for granting authorisation are set, by decision of the municipal council, in the light of social diversity objectives, according to, inter alia, the characteristics of the markets for residential premises and the need to avoid exacerbating the housing shortage?

         (1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).


title: Case T-706/18: Action brought on 28 November 2018 — Air Liquide Deutschland v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/32

      Action brought on 28 November 2018 — Air Liquide Deutschland v Commission
      (Case T-706/18)
      (2019/C 35/39)
      Language of the case: German

         Parties

         Applicant: Air Liquide Deutschland GmbH (Düsseldorf, Germany) (represented by: M. Kachel and D. Fouquet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul in full the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 in respect of the years 2012 and 2013;

                  —

                  in the alternative, annul the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 insofar as it orders that, in respect of the years 2012 and 2013, baseload consumers with at least 7 000 hours of full use per year repay more than 20 % of published network charges, baseload consumers with at least 7 500 hours of full use per year repay more than 15 % of published network charges and baseload consumers with at least 8 000 hours of full use per year repay more than 10 % of published network charges;

                  —

                  order the defendant to pay the costs, including lawyers’ fees and travel expenses.

         Pleas in law and main arguments

      In support of the action, the applicant relies on three pleas in law which are, in essence, either identical or similar to the pleas in law relied on in Case T-693/18, ZY v Commission.


title: Case T-460/17: Judgment of the General Court of 21 November 2018 — Bopp v EUIPO (Representation of an equilateral octagon) (EU trade mark — Application for an EU figurative mark representing a blue octagonal frame — Absolute ground for refusal — Distinctive character — Article 7(1)(b) and Article 75 of Regulation (EC) No 207/2009 (now Article 7(1)(b) and Article 94 of Regulation (EU) 2017/1001)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/23

      Judgment of the General Court of 21 November 2018 — Bopp v EUIPO (Representation of an equilateral octagon)
      (Case T-460/17) (1)

      ((EU trade mark - Application for an EU figurative mark representing a blue octagonal frame - Absolute ground for refusal - Distinctive character - Article 7(1)(b) and Article 75 of Regulation (EC) No 207/2009 (now Article 7(1)(b) and Article 94 of Regulation (EU) 2017/1001))
      (2019/C 35/28)
      Language of the case: German

         Parties

         Applicant: Carsten Bopp (Glashütten, Germany) (represented by: F. Pröckl, lawyer)

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

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 8 May 2017 (Case R 1954/2016-4) concerning an application for registration of a figurative sign representing a blue octagonal frame as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Carsten Bopp to pay the costs.

         (1)  OJ C 300, 11.9.2017.


title: Case T-711/18: Action brought on 27 November 2018 — Wyld v EUIPO — Kaufland Warenhandel (wyld)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/32

      Action brought on 27 November 2018 — Wyld v EUIPO — Kaufland Warenhandel (wyld)
      (Case T-711/18)
      (2019/C 35/40)
      Language in which the application was lodged: German

         Parties

         Applicant: Wyld GmbH (Munich, Germany) (represented by: M. Douglas, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Kaufland Warenhandel GmbH & Co. KG

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant

         Trade mark at issue: European Union word mark ‘wyld’ — Application for registration No 14 525 562

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 24 September 2018 in Case R 2621/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision and to allow the application for registration of the European Union trade mark No 14 525 562 ‘wyld’, which has so far been refused;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 47(2) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.


title: Case T-677/18: Action brought on 19 November 2018 — Galletas Gullón v EUIPO — Intercontinental Great Brands (gullón TWINS COOKIE SANDWICH)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/23

      Action brought on 19 November 2018 — Galletas Gullón v EUIPO — Intercontinental Great Brands (gullón TWINS COOKIE SANDWICH)
      (Case T-677/18)
      (2019/C 35/29)
      Language in which the application was lodged: Spanish

         Parties

         Applicant: Galletas Gullón, SA (Aguilar de Campoo, Spain) (represented by: S. Martínez-Almeida y Alejos-Pita, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Intercontinental Great Brands LLC (East Hanover, New Jersey, United States of America)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for EU figurative mark gullón TWINS COOKIE SANDWICH — Application for registration No 13 877 543

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2018 in Case R 2378/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant and, if appropriate, the intervener, to pay the costs of the proceedings before the General Court, along with the costs incurred in the appeal proceedings before the Board of Appeal.

         Plea in law

      Infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Corrigendum to the communication to the Official Journal in relation to Case T-603/18 (OJ C 436, 3.12.2018)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/34

      Corrigendum to the communication to the Official Journal in relation to Case T-603/18
      (
            Official Journal of the European Union C 436 of 3 December 2018
         )
      (2019/C 35/41)
      The communication published concerning Case T-603/18, ZE v Parliament is replaced with the following text:

               ‘Action brought on 9 October 2018 — ZE v European Parliament
               (Case T-603/18)
               ()
               Language of the case: Greek

                  Parties

                  Applicant: ZE (represented by: P. Giatagantzidis, lawyer)

                  Defendant: European Parliament

                  Form of order sought

               The applicant claims that the Court should:

                           —

                           Annul the decision of the Secretary General of the European Parliament of 25 September 2018 ordering that he be suspended from his duties until 31 October 2018, and any other connected measure,

                           —

                           Order the defendant to pay the costs.

                  Pleas in law and main arguments

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

                           1.

