title: Case T-312/19: Action brought on 21 May 2019 — Wilhelm Sihn jr. v EUIPO — Golden Frog (CHAMELEON)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/63

      Action brought on 21 May 2019 — Wilhelm Sihn jr. v EUIPO — Golden Frog (CHAMELEON)
      (Case T-312/19)
      (2019/C 230/76)
      Language of the case: English

         Parties

         Applicant: Wilhelm Sihn jr. GmbH & Co. KG (Niefern-Öschelbronn, Germany) (represented by: H. Twelmeier, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Golden Frog GmbH (Meggen, Suisse)

         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 word mark CHAMELEON — Application for registration No 12 567 269

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 7 March 2019 in Case R 1551/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to bear its own costs and to pay those incurred by Wilhelm Sihn jr. GmbH & Co. KG;

                  —

                  order Golden Frog GmbH to bear its own costs in case of an intervention.

         Pleas in law

                  —

                  Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 27(4) of Commission Delegated Regulation (EU) 2018/625;

                  —

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


title: Case T-314/19: Action brought on 22 May 2019 — Fundación Tecnalia Research & Innovation v Commission

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/64

      Action brought on 22 May 2019 — Fundación Tecnalia Research & Innovation v Commission
      (Case T-314/19)
      (2019/C 230/77)
      Language of the case: Spanish

         Parties

         Applicant: Fundación Tecnalia Research & Innovation (Donostia-San Sebastián, Spain) (represented by: P. Palacios Pesquera and M. Ríus Coma, lawyers).

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  Declare the application, and the pleas in law contained therein, admissible;

                  —

                  Uphold the pleas in law put raised in the application and, accordingly:

                              a)

                              Declare that the termination of the BreadGuard project is unfounded and, consequently, bring the inter partes procedure in question to a close.

                              b)

                              In the alternative, order the Commission to pay the amounts corresponding to the works actually carried out by TECNALIA and to cease requesting recovery of the amounts of aid granted in respect of the BreadGuard project that were received by TECNALIA for the implementation of the project.

                              c)

                              In the further alternative, annul the decision to terminate and order the reopening of the inter partes procedure until the shortcomings observed and reported by TECNALIA in the terms set out in the application are remedied.

                              d)

                              In any event, declare that no finding of grave professional misconduct on the part of TECNALIA is to be made.

                  —

                  Order the Directorate-General for Research and Innovation of the European Union to pay the costs of the proceedings.

         Pleas in law and main arguments

      The present action has been brought against the closure of the inter partes procedure in respect of the project FP7-KBBE-2013-613647 BREADGUARD grant agreement, which was the subject of the request for redress dismissed by notice of 22 March 2019.
      In support of its action, the applicant relies on five pleas in law.

                  1.

                  First plea, alleging that TECNALIA did not infringe the grant agreement

                              —

                              In that regard, the applicant submits that the grant agreement was wrongfully applied, in that it imputes the infringement of Articles II.38(1)(b), II.38(1)(c), II.38(1)(f) and II.38(1)(l) thereof, given that TECNALIA evidently did not infringe the grant agreement’s content in respect of each and every one of the irregularities and infringements imputed in the decision to terminate.

                  2.

                  Second plea, alleging that Article II.38 of the grant agreement was wrongfully applied.

                              —

                              In that regard, the applicant claims that Article II.38(1)(l) of the grant agreement was wrongfully applied in view of the finding of grave professional misconduct on the part of TECNALIA.

                  3.

                  Third plea, alleging that Article II.38(1)(l) of Annex II to the grant agreement was wrongfully applied

                              —

                              In that regard, the applicant submits that Article II.38 of the grant agreement was wrongfully applied in order to terminate the BreadGuard project by holding the Consortium accountable as a whole.

                  4.

                  Fourth plea, alleging infringement of Article II.23(5) of Annex II to the grant agreement

                              —

                              In that regard, the applicant alleges infringement of the content of Annex II to the BreadGuard grant agreement, on account of the European Commission’s failure to disclose the identity of the independent experts who endorsed the expert reports on which the contested decision was founded, thereby preventing TECNALIA from challenging those reports.

                  5.

                  Fifth plea, alleging that the acknowledgement of the findings by one of the beneficiaries is irrelevant

                              —

                              In that regard, the applicant submits that the University of Kassel’s findings regarding the inter partes procedure in its capacity as one of the beneficiaries of the BreadGuard and FoodWatch projects are irrelevant.


title: Case T-419/18: Order of the General Court of 7 May 2019 — Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/65

      Order of the General Court of 7 May 2019 — Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission
      (Case T-419/18) (1)

      (2019/C 230/78)
      Language of the case: French
      The President of the Second Chamber has ordered that the case be removed from the register.

         (1)  OJ C 319, 10.9.2018.


title: Case T-699/18: Order of the General Court of 6 May 2019 — Apera Capital Master v EUIPO — Altera Capital (APERA CAPITAL)

text:
               8.7.2019

               EN

               Official Journal of the European Union

               C 230/66

      Order of the General Court of 6 May 2019 — Apera Capital Master v EUIPO — Altera Capital (APERA CAPITAL)
      (Case T-699/18) (1)

      (2019/C 230/79)
      Language of the case: English
      The President of the Third Chamber has ordered that the case be removed from the register.

         (1)  OJ C 44, 4.2.2019.


               14.12.2017

               EN

               Official Journal of the European Union

               C 429/29

         Request for an Advisory Opinion from the EFTA Court by Héraðsdómur Reykjavíkur dated 30 June 2017 in the case of Fjarskipti hf. v Síminn hf.
   (Case E-6/17)
   (2017/C 429/13)
   A request has been made to the EFTA Court by a letter dated 30 June 2017 from Héraðsdómur Reykjavíkur (Reykjavik District Court), which was received at the Court Registry on 19 July 2017, for an Advisory Opinion in the case of Fjarskipti hf. v Síminn hf. on the following questions:

               1.

               Does it constitute part of the effective implementation of the EEA Agreement that a natural or a legal person in an EFTA State should be able to invoke Article 54 of the Agreement before a domestic court in order to claim compensation for a violation of the prohibitions of that provision?

               2.

               When assessing whether the conditions are fulfilled for a compensation claim in view of a violation of competition rules, is it of significance whether the competent authorities have delivered a final ruling on a violation of Article 54 EEA?

               3.

               Is it regarded as an unlawful margin squeeze, violating Article 54 EEA, when an undertaking in a dominant position on a wholesale market sets termination rates applying to its competitors in such a way that the dominant undertaking’s own retail division would be unable to profit from the sale of telephone calls within its system if it had to bear the cost of selling them under the same circumstances, when the dominant undertaking itself is also obliged to purchase termination from these same competitors at a higher price than that at which it sells termination to its competitors?

               4.

               Is the fact that an undertaking is in a dominant position on the relevant wholesale market sufficient for it to be guilty of applying an unlawful margin squeeze, violating Article 54 EEA, or must the undertaking also be in a dominant position on the relevant retail market?


title: Case T-667/17: Action brought on 21 September 2017 — Alkarim for Trade and Industry v Council

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/33

         Action brought on 21 September 2017 — Alkarim for Trade and Industry v Council
   (Case T-667/17)
   (2017/C 437/41)
   Language of the case: French

      Parties

      Applicant: Alkarim for Trade and Industry LLC (Tal Kurdi, Syria) (represented by: J.-P. Buyle and L. Cloquet, lawyers)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Decision (CFSP) 2017/1245 of 10 July 2017 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria, as far as concerns the applicant;

               —

               annul Council Implementing Regulation (EU) 2017/1241 of 10 July 2017 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, as far as concerns the applicant;

               —

               order the Council to pay all the costs of the action, including those incurred by the applicant.

      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 a manifest error of assessment of the facts in so far as the Council has not adduced any evidence proving that the applicant is an internationally recognised Syrian conglomerate.
               According to the applicant, that contention is completely flawed and is indicative of the numerous substantive inaccuracies in the Council’s approach.
               In addition, the applicant considers that it has demonstrated that it is not a large company but that it qualifies as a small or medium-sized company under EU law and has no international reputation.
               It is also of the opinion that the Council failed to take into consideration both the judgment of 6 April 2017, Alkarim for Trade and Industry v Council (T-35/15, not published, EU:T:2017:262) and that of 11 May 2017, Abdulkarim v Council (T-304/15, not published, EU:T:2017:327), in which the General Court annulled the sanctions imposed, respectively, against the applicant and Mr Wael Abdulkarim as a result of manifest errors of assessment by the Council.

               2.

