title: Case C-240/17: Judgment of the Court (Fifth Chamber) of 16 January 2018 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — E (Reference for a preliminary ruling — Third-country national staying illegally in a Member State — Threat to public order and national security — Directive 2008/115/EC — Article 6(2) — Return decision — Ban on entry to the territory of the Member States — Alert for the purposes of refusing admission to the Schengen Area — Third-country national holding a valid residence permit issued by another Member State — Convention implementing the Schengen Agreement — Article 25(2) — Consultation procedure between the Member State issuing the alert and the Member State which issued the residence permit — Time limit — Failure of the Contracting State consulted to adopt a position — Consequences for the enforcement of return decisions and entry ban)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/7

         Judgment of the Court (Fifth Chamber) of 16 January 2018 (request for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — E
   (Case C-240/17) (1)

   ((Reference for a preliminary ruling - Third-country national staying illegally in a Member State - Threat to public order and national security - Directive 2008/115/EC - Article 6(2) - Return decision - Ban on entry to the territory of the Member States - Alert for the purposes of refusing admission to the Schengen Area - Third-country national holding a valid residence permit issued by another Member State - Convention implementing the Schengen Agreement - Article 25(2) - Consultation procedure between the Member State issuing the alert and the Member State which issued the residence permit - Time limit - Failure of the Contracting State consulted to adopt a position - Consequences for the enforcement of return decisions and entry ban))
   (2018/C 083/09)
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

   E

      Operative part of the judgment

               1.

               Article 25(1) of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990 and which entered into force on 26 March 1995 must be interpreted as meaning that it is open to the Contracting State which intends to issue a return decision accompanied by a ban on entry and stay in the Schengen Area to a third-country national who holds a valid residence permit issued by another Contracting State to initiate the consultation procedure laid down in that provision even before the issue of the return decision. That procedure must, in any event, be initiated as soon as such a decision has been issued.

               2.

               Article 25(2) of the Convention implementing the Schengen Agreement must be interpreted as meaning that it does not preclude the return decision accompanied by an entry ban issued by a Contracting State to a third-country national who is the holder of a valid residence permit issued by another Contracting State being enforced even though the consultation procedure laid down in that provision is ongoing, if that third-country national is regarded by the Contracting State issuing the alert as representing a threat to public order or national security, without prejudice to that third-country national’s entitlement to rely on the rights he derives from that residence permit by going subsequently to the territory of the second Contracting State. However, after a reasonable time from the initiation of the consultation procedure and in the absence of a response from the Contracting State consulted, the Contracting State issuing the alert for the purposes of refusing entry must withdraw it and, if necessary, put the third-country national on its national list of alerts.

               3.

               Article 25(2) of the Convention implementing the Schengen Agreement must be interpreted as meaning that a third-country national who is the holder of a valid residence permit issued by a Contracting State, and to whom a return decision accompanied by an entry ban has been issued in another Contracting State, may rely before the national courts on the legal effects deriving from the consultation procedure on the Contracting State issuing the alert and the requirements deriving therefrom.

      (1)  OJ C 213, 3.7.2017.


title: Case C-534/17: Order of the President of the Court of 14 November 2017 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Ursula Kaufmann, Viktor Schay v TUIfly GmbH

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/19

         Order of the President of the Court of 14 November 2017 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Ursula Kaufmann, Viktor Schay v TUIfly GmbH
   (Case C-534/17) (1)

   (2018/C 083/29)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 424, 11.12.2017.


title: Case C-729/17: Action brought on 22 December 2017 — European Commission v Hellenic Republic

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/14

         Action brought on 22 December 2017 — European Commission v Hellenic Republic
   (Case C-729/17)
   (2018/C 083/22)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: H. Τserepa-Lacombe and H. Støvlbæk, acting as Agents)

      Defendant: Hellenic Republic

      Form of order sought

   The European Commission claims that the Court should:

               —

               declare that, by restricting the legal form of mediation training service providers to non-profit companies, which have to be set up by at least one Bar Association and at least one Professional Chamber in Greece, as enacted in Law 3898/2010 and Presidential Decree 123/2011, Greece has failed to fulfil its obligations under Article 49 TFEU and Article 15(2)(b) and (c) and (3) of Directive 2006/123/ΕC (1).

               —

               declare that, by subjecting the procedure for the recognition of academic qualifications to preconditions: the imposition of additional requirements related to the content of certificates and the imposition of compensatory measures without a prior assessment of real differences, and by maintaining in force provisions which lead to discrimination by requiring applicants for accreditation as professional mediators who have accreditation that was obtained outside Greece or from a recognised provider of training outside Greece following training provided in in Greece, to possess experience of having taken part in at least three mediation procedures, Greece has failed to fulfil its obligations under Article 49 TFEU, and Articles 13, 14 and 50(1) of, and Annex VII to, Directive 2005/36/ΕC (2).

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

                  Infringement of the right of freedom of establishment laid down in Article 49 TFEU and in Article 15(2)(b) and (c) of Directive 2006/123/ΕC on services in the internal market.

               Article 5(1) of Law 3898/2010 together with the related Presidential Decree D. 123/2011 provides that companies that provide mediation training services must exclusively have the legal form of non-profit companies which are set up by at least one Bar Association and at least one of the Professional Chambers in Greece and that their operation is subject to the granting of authorisation by the authority referred to in Article 7 of that law.
               Those restrictions cover both service providers that seek to be established for the first time in Greece and service providers that seek secondary establishment in the form of a subsidiary.
               No natural or legal person other than the Bar Associations and the Professional Chambers is permitted to found training service providers for the training of mediators who can, on the basis of that training, take the examination for accreditation as professional mediators in Greece, if that person does not have the support of a Bar Association and a Professional Chamber of Greece.
               In addition, the reality is that any service provider the current legal form of which is not non-profit making is excluded from the opportunity to provide, on payment of fees, the training of potential mediator candidates who can, on the basis of that training, take the examination for accreditation as professional mediators in Greece.
               Last, any training provider from another Member State that is interested in providing the service in question on the payment of fees by students who register on mediation training courses is in reality excluded from entering the Greek market and from setting up a secondary establishment in the form of a subsidiary, if its current legal form is not non-profit making and its choice of subsidiary is not confined to non-profit-making entities.
               The Commission considers that the above provisions establish a restriction on the right of freedom of establishment laid down in Article 49 TFEU and Article 15(2)(b) and (c) of Directive 2006/123/ΕC on the internal market.
               That restriction is not covered by the exception in Article 51(1) TFEU because the provision of mediator training services is not an activity that is connected to the State, the exercise of official authority or indeed the ‘administration of justice’. Further there is no legal justification in the interest of protecting the quality of the services, since that has no direct connection with the restriction on the legal form of the training service providers and the ownership of share capital.

               2.

                  Infringement of Directive 2005/36/ΕC and Article 49 TFEU on the freedom of establishment.

               The Commission considers that the requirements in paragraph 2 of section Α of the single article of Ministerial Decision No 109088/12.12.2011, in accordance with which the mediation training certificate must confirm the teaching methods, the number of participants, the number and qualifications of the trainers, the procedure for the examination and evaluation of candidates and the means of ensuring the integrity of that procedure, exceed what can be required for the evaluation of the level of professional knowledge and qualifications which the certificate-holder is certified to possess and do not permit a correct assessment of the question whether the training of the person concerned covers matters that are substantially different from those covered by the required accreditation in Greece. For those reasons the abovementioned provision is contrary to Articles 13, 14 and 50 of, and Annex VII to, Directive 2005/36/ΕC.
               Further, paragraph 5 of section Α of the above Ministerial Decision requires foreign mediators with full professional qualifications to demonstrate that in addition they possess experience of having taken part in at least three mediation procedures before their qualifications are recognised in Greece, although that requirement is not imposed on mediators who obtain their professional training in Greece. Consequently, the abovementioned provision is contrary to Article 13 of Directive 2005/36/ΕC, which provides that the competent authority of the host Member State is to permit access to and pursuit of the profession under the same conditions as apply to its nationals to applicants who are certified in another Member State, and is in breach of the principle of the prohibition of discrimination enshrined in Article 49 TFEU.