                           First plea in law, alleging breach of his right to be heard before the contested decision was taken against him;

                           2.

                           Second plea in law, alleging that the contested decision was adopted on the basis of information collected by a method which infringes the right to good administration enshrined in Art 41 of the Charter of Fundamental Rights of the European Union;

                           3.

                           Third plea in law, alleging infringement of the principle of impartiality by the Secretary General, in so far as he ordered the opening of an administrative investigation against the applicant and also adopted the contested decision;

                           4.

                           Fourth plea in law, alleging a manifest breach of his right to privacy due to being prohibited from having access to his workplace and to his personal files;

                           5.

                           Fifth plea in law, alleging infringement of the presumption of innocence and of the confidential nature of proceedings, having regard to statements made to the press by senior officials of the European Parliament.’


title: Case T-684/18: Action brought on 20 November 2018 — ZV v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/24

      Action brought on 20 November 2018 — ZV v Commission
      (Case T-684/18)
      (2019/C 35/30)
      Language of the case: French

         Parties

         Applicant: ZV (represented by: J.-N. Louis, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decisions of the Commission, notified by letter of 12 February 2018, rejecting the applicant’s candidacy for the post of deputy mediator and filling the position by appointing another candidate;

                  —

                  order the Commission to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging misuse of powers and of procedure. In this regard, the applicant claims that the vacancy notice COM/2017/1739 did not make it possible to ensure that the candidate chosen genuinely possessed the qualifications and experience necessary for that vacant position. Moreover, the applicant submits that the candidate whose application was selected did not have all the required qualifications, in particular experience in mediation and in-depth legal knowledge of the Staff Regulations of Officials of the European Union.

                  2.

                  Second plea in law, alleging infringement of Commission Decision C(2002/601) of 4 March 2002 on the reinforced Mediation Service, in that Article 6(3) provides that the President of the Commission is to appoint the deputy mediators on a proposal by the Mediator, but does not provide for a pre-selection procedure or for the drawing-up of a list of selected candidates. However, in the present case, the consultative committee for appointments organised a pre-selection procedure and submitted to the Mediator the three applications which it had selected. According to the applicant, it follows that the Mediator did not examine all the applications and therefore infringed the provision referred to above when he proposed that the President of the Commission appoint the selected candidate.

                  3.

                  Third plea in law, alleging a breach of the duty to state reasons vitiating the contested decisions.

                  4.

                  Fourth plea in law, alleging infringement of the vacancy notice COM/2017/1739 and manifest error of assessment. In that regard, the applicant submits that, unlike her, the selected candidate does not meet the requirements set out in the notice referred to above in order to fill the position at issue, that is, inter alia, good knowledge of the Staff Regulations and of the rules applicable to officials and other members of staff, together with experience in conflict resolution.


title: Case T-690/18: Action brought on 22 November 2018 — Sony Interactive Entertainment Europe v EUIPO — Vieta Audio (Vita)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/25

      Action brought on 22 November 2018 — Sony Interactive Entertainment Europe v EUIPO — Vieta Audio (Vita)
      (Case T-690/18)
      (2019/C 35/31)
      Language of the case: English

         Parties

         Applicant: Sony Interactive Entertainment Europe Ltd (London, United Kingdom) (represented by: S. Malynicz, QC)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Vieta Audio, SA (Barcelona, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union word mark Vita — European Union trade mark No 9 993 361

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 10 September 2018 in Case R 695/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the other party to pay their own costs and pay those of the applicant.

         Pleas in law

                  —

                  Infringement of Article 72(6) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-691/18: Action brought on 22 November 2018 — KPN v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/25

      Action brought on 22 November 2018 — KPN v Commission
      (Case T-691/18)
      (2019/C 35/32)
      Language of the case: English

         Parties

         Applicant: KPN BV (Rotterdam, Netherlands) (represented by: P. van Ginneken and G. Béquet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Commission decision C(2018) 3569 final of 30 May 2018 declaring the concentration involving the acquisition by Liberty Global plc of sole control over Ziggo NV to be compatible with the internal market and the EEA agreement (Case M.7000 — Liberty Global/Ziggo);

                  —

                  revert the case to the Commission for further investigation pursuant to Article 10(5) of the Merger Regulation, (1) and

                  —

                  order the Commission to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission committed a manifest error in the market definition regarding premium pay TV sports and film channels

                              —

                              In this regard, the applicant submits that, during the administrative procedure, it put forward that Ziggo Sport Totaal (‘ZST’) is ‘must-have’ for providers of retail TV, broadband and mobile services, and bundles including one or more of these services, in order to be able to compete on the retail market. Allegedly, this was confirmed by the market investigation conducted by the Commission. As a consequence, the two premium pay TV sports channels ZST and FOX Sports would not be substitutable.

                              —

                              The applicant further claims that the Commission nonetheless concluded that there was one market for the wholesale supply and acquisition of premium pay TV sports channels, comprising ZST and FOX Sports, and that no further market segmentation was needed.

                              —

                              Pursuant to the applicant, these errors in the market definition would affect the Commission’s further assessment and ultimately the conclusion to allow the merger.

                  2.

                  Second plea in law, alleging that the Commission insufficiently motivated the market definition regarding premium pay TV sports and film channels

                              —

                              In this regard, the applicant submits that the Commission’s assumption that FOX Sports and ZST are part of the same market would have required an extensive explanation because this assumption is contrary to the Commission’s market investigation which pointed out that ZST is ‘must-have’ and the Commission’s earlier decisions.