               Second plea in law, alleging infringement of the general principle of proportionality, in so far as:

                           —

                           the contested measures allegedly result in international trade being closed to the applicant since the latter carries out a substantial part of its activities with European suppliers and customers;

                           —

                           the contested measures are also allegedly such as to render numerous existing, current contracts inoperative and give rise to the applicant’s contractual and quasidelictual liability with regard to its customers and contracting parties, in an unjustified manner. The applicant regards that sanction as completely disproportionate.

               3.

               Third plea in law, alleging disproportionate infringement of the right to property and the right to pursue an occupation since, by adopting those sanctions, the Council inevitably infringed the applicant’s right to property and its right to pursue an economic activity, in breach of the First Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicant is of the opinion that it cannot be prevented from peacefully enjoying its property and economic freedom, which therefore justifies the annulment of the contested decisions in so far as they concern the applicant.

               4.

               Fourth plea in law, alleging misuse of power in so far as the measures adopted by the Council have no effect at all on the Syrian regime and in so far as the applicant remained at all times independent of the power in place. Thus, according to the applicant, the sanctions imposed by the Council are unfounded and unsubstantiated, and their intended subject is not the Syrian regime but the applicant alone, for reasons unknown to it.

               5.

               Fifth plea in law, alleging infringement of the obligation to state reasons laid down in the second subparagraph of Article 296 of the Treaty on the Functioning of the European Union (TFEU). In that respect, the applicant claims that the Council’s statement of reasons in support of the contested measures is cryptic and makes no reference to any relevant concrete evidence enabling it to identify the reason for which it is considered to be ‘an internationally recognised Syrian conglomerate associated with Wael Abdulkarim, who is listed as a leading businessperson operating in Syria’.


title: Case T-628/15: Judgment of the General Court of 7 November 2017 — Frame v EUIPO — Bianca-Moden (BiancalunA) (EU trade mark — Opposition proceedings — Application for the EU figurative mark BiancalunA — Rejection — Earlier national figurative mark bianca — Relative ground for refusal — No likelihood of confusion — Identity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/26

         Judgment of the General Court of 7 November 2017 — Frame v EUIPO — Bianca-Moden (BiancalunA)
   (Case T-628/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU figurative mark BiancalunA — Rejection - Earlier national figurative mark bianca - Relative ground for refusal - No likelihood of confusion - Identity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
   (2017/C 437/31)
   Language of the case: English

      Parties

      Applicant: Frame Srl (San Giuseppe Vesuviano, Italy) (represented by: E. Montelione, M. Borghese and R. Giordano, lawyers)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Bianca-Moden GmbH & Co. KG (Ochtrup, Germany) (represented by: P. Lange, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 7 August 2015 (Case R 2720/2014-5), relating to opposition proceedings between Bianca-Moden and Frame.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 August 2015 (Case R 2720/2014-5);

               2.

               Orders EUIPO to bear its own costs and to pay those incurred by Frame Srl;

               3.

               Orders Bianca-Moden GmbH & Co. KG to bear its own costs.

      (1)  OJ C 7, 11.1.2016.


title: Case T-698/17: Action brought on 11 October 2017 — MAN Truck & Bus v EUIPO — Halla Holdings (MANDO)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/35

         Action brought on 11 October 2017 — MAN Truck & Bus v EUIPO — Halla Holdings (MANDO)
   (Case T-698/17)
   (2017/C 437/42)
   Language in which the application was lodged: German

      Parties

      Applicant: MAN Truck & Bus AG (Munich, Germany) (represented by: C. Röhl, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Halla Holdings Corp. (Yongin-si, Republic of Korea)

      Details of the proceedings before EUIPO

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

      Trade mark at issue: EU word mark ‘MANDO’ — Application for registration No 11 276 144

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of 13 July 2017 in Case R 1919/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

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


title: Case C-389/15: Judgment of the Court (Grand Chamber) of 25 October 2017 — European Commission v Council of the European Union (Action for annulment — Council decision authorising the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications — Article 3(1) TFEU — Exclusive competence of the European Union — Common commercial policy — Article 207(1) TFEU — Commercial aspects of intellectual property)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/2

         Judgment of the Court (Grand Chamber) of 25 October 2017 — European Commission v Council of the European Union
   (Case C-389/15) (1)

   ((Action for annulment - Council decision authorising the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications - Article 3(1) TFEU - Exclusive competence of the European Union - Common commercial policy - Article 207(1) TFEU - Commercial aspects of intellectual property))
   (2017/C 437/02)
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: F. Castillo de la Torre, J. Guillem Carrau, B. Hartmann, A. Lewis and M. Kocjan, Agents)

      Intervener in support of the applicant: European Parliament (represented by: J. Etienne, A. Neergaard and R. Passos, Agents)

      Defendant: Council of the European Union (represented by: M. Balta and F. Florindo Gijón, Agents)

      Interveners in support of the defendant: Czech Republic (represented by: M. Hedvábná, K. Najmanová, M. Smolek and J. Vláčil, Agents), Federal Republic of Germany (represented by: T. Henze and J. Techert, Agents), Hellenic Republic (represented by: M. Tassopoulou, Agent), Kingdom of Spain (represented by: M.A. Sampol Pucurull, Agent), French Republic (represented by: G. de Bergues, D. Colas, F. Fize, B. Fodda and D. Segoin, Agents), Italian Republic (represented by: G. Palmieri, Agent, and S. Fiorentino, avvocato dello Stato), Hungary (represented by: M. Bóra, M.Z. Fehér and G. Koós, Agents), Kingdom of the Netherlands (represented by: M. Bulterman, M. Gijzen and B. Koopman, Agents), Republic of Austria (represented by: C. Pesendorfer, Agent), Portuguese Republic (represented by: M. Figueiredo, L. Inez Fernandes and M.L. Duarte, Agents), Slovak Republic (represented by: M. Kianička, Agent), United Kingdom of Great Britain and Northern Ireland (represented by: C. Brodie and D. Robertson, Agents)

      Operative part of the judgment

   The Court:

               1.

               Annuls Council Decision 8512/15 of 7 May 2015 authorising the opening of negotiations on a revised Lisbon Agreement on Appellations of Origin and Geographical Indications as regards matters falling within the competence of the European Union;

               2.

               Maintains the effects of Decision 8512/15 until the entry into force, within a reasonable period which cannot exceed six months from the date of delivery of the present judgment, of a decision of the Council of the European Union based on Articles 207 and 218 TFEU;

               3.

               Orders the Council of the European Union to pay the costs;

               4.

               Orders the Czech Republic, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, Hungary, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Slovak Republic, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

      (1)  OJ C 311, 21.9.2015.


title: Case C-558/17 P: Appeal brought on 22 September 2017 by OZ against the judgment of the General Court (Sixth Chamber) delivered on 13 July 2017 in Case T-607/16: OZ v European Investment Bank

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/17

         Appeal brought on 22 September 2017 by OZ against the judgment of the General Court (Sixth Chamber) delivered on 13 July 2017 in Case T-607/16: OZ v European Investment Bank
   (Case C-558/17 P)
   (2017/C 437/21)
   Language of the case: English

      Parties

      Appellant: OZ (represented by: B. Maréchal, avocat)

      Other party to the proceedings: European Investment Bank

      Form of order sought

   The appellant claims that the Court should:

               —

               annul the judgment in Case T-607/16 under appeal in whole;

               —

               annul the decision from Dr. Werner Hoyer, President of the EIB dated 16 October 2015 rendered in the framework of DAW procedure launched by OZ’s request dated 20 May 2015 towards the supervisor Mr. F, as investigated by the Investigation Panel and annul the Report dated 14 September 2015 related to the request filed by OZ, in which the complaint of OZ has been rejected and inappropriate recommendations have been included;

               —

               compensation for medical costs as a result of the damage suffered by OZ in an amount of (i) EUR 977 to date (including VAT) and (ii) a provisional amount of EUR 5 850 for future medical costs;

               —

               damages in relation to the moral prejudice suffered amounting to EUR 20 000;

               —

               legal fees for the current proceedings amounting to EUR 35 100 (including VAT);

               —

               order the EIB to pay the costs of this proceeding in appeal and before the General Court;

               —

               order the re-opening of the DAW procedure by EIB and/or a new decision from the President of the EIB.

