title: Case C-682/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/2

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH
      (Case C-682/18)
      (2019/C 82/03)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Applicant: LF

         Defendants: Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH

         Questions referred

                  1.

                  Does the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if

                              —

                              the operator earns advertising revenue by means of the platform,

                              —

                              the upload process takes place automatically and without material being seen in advance or controlled by the operator,

                              —

                              in accordance with the conditions of use, the operator receives a worldwide, non-exclusive and royalty-free licence for the videos for the duration for which the videos are posted,

                              —

                              in the conditions of use and during the upload process, the operator points out that copyright-infringing content may not be posted,

                              —

                              the operator provides tools with which rightholders can take steps to block infringing videos,

                              —

                              on the platform, the operator prepares search results in the form of rankings and content categories, and displays to registered users an overview that is oriented towards previously seen videos and that contains recommended videos which can be displayed to registered users,

                        if the operator is not specifically aware of the availability of copyright-infringing content or, after having become aware, expeditiously deletes that content or expeditiously disables access thereto?

                  2.

                  If Question 1 is answered in the negative:
                  Does the activity of the operator of an internet video platform under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2)

                  3.

                  If Question 2 is answered in the affirmative:
                  Must the actual knowledge of the illegal activity or information and the awareness of the facts or circumstances from which the illegal activity or information is apparent relate to specific illegal activities or information pursuant to Article 14(1) of Directive 2000/31/EC?

                  4.

                  Also if Question 2 is answered in the affirmative:
                  Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe a copyright or related right, only if such an infringement has taken place again after notification of a clear infringement has been provided?

                  5.

                  If Questions 1 and 2 are answered in the negative:
                  Is the operator of an internet video platform under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3)

                  6.

                  If Question 5 is answered in the affirmative:
                  Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement?

         (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

         (2)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1).

         (3)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).


title: Case C-683/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — Elsevier Inc. v Cyando AG

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/4

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — Elsevier Inc. v Cyando AG
      (Case C-683/18)
      (2019/C 82/04)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Applicant: Elsevier Inc.

         Defendant: Cyando AG

         Questions referred

                  1.

                              (a)

                              Does the operator of a shared hosting service via which files containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of Directive 2001/29/EC (1) if

                                          —

                                          the upload process takes place automatically and without being seen in advance or controlled by the operator,

                                          —

                                          in the conditions of use, the operator indicates that copyright-infringing content may not be posted,

                                          —

                                          it earns revenue through the operation of the service,

                                          —

                                          the service is used for lawful applications, but the operator is aware that a considerable amount of copyright-infringing content (over 9 500 works) is also available,

                                          —

                                          the operator does not offer a directory of the content or a search function, but the unlimited download links provided by it are posted by third parties on the internet in link collections that contain information regarding the content of the files and make it possible to search for specific content,

                                          —

                                          via the structure of the remuneration for downloads that are paid by it in accordance with demand, it creates an incentive to upload content protected by copyright that users could otherwise only obtain for a charge

                                    and

                                          —

                                          by providing the possibility to upload files anonymously, the probability of users not being held accountable for copyright infringements is increased?

                              (b)

                              Does this assessment change if copyright-infringing offerings are provided by the shared hosting service and account for 90 % to 96 % of the overall use?

                  2.

                  If Question 1 is answered in the negative:
                  Does the activity of the operator of a shared hosting service under the conditions described in Question 1 come within the scope of Article 14(1) of Directive 2000/31/EC? (2)

                  3.

                  If Question 2 referred is answered in the affirmative:
                  Must the actual knowledge of the unlawful activity or information and the awareness of the facts or circumstances from which the unlawful activity or information is apparent relate to specific unlawful activities or information pursuant to Article 14(1) of Directive 2000/31/EC?

                  4.

                  Also if Question 2 is answered in the affirmative:
                  Is it compatible with Article 8(3) of Directive 2001/29/EC if the rightholder is in a position to obtain an injunction against a service provider whose service consists of the storage of information provided by a recipient of the service, and whose service has been used by a recipient of the service to infringe copyright or related rights, only if such an infringement has taken place again after notification of a clear infringement has been provided?

                  5.

                  If Questions 1 and 2 are answered in the negative:
                  Is the operator of a shared hosting service under the conditions described in Question 1 to be regarded as an infringer within the meaning of the first sentence of Article 11 and Article 13 of Directive 2004/48/EC? (3)

                  6.