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

      (2)  Directive 2005/36/ΕC of the European Parliament and of the Council of 7 September 2005, on the recognition of professional qualifications (
         OJ 2005 L 255, p. 22).


title: Case T-639/16: Judgment of the General Court of 23 January 2018 — FV v Council (Appeal — Civil service — Officials — Appraisal — Career evaluation report — Appraisal year 2013 — Dismissal of action at first instance — Composition of the adjudicating Chamber which delivered the judgment at first instance — Procedure for the appointment of a judge to the Civil Service Tribunal — Tribunal established by law — Principle of the lawful judge)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/20

         Judgment of the General Court of 23 January 2018 — FV v Council
   (Case T-639/16) (1)

   ((Appeal - Civil service - Officials - Appraisal - Career evaluation report - Appraisal year 2013 - Dismissal of action at first instance - Composition of the adjudicating Chamber which delivered the judgment at first instance - Procedure for the appointment of a judge to the Civil Service Tribunal - Tribunal established by law - Principle of the lawful judge))
   (2018/C 083/30)
   Language of the case: French

      Parties

      Appellant: FV (represented by: L. Levi, avocat)

      Other party to the proceedings: Council of the European Union (represented by: J.-B. Laignelot and M. Bauer, acting as Agents)

      Re:

   Appeal brought against the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 28 June 2016, FV v Council (F-40/15, EU:F:2016:137), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the Civil Service Tribunal of the European Union (Second Chamber) of 28 June 2016, FV v Council, (F-40/15);

               2.

               Refers the action to a Chamber of the Tribunal other than that which has ruled in the present appeal;

               3.

               Reserves the costs.

      (1)  OJ C 419, 14.11.2016.


title: Case C-668/17 P: Appeal brought on 28 November 2017 by Viridis Pharmaceutical Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2017 in Case T-276/16, Viridis Pharmaceutical Ltd v European Union Intellectual Property Office (EUIPO)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/10

         Appeal brought on 28 November 2017 by Viridis Pharmaceutical Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2017 in Case T-276/16, Viridis Pharmaceutical Ltd v European Union Intellectual Property Office (EUIPO)
   (Case C-668/17 P)
   (2018/C 083/16)
   Language of the case: German

      Parties

      Appellant: Viridis Pharmaceutical Ltd (represented by: C. Spintig, Rechtsanwalt, S. Pietzcker, Rechtsanwalt, M. Prasse, Rechtsanwältin)

      Other parties to the proceedings: European Union Intellectual Property Office (EUIPO), Hecht-Pharma GmbH

      Form of order sought

   The appellant claims that the Court should:

               1.

               set aside the judgment under appeal of the Second Chamber of the General Court;

               2.

               refer the case back to the General Court;

               3.

               order EUIPO to pay the appellant’s costs;

                  In the alternative: order that the costs be reserved.

      Grounds of appeal and main arguments

   By the present appeal, the appellant claims that the General Court, in the judgment under appeal, infringed the EU trade mark Regulation (1) in several ways.
   First, the appellant claims that the General Court infringed the first alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that use of a registered EU trade mark for a medicinal product for the purpose of preserving the rights in that trade mark can exist only where the necessary authorisation under the law relating to medicinal products has been issued. Moreover, the General Court also infringed that same rule by classifying the use of an EU trade mark in the context of a clinical study carried out in accordance with Article 8(3)(i) of Directive 2001/83/EC (2) as inherently mandatory and therefore as not constituting genuine use.
   Furthermore, the appellant alleges infringement of the second alternative set out in the first sentence of Article 58(1)(a) of the EU trade mark Regulation. The General Court, it submits, erred in law in assuming that a clinical study carried out for the purposes of preparing an application for authorisation of a new medicinal product under the law governing medicinal products cannot then be used to justify the non-use of a trade mark if the clinical study was not applied until a significant amount of time had elapsed since registration of the trade mark and/or if the financial resources spent were not sufficient to enable the clinical study to be completed as rapidly as possible.

      (1)  Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

      (2)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).


title: Case C-19/18 P: Appeal brought on 5 January 2018 by Ms against the order of the General Court (First Chamber) delivered on 31 May 2017 in Case T-17/16 Ms v Commission

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/16

         Appeal brought on 5 January 2018 by Ms against the order of the General Court (First Chamber) delivered on 31 May 2017 in Case T-17/16 Ms v Commission
   (Case C-19/18 P)
   (2018/C 083/23)
   Language of the case: French

      Parties

      Appellant: Ms (represented by: L. Levi, avocat)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the order of the General Court of 31 May 2017 in Case T-17/16;

               —

               consequently, refer the case back to the General Court for judgment on the substance of the action brought before it at first instance, or if the Court of Justice were to consider that the state of the proceedings permits final judgment, to grant the appellant the relief sought at first instance and, accordingly,

               —

               hold that the Commission is non-contractually liable on the basis of Article 268 and the second paragraph of Article 340 TFEU;

               —

               order the production of the documents declared confidential by the Commission and providing the necessary basis for the exclusion decision;

               —

               order payment of compensation for the non-material harm resulting from the Commission’s wrongful conduct, assessed ex aequo et bono at EUR 20 000;

               —

               order the Commission to publish a letter of apology to the applicant and to reinstate him within Team Europe;

               —

               order the European Commission to pay the costs at first instance and on appeal.

      Pleas in law and main arguments

   The order under appeal is vitiated by an error of law in the legal classification of the basis of the action for damages brought before the General Court and infringement of the General Court’s duty to state reasons.
   The order under appeal is also vitiated by an error of law in the legal classification of the letter of agreement and infringement of the General Court’s duty to state reasons. The latter distorted the file.


title: Case C-695/17: Request for a preliminary ruling from the Helsingin käräjäoikeus (Finland) lodged on 12 December 2017 — Metirato Oy, in liquidation v Finnish State / Tax Authority, Estonian State / Maksu- ja Tolliamet

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/11

         Request for a preliminary ruling from the Helsingin käräjäoikeus (Finland) lodged on 12 December 2017 — Metirato Oy, in liquidation v Finnish State / Tax Authority, Estonian State / Maksu- ja Tolliamet
   (Case C-695/17)
   (2018/C 083/17)
   Language of the case: Finnish

      Referring court

   Helsingin käräjäoikeus

      Parties to the main proceedings

      Applicant: Metirato Oy, in liquidation

      Defendants: Finnish State / Tax Authority, Estonian State / Maksu- ja Tolliamet

      Questions referred

               1.

               Must the provisions of Article 13(1) of [Directive 2010/24] (1), according to which debts to be recovered pursuant to a request for recovery are to be treated by the requested State as being the debts of that State, be interpreted as meaning that

                           (a)

                           the requested Member State is also a party to the legal proceedings concerning the restitution to the insolvency estate of sums paid following a recovery, or

                           (b)

                           that the involvement of the requested State is limited to the recovery of the debt by enforcement and the lodgement of the claim in the insolvency proceedings, and that it is the applicant State which is the defendant in a request for recovery concerning the extent of the assets covered by the liquidation?

               2.

               Must the directive be interpreted as meaning that the debts of another Member State are to be recovered using the same means, while remaining separate and distinct from the assets of the requested State, or must the directive be interpreted as meaning that those debts are to be recovered together with the debts of the requested State, in which case they are merged with the debts of the requested State. In other words: does the directive aim exclusively to prohibit the discrimination of debts of another Member State?

               3.

               Is it possible for a dispute concerning restitution of assets to the insolvency estate to be treated as a dispute concerning the enforcement measures within the meaning of Article 14(2), and can it be inferred that, according to the directive, the requested State is also a defendant in such a dispute?

      (1)  Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (OJ 2010 L 84, p. 1).


title: Joined Cases C-654/16, C-657/16 and C-658/16: Order of the Court (Eighth Chamber) of 11 January 2018 (requests for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Amber Capital Italia Sgr SpA (C-654/16), Amber Capital Uk Llp (C-654/16), Bluebell Partners Limited (C-657/16), Elliot International LP (C-658/16), The Liverpool Limited Partnership (C-658/16), Elliot Associates LP (C-658/16) v Commissione Nazionale per le Società e la Borsa (Consob) (Reference for a preliminary ruling — Company law — Directive 2004/25/EC — Takeover bids — Second subparagraph of Article 5(4) — Possibility of altering the price of the bid in specific circumstances and in line with clearly determined criteria — National legislation providing for the fixing of the price of the bid at the price ascertained in the event of collusion between the offeror or persons acting in concert with it and one or more sellers — Concept of ‘clearly determined criterion’)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/8

         Order of the Court (Eighth Chamber) of 11 January 2018 (requests for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio — Italy) — Amber Capital Italia Sgr SpA (C-654/16), Amber Capital Uk Llp (C-654/16), Bluebell Partners Limited (C-657/16), Elliot International LP (C-658/16), The Liverpool Limited Partnership (C-658/16), Elliot Associates LP (C-658/16) v Commissione Nazionale per le Società e la Borsa (Consob)
   (Joined Cases C-654/16, C-657/16 and C-658/16) (1)

   ((Reference for a preliminary ruling - Company law - Directive 2004/25/EC - Takeover bids - Second subparagraph of Article 5(4) - Possibility of altering the price of the bid in specific circumstances and in line with clearly determined criteria - National legislation providing for the fixing of the price of the bid at the price ascertained in the event of collusion between the offeror or persons acting in concert with it and one or more sellers - Concept of ‘clearly determined criterion’))
   (2018/C 083/10)
   Language of the cases: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Amber Capital Italia Sgr SpA (C-654/16), Amber Capital Uk Llp (C-654/16), Bluebell Partners Limited (C-657/16), Elliot International LP (C-658/16), The Liverpool Limited Partnership (C-658/16), Elliot Associates LP (C-658/16)

      Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

      Interveners: Hitachi Rail Italy Investments Srl, Hitachi Rail Italy SpA, Ansaldo Sts SpA (C-654/16), Finmeccanica SpA

      Operative part of the order

   The second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows the national supervisory authority to adjust upwards the price of a takeover bid in the event of collusion between the offeror or persons acting in concert with it and one or more sellers, by merely providing that, with regard to the price to which that takeover bid may thus be increased, that price is to correspond to the price ascertained by that authority, on condition that that price can be deduced in a sufficiently clear, precise and foreseeable manner from the body of national legislation, using methods of interpretation recognised by domestic law.