      Pleas in law and main arguments

   The appellant claims that the Court should set aside the judgment of the General Court of 13 July 2017, OZ v European Investment Bank (Case T-607/16) by which the General Court dismissed the action for annulment of the decision of the President of the EIB, dated 16 October 2015, given within the framework of the dignity at work investigation procedure launched by OZ’s dignity at work request dated 20 May 2015, concerning Mr. F, regarding sexual harassment allegations as investigated by the Investigation Panel and annulment of the report by the investigation panel, dated 14 September 2015, related to the dignity at work request filed by OZ on 20 May 2015 (‘the Decision and the Report at issue’).
   The case is related to sexual harassment allegations raised by OZ regarding the supervisor, Mr. F, which occurred between 2011 and 2014 and led OZ to initiate a formal dignity at work procedure filed on 20 May 2015.
   In accordance with the dignity at work procedure, an investigation panel has issued a report, dated 14 September 2014, on the basis of which the President of the European Investment Bank has given a decision dated 16 October 2015.
   The appellant claims that: (i) there have been several irregularities during the process of the investigation procedure, in particular with respect to violations related to OZ’s right to due process, fair hearing (as set forth in Article 6 of the European convention of human rights (‘ECHR’) and Article 47 of the charter of fundamental rights of the European Union (‘CFR’) and (ii) both the report and the Decision contain several elements which are not only irrelevant for the treatment of OZ’s complaint about sexual harassment, which pertains to the private life of OZ and should thus be removed, or are irrelevant and exceed the scope of the investigation.
   After having unsuccessfully tried to find an amicable settlement of the dispute, notably by the launching of a conciliation procedure based on Article 41 of the European Investment Bank’s staff regulations (the failure of which has been established on 22 April 2016), OZ, through the lawyer, Me Benoit Maréchal, lodged an application with the European Union Civil Service Tribunal for annulment of the decision and report.
   By judgment of 13 July 2017 the General Court dismissed the action. The General Court considered that the European Investment Bank had not committed unlawful acts towards OZ within the framework of the sexual harassment investigation procedure and dismissed the claim for damages.
   OZ is lodging the present appeal relying on the grounds of infringement of European Union law by the General Court and tries to demonstrate EIB’s liability.

               —

               First Plea in law: infringement of the dignity at work procedure and of Article 6 of the ECHR and Article 47 of the CFR: the principle of the right of OZ to due process, fair hearing and fair proceedings, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 47 of the Charter of Fundamental Rights of the European Union, has been infringed during the investigation of the harassment request.

               —

               Second Plea in law: infringement of Article 8 of the ECHR and Article 7 of the CFR: insertion of irrelevant elements and comments integrated in the report and the decision of the EIB’s President — violation of the right of OZ to respect for a private life.

               —

               Third Plea in law: infringement on the ground of denial of justice as the General Court did not rule based on the facts and legal basis submitted.


title: Case C-195/16: Judgment of the Court (Second Chamber) of 26 October 2017 (reference for a preliminary ruling from the Amtsgericht Kehl) — I v Staatsanwaltschaft Offenburg (Reference for a preliminary ruling — Transport — Driving licences — Directive 2006/126/EC — Article 2(1) — Mutual recognition of driving licences — Definition of ‘driving licence’ — Driving licence pass certificate authorising its holder to drive in the Member State having awarded it before the issue of the definitive driving licence — Situation in which the holder of a test pass certificate drives a vehicle in another Member State — Obligation to recognise the test pass certificate — Penalties imposed on the holder of the test pass certificate for driving a vehicle outside of the Member State in which it was awarded — Proportionality)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/8

         Judgment of the Court (Second Chamber) of 26 October 2017 (reference for a preliminary ruling from the Amtsgericht Kehl) — I v Staatsanwaltschaft Offenburg
   (Case C-195/16) (1)

   ((Reference for a preliminary ruling - Transport - Driving licences - Directive 2006/126/EC - Article 2(1) - Mutual recognition of driving licences - Definition of ‘driving licence’ - Driving licence pass certificate authorising its holder to drive in the Member State having awarded it before the issue of the definitive driving licence - Situation in which the holder of a test pass certificate drives a vehicle in another Member State - Obligation to recognise the test pass certificate - Penalties imposed on the holder of the test pass certificate for driving a vehicle outside of the Member State in which it was awarded - Proportionality))
   (2017/C 437/11)
   Language of the case: German

      Referring court

   Amtsgericht Kehl

      Parties to the main proceedings

      Applicant: I

      Defendant: Staatsanwaltschaft Offenburg

      Operative part of the judgment

               1.

               Article 2(1) of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences and Articles 18, 21, 45, 49 and 56 TFEU must be interpreted as not precluding legislation of a Member State under which that Member State may refuse to recognise a certificate issued in another Member State evidencing its holder’s right to drive, where that certificate does not fulfil the requirements of the model driving licence provided for in that directive, even if the conditions set by that directive for issuing a driving licence have been satisfied by the holder of that certificate.

               2.

               Article 2(1) of Directive 2006/126 and Articles 21, 45, 49 and 56 TFEU must be interpreted as not precluding a Member State from imposing a penalty on a person who, despite having satisfied the conditions for the issuing of a driving licence as provided for in that directive, drives a motor vehicle in that Member State without a driving licence conforming to the model driving licence provided for in that directive and who, pending the issuing of such a driving licence by another Member State, can prove only that he has been granted the right to drive in another Member State by means of a temporary certificate issued by that Member State, provided that that penalty is not disproportionate to the seriousness of the facts at issue. It is thus for the referring court to take into account, in its assessment of the seriousness of the offence committed by the person in question and of the severity of the penalty to be imposed on him, as a potentially mitigating circumstance, the fact that that person had been granted the right to drive in another Member State, evidenced by a certificate issued by that other Member State which will, in principle, be exchanged before its expiry, at that person’s request, for a driving licence conforming to the requirements of the model driving licence provided for in Directive 2006/126. That court must also consider, in the context of its assessment, what actual risk that person posed for road safety in its territory.

      (1)  OJ C 260, 18.7.2016.


title: Case T-42/16: Judgment of the General Court of 8 November 2017 — De Nicola v Council and Court of Justice of the European Union (Non-contractual liability — Civil service — EIB staff — Guidelines concerning laser treatment — Article 47 of the Charter of Fundamental Rights — Reasonable time — Failure to comply with the rules governing the right to a fair hearing — Material damage — Non-material damage — Claims made by the applicant in the context of a case pending before the Civil Service Tribunal — Partial referral of the case to the General Court)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/27

         Judgment of the General Court of 8 November 2017 — De Nicola v Council and Court of Justice of the European Union
   (Case T-42/16) (1)

   ((Non-contractual liability - Civil service - EIB staff - Guidelines concerning laser treatment - Article 47 of the Charter of Fundamental Rights - Reasonable time - Failure to comply with the rules governing the right to a fair hearing - Material damage - Non-material damage - Claims made by the applicant in the context of a case pending before the Civil Service Tribunal - Partial referral of the case to the General Court))
   (2017/C 437/32)
   Language of the case: Italian

      Parties

      Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: initially by L. Isola and G. Isola, and subsequently by G. Ferabecoli, lawyers)

      Defendants: Council of the European Union (represented by: E. Rebasti and M. Veiga, acting as Agents) and Court of Justice of the European Union (represented by: initially by J. Inghelram, P. Giusta and L. Tonini Alabiso, and subsequently by J. Inghelram, acting as Agents)

      Re:

   Application under Article 268 TFEU seeking compensation for the damage which the applicant claims to have suffered as a result of, first, the adoption by the EU legislature of certain guidelines concerning laser treatment, second, the allegedly excessive duration of the proceedings before the European Union Civil Service Tribunal and the General Court in relation to his request for reimbursement of the medical fees connected with laser treatment, third, the supposedly unfair nature of those proceedings and, fourth, the numerous actions which he has been compelled to bring by the Civil Service Tribunal and the General Court.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Carlo De Nicola to pay the costs relating to the present proceedings before both the General Court of the European Union and the European Union Civil Service Tribunal.

      (1)  OJ C 279, 24.8.2015 (case initially registered before the European Union Civil Service Tribunal as Case F-82/15).


title: Case T-703/17: Action brought on 12 October 2017 — Cyprus v EUIPO — Papouis Dairies (Papouis Halloumi)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/35

         Action brought on 12 October 2017 — Cyprus v EUIPO — Papouis Dairies (Papouis Halloumi)
   (Case T-703/17)
   (2017/C 437/43)
   Language in which the application was lodged: English

      Parties

      Applicant: Republic of Cyprus (represented by: V. Marsland, Solicitor and S. Malynicz, QC)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Papouis Dairies LTD (Nicosia, Cyprus)

      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: EU figurative mark in colours containing the word elements ‘Papouis Halloumi’ — Application for registration No 11 176 344

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 August 2017 in Case R 2924/2014-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

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

      Plea in law

               —

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


title: Case C-562/17: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 25 September 2017 — Nestrade, S.A. v Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/19

         Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 25 September 2017 — Nestrade, S.A. v Agencia Estatal de la Administración Tributaria (AEAT), Tribunal Económico-Administrativo Central (TEAC)
   (Case C-562/17)
   (2017/C 437/22)
   Language of the case: Spanish

      Referring court

   Audiencia Nacional

      Parties to the main proceedings

      Applicant: Nestrade, S.A.