                  If Question 5 is answered in the affirmative:
                  Can the obligation of such an infringer to pay damages pursuant to Article 13(1) of Directive 2004/48/EC be made subject to the condition that the infringer must have acted intentionally with regard both to his own infringing activity and to the infringing activity of the third party, and knew, or ought reasonably to have known, that users use the platform for specific acts of infringement?

         (1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

         (2)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1).

         (3)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).


title: Case C-702/18 P: Appeal brought on 9 November 2018 by Przedsiębiorstwo Produkcyjno-Handlowe ‘Primart’ Marek Łukasiewicz against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-584/17: Primart v EUIPO

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/6

      Appeal brought on 9 November 2018 by Przedsiębiorstwo Produkcyjno-Handlowe ‘Primart’ Marek Łukasiewicz against the judgment of the General Court (Third Chamber) delivered on 12 September 2018 in Case T-584/17: Primart v EUIPO
      (Case C-702/18 P)
      (2019/C 82/06)
      Language of the case: English

         Parties

         Appellant: Przedsiębiorstwo Produkcyjno-Handlowe ‘Primart’ Marek Łukasiewicz (represented by: J. Skołuda, radca prawny)

         Other parties to the proceedings: European Union Intellectual Property Office, Bolton Cile España, SA

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside, in whole, the judgement of the General Court under appeal;

                  —

                  annul the decision of the Fourth Board of Appeal of 22 June 2017 (R 1933/2016-4);

                  —

                  order EUIPO and Bolton Cile España, S.A. to pay the costs of the proceedings before the General Court and before the Board of Appeal, as well as order EUIPO to pay the costs of the proceedings before the Court of Justice.

         Pleas in law and main arguments

                  1)

                  In the judgement under appeal the General Court erred in applying Article 76(1) of Regulation No 207/2009 (1) (now Article 95(1) of Regulation 2017/1001 (2)) and Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), by declaring the Appellant’s arguments concerning the weak distinctive character of the earlier mark in the opposition proceedings inadmissible, as they have been put forward for the first time before the Court (paragraphs 87-90 of the judgement under appeal).

                              a.

                              The General Court must assess facts and arguments, even though they were presented for the first time before it, if the EUIPO Board of Appeal should have taken them into account of its own motion.

                              b.

                              Meaning of a part of a trade mark in an EU language is a well-known fact and as such it should be analysed by the Office of its own motion. As a result, arguments relating to it shall be thoroughly analysed by the General Court, also by assessing the arguments presented for the first time before it.

                              c.

                              The applicant in the proceedings before the General Court has a right to question assessment of well-known facts made by the EUIPO Board of Appeal, also by presenting new arguments before the General Court and evidence supporting these arguments

                              d.

                              By failing to assess facts and arguments the Office should have taken into account of its own motion (including well-known facts relating to the meaning of the trade marks being subject to the opposition proceedings) the General Court infringed the general rules of procedure and came to erroneous assessment of matters relevant in the case before the Board of Appeal.

                  2)

                  If the Court has taken into account the well-known fact that the word ‘PRIMA’ has a laudatory meaning (as stated by the Opposition Division and the Appellant), meaning ‘first, foremost/best, chief, principal’ it should have come to a different conclusion relating to likelihood of confusion between the trade marks ES-2578815 ‘PRIMA’ and EUTMA-013682299 ‘PRIMART MAREK ŁUKASIEWICZ’, namely it should consider that no likelihood of confusing between these trade marks exists.

                              a.

                              The marks under study coincide in an element that is of low distinctiveness, and do not have an independent role in the opposed trade mark. This, together with medium degree of visual similarity, lack of conceptual similarity and low degree of phonetic similarity (or even lack of it) excludes the likelihood of confusion between those marks.

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

         (2)  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).


title: Case C-714/18 P: Appeal brought on 14 November 2018 by ACTC GmbH against the judgment of the General Court (Ninth Chamber) delivered on 13 September 2018 in Case T-94/17: ACTC v EUIPO

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/8

      Appeal brought on 14 November 2018 by ACTC GmbH against the judgment of the General Court (Ninth Chamber) delivered on 13 September 2018 in Case T-94/17: ACTC v EUIPO
      (Case C-714/18 P)
      (2019/C 82/07)
      Language of the case: English

         Parties

         Appellant: ACTC GmbH (represented by: V. Hoene, Rechtsanwältin, D. Eickemeier, Rechtsanwalt, S. Gantenbrink, Rechtsanwältin)

         Other parties to the proceedings: European Union Intellectual Property Office, Taiga AB

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the decision of the General Court of September 13, 2018 in case T-94/17 and annul the decision of the Defendant in case R 693/2015-4.

            alternatively

                  —

                  set aside the judgment referred to in paragraph 1 and refer the case back to the General Court,

            and

                  —

                  impose the costs of the proceedings to the Defendant.