      (1)  OJ C 121, 18.4.2017.


title: Case C-269/17: Order of the President of the Court of 14 November 2017 (request for a preliminary ruling from the Amtsgericht Hamburg — Germany) — Andreas Niemeyer v Brussels Airlines SA/NV

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/18

         Order of the President of the Court of 14 November 2017 (request for a preliminary ruling from the Amtsgericht Hamburg — Germany) — Andreas Niemeyer v Brussels Airlines SA/NV
   (Case C-269/17) (1)

   (2018/C 083/26)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 318, 25.9.2017.


title: Case C-678/16 P: Order of the Court (Eighth Chamber) of 18 January 2018 — Monster Energy Company v European Union Intellectual Property Office (EUIPO) (Appeal — Rules of Procedure — Article 181 — EU trade mark — Opposition proceedings — Figurative mark containing the word elements ‘HotoGo self-heating can technology’ — Composite mark — Application for registration — Opposition — Rejection — Appeal manifestly inadmissible)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/8

         Order of the Court (Eighth Chamber) of 18 January 2018 — Monster Energy Company v European Union Intellectual Property Office (EUIPO)
   (Case C-678/16 P) (1)

   ((Appeal - Rules of Procedure - Article 181 - EU trade mark - Opposition proceedings - Figurative mark containing the word elements ‘HotoGo self-heating can technology’ - Composite mark - Application for registration - Opposition - Rejection - Appeal manifestly inadmissible))
   (2018/C 083/11)
   Language of the case: English

      Parties

      Appellant: Monster Energy Company (represented by: P. Brownlow, Solicitor)

      Other party to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: A. Folliard-Monguiral, acting as Agent)

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Monster Energy Company shall pay the costs.

      (1)  OJ C 144, 8.5.2017.


title: Case C-705/17: Request for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 15 December 2017 — Patent-och registreringsverket v Mats Hansson

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/12

         Request for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 15 December 2017 — Patent-och registreringsverket v Mats Hansson
   (Case C-705/17)
   (2018/C 083/19)
   Language of the case: Swedish

      Referring court

   Svea hovrätt

      Parties to the main proceedings

      Applicant: Patent-och registreringsverket

      Defendant: Mats Hansson

      Questions referred

               1.

               Must Article 4(1)(b) of the Trade Marks Directive (1) be interpreted as meaning that the global assessment of all relevant factors which is to be made in an assessment of the likelihood of confusion may be affected by the fact that an element of the trade mark has expressly been excluded from protection on registration, that is to say, that a so-called disclaimer has been entered on registration?

               2.

               If the answer to the first question is in the affirmative, can the disclaimer in such a case affect the global assessment in such a way that the competent authority has regard to the element in question but gives it a more limited importance so that it is not regarded as being distinctive, even if the element would de facto be distinctive and prominent in the earlier trade mark?

               3.

               If the answer to the first question is in the affirmative and the answer to the second question in the negative, can the disclaimer even so affect the global assessment in any other way?

      (1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008, L 299, p. 25).


title: Case C-101/17 P: Order of the Court (Eighth Chamber) of 14 December 2017 — Verus Eood v European Union Intellectual Property Office (EUIPO), Maquet GmbH (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — EU word mark LUCEO — Declaration of invalidity)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/9

         Order of the Court (Eighth Chamber) of 14 December 2017 — Verus Eood v European Union Intellectual Property Office (EUIPO), Maquet GmbH
   (Case C-101/17 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - EU trade mark - Invalidity proceedings - EU word mark LUCEO - Declaration of invalidity))
   (2018/C 083/12)
   Language of the case: German

      Parties

      Appellant: Verus Eood (represented by: C. Pfitzer, Rechtsanwalt)

      Other parties to the proceedings: European Union Intellectual Property Office (EUIPO) (represented by: A. Schifko, acting as Agent), Maquet GmbH (represented by: N. Hebeis, Rechtsanwalt)

      Operative part of the order

               1)

               The appeal is dismissed.

               2)

               Verus Eood shall pay the costs.

      (1)  OJ C 195, 19.6.2017.


title: Case C-499/17 P: Appeal brought on 17 August 2017 by Miguel Torres, SA against the judgment of the General Court (Second Chamber) delivered on 31 May 2017 in Case T-637/15: Alma-The Soul of Italian Wine v EUIPO — Miguel Torres

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/9

         Appeal brought on 17 August 2017 by Miguel Torres, SA against the judgment of the General Court (Second Chamber) delivered on 31 May 2017 in Case T-637/15: Alma-The Soul of Italian Wine v EUIPO — Miguel Torres
   (Case C-499/17 P)
   (2018/C 083/13)
   Language of the case: English

      Parties

      Appellant: Miguel Torres, SA (represented by: A. von Mühlendahl, Rechtsanwalt, J. Güell Serra, abogado)

      Other parties to the proceedings: Alma-The Soul of Italian Wine LLLP, European Union Intellectual Property Office
   By order of 14 December 2017 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.


title: Case C-420/17: Order of the President of the Court of 8 December 2017 — European Commission v French Republic

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/18

         Order of the President of the Court of 8 December 2017 — European Commission v French Republic
   (Case C-420/17) (1)

   (2018/C 083/28)
   Language of the case: French
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 300, 11.9.2017.


title: Case C-249/15: Judgment of the Court (Ninth Chamber) of 18 January 2018 (request for a preliminary ruling from the Østre Landsret — Denmark) — Wind 1014 GmbH, Kurt Daell v Skatteministeriet (References for a preliminary ruling — Article 56 TFEU — Freedom to provide services — Restrictions — Motor vehicle leased by a resident of one Member State from a leasing company established in another Member State — Registration tax calculated proportionately to the duration of use of the vehicle — Requirement of approval from the national tax authorities before use — Justification — Prevention of circumvention of tax rules and fraud or abuse — Safeguarding States’ powers of taxation — Proportionality)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/2

         Judgment of the Court (Ninth Chamber) of 18 January 2018 (request for a preliminary ruling from the Østre Landsret — Denmark) — Wind 1014 GmbH, Kurt Daell v Skatteministeriet
   (Case C-249/15) (1)

   ((References for a preliminary ruling - Article 56 TFEU - Freedom to provide services - Restrictions - Motor vehicle leased by a resident of one Member State from a leasing company established in another Member State - Registration tax calculated proportionately to the duration of use of the vehicle - Requirement of approval from the national tax authorities before use - Justification - Prevention of circumvention of tax rules and fraud or abuse - Safeguarding States’ powers of taxation - Proportionality))
   (2018/C 083/02)
   Language of the case: Danish

      Referring court

   Østre Landsret

      Parties to the main proceedings

      Applicant: Wind 1014 GmbH, Kurt Daell

      Defendant: Skatteministeriet

      Operative part of the judgment

   Article 56 TFEU must be interpreted as precluding a Member State’s legislation and administrative practice, such as those at issue in the main proceedings, under which:

               —

               use by a resident in that Member State of a vehicle leased from a leasing company established in another Member State for the purpose of temporary use of that vehicle in the first Member State, in return for payment of a proportionate registration tax calculated proportionately to the duration of that use, is subject to prior approval of that payment by that Member State’s tax authorities, without which the vehicle may not, in principle, be used in its territory, and

               —

               the possibility of making immediate use of such a vehicle in that first Member State whilst the taxpayer’s application to pay a proportionate registration tax on that vehicle based on the duration of use in that first Member State is being processed, is subject to advance payment of the full amount of registration tax, with provision made for repayment of the surplus paid, plus interest, if and when the taxpayer is eventually authorised by the tax authorities to pay the registration tax calculated proportionately.