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

      Questions referred

               1.

               Can the rule in Petroma (Case C-271/12) (1) be qualified so as to allow a VAT refund sought by an undertaking not established in the EU, even though the national tax authority has already issued a decision refusing the refund on the grounds that the undertaking had failed to respond to a request for information concerning its tax reference number, in view of the fact that the authority was in possession of that information at the relevant time since it had been provided by the undertaking in response to other requests?

               2.

               If that question is answered in the affirmative:
               Does a retroactive application of the rule in Senatex (Case C-518/14) (2) mean that an administrative act refusing the refund of the VAT in question must be revoked, in view of the fact that the act merely upheld a previous final administrative decision refusing the VAT refund, which was adopted by the AEAT using a procedure which was not the procedure laid down by law for that situation and which, furthermore, curtailed the rights of the applicant, depriving it of a legal remedy?

      (1)  Judgment of 8 May 2013, Petroma Transports and Others C-271/12, EU:C:2013:297.

      (2)  Judgment of 15 September 2016, Senatex, C-518/14, EU:C:2016:691.


title: Case T-99/16: Judgment of the General Court of 8 November 2017 — De Nicola v Court of Justice of the European Union (Non-contractual liability — Civil service — EIB staff — Psychological harassment — Failure to comply with the rules governing the right to a fair hearing — Article 47 of the Charter of Fundamental Rights — Reasonable time — Claims for compensation made in the context of an action pending before the Civil Service Tribunal — Partial referral of the case to the General Court)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/28

         Judgment of the General Court of 8 November 2017 — De Nicola v Court of Justice of the European Union
   (Case T-99/16) (1)

   ((Non-contractual liability - Civil service - EIB staff - Psychological harassment - Failure to comply with the rules governing the right to a fair hearing - Article 47 of the Charter of Fundamental Rights - Reasonable time - Claims for compensation made in the context of an action pending before the Civil Service Tribunal - Partial referral of the case to the General Court))
   (2017/C 437/33)
   Language of the case: Italian

      Parties

      Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: initially by L. Isola and G. Isola, and subsequently by G. Ferabecoli, lawyers)

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

      Re:

   Application under Article 268 TFEU seeking compensation for the damage which the applicant claims to have suffered as a result of, first, the psychological harassment to which he has been subjected by the European Investment Bank (EIB), on the one hand, and the supposedly unfair nature of the proceedings before the European Union Civil Service Tribunal and the General Court to which he has been a party, on the other, and, second, the allegedly excessive duration of those proceedings.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Carlo De Nicola to pay the costs relating to the present proceedings before both the General Court of the European Union and the European Union Civil Service Tribunal.

      (1)  OJ C 414, 14.12.2015 (case initially registered before the European Union Civil Service Tribunal as Case F-100/15).


title: Case C-575/17: Request for a preliminary ruling from the Conseil d’État (France) lodged on 28 September 2017 — Sofina SA, Rebelco SA, Sidro SA v Ministre de l’Action et des Comptes Publics

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/19

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 28 September 2017 — Sofina SA, Rebelco SA, Sidro SA v Ministre de l’Action et des Comptes Publics
   (Case C-575/17)
   (2017/C 437/23)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Sofina SA, Rebelco SA, Sidro SA

      Defendant: Ministre de l’Action et des Comptes Publics

      Questions referred

               1.

               Must Articles 56 and 58 of the Treaty establishing the European Community, now Articles 63 and 65 of the Treaty on the Functioning of the European Union, be interpreted as meaning that the cash-flow disadvantage resulting from the application of withholding tax to dividends paid to loss-making non-resident companies, while loss-making resident companies are not taxed on the amount of the dividends they receive until the year when, if at all, they return to a surplus, constitutes in itself a difference in treatment characterising a restriction on the free movement of capital?

               2.

               Must the potential restriction on the free movement of capital referred to in the preceding question, in view of the requirements resulting from Articles 56 and 58 of the Treaty establishing the European Community, now Articles 63 and 65 of the Treaty on the Functioning of the European Union, be regarded as being justified by the need to ensure the effective collection of tax, since non-resident companies are not subject to the supervision of the French tax authorities, or by the need to safeguard the allocation of the power to impose taxes between the Member States?

               3.

               If application of the withholding tax at issue may in principle be allowed with regard to the free movement of capital:

                           —

                           do those provisions preclude the collection of withholding tax on dividends paid by a resident company to a loss-making non-resident company of another Member State where the latter ceases to trade without returning to a surplus, while a resident company placed in that situation is not taxed on such dividends?

                           —

                           must those provisions be interpreted as meaning that where taxation rules apply which treat dividends differently depending on whether they are paid to residents or non-residents, it is appropriate to compare the actual tax burden borne by each of them in respect of those dividends, so that a restriction on the free movement of capital resulting from the fact that those rules preclude for non-residents alone the deduction of expenses which are directly linked to the actual payment of the dividends may be regarded as being justified by the difference in the rate of tax between the ordinary-law tax payable in a subsequent year by residents and the withholding tax levied on dividends paid to non-residents, where that difference compensates, with regard to the amount of tax paid, for the difference in the tax base?


title: Case T-708/17: Action brought on 12 October 2017 — OPS Újpest v Commission

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/36

         Action brought on 12 October 2017 — OPS Újpest v Commission
   (Case T-708/17)
   (2017/C 437/44)
   Language of the case: Hungarian

      Parties

      Applicant: OPS Újpesti Csökkentmunkaképességűek Ipari és Kereskedelmi Kft. (Budapest, Hungary) (represented by: L. Szabó, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that Commission Decision SA. 29432 — CP 290/2009 — Hungary — ‘Aid for the employment of disabled workers alleged to be unlawful due to the discriminatory nature of the legislation’, of 20 July 2011, and Commission Decision SA.45498 (FC/2016) — ‘Complaint made by OPS Újpest-lift Kft. concerning the State aid granted between 2006 and 2012 to companies employing disabled workers’, of 25 January 2017, (‘the contested decisions’) do not find that the State aid is compatible on the basis of Article 107(1) TFEU;

               —

               in the alternative, declare that the contested decisions do not constitute legally binding acts as regards the applicant in its action for damages brought against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) in Case No 28. P. 21.072/2016 (subsequently, 28. P. 21.143/2017) before the Fővárosi Törvényszék (Budapest High Court, Hungary), since the applicant bases its claim for damages on the infringement of Article 107(1) TFEU, and not on the infringement of Article 107(3) TFEU;

               —

               in the event that the contested decisions should be characterised as legally binding acts as regards the applicant in its action for damages based on the infringement of Article 107(1) TFEU, declare the contested decisions invalid, since the State aid granted by the Hungarian authorities infringes Article 107(1) TFEU.

      Pleas in law and main arguments

   In support of its action, the applicant invokes a legal basis in relation to each of its claims.

               1.

               Legal basis for the first claim

                           —

                           The contested decisions do not find that the State aid is compatible on the basis of Article 107(1) TFEU; for that reason, those decisions do not constitute legally binding acts in the context of the action for damages brought by the applicant against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) before the Fővárosi Törvényszék (Budapest High Court, Hungary).

               2.

               Legal basis for the second claim

                           —

                           In the contested decisions, the Commission found that the State aid was compatible, not on the basis of Article 107(1) TFEU, invoked by the applicant, but rather on the basis of Article 107(3) TFEU. Consequently, those decisions are irrelevant in relation to the legal basis of the claim made in the action for damages brought before the Fővárosi Törvényszék (Budapest High Court, Hungary) and do not constitute legally binding acts as regards the applicant.

               3.

               Legal basis for the third claim

                           —

                           According to the applicant, the contested decisions are invalid because the Hungarian authorities granted unlawful State aid that infringed Article 107(1) TFEU and, pursuant to Article 108(3) TFEU, the Commission should have been informed. In order to support its allegation that the aid is unlawful, the applicant relies on the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (1) and on Commission Regulation (EC) No 800/2008 of 6 August 2008, declaring certain categories of aid compatible with the common market in application of Articles [107] and [108 TFEU] (General block exemption). (2)

      (1)  OJ 2016, C 262, p. 1.