                              —

                              The applicant further claims that the Commission did not motivate the market definition for premium pay TV film channels.

                              —

                              Pursuant to the applicant, this lack of motivation of the market definition would affect the Commission’s further assessment and ultimately the conclusion to allow the merger.

                  3.

                  Third plea in law, alleging that the Commission made a manifest error of assessment of the ability to foreclose ZST and of the impact thereof on the market for the wholesale supply and acquisition of ZST

                              —

                              In this regard, the applicant submits that the merger extended the power of the merging parties on the market for ZST to the entire Dutch territory.

                              —

                              The applicant further claims that by refusing to provide access to ZST to a third party (on economically viable terms), the merging parties have the ability to foreclose ZST from their downstream competitors.

                  4.

                  Fourth plea in law, alleging that the Commission insufficiently motivated the assessment of the ability to foreclose ZST and of the impact thereof on the market for the wholesale supply and acquisition of ZST

                              —

                              In this regard, the applicant submits that the Commission dismisses the argument that ZST is ‘must-have’, and therefore can be foreclosed, based on its market definition in section 5.1.2.1 of the contested decision. Based on the applicant’s submission that the contested decision does not provide a market definition, or provides an erroneous market definition, it argues that the Commission’s assessment would depart from a wrong starting point.

                              —

                              The applicant further claims that the Commission insufficiently motivated its assessment of the lack of ability of the merging parties to foreclose ZST and of the impact thereof.

                  5.

                  Fifth plea in law, alleging that the Commission made a manifest error of assessment of the ability to foreclose HBO content
                  In this regard, the applicant submits that the Commission incorrectly assessed that the merged parties have no significant market power, based on lacking market definition and wrong assumptions.

                  6.

                  Sixth plea in law, alleging that the Commission insufficiently motivated the assessment of the ability to foreclose HBO content
                  In this regard, the applicant submits that without reliable market definition regarding film content, the Commission’s assessment of the effects of the merger on the said market is automatically insufficiently motivated.

         (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).


title: Case C-778/18: Request for a preliminary ruling from the Conseil d’État (France) lodged on 11 December 2018 — Association française des usagers de banques v Ministre de l’Économie et des Finances

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/14

      Request for a preliminary ruling from the Conseil d’État (France) lodged on 11 December 2018 — Association française des usagers de banques v Ministre de l’Économie et des Finances
      (Case C-778/18)
      (2019/C 54/18)
      Language of the case: French

         Referring court

      Conseil d’État

         Parties to the main proceedings

         Applicant: Association française des usagers de banques

         Defendant: Ministre de l’Économie et des Finances

         Questions referred

                  —

                  Do the provisions of Article 12(2)(a) of Directive 2014/17/EU of 4 February 2014 on credit agreements for consumers relating to residential immovable property, (1) having regard, inter alia, to the purpose that they assign to the payment or savings account which they authorise to be opened or maintained, or the provisions of paragraph 3 of that article, authorise, first, the creditor to require the borrower, as consideration for an individual advantage, to deposit all of his salary or similar income in a payment account opened with that creditor during a period fixed by the credit agreement, whatever the amount, the instalments and the duration of the loan, and, secondly, that the period thus fixed may extend to ten years or, if it is shorter, the duration of the agreement?

                  —

                  Do Article 45 of Directive 2007/64/EC of 13 November 2007, (2) applicable at the material time and now recast as Article 55 of Directive (EU) 2015/2366 of 25 November 2015, (3) and Articles 9 to 14 of Directive 2014/92/EU of 23 July 2014, (4) relating to the facilitation of banking mobility and to fees for closing a payment account, preclude the closure of an account opened by the borrower with the creditor for the purposes of depositing his income with that creditor as consideration for an individual advantage as part of a credit agreement from resulting, if it occurs before the expiry of the period fixed in that agreement, in the loss of that advantage, including more than a year after the opening of the account and, secondly, do those provisions prevent the duration of that period extending to ten years or the total duration of the loan?

         (1)  Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34).

         (2)  Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).

         (3)  Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35).

         (4)  Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ 2014 L 257, p. 214).


title: Case T-703/18: Action brought on 27 November 2018 — Poland v Commission

text:
               11.2.2019

               EN

               Official Journal of the European Union

               C 54/21

      Action brought on 27 November 2018 — Poland v Commission
      (Case T-703/18)
      (2019/C 54/36)
      Language of the case: Polish

         Parties

         Applicant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of the European Commission of 17 September 2018 imposing an obligation to implement the actions and recommendations set out in the final audit report, in the part concerning Recommendation 04.01(g) regarding the application of financial corrections to expenditure relating to VAT in connection with cases where the participants receiving aid were taxable persons for the purposes of VAT and as a result were entitled to recover VAT, but did not do so, under projects carried out within the framework of all operational programmes co-financed by the European Social Fund, in respect of which expenditure was declared for the purposes of reimbursement by the European Commission;