         Pleas in law and main arguments

      The General Court has infringed Art. 8(1)(b) and Art. 42(2) EUTMR in several aspects by affirming similarity of signs, and — as a consequence of the incorrect assessment of the evidence of proof of use — similarity of goods. There is no likelihood of confusion between the marks at issue.

                  1.

                  The General Court incorrectly found that the lntervener had fulfilled the use requirements concerning all goods of class 25 the earlier mark is registered for. The requirements are only fulfilled related to the goods ‘clothing; outerclothing, underwear, headgear for wear and headwear, gloves; belts and socks; all aforementioned goods to be used as special weather protective outdoor clothing for the purpose of protection against cold, windy and/or rainy weather conditions only; working overalls’. Contrary to the findings of the General Court, this is an independent subcategory of goods in class 25 so that proof of use had been submitted only for these goods of class 25.

                  2.

                  As a consequence of the incorrect assessment of the use requirements, the General Court came incorrectly to the conclusion that the goods ‘Clothing’ and ‘headgear’ appearing in the lists of both trademarks were identical.

                  3.

                  The General Court erroneously decided that the BoA had been correct to find that the signs at issue were visually similar as the signs at issue were of the same length and had four letters in common. The unusual composition of the contested mark (asymmetric consonants and unusual spelling ‘igh’) and the consequences for visual similarity as argued by the Appellant was not discussed by the General Court. Of course, the average consumer perceives a mark as a whole. However, the unusual composition of the contested mark has a considerable influence on its overall impression which was not taken into account by the General Court.

                  4.

                  The General Court also failed in deciding that the marks at issue were phonetically identical because the Appellant had not adduced evidence to suggest that the sound of the first syllables ‘ti’ and ‘TAl’ were not identical for the English-speaking public and that there was nothing to separate the pronunciation of the signs at issue. It is — on the contrary — the case that the General Court has assumed without any evidence and incorrectly that the sequence of letters ‘ti’ was always pronounced ‘tai’. There is no evidence for this assessment. A word ‘ti’ does not exist in the English language. The sequence of letters is therefore always pronounced only in accordance with the linguistic rules applicable to the word in question. We may take it for granted that innumerable words exist in which the letter sequence ‘ti’ is not pronounced like ‘tai’, such as ‘trick’, ‘ticket’, ‘till’, ‘timbal’, ‘timberland’, ‘tin’, ‘tincture’, ‘tinder’, ‘tip’, ‘trigger’ and many more as well as the contested trademark ‘tigha’. The famous English children's book Winnie-the-Pooh contains as one of the main characters an animal named ‘Tigger’, pronounced [tɪɡə]. Thus, whenever the vowel after ‘ti’ is pronounced short, there is no pronunciation like ‘tai’. This is what the Appellant had said from the outset. Neither the Defendant nor the lntervener have submitted evidence to the contrary. It was therefore not for the Appellant to adduce proof of the obvious.

                  5.

                  The General Court incorrectly stated that the Appellant had failed to demonstrate that TAIGA has a clear and specific meaning for the relevant public (EU-consumers) in a whole. This is not correct. The Appellant stated undisputed that TAIGA is a lexically noted word of the French language. It should be undisputed and known to the courts that France lies in Southern Europe. Due to the undisputed size of TAIGA as a landscape and its significance for the world as a whole, TAIGA (especially together with the term TUNDRA) belongs to general education throughout Europe and beyond.

                  6.

                  Apart from that, according to the case-law of the General Court, it is sufficient, that a term is understood in a part of the European Union, such as the ltalian-speaking public. Here, the General Court acknowledged conceptual dissimilarity between ‘Granini’ and ‘Panini’ because of the missing meaning of ‘Granini’ whereas ‘Panini’ had the meaning of an ltalian sandwich.

                  7.