      (2)  OJ 2008, L 214, p. 3.


title: Case T-144/16: Judgment of the General Court of 7 November 2017 — Mundipharma v EUIPO — Multipharma (MULTIPHARMA) (European Union trade mark — Opposition proceedings — Application for EU word mark MULTIPHARMA — Prior EU word mark MUNDIPHARMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC No 207/2009)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/29

         Judgment of the General Court of 7 November 2017 — Mundipharma v EUIPO — Multipharma (MULTIPHARMA)
   (Case T-144/16) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU word mark MULTIPHARMA - Prior EU word mark MUNDIPHARMA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC No 207/2009))
   (2017/C 437/34)
   Language of the case: German

      Parties

      Applicant: Mundipharma AG (Basel, Switzerland) (represented by: F. Nielsen, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Multipharma SA (Luxembourg, Luxembourg) (represented by: P. Goldenbaum and I. Rohr, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 22 January 2016 (Case R 2950/2014-1) concerning opposition proceedings between Mundipharma and Multipharma.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 January 2016 (Case R 2950/2014-1);

               2.

               Orders EUIPO to bear its own costs and to pay the costs incurred by Mundipharma AG, including the costs necessarily incurred by Mundipharma for the purposes of the proceedings before the Board of Appeal of EUIPO;

               3.

               Orders Multipharma SA to bear its own costs.

      (1)  OJ C 191, 30.5.2016.


title: Case T-709/17: Action brought on 13 October 2017 — M-Sansz v Commission

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/37

         Action brought on 13 October 2017 — M-Sansz v Commission
   (Case T-709/17)
   (2017/C 437/45)
   Language of the case: Hungarian

      Parties

      Applicant: M-Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (Pécs, Hungary) (represented by: L. Szabó, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that Commission Decision SA.29432 — CP 290/2009 — Hungary — ‘Aid for the employment of disabled workers alleged to be unlawful due to the discriminatory nature of the legislation’, of 20 July 2011, and Commission Decision SA.45498 (FC/2016) — ‘Complaint made by OPS Újpest-lift Kft. concerning the State aid granted between 2006 and 2012 to companies employing disabled workers’, of 25 January 2017, (‘the contested decisions’) do not find that the State aid is compatible on the basis of Article 107(1) TFEU;

               —

               in the alternative, declare that the contested decisions do not constitute legally binding acts as regards the applicant in its action for damages brought against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) in Case No 23. P. 25.843/2016 before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that, for that reason, the applicant is not directly and individually concerned, since it bases its claim for damages on the infringement of Article 107(1) TFEU, and not on the infringement of Article 107(3) TFEU;

               —

               in the event that the contested decisions should be characterised as legally binding acts as regards the applicant in its action for damages based on the infringement of Article 107(1) TFEU, declare the contested decisions invalid, since the State aid granted by the Hungarian authorities infringes Article 107(1) TFEU.

      Pleas in law and main arguments

   In support of its action, the applicant invokes a legal basis in relation to each of its claims.

               1.

               Legal basis for the first claim

                           —

                           The contested decisions do not find that the State aid is compatible on the basis of Article 107(1) TFEU; for that reason, those decisions do not constitute legally binding acts in the context of the action for damages brought by the applicant against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) before the Fővárosi Törvényszék (Budapest High Court, Hungary).

               2.

               Legal basis for the second claim

                           —

                           In the contested decisions, the Commission found that the State aid was compatible, not on the basis of Article 107(1) TFEU, invoked by the applicant, but rather on the basis of Article 107(3) TFEU. Consequently, those decisions are irrelevant in relation to the legal basis of the claim made in the action for damages brought before the Fővárosi Törvényszék (Budapest High Court, Hungary) and do not constitute legally binding acts as regards the applicant.

               3.

               Legal basis for the third claim

                           —

                           According to the applicant, the contested decisions are invalid because the Hungarian authorities granted unlawful State aid that infringed Article 107(1) TFEU and, pursuant to Article 108(3) TFEU, the Commission should have been informed. In order to support its allegation that the aid is unlawful, the applicant relies on the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (1) and on Commission Regulation (EC) No 800/2008 of 6 August 2008, declaring certain categories of aid compatible with the common market in application of Articles [107] and [108 TFEU] (General block exemption). (2)

      (1)  OJ 2016, C 262, p. 1.

      (2)  OJ 2008, L 214, p. 3.


title: Case C-590/17: Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 October 2017 — Henri Pouvin, Marie Dijoux, wife of Henri Pouvin v Electricité de France (EDF)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/20

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 October 2017 — Henri Pouvin, Marie Dijoux, wife of Henri Pouvin v Electricité de France (EDF)
   (Case C-590/17)
   (2017/C 437/24)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicants: Henri Pouvin, Marie Dijoux, wife of Henri Pouvin

      Defendant: Electricité de France (EDF)

      Questions referred

               1.

               Is Article 2 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) to be interpreted as meaning that a company such as EDF, where it grants an employee a mortgage loan covered by the scheme providing assistance for the purchase of a home, for which only members of the staff of that company are eligible, is acting as a seller or supplier?

               2.

               Is Article 2 of Directive 93/13/EEC to be interpreted as meaning that a company such as EDF, where it grants such a mortgage loan to the spouse of an employee who is not a member of the staff of that company but is jointly and severally liable as co-borrower, is acting as a seller or supplier?

               3.

               Is Article 2 of Directive 93/13/EEC to be interpreted as meaning that an employee of a company such as EDF who enters into an agreement with the company for such a loan is acting as a consumer?

               4.

               Is Article 2 of Directive 93/13/EEC to be interpreted as meaning that the spouse of such an employee who enters into the same loan, not as an employee of the company but as a jointly and severally liable co-borrower, is acting as a consumer?

      (1)  OJ 1993 L 95, p. 29.


title: Case C-467/15 P: Judgment of the Court (Fourth Chamber) of 25 October 2017 — European Commission v Italian Republic (Appeal — State aid — Aid granted by the Italian Republic to milk producers — Aid scheme linked to the reimbursement of the milk levy — Conditional decision — Decision adopted by the Council of the European Union pursuant to the third subparagraph of Article 108(2) TFEU — Regulation (EC) No 659/1999 — Article 1(b) and (c) — Existing aid — New aid — Definitions — Alteration to existing aid in breach of a condition ensuring compatibility of the aid with the internal market)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/3

         Judgment of the Court (Fourth Chamber) of 25 October 2017 — European Commission v Italian Republic
   (Case C-467/15 P) (1)

   ((Appeal - State aid - Aid granted by the Italian Republic to milk producers - Aid scheme linked to the reimbursement of the milk levy - Conditional decision - Decision adopted by the Council of the European Union pursuant to the third subparagraph of Article 108(2) TFEU - Regulation (EC) No 659/1999 - Article 1(b) and (c) - Existing aid - New aid - Definitions - Alteration to existing aid in breach of a condition ensuring compatibility of the aid with the internal market))
   (2017/C 437/03)
   Language of the case: Italian

      Parties

      Appellant: European Commission (represented by: V. Di Bucci and P. Němečková, acting as Agents)

      Other party to the proceedings: Italian Republic (represented by: G. Palmieri, acting as Agent, assisted by S. Fiorentino and P. Grasso, avvocati dello Stato)

      Operative part of the judgment

   The Court:

               1.

               Sets aside paragraphs 1, 2 and 4 of the operative part of the judgment of the General Court of the European Union of 24 June 2015, Italy v Commission (T-527/13, EU:T:2015:429);

               2.

               Dismisses the action brought by the Italian Republic before the General Court in Case T-527/13;

               3.

               Orders the Italian Republic to bear its own costs and to pay those of the European Commission both at first instance and on appeal.

      (1)  OJ C 406, 7.12.2015.


title: Case C-595/17: Request for a preliminary ruling from the Cour de cassation (France) lodged on 16 October 2017 — Apple Sales International, Apple Inc., Apple retail France EURL v MJA, acting as liquidator of eBizcuss.com (eBizcuss)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/21

         Request for a preliminary ruling from the Cour de cassation (France) lodged on 16 October 2017 — Apple Sales International, Apple Inc., Apple retail France EURL v MJA, acting as liquidator of eBizcuss.com (eBizcuss)
   (Case C-595/17)
   (2017/C 437/25)
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicants: Apple Sales International, Apple Inc., Apple retail France EURL

      Defendants: MJA, acting as liquidator of eBizcuss.com (eBizcuss)

      Questions referred

               1.

               Must Article 23 of Regulation No 44/2001 (1) be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 of the Treaty on the Functioning of the European Union to apply a jurisdiction clause set out in the contract binding the parties?

               2.

               If the first question is answered in the affirmative, must Article 23 of Regulation No 44/2001 be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 of the Treaty on the Functioning of the European Union to apply a jurisdiction clause set out in the contract binding the parties, including in cases where that clause does not expressly refer to disputes relating to liability incurred from an infringement of competition law?

               3.