                  —

                  order the European Commission to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 65(2) and Article 69(3)(c) of Regulation No 1303/2013, (1) read in conjunction with Article 2(10) thereof, through the improper interpretation of those provisions and the incorrect finding that Article 69(3)(c) of Regulation No 1303/2013 applies to final recipients of aid from the European Social Fund, despite the fact that they are not beneficiaries within the meaning of Article 2(10) of that regulation.
      In that plea, the Republic of Poland states that, in accordance with the general rule regarding the eligibility of expenditure under European Social Fund projects as set out in Article 65(2) of Regulation No 1303/2013, the requirements for eligibility of expenditure resulting from Article 69 of that regulation are the responsibility of the beneficiary implementing the project.
      The applicant considers that Article 2(10) of Regulation No 1303/2013 unambiguously leaves it to the Member States to choose, in cases involving aid with a value lower than EUR 200 000, whether to recognise a person receiving aid or a person providing such aid as the beneficiary.
      In the present case, at the choice of the Polish authorities, the beneficiary is the person providing the aid and not the person receiving it. Final recipients of aid are not beneficiaries and thus, according to the applicant, Article 69(3)(c) of Regulation No 1303/2013 does not apply to them.
      In addition, the Republic of Poland emphasises that, in the present case, granting the status of beneficiary to the persons receiving aid — who are unemployed persons — would involve imposing on them many obligations connected with accounting for the aid received, reporting on progress in implementing the project, project controls and supplementing data in IT systems dedicated to the implementation of operational programmes. Such a solution would make it impossible to achieve the aims of Regulation No 1303/2013.

         (1)  Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320).


title: Case T-71/19: Action brought on 6 February 2019 — BMC v Commission and Clean Sky 2 Joint Undertaking

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/24

      Action brought on 6 February 2019 — BMC v Commission and Clean Sky 2 Joint Undertaking
      (Case T-71/19)
      (2019/C 122/27)
      Language of the case: Italian

         Parties

         Applicant: BMC Srl (Medicina, Italy) (represented by: S. Dindo and L. Picotti, lawyers)

         Defendants: European Commission and Clean Sky 2 Joint Undertaking

         Form of order sought

      The applicant claims that the Court should annul the decision of the Clean Sky 2 Unit of 6 December 2018 confirming the decision of 10 October 2018 by which Clean Sky 2 found that proposal No 831874, concerning the call for proposals H2020-CS2-CFP08-2018-01 — relating to a suction system for engines and systems for protection against the icing of rotor blades — was not eligible for financing.

         Pleas in law and main arguments

      The applicant submitted its proposal for participation in call for proposals H2020-CS2-CFP08-2018-01 (Clean Sky 2 Call for proposals 08), managed by Clean Sky 2 (Programme Clean Sky 2), which has as its objective the development of a suction system for engines and systems for protection against the icing of rotor blades (integrating a removable anti-ice system).
      The applicant claims to be the only business in the world, currently, to have found a solution to a flight safety problem for helicopters in icy conditions.
      The applicant points out in this regard that, even though the call for proposals concerned specifically a request to put forward proposals for the development of the system for protection against icing, Clean Sky 2 (and therefore the unit entrusted with the management of the call) found that the applicant’s proposal did not meet the threshold set out by the call.
      That decision, it is submitted, is vitiated by infringement of the procedural rules on the following grounds:

                  1.

                  Infringement of Article 15 of Regulation (EU) No 1290/2013 entitled ‘Selection and award criteria’ (including where an intermediate score has been given in comparison with those laid down by the provision) and the duty to state reasons under Article 296 TFEU and Article 41 of the Charter of Fundamental Rights.

                  2.

                  The existence in the present case of a misuse of powers in that an (intermediate) score was applied to each of the three criteria; the scale of scores for the evaluation of the proposals submitted made no provision for such a score.

                  3.

                  The existence in the present case of a misuse of powers by reason of the failure to investigate adequately and distortion of the facts, in particular in that the objectives pursued by the measure at issue are not met.


title: Case C-168/19: Request for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Puglia (Italy) lodged on 25 February 2019 — HB v Istituto Nazionale della Previdenza Sociale

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/20

      Request for a preliminary ruling from the Corte dei Conti — Sezione Giurisdizionale per la Regione Puglia (Italy) lodged on 25 February 2019 — HB v Istituto Nazionale della Previdenza Sociale
      (Case C-168/19)
      (2019/C 206/24)
      Language of the case: Italian

         Referring court

      Corte dei Conti — Sezione Giurisdizionale per la Regione Puglia

         Parties to the main proceedings

         Applicant: HB

         Defendant: Istituto Nazionale della Previdenza Sociale

         Question referred

      Must Articles 18 TFEU and 21 TFEU be interpreted as precluding legislation of a Member State which provides for the taxation, in that Member State, of the income of a person resident in another Member State who receives all of his income from the first Member State but who does not hold the nationality of the second Member State, without the benefit of the tax advantages provided by that second Member State?


title: Case C-580/17: Judgment of the Court (Tenth Chamber) of 8 May 2019 (request for a preliminary ruling from the Riigikohus — Estonia) — Mittetulundusühing Järvelaev v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) (Reference for a preliminary ruling — Common agricultural policy — Support for rural development by the European Agricultural Fund for Rural Development (EAFRD) — Regulation (EC) No 1698/2005 — Applicability ratione temporis — Article 72 — Durability of investment operations — Substantial modification to a co-financed investment operation — Asset acquired by means of an investment operation co-financed by the EAFRD and leased by the beneficiary of the funding to another — Financing, management and monitoring of the common agricultural policy — Regulation (EC) No 1306/2013 — Articles 54 and 56 — Obligation of the Member States to recover sums unduly paid as a result of irregularity or negligence — Concept of ‘irregularity’ — Initiation of recovery proceedings)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/8