      (1)  OJ C 245, 27.7.2015.


title: Case T-250/17: Judgment of the General Court of 23 January 2018 — avanti v EUIPO (avanti) (EU trade mark — Application for the EU figurative mark avanti — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/21

         Judgment of the General Court of 23 January 2018 — avanti v EUIPO (avanti)
   (Case T-250/17) (1)

   ((EU trade mark - Application for the EU figurative mark avanti - Absolute ground for refusal - No distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 083/32)
   Language of the case: German

      Parties

      Applicant: avanti GmbH (Hamburg, Germany) (represented by: M. Bahmann, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 14 February 2017 (Case R 801/2016-5), concerning an application for registration of the figurative sign Avanti as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders avanti GmbH to pay the costs.

      (1)  OJ C 195, 19.6.2017.


title: Case C-536/17 P: Appeal brought on 11 September 2017 by Josel, SL against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2017 in Case T-333/15: Josel v EUIPO — Nationale-Nederlanden Nederland

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/10

         Appeal brought on 11 September 2017 by Josel, SL against the judgment of the General Court (Sixth Chamber) delivered on 28 June 2017 in Case T-333/15: Josel v EUIPO — Nationale-Nederlanden Nederland
   (Case C-536/17 P)
   (2018/C 083/14)
   Language of the case: English

      Parties

      Appellant: Josel, SL (represented by: J. Güell Serra, abogado)

      Other parties to the proceedings: European Union Intellectual Property Office, Nationale-Nederlanden Nederland BV
   By order of 17 January 2018 the Court of Justice (Ninth Chamber) held that the appeal was inadmissible.


title: Case C-724/17: Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 22 December 2017 — Vantaan kaupunki v Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/14

         Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 22 December 2017 — Vantaan kaupunki v Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy
   (Case C-724/17)
   (2018/C 083/21)
   Language of the case: Finnish

      Referring court

   Korkein oikeus

      Parties to the main proceedings

      Appellant: Vantaan kaupunki

      Respondents: Skanska Industrial Solutions Oy, NCC Industry Oy, Asfaltmix Oy

      Questions referred

               1.

               Is the determination of which parties are liable for the compensation of damage caused by conduct contrary to Article 101 TFEU to be done by applying that article directly or on the basis of national provisions?

               2.

               If the parties liable are determined directly on the basis of Article 101 TFEU, are those parties which fall within the concept of undertaking mentioned in that article liable for compensation? When determining the parties liable for compensation, are the same principles to be applied as the Court of Justice has applied to determining the parties liable in cases concerning penalty payments, in accordance with which liability may be founded in particular on belonging to the same economic unit or on economic continuity?

               3.

               If the parties liable are determined on the basis of national provisions of a Member State, are national rules under which a company which, after acquiring the entire share capital of a company which took part in a cartel contrary to Article 101 TFEU, has dissolved the company in question and continued its activity is not liable for compensation for the damage caused by the anti-competitive conduct of the company in question, even though obtaining compensation form the dissolved company is impossible in practice or unreasonably difficult, contrary to the EU law requirement of effectiveness? Does the requirement of effectiveness preclude an interpretation of a Member State’s domestic law making it a condition of compensation for damage that a transformation of the kind described has been implemented unlawfully or artificially in order to avoid liability for compensation for damage under competition law or otherwise fraudulently, or at least that the company knew or ought to have known of the competition infringement when implementing the transformation?


title: Case T-15/18: Action brought on 17 January 2018 — OCU v ECB

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/22

         Action brought on 17 January 2018 — OCU v ECB
   (Case T-15/18)
   (2018/C 083/33)
   Language of the case: Spanish

      Parties

      Applicant: Organización de Consumidores y Usuarios (OCU) (Madrid, Spain) (represented by: E. Martínez Martínez and C. López-Mélida de Ramón, lawyers)

      Defendant: European Central Bank (ECB)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the contested decision.

               —

               Order the ECB to disclose to the applicant the full or confidential version of the documents.

               —

               Order the ECB to pay the costs incurred.

      Pleas in law and main arguments

   This action seeks the annulment of the Decision of 17 November 2017, registered under number LS/MD/17/428, dismissing the applicant’s ‘confirmatory application for access to ECB documents’ of 14 September 2017 and an order for the disclosure of the documents requested, relating to the resolution of the institution Banco Popular Español S.A.
   In support of its action, the applicant relies on a single plea in law, based on the fundamental right set out in Article 41(2) of the Charter of Fundamental Rights of the European Union, namely the right to good administration, in the form of access to documents for the proper exercise of the right of defence.


title: Case C-270/16: Judgment of the Court (Third Chamber) of 18 January 2018 (request for a preliminary ruling from the Juzgado de lo Social No 1 de Cuenca — Spain) — Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA, Ministerio Fiscal (Reference for a preliminary ruling — Social policy — Directive 2000/78/EC — Equal treatment in employment and occupation — Article 2(2)(b)(i) — Prohibition of discrimination based on disability — National legislation permitting, subject to certain conditions, the dismissal of an employee by reason of intermittent absences, even where justified — Worker’s absences resulting from illnesses linked to his disability — Difference in treatment based on disability — Indirect discrimination — Whether justified — Combating absenteeism in the workplace — Whether appropriate — Whether proportionate)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/3

         Judgment of the Court (Third Chamber) of 18 January 2018 (request for a preliminary ruling from the Juzgado de lo Social No 1 de Cuenca — Spain) — Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA, Ministerio Fiscal
   (Case C-270/16) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2000/78/EC - Equal treatment in employment and occupation - Article 2(2)(b)(i) - Prohibition of discrimination based on disability - National legislation permitting, subject to certain conditions, the dismissal of an employee by reason of intermittent absences, even where justified - Worker’s absences resulting from illnesses linked to his disability - Difference in treatment based on disability - Indirect discrimination - Whether justified - Combating absenteeism in the workplace - Whether appropriate - Whether proportionate))
   (2018/C 083/03)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 1 de Cuenca

      Parties to the main proceedings

      Applicant: Carlos Enrique Ruiz Conejero

      Defendant: Ferroser Servicios Auxiliares SA, Ministerio Fiscal

      Operative part of the judgment

   Article 2(2)(b)(i) of Council Directive 2008/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding national legislation under which an employer may dismiss a worker on the grounds of his intermittent absences from work, even if justified, in a situation where those absences are the consequence of sickness attributable to a disability suffered by that worker, unless that legislation, while pursuing the legitimate aim of combating absenteeism, does not go beyond what is necessary in order to achieve that aim, which is a matter for the referring court to assess.

      (1)  OJ C 279, 1.8.2016.


title: Case T-16/18: Action brought on 17 January 2018 — Activos e Inversiones Monterosso v SRB

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/22

         Action brought on 17 January 2018 — Activos e Inversiones Monterosso v SRB
   (Case T-16/18)
   (2018/C 083/34)
   Language of the case: Spanish

      Parties

      Applicant: Activos e Inversiones Monterosso, S.L. (Pantoja, Spain) (represented by: S. Rodríguez Bajón, lawyer)

      Defendant: Single Resolution Board

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the SRB of 8 November 2017;

               —

               order that the applicant be given access to the file in the terms sought in the application.

      Pleas in law and main arguments

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

               1.

               In its decision of 8 November 2017, the SRB clearly confuses the general right of access to documents, on which any EU citizen can rely, with the more specific right of access to the file, which can be exercised only by parties which have an interest in the proceedings to which the file relates. The SRB, however, concludes that the list of documents to which the applicant can be granted access is the same under both rights, a statement which is at variance with the law.
               The right of access to the file is clearly a separate right to that of access to documents. Whereas the former is one of the rights coming within the scope of the ‘right to good administration’ enshrined in the Charter of Fundamental Rights of the European Union, the latter is an independent right of a much more general nature and connected with the principle of public transparency.

               2.

               This difference between those two rights implies that they are addressed to different persons and are protected differently, with the result that the right of access to the file can be invoked only by persons having an interest in the proceedings at issue, whereas the right of access to documents is granted to any EU citizen in relation to the documents held by the EU institutions.

               3.

               The differing scope of those rights necessarily implies that the range of exceptions applicable to each right is also different. Accordingly, while one of the exceptions to the right of access to documents is that such access must not result in prejudice to the ‘commercial interests’ of the undertakings concerned, the right of access to the file, by contrast, is restricted by the fact that its exercise must not affect the ‘business secrets’ of the undertakings party to the proceedings. In that sense, the distinction between ‘commercial interests’, clearly a broad concept, and ‘business secrets’, a much more restrictive concept that refers to the set of knowledge that is specific to a given undertaking, known by a very specific group of persons, and disclosure of which may affect that undertaking, is justified. In this respect, the existence of business secrets must be weighed against the remaining interests involved, such as the right of defence.