               Must Article 23 of Regulation No 44/2001 be interpreted as allowing a national court before which an action for damages has been brought by a distributor against its supplier on the basis of Article 102 of the Treaty on the Functioning of the European Union to disregard a jurisdiction clause set out in the contract binding the parties where no infringement of competition law has been?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case C-201/16: Judgment of the Court (Grand Chamber) of 25 October 2017 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Majid Shiri, also known as Madzhdi Shiri (Reference for a preliminary ruling — Regulation (EU) No 604/2013 — Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national — Article 27 — Remedy — Scope of the judicial review — Article 29 — Time limit for carrying out the transfer — No transfer within the time limit laid down — Obligations of the Member State responsible — Transfer of responsibility — Requirement for a decision of the Member State responsible)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/9

         Judgment of the Court (Grand Chamber) of 25 October 2017 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Majid Shiri, also known as Madzhdi Shiri
   (Case C-201/16) (1)

   ((Reference for a preliminary ruling - Regulation (EU) No 604/2013 - Determination of the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national - Article 27 - Remedy - Scope of the judicial review - Article 29 - Time limit for carrying out the transfer - No transfer within the time limit laid down - Obligations of the Member State responsible - Transfer of responsibility - Requirement for a decision of the Member State responsible))
   (2017/C 437/12)
   Language of the case: German

      Referring court

   Verwaltungsgerichtshof

      Parties to the main proceedings

   Majid Shiri, also known as Madzhdi Shiri

      Joined party: Bundesamt für Fremdenwesen und Asyl

      Operative part of the judgment

               1.

               Article 29(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted as meaning that, where the transfer does not take place within the six-month time limit as defined in Article 29(1) and (2) of that regulation, responsibility is transferred automatically to the requesting Member State, without it being necessary for the Member State responsible to refuse to take charge of or take back the person concerned.

               2.

               Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an applicant for international protection must have an effective and rapid remedy available to him which enables him to rely on the expiry of the six-month period as defined in Article 29(1) and (2) of that regulation that occurred after the transfer decision was adopted. The right which national legislation such as that at issue in the main proceedings accords to such an applicant to plead circumstances subsequent to the adoption of that decision, in an action brought against it, meets that obligation to provide for an effective and rapid remedy.

      (1)  OJ C 260, 18.7.2016.


title: Case C-596/17: Request for a preliminary ruling from the Conseil d’État (France) lodged on 16 October 2017 — Japan Tobacco International SA, Japan Tobacco International France SAS v Premier ministre, Ministre de l’Action et des Comptes publics, Ministre des Solidarités et de la Santé

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/22

         Request for a preliminary ruling from the Conseil d’État (France) lodged on 16 October 2017 — Japan Tobacco International SA, Japan Tobacco International France SAS v Premier ministre, Ministre de l’Action et des Comptes publics, Ministre des Solidarités et de la Santé
   (Case C-596/17)
   (2017/C 437/26)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Japan Tobacco International SA, Japan Tobacco International France SAS

      Defendants: Premier ministre, Ministre de l’Action et des Comptes publics, Ministre des Solidarités et de la Santé

      Questions referred

               1.

               Must Directive [2011]/64/EU of 21 June 2011 (1) be interpreted, as regards the definitions of tobacco products set out in Articles 2, 3 and 4 thereof, as also governing the price of packaged tobacco products?

               2.

               If the answer to Question 1 is in the affirmative, must Article 15 of Directive 2011/64/EU, in laying down the principle that the price of tobacco products must be determined freely, be interpreted as prohibiting a rule setting the price of those products per 1 000 items or 1 000 grams which, in effect, prohibits manufacturers of tobacco products from adjusting their prices on the basis of potential differences in the cost of packaging those products?

      (1)  Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24).


title: Joined Cases C-593/15 P and C-594/15 P: Judgment of the Court (Fourth Chamber) of 25 October 2017 — Slovak Republic v European Commission (Appeal — Own resources of the European Union — Decision 2007/436/EC — Financial liability of the Member States — Loss of certain import duties — Obligation to pay the European Commission the amount corresponding to the loss — Actions for annulment — Admissibility — Letter from the European Commission — Concept of ‘actionable measure’)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/3

         Judgment of the Court (Fourth Chamber) of 25 October 2017 — Slovak Republic v European Commission
   (Joined Cases C-593/15 P and C-594/15 P) (1)

   ((Appeal - Own resources of the European Union - Decision 2007/436/EC - Financial liability of the Member States - Loss of certain import duties - Obligation to pay the European Commission the amount corresponding to the loss - Actions for annulment - Admissibility - Letter from the European Commission - Concept of ‘actionable measure’))
   (2017/C 437/04)
   Language of the case: Slovak

      Parties

      Appellant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

      Other party to the proceedings: European Commission (represented by: A. Caeiros, A. Tokár, G.-D. Balan and Z. Malůšková, acting as Agents)

      Interveners in support of the applicant: Czech Republic (represented by: M. Smolek, J. Vláčil and T. Müller, acting as Agents), Federal Republic of Germany (represented by: T. Henze and K. Stranz, acting as Agents), Romania (represented by: R.-H. Radu, M. Chicu and A. Wellman, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders the Slovak Republic to bear its own costs and pay those incurred by the European Commission;

               3.

               Orders the Czech Republic, the Federal Republic of Germany and Romania to bear their own costs.

      (1)  OJ C 27, 25.1.2016.


title: Case C-600/17: Request for a preliminary ruling from the Giudice di pace di Roma (Italy) lodged on 16 October 2017 — Pina Cipollone v Ministero della Giustizia

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/22

         Request for a preliminary ruling from the Giudice di pace di Roma (Italy) lodged on 16 October 2017 — Pina Cipollone v Ministero della Giustizia
   (Case C-600/17)
   (2017/C 437/27)
   Language of the case: Italian

      Referring court

   Giudice di pace di Roma

      Parties to the main proceedings

      Applicant: Pina Cipollone

      Defendant: Ministero della Giustizia

      Questions referred

               1.

               Does the applicant, as a Giudice di Pace (magistrate), by reason of her occupation, come within the definition of ‘fixed-term worker’ for the purposes of Articles 1(3) and 7 of Directive 2003/88, (1) read in conjunction with Clause 2 of the Framework Agreement on fixed-term work implemented by Directive 1999/70 (2) and Article 31(2) of the Charter of Fundamental Rights of the European Union?

               2.

               If Question 1 above is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a comparable permanent worker in respect of a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70?

               3.

               If Question 2 above is answered in the affirmative, do the differences between the procedure for the permanent recruitment of ordinary judges and the selection procedures, laid down by statute, for the fixed-term recruitment of Giudici di Pace constitute an objective ground, within the meaning of Clause 4(1) and/or (4) of the framework agreement on fixed-term work implemented by Directive 1999/70, justifying a refusal to apply: (1) — as in the recent interpretation of ‘vital law’ by the Combined Chambers of the Corte di cassazione (Court of Cassation) in judgment No 13721/2017 and by the Consiglio di Stato (Council of State) in Opinion No 464/2017 of 8 April 2017 — to Giudici di Pace, such as the applicant fixed-term worker, the same employment conditions as those applied to comparable permanent ordinary judges; and (2) preventive measures and measures imposing penalties in respect of abusive use of fixed-term contracts, as referred to in Clause 5 of the framework agreement implemented by Directive 1999/70 and the national implementing laws, in the absence of rules in the Italian legal or constitutional system that could justify either discrimination as regards employment conditions or an absolute prohibition on converting employment contracts of Giudici di Pace into permanent contracts, also taking into account previous national legislation (Law No 217/1974), which had already provided that the employment conditions of honorary judges (specifically ‘vice pretori onorari’) should be equivalent to those of ordinary judges?

               4.

               In any event, in a situation such as that in the main proceedings, is it contrary to the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and to the EU-law concept of an independent and impartial tribunal for a Giudice di Pace, having an abstract interest in the case being resolved in favour of the applicant, who, as her sole form of employment, performs the same judicial functions, to stand in the place of the Italian courts with jurisdiction to hear employment disputes in general, or disputes of the ordinary magistrates, as a result of a refusal by the court of last instance (the Combined Chambers of the Court of Cassation) to grant protection for the rights claimed and protected by EU law, thus obliging the court naturally having jurisdiction (the Tribunale del lavoro (Labour Court) or the Tribunale amministrativo regionale (T.A.R.) (Regional Administrative Court)) to decline jurisdiction, when requested, despite the fact that that right — payment for annual leave, as sought in the action — is founded in EU law, which is binding and takes precedence within the legal order of the Italian State? In the event that the Court of Justice should find that there is an infringement of Article 47 of the Charter, what domestic remedies are available in order to avoid a situation in which infringement of a provision of primary EU law also involves an absolute refusal under domestic law to protect fundamental rights guaranteed by EU law in the particular circumstances of the case?