      Judgment of the Court (Tenth Chamber) of 8 May 2019 (request for a preliminary ruling from the Riigikohus — Estonia) — Mittetulundusühing Järvelaev v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)
      (Case C-580/17) (1)

      (Reference for a preliminary ruling - Common agricultural policy - Support for rural development by the European Agricultural Fund for Rural Development (EAFRD) - Regulation (EC) No 1698/2005 - Applicability ratione temporis - Article 72 - Durability of investment operations - Substantial modification to a co-financed investment operation - Asset acquired by means of an investment operation co-financed by the EAFRD and leased by the beneficiary of the funding to another - Financing, management and monitoring of the common agricultural policy - Regulation (EC) No 1306/2013 - Articles 54 and 56 - Obligation of the Member States to recover sums unduly paid as a result of irregularity or negligence - Concept of ‘irregularity’ - Initiation of recovery proceedings)
      (2019/C 230/09)
      Language of the case: Estonian

         Referring court

      Riigikohus

         Parties to the main proceedings

         Applicant: Mittetulundusühing Järvelaev

         Defendant: Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

         Operative part of the judgment

                  1.

                  The durability of an investment operation which, as in the case in the main proceedings, was approved and co-financed by the European Agricultural Fund for Rural Development (EAFRD) in the 2007-2013 programming period must be assessed according to Article 72 of Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development. Where the recovery of sums unduly paid under that operation takes place after the programming period has come to an end, namely after 1 January 2014, recovery must be based on Article 56 of Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008.

                  2.

                  A lease by the beneficiary of funding, such as that at issue in the main proceedings, which was paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) under the Leader axis referred to in Regulation No 1698/2005, of an asset acquired by means of that funding to another who uses it in connection with the same activity as that which the beneficiary of the funding was to exercise may amount to a substantial modification to the co-financed investment operation within the meaning of Article 72(1) of that regulation, which is for the referring court to ascertain in the light of all the elements of fact and of law at issue against the alternative conditions referred to in Article 72(1)(a) and (b) thereof. For the purposes of finding that there has been undue advantage given to a firm or public body within the meaning of Article 72(1)(a) of that regulation, it is for the competent national authority, to determine, subject to review by the relevant national courts, what the undue advantage specifically is. Whilst relevant, whether or not, in the light of the factual and legal situation, the actual user of the funding would have obtained the funding if it had itself submitted a funding application is not conclusive for the purposes of applying Article 72(1)(a) thereof.

                  3.

                  Article 72(1) of Regulation No 1698/2005 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which requires the beneficiary of funding paid as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) to retain and use itself the asset acquired by means of that investment operation for at least five years from the payment of the final instalment of the funding.

                  4.

                  The first paragraph of Article 56 of Regulation No 1306/2013 must be interpreted as meaning that failure, by the beneficiary of funding awarded as part of an investment operation co-financed by the European Agricultural Fund for Rural Development (EAFRD) falling within the Leader axis referred to in Regulation No 1698/2005, to carry out a part of the operation set out by the beneficiary in its application for funding which was one of the criteria on the basis of which the applications for funding were assessed for the purpose of ranking them, despite the fact that that criterion was not required by the relevant national legislation, amounts to an irregularity within the meaning of that provision, provided that the failure to perform such a factor resulted in a substantial modification within the meaning of Article 72(1) of Regulation No 1698/2005 to the investment operation, which is for the referring court to ascertain.

                  5.

                  Article 56 of Regulation No 1306/2013 must be interpreted as not precluding a recovery procedure for funding unduly paid from being initiated before the end of the five-year period from the managing authority’s financing decision. That provision must also be interpreted as not precluding such a recovery procedure from being continued where, in the course of the procedure, the beneficiary of the funding remedies the failure which justified the initiation of that procedure.

         (1)  OJ C 412, 4.12.2017.


title: Joined Cases T-836/16 and T-624/17: Judgment of the General Court of 16 May 2019 — Poland v Commission (State aid — Polish tax on the retail sector — Progressive tax levied on turnover — Decision to open the formal investigation procedure — Final decision classifying the measure as State aid incompatible with the internal market — Concept of State aid — Condition relating to selectivity)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/28

      Judgment of the General Court of 16 May 2019 — Poland v Commission
      (Joined Cases T-836/16 and T-624/17) (1)

      (State aid - Polish tax on the retail sector - Progressive tax levied on turnover - Decision to open the formal investigation procedure - Final decision classifying the measure as State aid incompatible with the internal market - Concept of State aid - Condition relating to selectivity)
      (2019/C 230/34)
      Language of the case: Polish

         Parties

         Applicant: Republic of Poland (represented by: B. Majczyna, M. Rzotkiewicz and A. Kramarczyk-Szaładzińska, acting as Agents)

         Defendant: European Commission (represented by: K. Herrmann and P.-J. Loewenthal, acting as Agents)

         Intervener in support of the applicant: Hungary (represented by: in Case T-836/16, M. Fehér, G. Koós and E. Tóth, and in Case T-624/17, M. Fehér and G. Koós, acting as Agents)

         Re:

      Applications based on Article 263 TFEU and seeking annulment, first, of Commission Decision C(2016) 5596 final of 19 September 2016 on the State Aid SA.44351 (2016/C) (ex 2016/NN) — Poland — Polish tax on the retail sector, opening the formal investigation procedure provided for in Article 108(2) TFEU in respect of that measure and, secondly, Commission Decision (EU) 2018/160 of 30 June 2017 on the State aid SA.44351 (2016/C) (ex 2016/NN) implemented by Poland for the tax on the retail sector (OJ 2018 L 29, p.38), closing the procedure and according to which that measure constitutes State aid incompatible with the internal market which has been unlawfully implemented.