               4.

               Confidentiality, being another of the exceptions to which the right of access to the file is subject, must also be justified and is limited in a number of ways which must be taken into account, such that reliance cannot automatically be placed on confidentiality in order to deny the right of access to the file. Accordingly, reasons as to why confidentiality applies must be given, something which did not happen in the present case.

               5.

               The key to the decision in the present case must lie in the application of Article 41(2)(b) of the Charter of Fundamental Rights of the European Union and, consequently, the SRB must, within the framework of Regulation No 806/2014, comply with the provisions of Article 90(4), and not those of 90(1), thereof.


title: Case C-363/16: Judgment of the Court (First Chamber) of 17 January 2018 — European Commission v Hellenic Republic (Failure of a Member State to fulfil obligations — State aid — Aid declared unlawful and incompatible with the internal market — Obligation to recover — Second subparagraph of Article 108(2) TFEU — Regulation (EC) No 659/1999 — Article 14(3) — Undertaking benefiting from the aid declared insolvent — Insolvency proceedings — Registration of the liabilities in the schedule of liabilities — Cessation of activities — Suspension of insolvency proceedings for the purposes of examining the prospect of relaunching the business — Obligation to provide information — Failure to perform)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/3

         Judgment of the Court (First Chamber) of 17 January 2018 — European Commission v Hellenic Republic
   (Case C-363/16) (1)

   ((Failure of a Member State to fulfil obligations - State aid - Aid declared unlawful and incompatible with the internal market - Obligation to recover - Second subparagraph of Article 108(2) TFEU - Regulation (EC) No 659/1999 - Article 14(3) - Undertaking benefiting from the aid declared insolvent - Insolvency proceedings - Registration of the liabilities in the schedule of liabilities - Cessation of activities - Suspension of insolvency proceedings for the purposes of examining the prospect of relaunching the business - Obligation to provide information - Failure to perform))
   (2018/C 083/04)
   Language of the case: Greek

      Parties

      Applicant: European Commission (represented by: A. Bouchagiar and B. Stromsky, acting as Agents,

      Defendant: Hellenic Republic (represented by: K. Boskovits and V. Karra, acting as Agents.)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to take, within the prescribed periods, all the measures necessary for the implementation of Commission Decision 2012/541/EU of 22 February 2012 on the State aid SA.26534 (C 27/10 ex NN 6/09) implemented by Greece in favour of United Textiles SA, and by failing to inform the Commission adequately of the measures taken pursuant to that decision, the Hellenic Republic has failed to fulfil its obligations under Articles 2 to 4 of that decision as and under the TFEU.

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 305, 22.8.2016.


title: Case C-676/16: Judgment of the Court (First Chamber) of 17 January 2018 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — CORPORATE COMPANIES s.r.o. v Ministerstvo financí ČR (Reference for a preliminary ruling — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60/EC — Scope — Article 2(1), point 3(c) and Article 3, point 7(a) — Business activity of an undertaking consisting in the sale of companies already entered in the Register of Companies and formed solely for the purposes of sale — Sale by means of the transfer of the undertaking’s holding in the ready-made company)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/5

         Judgment of the Court (First Chamber) of 17 January 2018 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — CORPORATE COMPANIES s.r.o. v Ministerstvo financí ČR
   (Case C-676/16) (1)

   ((Reference for a preliminary ruling - Prevention of the use of the financial system for the purpose of money laundering and terrorist financing - Directive 2005/60/EC - Scope - Article 2(1), point 3(c) and Article 3, point 7(a) - Business activity of an undertaking consisting in the sale of companies already entered in the Register of Companies and formed solely for the purposes of sale - Sale by means of the transfer of the undertaking’s holding in the ready-made company))
   (2018/C 083/06)
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: CORPORATE COMPANIES s.r.o.

      Defendant: Ministerstvo financí ČR

      Operative part of the judgment

   Article 2(1), point 3(c) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, read in conjunction with Article 3, point 7(a) of that directive, must be interpreted as meaning that a person, such as that at issue in the main proceedings, whose commercial activity consists in selling companies which it formed itself, without any prior request on the part of its potential clients, for the purposes of sale to those clients, by means of a transfer of its shares in the capital of the company being sold, falls within the scope of those provisions.

      (1)  OJ C 86, 20.3.2017.


title: Case C-45/17: Judgment of the Court (Tenth Chamber) of 18 January 2018 (request for a preliminary ruling from the Conseil d’État — France) — Frédéric Jahin v Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé (Reference for a preliminary ruling — Free movement of capital — Articles 63 TFEU and 65 TFEU — Regulation (EC) No 883/2004 — Article 11 — Levies on income from assets contributing to the financing of the social security scheme of a Member State — Exemption for nationals of the European Union affiliated to a social security scheme of another Member State — Natural persons affiliated to a social security scheme of a third country — Difference of treatment — Restriction — Justification)

text:
               5.3.2018

               EN

               Official Journal of the European Union

               C 83/5

         Judgment of the Court (Tenth Chamber) of 18 January 2018 (request for a preliminary ruling from the Conseil d’État — France) — Frédéric Jahin v Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé
   (Case C-45/17) (1)

   ((Reference for a preliminary ruling - Free movement of capital - Articles 63 TFEU and 65 TFEU - Regulation (EC) No 883/2004 - Article 11 - Levies on income from assets contributing to the financing of the social security scheme of a Member State - Exemption for nationals of the European Union affiliated to a social security scheme of another Member State - Natural persons affiliated to a social security scheme of a third country - Difference of treatment - Restriction - Justification))
   (2018/C 083/07)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Frédéric Jahin

      Defendants: Ministre de l’Économie et des Finances, Ministre des Affaires sociales et de la Santé

      Operative part of the judgment

   Articles 63 TFEU and 65 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which a national of that Member State who resides in a third country other than a Member State of the European Economic Area (EEA) or the Swiss Confederation and is affiliated to a social security scheme in that third country is subject, in that Member State, to levies on income from assets for the purpose of contributing to the social security scheme established by that Member State, whereas an EU national covered by a social security scheme of another Member State is exempted therefrom by reason of the principle that the legislation of a single Member State only is to apply in matters of social security pursuant to Article 11 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.

      (1)  OJ C 121, 18.4.2017.


title: Case T-35/17: Judgment of the General Court of 31 January 2018 — Weber-Stephen Products v EUIPO (iGrill) (EU trade mark — International registration designating the European Union — Word mark iGrill — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/24

         Judgment of the General Court of 31 January 2018 — Weber-Stephen Products v EUIPO (iGrill)
   (Case T-35/17) (1)

   ((EU trade mark - International registration designating the European Union - Word mark iGrill - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001)))
   (2018/C 094/31)
   Language of the case: English

      Parties

      Applicant: Weber-Stephen Products LLC (Palatine, Illinois, United States) (represented by: R. Niebel and A. Jauch, lawyers)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 4 November 2016 (Case R 538/2016–2), relating to the international registration designating the European Union of the word mark iGrill.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Weber-Stephen Products LLC to pay the costs.

      (1)  OJ C 70, 6.3.2017.


title: Case C-553/17 P: Appeal brought on 21 September 2017 by Windfinder R & L Co. KG against the judgment of the General Court (Seventh Chamber) delivered on 20 July 2017 in Case T-395/16, Windfinder R & L Co. KG v European Union Intellectual Property Office

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/2

         Appeal brought on 21 September 2017 by Windfinder R & L Co. KG against the judgment of the General Court (Seventh Chamber) delivered on 20 July 2017 in Case T-395/16, Windfinder R & L Co. KG v European Union Intellectual Property Office
   (Case C-553/17 P)
   (2018/C 094/02)
   Language of the case: German

      Parties

      Appellant: Windfinder R & L Co. KG (represented by: B. Schneider, Rechtsanwalt)

      Other party to the proceedings: European Union Intellectual Property Office
   By order of 24 January 2018, the Court of Justice of the European Union (Tenth Chamber) dismissed the appeal and ordered the appellant to bear its own costs.


title: Case T-69/17: Judgment of the General Court of 24 January 2018 — Constantin Film Produktion v EUIPO (Fack Ju Göhte) (EU trade mark — Application for the EU word mark Fack Ju Göhte — Absolute ground for refusal — Trade mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) of Regulation (EC) No 207/2009 (now Article 7(1)(f) of Regulation (EU) 2017/1001))

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/24

         Judgment of the General Court of 24 January 2018 — Constantin Film Produktion v EUIPO (Fack Ju Göhte)
   (Case T-69/17) (1)

   ((EU trade mark - Application for the EU word mark Fack Ju Göhte - Absolute ground for refusal - Trade mark contrary to public policy or to accepted principles of morality - Article 7(1)(f) of Regulation (EC) No 207/2009 (now Article 7(1)(f) of Regulation (EU) 2017/1001)))
   (2018/C 094/32)
   Language of the case: German

      Parties

      Applicant: Constantin Film Produktion GmbH (Munich, Germany) (represented by: E. Saarmann and P. Baronikians, lawyers)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 1 December 2016 (Case R 2205/2015–5), concerning an application for registration of the word sign Fack Ju Göhte as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Constantin Film Produktion GmbH to pay the costs.