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

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


title: Case T-754/16: Judgment of the General Court of 8 November 2017 — Oakley v EUIPO — Xuebo Ye (Representation of a discontinuous ellipse) (European Union trade mark — Opposition proceedings — Application for registration of an EU figurative mark representing a silhouette in the shape of a discontinuous ellipse — Prior EU figurative mark representing an ellipse — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC No 207/2009 (now Article 8(1)(b) and (5) of Regulation (EU) 2017/1001))

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/29

         Judgment of the General Court of 8 November 2017 — Oakley v EUIPO — Xuebo Ye (Representation of a discontinuous ellipse)
   (Case T-754/16) (1)

   ((European Union trade mark - Opposition proceedings - Application for registration of an EU figurative mark representing a silhouette in the shape of a discontinuous ellipse - Prior EU figurative mark representing an ellipse - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC No 207/2009 (now Article 8(1)(b) and (5) of Regulation (EU) 2017/1001)))
   (2017/C 437/35)
   Language of the case: Spanish

      Parties

      Applicant: Oakley, Inc. (Foothill Ranch, California, United States) (represented by: E. Ochoa Santamaría and V. Rodríguez Pombo, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO: Xuebo Ye (Wenzhou, China)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 31 August 2016 (Case R 2608/2015-4) concerning opposition proceedings between Oakley and Xuebo Ye.

      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 31 August 2016 (Case R 2608/2015-4) insofar as it confirmed the decision of the Opposition Division and rejected the opposition inasmuch as it is based on the ground set out in Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (now Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark);

               2.

               Dismisses the remainder of the action;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 14, 16.1.2017.


title: Case C-602/17: Request for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 19 October 2017 — Benoît Sauvage, Kristel Lejeune v État belge

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/23

         Request for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) lodged on 19 October 2017 — Benoît Sauvage, Kristel Lejeune v État belge
   (Case C-602/17)
   (2017/C 437/28)
   Language of the case: French

      Referring court

   Tribunal de première instance de Liège

      Parties to the main proceedings

      Applicants: Benoît Sauvage, Kristel Lejeune

      Defendant: État belge

      Question referred

   Does Article 15(1) of the Convention to prevent double taxation between Belgium and the Grand Duchy of Luxembourg signed on 17 September 1970, interpreted as allowing a restriction on the power of taxation of the source State in respect of the remuneration of an employee residing in Belgium and performing his activity for a Luxembourgish employer in proportion to the activity performed on Luxembourgish territory, interpreted as allowing a power of taxation to be attributed to the State of residence in respect of the amount of remuneration relating to the activity performed outside Luxembourgish territory, interpreted as requiring the employee to be permanently and every day physically present at the seat of his employer when it is not disputed that he regularly travels there as the result of a judicial assessment, conducted with flexibility, on the basis of objective and verifiable evidence and interpreted as requiring courts and tribunals to evaluate the existence and relevance of the services provided there and elsewhere, day by day, with a view to establishing a proportion over 220 business days, infringe Article 45 of the Treaty on the Functioning of the European Union in that it constitutes a tax hindrance which discourages activities across borders and breaches the general principle of legal certainty in that it does not provide for a stable and secure regime of exemption of the entirety of the remuneration received by a Belgian resident employed by an employer whose actual seat is situated in the Grand Duchy of Luxembourg and places him at risk of double taxation of all or part of his income and subjects him to an unpredictable legally uncertain regime?


title: Case T-710/17: Action brought on 13 October 2017 — Lux-Rehab Non-Profit v Commission

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/38

         Action brought on 13 October 2017 — Lux-Rehab Non-Profit v Commission
   (Case T-710/17)
   (2017/C 437/46)
   Language of the case: Hungarian

      Parties

      Applicant: LUX-REHAB Foglalkoztató Non-Profit Kft. (Szombathely, Hungary) (represented by: L. Szabó, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that Commission Decision SA.29432 — CP 290/2009 — Hungary — ‘Aid for the employment of disabled workers alleged to be unlawful due to the discriminatory nature of the legislation’, of 20 July 2011, and Commission Decision SA.45498 (FC/2016) — ‘Complaint made by OPS Újpest-lift Kft. concerning the State aid granted between 2006 and 2012 to companies employing disabled workers’, of 25 January 2017, (‘the contested decisions’) do not find that the State aid is compatible on the basis of Article 107(1) TFEU;

               —

               in the alternative, declare that the contested decisions do not constitute legally binding acts as regards the applicant in its action for damages brought against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) in Case No 66. P. 22.195/2017 before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that, for that reason, the applicant is not directly and individually concerned, since it bases its claim for damages on the infringement of Article 107(1) TFEU, and not on the infringement of Article 107(3) TFEU;

               —

               in the event that the contested decisions should be characterised as legally binding acts as regards the applicant in its action for damages based on the infringement of Article 107(1) TFEU, declare the contested decisions invalid, since the State aid granted by the Hungarian authorities infringes Article 107(1) TFEU.

      Pleas in law and main arguments

   In support of its action, the applicant invokes a legal basis in relation to each of its claims.

               1.

               Legal basis for the first claim

                           —

                           The contested decisions do not find that the State aid is compatible on the basis of Article 107(1) TFEU; for that reason, those decisions do not constitute legally binding acts in the context of the action for damages brought by the applicant against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) before the Fővárosi Törvényszék (Budapest High Court, Hungary).

               2.

               Legal basis for the second claim

                           —

                           In the contested decisions, the Commission found that the State aid was compatible, not on the basis of Article 107(1) TFEU, invoked by the applicant, but rather on the basis of Article 107(3) TFEU. Consequently, those decisions are irrelevant in relation to the legal basis of the claim made in the action for damages brought before the Fővárosi Törvényszék (Budapest High Court, Hungary) and do not constitute legally binding acts as regards the applicant.

               3.

               Legal basis for the third claim

                           —

                           According to the applicant, the contested decisions are invalid because the Hungarian authorities granted unlawful State aid that infringed Article 107(1) TFEU and, pursuant to Article 108(3) TFEU, the Commission should have been informed. In order to support its allegation that the aid is unlawful, the applicant relies on the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (1) and on Commission Regulation (EC) No 800/2008 of 6 August 2008, declaring certain categories of aid compatible with the common market in application of Articles [107] and [108 TFEU] (General block exemption). (2)

      (1)  OJ 2016, C 262, p. 1.

      (2)  OJ 2008, L 214, p. 3.


title: Case C-347/16: Judgment of the Court (Fifth Chamber) of 26 October 2017 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Balgarska energiyna borsa AD (BEB) v Komisia za energiyno i vodno regulirane (KEVR) (Reference for a preliminary ruling — Articles 101 and 102 TFEU — Directive 2009/72/EC — Articles 9, 10, 13 and 14 — Regulation (EC) No 714/2009 — Article 3 — Regulation (EU) No 1227/2011 — Article 2(3) — Regulation (EU) 2015/1222 — Article 1(3) — Certification and designation of an independent transmission system operator — Limitation of the number of holders of electricity transmission licences in national territory)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/10

         Judgment of the Court (Fifth Chamber) of 26 October 2017 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Balgarska energiyna borsa AD (BEB) v Komisia za energiyno i vodno regulirane (KEVR)
   (Case C-347/16) (1)

   ((Reference for a preliminary ruling - Articles 101 and 102 TFEU - Directive 2009/72/EC - Articles 9, 10, 13 and 14 - Regulation (EC) No 714/2009 - Article 3 - Regulation (EU) No 1227/2011 - Article 2(3) - Regulation (EU) 2015/1222 - Article 1(3) - Certification and designation of an independent transmission system operator - Limitation of the number of holders of electricity transmission licences in national territory))
   (2017/C 437/13)
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Sofia-grad

      Parties to the main proceedings

      Applicant: Balgarska energiyna borsa AD (BEB)

      Defendant: Komisia za energiyno i vodno regulirane (KEVR)

      Operative part of the judgment

   Articles 9, 10, 13 and 14 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, Article 3 of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003, Article 2(3) in conjunction with recital 3 of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency, and Article 1(3) of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management do not preclude, in circumstances such as those of the main proceedings, national legislation limiting the number of holders of electricity transmission licences for a particular territory.