         Operative part of the judgment

      The Court:

                  1.

                     Annuls Commission Decision C(2016) 5596 final of 19 September 2016 on the State Aid SA.44351 (2016/C) (ex 2016/NN) — Poland — Polish tax on the retail sector;

                  2.

                     Annuls Commission Decision (EU) 2018/160 of 30 June 2017 on the State aid SA.44351 (2016/C) (ex 2016/NN) implemented by Poland for the tax on the retail sector;

                  3.

                     Orders the European Commission to bear its own costs and to pay those incurred by the Republic of Poland in Cases T-836/16 and T-624/17;

                  4.

                     Orders Hungary to bear its own costs in Cases T-836/6 and T-624/17.

         (1)  OJ C 30, 30.1.2017.


title: Case T-734/18 R: Order of the President of the General Court of 8 May 2019 — Sumitomo Chemical and Tenka Best v Commission (Interim measures — Biocidal products — Active substance empenthrin — Non-approval — Application for suspension of operation of a measure — No urgency)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/53

      Order of the President of the General Court of 8 May 2019 — Sumitomo Chemical and Tenka Best v Commission
      (Case T-734/18 R)
      (Interim measures - Biocidal products - Active substance empenthrin - Non-approval - Application for suspension of operation of a measure - No urgency)
      (2019/C 230/67)
      Language of the case: English

         Parties

         Applicants: Sumitomo Chemical (UK) plc (London, United Kingdom), Tenka Best, SL (Aiguafreda, Spain) (represented by: K. Van Maldegem, lawyer, and V. McElwee, Solicitor)

         Defendant: European Commission (represented by: L. Haasbeek and R. Lindenthal, acting as Agents)

         Intervener in support of the defendant: Kingdom of Belgium (represented by: L. Van den Broeck and P. Cottin, acting as Agents, and by A. Poppe and E. Jacubowitz, lawyers)

         Re:

      Application under Articles 278 and 279 TFEU seeking the suspension of the operation of Commission Implementing Decision (EU) 2018/1251 of 18 September 2018 not approving empenthrin as an existing active substance for use in biocidal products of product-type 18 (OJ 2018 L 235, p. 24).

         Operative part of the order

                  1.

                     The application for interim measures is dismissed.

                  2.

                     The costs are reserved.


title: Case T-245/19: Action brought on 10 April 2019 — Uzina Metalurgica Moldoveneasca/Commission

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/54

      Action brought on 10 April 2019 — Uzina Metalurgica Moldoveneasca/Commission
      (Case T-245/19)
      (2019/C 230/68)
      Language of the case: English

         Parties

         Applicant: Uzina Metalurgica Moldoveneasca OAO (Rîbnița, Moldova) (represented by: P. Vander Schueren and E. Gergondet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare the action admissible;

                  —

                  annul Commission Implementing Regulation (EU) 2019/159 of 31 January 2019, (1) as far as it applies to the applicant; and

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the Commission Implementing Regulation 2019/159 is based on a manifest error of assessment and would have violated the principles of equality and non-discrimination by applying definitive safeguard measures to imports originating in Moldova, whereas comparable imports originating in countries that are members of the European Economic Area would have been excluded.

                  2.

                  Second plea in law, alleging that Commission Implementing Regulation 2019/159 violates Article 18 of Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 (2) by applying definitive safeguard measures to imports originating in Moldova, even though imports from developing countries, such as Moldova, should have been excluded from the application of such measures.

                  3.

                  Third plea in law, in the alternative, alleging that the defendant violated the principles of sound administration and legitimate expectation, would have committed a manifest error of assessment and would have violated Article 16 of Regulation 2015/478 by failing to assess whether the conditions for imposing safeguard measures would have been met for each product category forming the product concerned separately.

                  4.

                  Fourth plea in law, alleging that the defendant committed a manifest error of assessment, would have breached its duty of care and would have violated Articles 9(1)(a) and 16 of Regulation 2015/478 by considering that the increase in imports of the product in the European Union would have justified the imposition of safeguard measures.

                  5.

                  Fifth plea in law, alleging that the defendant, when it established the existence of a threat of serious injury, committed a manifest error of assessment, would have violated the principle of sound administration, would have breached its duty of care and would have acted contrary to Articles 5(2), 9(2) and 16 of Regulation 2015/478.

                  6.

                  Sixth plea in law, alleging that the defendant committed a manifest error of assessment and would have violated Article 16 of Regulation 2015/478 as it would have not established that the increase in imports was such as to threaten to cause serious injury to the European Union industry and would have not considered other factors likely to justify the alleged threat of serious injury.

                  7.

                  Seventh plea in law, alleging that Commission Implementing Regulation 2019/159 violates Article 16 of Regulation 2015/478 as the defendant would have lacked competence and would have acted in breach of Article 5(1) of Regulation 2015/478 when it would have initiated an investigation ex officio that would have led to the adoption of the Commission Implementing Regulation 2019/159.