      (1)  OJ C 104, 3.4.2017.


title: Case T-44/16: Judgment of the General Court of 31 January 2018 — Novartis AG v EUIPO — SK Chemicals (Figurative EU trade mark representing a transdermal patch) (EU trade mark — Invalidity proceedings — Figurative EU trade mark representing a transdermal patch — Absolute ground for refusal — Sign consisting exclusively of the shape of the product necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 207/2009 (now Article 7(1)(e)(ii) of Regulation (EU) 2017/1001))

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/17

         Judgment of the General Court of 31 January 2018 — Novartis AG v EUIPO — SK Chemicals (Figurative EU trade mark representing a transdermal patch)

   (Case T-44/16) (1)

   ((EU trade mark - Invalidity proceedings - Figurative EU trade mark representing a transdermal patch - Absolute ground for refusal - Sign consisting exclusively of the shape of the product necessary to obtain a technical result - Article 7(1)(e)(ii) of Regulation (EC) No 207/2009 (now Article 7(1)(e)(ii) of Regulation (EU) 2017/1001)))
   (2018/C 094/21)
   Language of the case: English

      Parties

      Applicant: Novartis AG (Basle, Switzerland) (represented: initially by M.R. Douglas, and subsequently by A. Nordemann-Schiffel, lawyers)

      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 intervening before the General Court: SK Chemicals GmbH (Eschborn, Germany) (represented by: R. Dissmann, J. Bogatz, and C. Lindenthal, lawyers)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 27 November 2015 (Case R 2342/2014-5), relating to invalidity proceedings between SK Chemicals and Novartis.

      Operative part of the order

               1.

               Dismisses the action;

               2.

               Orders Novartis AG to pay the costs.

      (1)  OJ C 111, 29.3.2016.


title: Case T-18/18: Action brought on 17 January 2018 — Lillelam v EUIPO — Pfaff (LITTLE LAMB)

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/31

         Action brought on 17 January 2018 — Lillelam v EUIPO — Pfaff (LITTLE LAMB)
   (Case T-18/18)
   (2018/C 094/41)
   Language in which the application was lodged: English

      Parties

      Applicant: Lillelam A/S (Oslo, Norway) (represented by: N. Köster, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Nick Pfaff (Ammanford, United Kingdom)

      Details of the proceedings before EUIPO

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

      Trade mark at issue: EU word mark ‘LITTLE LAMB’ — EU trade mark No 8 121 675

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 November 2017 in Case R 536/2017-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               revoke the EU Trademark No 8 121 675 ‘LITTLE LAMB’ for at least ‘Clothing’ and ‘Accessories for Clothing’

               —

               order EUIPO to pay the costs of the proceedings.

      Plea in law

               —

               Infringement of Article 58(1)(a) and Article 18(1) of Regulation No 2017/1001.


title: Case C-706/17: Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 18 December 2017 — ‘Achema’ AB, ‘Orlen Lietuva’ AB, ‘Lifosa’ AB v Valstybinė kainų ir energetikos kontrolės komisija (VKEKK)

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/8

         Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Lithuania) lodged on 18 December 2017 — ‘Achema’ AB, ‘Orlen Lietuva’ AB, ‘Lifosa’ AB v Valstybinė kainų ir energetikos kontrolės komisija (VKEKK)
   (Case C-706/17)
   (2018/C 094/11)
   Language of the case: Lithuanian

      Referring court

   Lietuvos vyriausiasis administracinis teismas

      Parties to the main proceedings

      Appellants:‘Achema’ AB, ‘Orlen Lietuva’ AB, ‘Lifosa’ AB

      Other party to the proceedings: Valstybinė kainų ir energetikos kontrolės komisija (VKEKK)

      Questions referred

   Is the legislative framework for the provision of public interest services in the electricity sector (‘PIS’) and their financing (compensation) (‘the PIS scheme’) — established in the Lithuanian Law on electricity, in the Lithuanian Law on energy from renewable sources, in the Lithuanian Law on integration of the electricity system into European electricity systems, in the Lithuanian Law implementing the Law amending and supplementing Articles 2, 11, 13, 14, 16, 20 and 21 of the Law on energy from renewable sources and in the legal measures implementing those laws, including the Procedure for the provision of public interest services in the electricity sector, approved by Resolution No 916 of the Government of the Republic of Lithuania of 18 July 2012, the Procedure for the administration of monies for public interest services in the electricity sector, approved by Resolution No 1157 of the Government of the Republic of Lithuania of 19 September 2012, and so forth — as in force in 2014, or part thereof, to be regarded as State aid (a State aid scheme) for the purposes of Article 107(1) of the Treaty on the Functioning of the European Union, including the following questions:

               —

               in circumstances such as those in the present case, is Article 107(1) TFEU to be interpreted as meaning that PIS monies are, or are not, to be regarded as State resources?

               —

               is Article 107(1) TFEU to be interpreted as meaning that a case where an obligation is imposed on network operators (undertakings) to purchase electricity from electricity producers at a fixed price (rate) and/or to balance the electricity, and the losses sustained by network operators on account of that obligation are compensated with monies which are possibly attributable to State resources, is not to be regarded as aid granted to electricity producers through State resources?

               —

               is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the following support is, or is not, to be regarded as selective and/or capable of affecting trade between Member States: support granted to an undertaking which implements a project of strategic importance, such as ‘NordBalt’; support granted to undertakings which are entrusted with ensuring the security of electricity supply for a given period; support to compensate for the losses reflecting market conditions and actually sustained by persons, such as the developers of solar photovoltaic plants who are at issue, by reason of the State’s refusal to fulfil commitments entered into (by reason of national regulatory changes); support granted to undertakings (network operators) with the objective of compensating for actual losses sustained in their discharging of the obligation to purchase electricity at a fixed price from electricity producers providing PIS and to balance the electricity?

               —

               is Article 107(1) TFEU, applied in conjunction with Article 106(2) TFEU, to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme in question (or part thereof) is, or is not, to be regarded as satisfying the criteria laid down in paragraphs 88 to 93 of the judgment of the Court of Justice of the European Union of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg (C-280/00)?

               —

               is Article 107(1) TFEU to be interpreted as meaning that, in circumstances such as those in the present case, the PIS scheme (or part thereof) is, or is not, to be regarded as distorting or threatening to distort competition?


title: Case C-653/17 P: Appeal brought on 21 November 2017 by VM Vermögens-Management GmbH against the judgment of the General Court (Sixth Chamber) of 7 September 2017 in Case T-374/15, VM Vermögens-Management v European Union Intellectual Property Office (EUIPO)

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/3

         Appeal brought on 21 November 2017 by VM Vermögens-Management GmbH against the judgment of the General Court (Sixth Chamber) of 7 September 2017 in Case T-374/15, VM Vermögens-Management v European Union Intellectual Property Office (EUIPO)
   (Case C-653/17 P)
   (2018/C 094/04)
   Language of the case: German

      Parties

      Appellant: VM Vermögens-Management GmbH (represented by: T. Dolde and P. Homann, Rechtsanwälte)

      Other parties to the proceedings: European Union Intellectual Property Office, DAT Vermögensmanagement GmbH

      Form of order sought:

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court of the European Union of 7 September 2017 in Case T-374/15;

               —

               refer the case back to the General Court of the European Union.