                  The judgement of 14 October 2003, T-292/01, paragraph 54 — BASS cited by the General Court contains no single indication that the word in question must be understood throughout the whole European Union. It must therefore pointed out that the assessment of the General Court is not supported by the case law to BASS. It is correct when the General Court acknowledged that a large part of the relevant public within Europe knows and understands the term TAIGA.


title: Case C-715/18: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 November 2018 — Segler-Vereinigung Cuxhaven e.V. v Finanzamt Cuxhaven

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/9

      Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 November 2018 — Segler-Vereinigung Cuxhaven e.V. v Finanzamt Cuxhaven
      (Case C-715/18)
      (2019/C 82/08)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant: Segler-Vereinigung Cuxhaven e.V.

         Defendant: Finanzamt Cuxhaven

         Question referred

      Does the tax rate reduction for the letting of places on camping or caravan sites under Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) (‘the VAT Directive’), in conjunction with Annex III, No 12, to that directive, also cover the letting of boat moorings?

         (1)  OJ 2006 L 347, p. 1.


title: Case C-751/18: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/10

      Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 3 December 2018 — Totalmédia — Marketing Directo e Publicidade S.A. v Autoridade Tributária e Aduaneira
      (Case C-751/18)
      (2019/C 82/09)
      Language of the case: Portuguese

         Referring court

      Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

         Parties to the main proceedings

         Applicant: Totalmédia — Marketing Directo e Publicidade S.A.

         Defendant: Autoridade Tributária e Aduaneira

         Questions referred

                  1.

                  If after the ‘reverse merger’ in question, the interest and other financial charges on the loans taken out with third parties or associates (which but for the merger would be deductible by the company now being acquired), in order to purchase the shares of the subsidiary which is now the acquiring company, and transferred as a result of the merger, are interpreted as ceasing to be deductible for tax purposes from the profits of the acquiring company, will Article 23(1)(c) of the Corporation Tax Code, in the version in force in 2013, be compatible with EU law, in particular in the sense that that non-deductibility of the financial charges may constitute an impediment or restriction to the merger operations encompassed by Council Directive 2009/133/EC, (1) infringing the principles and objectives of that directive, as well as Article 4 thereof?

                  2.

                  If the first question is answered to the effect that that non-deduction of financial charges for tax purposes is compatible with the Directive, will that answer remain unchanged by the fact that such a correction was not made on the basis of the anti-abuse provision of the Directive (Article 15) or national law reproducing it (Article 73(10) of the Corporation Tax Code), but another provision of national law (Article 23 of the Corporation Tax Code)?

         (1)  Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ 2009 L 310, p. 34).


title: Case C-761/18 P: Appeal brought on 3 December 2018 by Päivi Leino-Sandberg against the order of the General Court (Seventh Chamber) delivered on 20 September 2018 in Case T-421/17: Leino-Sandberg v Parliament

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/10

      Appeal brought on 3 December 2018 by Päivi Leino-Sandberg against the order of the General Court (Seventh Chamber) delivered on 20 September 2018 in Case T-421/17: Leino-Sandberg v Parliament
      (Case C-761/18 P)
      (2019/C 82/10)
      Language of the case: English

         Parties

         Appellant: Päivi Leino-Sandberg (represented by: O. W. Brouwer, advocaat, S. Schubert, Rechtsanwalt)

         Other party to the proceedings: European Parliament

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the order of the General Court of 20 September 2018 in Case T-421/17;

                  —

                  make use of its power under the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice to give final judgment in the matter, and

                  —

                  order the European Parliament to pay the costs of the proceedings, including the costs of any intervening parties.

         Pleas in law and main arguments

      First ground of appeal: errors of law in the contested order when it holds that there is no longer a purpose to the action, and therefore no need to adjudicate. The appellant submits that the contested order incorrectly does not apply the legal test set out in Case C-57/16 P, ClientEarth v. Commission (EU:C:2018:660) under which it should have concluded that because the European Parliament has not withdrawn the contested decision, the purpose of the action remained.
      Second ground of appeal: errors of law and procedure in the contested order when it holds that there is no longer an interest in bringing proceedings. The appellant submits that the contested order misapplies the legal test set out in established case-law, including Case C-57/16 P, under which it should have concluded that the unlawfulness is liable to recur in the future, irrespective of the particular circumstances of the case, and that therefore the interest in bringing proceedings remained.


title: Case C-766/18 P: Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/11

      Appeal brought on 5 December 2018 by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-328/17: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO
      (Case C-766/18 P)
      (2019/C 82/11)
      Language of the case: English

         Parties

         Appellant: Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi (represented by: S. Malynicz QC, S. Baran, Barrister, V. Marsland, Solicitor)

         Other parties to the proceedings: European Union Intellectual Property Office, M. J. Dairies EOOD

         Form of order sought

      The appellant claims that the Court should:

                  —

                  Allow the appeal against the judgment of the General Court in Case T-328/17, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v. European Intellectual Property Office (EUIPO), EU:T:2018:594, and grant the appellant’s application for annulment;

                  —

                  Order the Office and intervener to bear their own costs, and pay those of the appellant.