      (1)  OJ C 326, 5.9.2016.


title: Case T-712/17: Action brought on 9 October 2017 — Ntolas v EUIPO — General Nutrition Investment (GN Laboratories)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/40

         Action brought on 9 October 2017 — Ntolas v EUIPO — General Nutrition Investment (GN Laboratories)
   (Case T-712/17)
   (2017/C 437/47)
   Language in which the application was lodged: English

      Parties

      Applicant: Christos Ntolas (Wuppertal, Germany) (represented by: C. Renger, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: General Nutrition Investment Co. (Delaware, Arizona, United States)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘GN Laboratories’ — Application for registration No 11 223 559

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 18 July 2017 in Case R 2358/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               reject the opposition brought against the application for the Community Trademark No 011223559;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

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


title: Case C-599/15 P: Judgment of the Court (Fourth Chamber) of 25 October 2017 — Romania v European Commission (Appeal — Own resources of the European Union — Decision 2007/436/EC — Financial liability of the Member States — Loss of certain import duties — Obligation to pay the European Commission the amount corresponding to the loss — Actions for annulment — Admissibility — Letter from the European Commission — Concept of ‘actionable measure’)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/4

         Judgment of the Court (Fourth Chamber) of 25 October 2017 — Romania v European Commission
   (Case C-599/15 P) (1)

   ((Appeal - Own resources of the European Union - Decision 2007/436/EC - Financial liability of the Member States - Loss of certain import duties - Obligation to pay the European Commission the amount corresponding to the loss - Actions for annulment - Admissibility - Letter from the European Commission - Concept of ‘actionable measure’))
   (2017/C 437/05)
   Language of the case: Romanian

      Parties

      Appellant: Romania (represented by: R.-H. Radu, M. Chicu and A. Wellman, acting as Agents)

      Other party to the proceedings: European Commission (represented by: G.-D. Balan, A. Caeiros and A. Tokár and by Z. Malůšková, acting as Agents)

      Interveners in support of the applicant: Czech Republic (represented by: M. Smolek, J. Vláčil and T. Müller, acting as Agents), Federal Republic of Germany (represented by: T. Henze and K. Stranz, acting as Agents), Slovak Republic (represented by: B. Ricziová, acting as Agent)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Romania to bear its own costs and pay those incurred by the European Commission;

               3.

               Orders the Czech Republic, the Federal Republic of Germany and the Slovak Republic to bear their own costs.

      (1)  OJ C 38, 1.2.2016.


title: Case C-603/17: Reference for a preliminary ruling from the Supreme Court of the United Kingdom made on 20 October 2017 — Peter Bosworth, Colin Hurley v Arcadia Petroleum Limited and others

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/24

         Reference for a preliminary ruling from the Supreme Court of the United Kingdom made on 20 October 2017 — Peter Bosworth, Colin Hurley v Arcadia Petroleum Limited and others
   (Case C-603/17)
   (2017/C 437/29)
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicants: Peter Bosworth, Colin Hurley

      Defendants: Arcadia Petroleum Limited and others

      Questions referred

               1.

               What is the correct test for determining whether a claim advanced by an employer against an employee or former employee (‘an employee’) constitutes a ‘matter relating to’ an individual contract of employment within the meaning of Section 5 to Title II (Articles 18-21) of the Lugano Convention?

                           (1)

                           Is it sufficient for a claim advanced by an employer against an employee to fall within Articles 18-21 that the conduct complained of could also have been pleaded by the employer as a breach of the employee’s individual contract of employment — even if the claim actually advanced by the employer does not rely on, complain of, or plead any breach of that contract, but is (for example) advanced on one or more of the different bases indicated in paragraphs 26 and 27 of the Statement of Facts and Issues?

                           (2)

                           Alternatively, is the correct test that a claim advanced by an employer against an employee falls within Articles 18-21 only if the obligation on which the claim is actually based is an obligation in the contract of employment? If this is the correct test, does it follow that a claim which is based only on breach of an obligation which arose independently of the contract of employment (and, if relevant, is not an obligation which was ‘freely consented to’ by the employee) does not fall within Section 5?

                           (3)

                           If neither of the above is the correct test, what is the correct test?

               2.

               If a company and an individual enter into a ‘contract’ (within the meaning of article 5(1) of the Convention), to what extent is it necessary for there to be a relationship of subordination between the company and the individual for that contract to constitute an ‘individual contract of employment’ for the purposes of Section 5? Can such a relationship exist where the individual is able to determine (and does determine) the terms of his contract with the company and has control and autonomy over the day-to-day operation of the company’s business and the performance of his own duties, but the shareholder(s) of the company have the power to procure the termination of the relationship?

               3.

               If Section 5 to Title II of the Lugano Convention only applies to claims which, but for Section 5, would fall within Article 5(1) of the Lugano Convention, what is the correct test to determine whether a claim falls within Article 5(1)?

                           (1)

                           Is the correct test that a claim falls within Article 5(1) if the conduct complained of could be pleaded as a breach of contract, even if the claim actually pleaded by the employer does not rely on, complain of, or plead any breach of that contract?

                           (2)

                           Alternatively, is the correct test that a claim falls within article 5(1) only if the obligation on which it is actually based is a contractual obligation? If that is the correct test, does it follow that a claim which is based only on breach of an obligation which arose independently of the contract (and, if relevant, is not an obligation which was ‘freely consented to’ by the defendant) does not fall within article 5(1)?

                           (3)

                           If neither of the above is the correct test, what is the correct test?

               4.

               In circumstances in which:

                           (1)

                           companies A and B both form part of a group of companies;

                           (2)

                           defendant X performs, de facto, the role of CEO of that group of companies (as Mr Bosworth did for the Arcadia Group of companies: Statement of Facts and Issues, paragraph 14); X is employed by one group company, company A (and so is an employee of company A) (as Mr Bosworth was from time to time in circumstances set out in the Statement of Facts and Issues, paragraph 15); and is not, as a matter of domestic law, employed by company B;

                           (3)

                           company A brings claims against X, and those claims fall within Articles 18-21; and

                           (4)

                           the other group company, company B, also bring claims against X in respect of like conduct to that which forms the basis of company A’s claims against X;

                     what is the correct test for determining whether company B’s claim falls within Section 5? In particular:

                           (1)

                           Does the answer depend on whether there was, as between X and company B, an ‘individual contract of employment’ within the meaning of Section 5 and, if so, what is the correct test for determining whether there was such a contract?

                           (2)

                           Is company B to be treated as the ‘employer’ of X for the purposes of Section 5 to Title II of the Convention, and/or do company B’s claims against X (in paragraph 4(4) above) fall within Articles 18-21 in the same way that company A’s claims against X fall within Articles 18-21? In particular:

                                       (a)

                                       Does company B’s claim fall within article 18 only if the obligation on which it is actually based is an obligation in the contract of employment between company B and X?

                                       (b)

                                       Alternatively, does the claim fall within article 18 if the conduct complained of in the claim would have constituted a breach of an obligation in the contract of employment between company A and X?

                           (3)

                           If neither of the foregoing is the correct test, what is the correct test?


title: Case C-650/15 P: Judgment of the Court (First Chamber) of 25 October 2017 — Polyelectrolyte Producers Group GEIE (PPG), SNF SAS v European Chemicals Agency, Kingdom of the Netherlands, European Commission (Appeal — Regulation (EC) No 1907/2006 (REACH) — Article 57 — Substances of very high concern — Identification — Article 2(8)(b) — Exemption — Article 3(15) — Definition of ‘intermediate’ — Acrylamide)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/5

         Judgment of the Court (First Chamber) of 25 October 2017 — Polyelectrolyte Producers Group GEIE (PPG), SNF SAS v European Chemicals Agency, Kingdom of the Netherlands, European Commission
   (Case C-650/15 P) (1)

   ((Appeal - Regulation (EC) No 1907/2006 (REACH) - Article 57 - Substances of very high concern - Identification - Article 2(8)(b) - Exemption - Article 3(15) - Definition of ‘intermediate’ - Acrylamide))
   (2017/C 437/06)
   Language of the case: French

      Parties

      Appellants: Polyelectrolyte Producers Group GEIE (PPG), SNF SAS (represented by E. Mullier and R. Cana, avocats, and by D. Abrahams, Barrister)

      Other parties to the proceedings: European Chemicals Agency (represented by M. Heikkilä and W. Broere, acting as Agents, and by J. Stuyck and S. Raes, advocaten), Kingdom of the Netherlands (represented by M. Bulterman and B. Koopman, acting as Agents), European Commission (represented by K. Talabér-Ritz, E. Manhaeve, K. Mifsud-Bonnici and D. Kukovec, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Polyelectrolyte Producers Group GEIE (PPG) and SNF SAS to bear their own costs and to pay those incurred by the European Chemicals Agency (ECHA);

               3.

               Orders the Kingdom of the Netherlands and the European Commission to bear their own costs

      (1)  OJ C 48, 8.2.2016.