      Grounds of appeal and main arguments

   The first ground of appeal alleges infringement of Article 65(2) of the EU trade mark regulation, (1) in conjunction with the right to be heard under Article 47 of the Charter of Fundamental Rights of the European Union and the right to property under Article 17 of the Charter of Fundamental Rights of the European Union. This ground is based on the assertion that the General Court did not take into account the retroactive effect of the amendment of the list of services of the EU trade mark ‘Vermögensmanufaktur’ which resulted from a declaration made under Article 28(8) of the EU trade mark regulation and that the contested decision also annulled the EU trade mark for the newly-added services, without examining the registrability of the EU trade mark in that respect. The General Court should therefore not have rejected as inadmissible the appellant’s claim seeking to have the contested decision altered.
   The second ground of appeal alleges infringement of Article 36 of the Statute of the Court of Justice, in so far as the General Court rejected as inadmissible in its entirety the appellant’s claim seeking to have the contested decision altered, without ruling on the merits of the retroactive effect of the amendment of the list of services of the EU trade mark ‘Vermögensmanufaktur’ resulting from a declaration under Article 28(8) of the EU trade mark regulation.
   The third ground of appeal alleges infringement of Article 7(1)(c) of the EU trade mark regulation, in so far as the General Court’s findings in regard to descriptive character were based on incorrect considerations concerning the relevant public’s perception of the designation ‘Vermögensmanufaktur’ and that there is no sufficiently direct and specific link between the EU trade mark and the contested services as they are described which would allow the EU trade mark to be regarded as descriptive.
   The fourth ground of appeal alleges infringement of Article 7(1)(b) of the EU trade mark regulation, in so far as the General Court justified the lack of distinctive character of the EU trade mark solely on the basis that ‘Vermögensmanufaktur’ would be perceived by the relevant public as a laudatory slogan and as promotional information, without explaining why the EU trade mark could not also at the same time serve as a distinctive indication of origin.
   The fifth ground of appeal alleges infringement of the second sentence of Article 75 of the EU trade mark regulation, in so far as the General Court rejected the argument that there had been an infringement of the right to be heard for the sole reason that the documents which had been submitted late in the proceedings before EUIPO were not taken into account in the assessment carried out by the Board of Appeal and the contested decision was not based on those documents, even though it is clear from the case-file that the Board of Appeal copied its decision word for word from that evidence and did not at any time accord the appellant the opportunity to comment on that evidence.
   The sixth ground of appeal alleges infringement of Article 76(2) of the EU trade mark regulation, in so far as the contested decision is based on evidence which, in the first instance before EUIPO, was submitted out of time, with the result that the Board of Appeal, in any event, should also have regarded that evidence as having been submitted out of time. The General Court, in the judgment under appeal, incorrectly concluded in this respect that that evidence had not been taken into account by the Board of Appeal and that it had not had a conclusive bearing on the contested decision.

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


title: Case C-707/17: Request for a preliminary ruling from the Rayonen sad Svilengrad (Bulgaria) lodged on 19 December 2017 — Criminal proceedings against Daniela Pinzaru and Robert-Andrei Cirstinoiu

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/10

         Request for a preliminary ruling from the Rayonen sad Svilengrad (Bulgaria) lodged on 19 December 2017 — Criminal proceedings against Daniela Pinzaru and Robert-Andrei Cirstinoiu
   (Case C-707/17)
   (2018/C 094/12)
   Language of the case: Bulgarian

      Referring court

   Rayonen sad Svilengrad

      Parties to the main proceedings

   Daniela Pinzaru, Robert-Andrei Cirstinoiu

      Questions referred for a preliminary ruling

               1.1.

               Are Article 65(3) TFEU and Article 9(1) of Regulation (EC) No 1889/2005 (1) of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community to be interpreted as precluding provisions of national law which set out the penalties of the type and intensity of those contained in Paragraph 251(1) of the Nakazatelen kodeks (Bulgarian Penal Code) which, for a failure to comply with the obligation to declare laid down in Article 3 of that regulation, provides, as alternative options, either for a prison sentence of a maximum of six years, which need not be suspended even in the event of a first offence, or for a fine which represents twice the value of the goods involved in the criminal offence, and in addition provides, cumulatively, in Paragraph 251(2) of that code, as a supplementary penalty, for the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, without it being necessary to determine the origin or intended purpose of those sums, because that provision of national law relates to a combination of penalties which go beyond that which is necessary to attain the objectives pursued by that regulation, contrary to the principle that the penalty must be proportionate to the criminal offence, enshrined in Article 49(3) of the Charter of Fundamental Rights of the European Union, and constituting a disguised restriction on the free movement of capital?

               1.2.

               Must those provisions of EU law, namely, Article 65(3) TFEU, Articles 3 and 9(1) of Regulation No 1889/2005 and Article 49(3) of the Charter of Fundamental Rights, be interpreted as precluding provisions of national law, in particular Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which, in addition to the principal penalties penalising a failure to comply with the obligation to declare under Article 3 of Regulation No 1889/2005, lays down a complementary penalty involving the confiscation, in favour of the State, of the entirety of the undeclared amounts of money, regardless of the origin or intended purpose of that sum of money?

               1.3.

               Must Article 17(1) of the Charter of Fundamental Rights be interpreted as meaning that a provision of national law, namely Paragraph 251(2) of the Nakazatelen kodeks (Bulgarian Penal Code), which is a confiscation measure that penalises a simple failure to comply with the obligation to declare, fails to respect the strict balance between the general interest and the requirement of the protection of the right to property enshrined in Article 17 of the Charter?

      (1)  Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community (OJ 2005 L 309, p. 1).


title: Case T-715/16: Order of the General Court of 16 January 2018 — Pebagua v Commission (Action for annulment — Environment — Protection against invasive alien species — Prevention and management of the introduction and spread of invasive alien species — Regulation (EU) No 1143/2014 — Implementing Regulation (EU) 2016/1141 — Adoption of a list of invasive alien species of concern to the European Union — Inclusion of the Procambarus clarkii species — No individual concern — Regulatory act entailing implementing measures — Manifest inadmissibility)

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/25

         Order of the General Court of 16 January 2018 — Pebagua v Commission
   (Case T-715/16) (1)

   ((Action for annulment - Environment - Protection against invasive alien species - Prevention and management of the introduction and spread of invasive alien species - Regulation (EU) No 1143/2014 - Implementing Regulation (EU) 2016/1141 - Adoption of a list of invasive alien species of concern to the European Union - Inclusion of the Procambarus clarkii species - No individual concern - Regulatory act entailing implementing measures - Manifest inadmissibility))
   (2018/C 094/33)
   Language of the case: Spanish

      Parties

      Applicant: Asociación de la pesca y acuicultura del entorno de Doñana y del Bajo Guadalquívir (Pebagua) (Isla Mayor, Spain) (represented by: A. Uceda Sosa, lawyer)

      Defendant: European Commission (represented by: C. Hermes and E. Sanfrutos Cano, Agents)

      Re:

   Application based on Article 263 TFEU and seeking the annulment of Commission Implementing Regulation (EU) 2016/1141 of 13 July 2016 adopting a list of invasive alien species of Union concern pursuant to Regulation (EU) No 1143/2014 of the European Parliament and of the Council (OJ 2016 L 189, p. 4).

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Asociación de la pesca y acuicultura del entorno de Doñana y del Bajo Guadalquívir (Pebagua) shall pay the costs.

      (1)  OJ C 441, 28.11.2016.


title: Case C-708/17: Request for a preliminary ruling from the Rayonen sad Asenovgrad (Bulgaria) lodged on 19 December 2017 — EVN Bulgaria Toplofikatsia EAD v Nikolina Stefanova Dimitrovа

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/10

         Request for a preliminary ruling from the Rayonen sad Asenovgrad (Bulgaria) lodged on 19 December 2017 — EVN Bulgaria Toplofikatsia EAD v Nikolina Stefanova Dimitrovа
   (Case C-708/17)
   (2018/C 094/13)
   Language of the case: Bulgarian

      Referring court

   Rayonen sad Asenovgrad

      Parties to the main proceedings

      Applicant: EVN Bulgaria Toplofikatsia EAD

      Defendant: Nikolina Stefanova Dimitrovа

      Questions referred

               1.

               Does Article 13(2) of Directive 2006/32/EC (1) of the European Parliament and of the Council of 5 April 2006 preclude the possibility of the district heating supplier demanding consideration for the consumed thermal energy released by the system supplied with district heating of a building in co-ownership in proportion to the heatable volume of the apartments according to the floor plan, without taking account of the quantity of thermal energy actually released in the individual apartment?

               2.

               Is a national provision that obliges consumers who are owners of apartments in buildings subject to the provisions on co-ownership to provide consideration for the thermal energy that is not used but is supplied by the building’s system provided with district heating, if they have ceased the use of the thermal energy by removing the radiators in their apartments or as a result of employees of the district heating supplier having rendered the radiator technically incapable of releasing heat at their request, compatible with Article 27 of Directive 2011/83/EU? (2)

               3.

               Does such a national provision give rise to an unfair commercial practice within the meaning of Directive 2005/29/EC (3) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council?

      (1)  Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC (Text with EEA relevance), OJ 2006 L 114, p 64.

      (2)  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (Text with EEA relevance), OJ 2011 L 304, p 64.