                  8.

                  Eighth plea in law, alleging that the defendant violated the right to a fair hearing of the applicant by failing to disclose essential information regarding the evolution of imports and the injury situation of the European Union industry.

         (1)  Commission Implementing Regulation (EU) 2019/159 of 31 January 2019 imposing definitive safeguard measures against imports of certain steel products (OJ L 31, 1.2.2019, p. 27).

         (2)  Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 on common rules for imports (OJ L 83, 27.3.2015, p. 16).


title: Case T-266/19: Action brought on 20 April 2019 — gastivo portal v EUIPO — La Fourchette (Representation of a fork on a green background)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/55

      Action brought on 20 April 2019 — gastivo portal v EUIPO — La Fourchette (Representation of a fork on a green background)
      (Case T-266/19)
      (2019/C 230/69)
      Language of the case: English

         Parties

         Applicant: gastivo portal GmbH (Bremen, Germany) (represented by: O. Spieker, A. Schönfleisch, N. Willich and N. Achilles, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: La Fourchette SAS (Paris, France)

         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 (Representation of a fork on a green background) — Application for registration No 15 474 356

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20 February 2019 in Case R 1213/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings including the costs necessarily incurred by the applicant before the Board of Appeal.

         Pleas in law

                  —

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

                  —

                  Infringement of Article 46(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-267/19: Action brought on 20 April 2019 — gastivo portal v EUIPO — La Fourchette (Representation of a fork on a green background)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/56

      Action brought on 20 April 2019 — gastivo portal v EUIPO — La Fourchette (Representation of a fork on a green background)
      (Case T-267/19)
      (2019/C 230/70)
      Language of the case: English

         Parties

         Applicant: gastivo portal GmbH (Bremen, Germany) (represented by: O. Spieker, A. Schönfleisch, N. Willich and N. Achilles, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: La Fourchette SAS (Paris, France)

         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 (Representation of a fork on a green background) — Application for registration No 15 474 356

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 20 February 2019 in Case R 1211/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings including the costs necessarily incurred by the applicant before the Board of Appeal.

         Pleas in law

                  —

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

                  —

                  Infringement of Article 46(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-294/19: Action brought on 4 May 2019 — Vanhoudt and Others v EIB

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/57

      Action brought on 4 May 2019 — Vanhoudt and Others v EIB
      (Case T-294/19)
      (2019/C 230/71)
      Language of the case: English

         Parties

         Applicants: Patrick Vanhoudt (Gonderange, Luxembourg) and nine other applicants (represented by: A. Haines, Barrister)

         Defendant: European Investment Bank (EIB)

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul the EIB’s decision of 31 January 2019 refusing to compensate the applicants for their uncompensated losses and refusing to share the SPAC simulation tool and its results;

                  —

                  further, or in the alternative, order the EIB to compensate the applicants for the non-material damage flowing from and caused by the EIB’s decision to withhold the SPAC simulation tool and/or its results;

                  —

                  order the EIB to disclose the SPAC actuarial simulation tool and its results in the form of print-outs of the actuarial simulations in order that the applicants can evaluate their uncompensated loss, and thus, the adequacy — or lack thereof — of the compensatory measures provided to them by the EIB following reforms to their pension and remuneration;

                  —

                  order the EIB to bear the costs.

         Pleas in law and main arguments

      In support of the action, the applicants rely on four pleas in law, in so far as their application for annulment is concerned, and on the other grounds indicated below in relation to their request that the Court order production of the said simulation tool and its results.

                  1.

                  First plea in law, regarding the annulment claim, alleging breach of the paragraphs 9, 10 and 14 to 18 of the Memorandum of Understanding and the accompanying side letter entered into by the EIB and its staff representatives on 18 May 2009.

                  2.

                  Second plea in law, regarding the annulment claim, alleging breach of the principle of legitimate expectations.

                  3.

                  Third plea in law, regarding the annulment claim, alleging breach of the right to an effective remedy, good administration and transparency.

                  4.

                  Fourth plea in law, regarding the annulment claim, alleging breach of access to personal data.

            In relation to the claim for production of the said simulation tool and its results, the applicants argue, further, as follows.

                  —

                  The EIB’s failure to disclose the SPAC actuarial simulation tool is in breach of Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union and of Article 15(1) and 15(3) of the TFEU;

                  —

                  The EIB is infringing the applicants’ rights of access to personal data in breach of Articles 14 and 17 of Regulation (EU) 2018/1725 of the European Parliament and of the Council. (1)

         (1)  Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39).


title: Case T-299/19: Action brought on 9 May 2019 — VG v Commission

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/58

      Action brought on 9 May 2019 — VG v Commission
      (Case T-299/19)
      (2019/C 230/72)
      Language of the case: French

         Parties

         Applicant: VG (represented by: L. Levi, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of 6 March 2019 taken with a view to complying with the judgment of the General Court of 27 November 2018 in Joined Cases T-314/16 and T-435/16, VG v Commission in so far as it refuses the transfer of certain personal data to the applicant;

                  —

                  order the defendant to pay compensation for the non-material damage assessed ex aequo et bono at EUR 20 000;

                  —

                  order the defendant to pay all the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 266 TFEU and a failure to take account of the force of res judicata attaching to the judgment of the General Court of 27 November 2018, VG v Commission (T-314/16 and T-435/16, EU:T:2018:841).
      The applicant further requests compensation for the non-material damage suffered as a result of the refusal set out in the decision of 6 March 2019.