      (3)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (Text with EEA relevance), OJ 2005 L 149, p. 22.


title: Case C-654/17 P: Appeal brought on 22 November 2017 by Bayerische Motoren Werke AG against the judgment of the General Court (Fifth Chamber) delivered on 12 September 2017 in Case T-671/14, Bayerische Motoren Werke AG v European Commission

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/4

         Appeal brought on 22 November 2017 by Bayerische Motoren Werke AG against the judgment of the General Court (Fifth Chamber) delivered on 12 September 2017 in Case T-671/14, Bayerische Motoren Werke AG v European Commission
   (Case C-654/17 P)
   (2018/C 094/05)
   Language of the case: German

      Parties

      Appellant: Bayerische Motoren Werke AG (represented by: M. Rosenthal, G. Drauz and M. Schütte, Rechtsanwälte)

      Other parties to the proceedings: European Commission, Freistaat Sachsen

      Form of order sought

   The appellant claims that the Court of Justice should:

               1.

               set aside the judgment of the General Court of the European Union (Fifth Chamber) of 12 September 2017 in Case T-671/14;

               2.

               annul, pursuant to the fourth paragraph of Article 263 TFEU, the Commission decision of 9 July 2014 in Case SA.32009 (2011/C), which is challenged in the application, in so far as it declares the amount exceeding the amount of EUR 17 million (EUR 28 257 273) of the aid applied for, in the amount of EUR 45 257 273, to be incompatible with the internal market; if and in so far as the Court of Justice should consider itself unable to deliver final judgment in that respect, referral of the case back to the General Court of the European Union is sought in the alternative;

               3.

               in the alternative, annul, pursuant to the fourth paragraph of Article 263 TFEU, the contested Commission decision of 9 July 2014 in Case SA.32009 (2011/C), in so far as it prohibits and declares incompatible with the internal market under Article 6(2) of the General Block Exemption Regulation, in the version of 6 August 2008, the granting of any registration-free aid for the appellant’s investment projects, to the extent that that aid exceeds the amount of EUR 17 million;

               4.

               order the respondent to pay the costs of the proceedings in accordance with Articles 138(1) and 184(1) and (2) of the Rules of Procedure of the Court of Justice.

      Grounds of appeal and main arguments

   The appellant raises the following grounds of appeal:

               1.

                  First ground of appeal: infringement of Article 107(3) TFEU

               The judgment infringes Article 107(3) TFEU, since the General Court, in assessing the decision at issue, should, had it not erred in law, have concluded that the failure to carry out a separate examination as to whether and to what extent the granting of the aid would have the effect of distorting competition constitutes an infringement of Article 107(3)(c) TFEU.
               The judgment under appeal fails to recognise that the respondent could not limit its examination to merely determining the ex-ante estimated additional costs of the project in the disadvantaged location and ‘assume’ a distortion of competition for any aid going beyond that level, completely disregarding the appellant’s specific market position.

               2.

                  Second ground of appeal: infringement of Article 288 TFEU, of Articles 3 and 13(1) of the GBER 2008 and of the prohibition of discrimination

               The judgment infringes Article 288 TFEU and Articles 3 and 13(1) of the General Block Exemption Regulation (GBER 2008), since the General Court, had it not erred in law in its assessment, should have conferred on the respondent no renewed competence to examine aid and declare its incompatibility by decision, in so far as that aid, up to the threshold level under Article 6(2) of the GBER 2008, had already been declared substantively compatible with the internal market on the basis of higher-ranking, secondary European Union law.
               Furthermore, as a consequence of the judgment under appeal, the prohibition on receiving aid in excess of EUR 17 million, up to the threshold level of the GBER 2008, discriminates against the appellant in comparison with its competitors, since it would have been possible for any — even a dominant — competitor in a comparable situation to receive aid, up to the threshold, for a comparably high level of investment under the German Investment Allowance Law.


title: Case C-725/17: Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 27 December 2017 — Toplofikatsia Sofia EAD v Mitko Simoneov Dimitrov

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/11

         Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 27 December 2017 — Toplofikatsia Sofia EAD v Mitko Simoneov Dimitrov
   (Case C-725/17)
   (2018/C 094/14)
   Language of the case: Bulgarian

      Referring court

   Sofiyski rayonen sad

      Parties to the main proceedings

      Applicant: Toplofikatsia Sofia EAD

      Defendant: Mitko Simoneov Dimitrov

      Questions referred

               1.

               Does [Directive 2011/83/EU], (1) which excludes from its scope the rules of conventional contract law on the conclusion of contracts, also exclude legislation governing this extremely atypical, legally prescribed structure for the existence of a contractual relationship?

               2.

               If the directive does not exclude specific legislation in that situation, does that contract fall within the scope of Article 5 of the directive or of a different instrument? In the event that it is a contract or in the event that it is not, is the directive applicable in the present case?

               3.

               Are such de facto contracts covered by the directive, irrespective of the time they arise, or does the directive apply only to newly acquired or, even more restrictively, to newly built apartments (that is to say, user-installations requesting connection to the district heating network)?

               4.

               If the directive is applicable: does the national legislation infringe Article 5(1)(f), read in conjunction with paragraph 2, which provide for the right to terminate the legal relationship (or the fundamental possibility of doing so)?

               5.

               Thus, in the event that a contract is concluded, is a particular form required, and what information must be provided to the consumer (understood to be the individual owner of an apartment and not a community of separate apartment owners)? Does failure to provide timely and accessible information affect the existence of a legal relationship?

               6.

               In order to be a party to such a legal relationship, is a specific request necessary, thus a formally expressed intention of the consumer?

               7.

               If a contract, be it formal or informal, is concluded, does heating of the common parts of the building (in particular the stairwells) form part of the subject matter of the contract and has the consumer ordered a service in that area of the building, if no request has been expressly made for that service by that consumer or even by the whole building in co-ownership (for example, when radiators have been removed — as appears to have happened in a great number of cases — the experts not mentioning that there are heating appliances in the common parts of the building)?

               8.

               In the light of the above, is the fact that the heating supply is terminated in a private apartment relevant (or does it make a difference) as regards the owner’s status as a consumer who has requested heating of the common parts of the building?

      (1)  Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. Text with EEA relevance

      OJ 2011 L 304, p. 64


title: Case C-677/17: Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 4 December 2017 — M. Çoban v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/5

         Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands) lodged on 4 December 2017 — M. Çoban v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen
   (Case C-677/17)
   (2018/C 094/06)
   Language of the case: Dutch

      Referring court

   Centrale Raad van Beroep

      Parties to the main proceedings

      Applicant: M. Çoban

      Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen

      Question referred

   Must Article 6(1) of Decision No 3/80, (1) having regard to Article 59 of the Additional Protocol, be interpreted as precluding a legislative provision of a Member State such as Article 4a of the Toeslagenwet (Netherlands Law on Supplementary Benefits), under which a supplementary benefit which has been awarded is withdrawn if the beneficiary moves to Turkey, even if that beneficiary left the territory of the Member State on his own initiative? Is it significant in this regard that, at the time of departure, the person concerned no longer has a right of residence under the law of the [EEC-Turkey] Association, but does hold a long-term resident’s EU residence permit? Is it significant in this regard that the person concerned has the opportunity, under national rules, to return within a year of his departure in order to regain the supplementary benefit, and that this possibility continues for as long as he holds a long-term resident’s EU residence permit?

      (1)  Decision No 3/80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families (OJ 1983 C 110, p. 60).


title: Case T-91/16: Judgment of the General Court of 25 January 2018 — Italy v Commission (ESF — Operational programme for objective No 1 for the Region of Sicily — Reduction of the financial assistance initially granted — Calculation by extrapolation — Proportionality — Article 39(2) and (3) of Regulation (EC) No 1260/1999 — Obligation to state reasons)

text:
               12.3.2018

               EN

               Official Journal of the European Union

               C 94/18

         Judgment of the General Court of 25 January 2018 — Italy v Commission
   (Case T-91/16) (1)

   ((ESF - Operational programme for objective No 1 for the Region of Sicily - Reduction of the financial assistance initially granted - Calculation by extrapolation - Proportionality - Article 39(2) and (3) of Regulation (EC) No 1260/1999 - Obligation to state reasons))
   (2018/C 094/22)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato)

      Defendant: European Commission (represented by: P. Arenas and F. Tomat, acting as Agents)

      Re:

   Application on the basis of Article 263 TFEU seeking the annulment of Commission Decision C(2015) 9413 of 17 December 2015 concerning the reduction of the European Social Fund (ESF) [contribution] for the operational programme for the Region of Sicily, which forms part of the Community support framework for structural interventions in the Italian regions covered by objective No 1 (CCI 1999IT 161PO011).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 136, 18.4.2016.