title: Case T-305/19: Action brought on 14 May 2019 — Welmax + v EUIPO — Valmex Medical Imaging (welmax)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/59

      Action brought on 14 May 2019 — Welmax + v EUIPO — Valmex Medical Imaging (welmax)
      (Case T-305/19)
      (2019/C 230/73)
      Language in which the application was lodged: Polish

         Parties

         Applicant: Welmax + sp. z o.o. sp. k. (Poznań, Poland) (represented by: M. Machyński, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Valmex Medical Imaging GmbH (Augsburg, Germany)

         Details of the proceedings before EUIPO

         Proprietor of the trade mark at issue: Applicant

         Trade mark at issue: International registration designating the European Union in respect of the mark ‘welmax’ — International registration designating the European Union No 1 342 786

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 22 March 2019 in Case R 2245/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision in its entirety and give judgment on the substance of the case;

                  —

                  issue judgment by default in the cases provided for by law;

                  —

                  order EUIPO to pay the costs incurred by the applicant in the proceedings before the Court, including the costs incurred in respect of legal representation in accordance with the rules laid down by law.

         Pleas in law

                  —

                  Error of assessment with regard to the facts upon which the decision was based, which consisted in accepting that the decision which, in accordance with the legal provisions, could be the subject of an appeal, was effectively notified to the applicant on 20 July 2018 (allegedly by courier service), whereas the contents of that decision were notified to the applicant on 21 September 2018, after prior correspondence by email and a request to that effect had been submitted by the applicant to an agent of EUIPO;

                  —

                  Infringement of Article 68(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 68(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council read in conjunction with Article 23(3) of Commission Delegated Regulation (EU) 2018/625.


title: Case T-307/19: Action brought on 20 May 2019 — SQlab v EUIPO (Innerbarend)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/60

      Action brought on 20 May 2019 — SQlab v EUIPO (Innerbarend)
      (Case T-307/19)
      (2019/C 230/74)
      Language of the case: German

         Parties

         Applicant: SQlab GmbH (Taufkirchen, Germany) (represented by: A. Koelle, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for EU word mark Innerbarend — Application for registration No 15 442 635

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 18 March 2019 in Case R 2180/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  amend the contested decision to the effect that the action is well founded and the EU trade mark ‘Innerbarend’ is to be registered in Class 12;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

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

                  —

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


title: Case T-308/19: Action brought on 17 May 2019 — BU v Commission

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/61

      Action brought on 17 May 2019 — BU v Commission
      (Case T-308/19)
      (2019/C 230/75)
      Language of the case: Italian

         Parties

         Applicant: BU (represented by: E. Bonanni, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul the decision of 11 January 2019 by which the Commission decided to create a new medical committee to give a new opinion on the requested recognition of aggravation of the applicant’s occupational disease;

                  —

                  order that the decision on the requested recognition of aggravation must be taken on the basis of the opinion already expressed by the previous medical committee on 8 January 2014, derogating from Article 12 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, in force prior to 1 January 2006 (‘the Rules’), as recognised by amended mandate of 11 January 2019, for the purposes of ordering the Commission to pay EUR 639 4[2]1.37 (of which EUR 98 372,51 has already been paid) on the basis of the allowance provided for in Article 14 of the Rules, or the provision establishing an identical or similar obligation;

                  —

                  order the Commission to pay EUR 5 000 for each month of delay in adopting the measure;

                  —

                  order the Commission to pay compensation in the amount of EUR 100 000 for unlawfully issuing Mandate No 3 of 25 January 2018, contrary to the judgments in Cases T-551/16 and T-212/01;

                  —

                  order the Commission to pay compensation in the amount of EUR 50 000 for disapplication of the fee scale for doctors who have been or will be appointed;

                  —

                  order the Commission to pay compensation in the amount of EUR 100 000 for the unjustifiable delay in completing the administrative stage of the proceedings;

                  —

                  order the Commission to pay compensation in the amount of EUR 1 000 000 for the disgraceful behaviour of Dr AB, a non-independent direct employee of the appointing authority, in relation to his questionable conduct as described in the application;

                  —

                  lastly, order the Commission to pay the costs.

         Pleas in law and main arguments

      The applicant claims, in essence, that the Commission should be reproached for not having taken the decision to pay him the amount of EUR 639 421,37 (of which EUR 98 372,51 has already been paid) which constitutes the allowance provided for under Article 14 of the Rules, following the opinion of the medical committee of 8 January 2014 in connection with his request of 7 June 2000 for recognition of aggravation of his occupational disease.
      In support of the action, the applicant relies on four pleas in law.

                  1.

                  First plea in law, alleging infringement of Article 266 TFEU and of the obligation to comply with final judgments, in so far as the Commission did not comply with the judgments in Cases T-212/01 and T-551/16 with respect to the erroneous confusion of invalidity per se with the allowance provided for in Article 14 of the Rules.

                  2.

                  Second plea in law, alleging misuse of powers in the present case.

                  3.

                  Third plea in law, alleging infringement of Article 73 of the Staff Regulations and of the case-law of the European Union regarding the proceedings of the medical committee.

                  4.

                  Fourth plea in law, alleging infringement of the principle that the duration of proceedings must be reasonable.