         Pleas in law and main arguments

                  1.

                  The General Court erred in failing to accord to the HALLOUMI Collective Mark the proper status and protection that the EUTMR requies for such collective marks, in infringement of Art 74 EUTMR;

                  2.

                  In particular the General Court erred in applying a completely unmodified approach to the assessment of the distinctiveness of the HALLOUMI Collective Mark contrary to Arts 8(1)(b) and 74 EUTMR;

                  3.

                  The General Court incorrectly appraised and applied the effect of this court’s decision in Joined Cases C-673/15 P to C-676/15 P, The Tea Board v. EUIPO (‘Tea Board’), and its reasoned order in C-392/12 P, Foundation for the Protection of the Traditional Cheese of Cyprus Named Halloumi v. OHIM (‘HELLIM’), and failed to give proper effect to the judgment in C-196/11 P, Formula One Licensing v. OHIM, EU:C:2012:314 (‘F1’); and

                  4.

                  The General Court wrongly failed to remit the case to the Boards of Appeal for reconsideration in light of its finding that the 4BoA had made at least — even on the General Court’s view — two errors in their assessment of the likelihood of confusion. In so doing it infringed Art 8(1)(b) and/or Art 72(2) EUTMR.


title: Case C-767/18 P: Appeal brought on 5 December 2018 by the Republic of Cyprus against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-384/17: Cyprus v EUIPO

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/12

      Appeal brought on 5 December 2018 by the Republic of Cyprus against the judgment of the General Court (Second Chamber) delivered on 25 September 2018 in Case T-384/17: Cyprus v EUIPO
      (Case C-767/18 P)
      (2019/C 82/12)
      Language of the case: English

         Parties

         Appellant: Republic of Cyprus (represented by: S. Malynicz QC, S. Baran, Barrister, V. Marsland, Solicitor)

         Other party to the proceedings: European Union Intellectual Property Office, M. J. Dairies EOOD

         Form of order sought

      The appellant claims that the Court should:

                  —

                  allow the appeal against the judgment of the General Court in Case T-384/17, Republic of Cyprus v EUIPO, EU:T:2018:593, and grant the application for annulment;

                  —

                  order the Office and intervener to bear their own costs and pay those of the appellant.

         Pleas in law and main arguments

                  1.

                  The General Court erred in considering that the Board of Appeal was correct to transpose the conclusions from the General Court’s earlier HELLIM and XAΛΛOYMI and HALLOUMI judgments to the present case. Those cases were not concerned with certification marks but different kinds of marks, namely collective and ordinary EU trade marks respectively. The essential function of such marks is to act as an indication of the commercial origin of the goods (a plurality of traders linked by membership of an association in the case of a collective mark). Certification marks, by contrast, do not have the essential function of indicating origin, but of distinguishing a class of goods, namely goods which are certified in that they in fact comply with and have been authorised to be made under the regulations for permitted use of the HALLOUMI certification mark. Moreover the relevant public in those earlier General Court judgments was different to the relevant public in the present case.

                  2.

                  The General Court wrongly held that an earlier national mark — the national certification mark in this case — wholly lacked distinctive character as distinguishing goods which are certified from those which were not; wrongly holding the mark to be descriptive; wrongly undermining the national protection of the national mark; and wrongly calling into question in EUIPO opposition proceedings the validity of the said mark.

                  3.

                  The General Court erred in the comparison of the marks and the assessment of the likelihood of confusion. It wrongly approached these questions as if the earlier mark were an origin-indicating trade mark rather than a certification mark. It failed to accord the earlier mark any distinctiveness as a certification mark, i.e. as distinguishing goods which in fact complied with the standards of the certification mark and were in fact made by producers authorised by the certification mark holder. It also failed to consider how certification marks are typically used (i.e. invariably along with a distinctive name, trade mark or logo). It failed to consider the meaning and significance of the contested EUTM, in particular by failing to consider whether the ‘HALLOUMI’ element had an independent distinctive character in the later mark as a sign indicating, contrary to fact, that the goods covered by the contested EUTM were certified.

                  4.

                  The General Court failed to consider national provisions and case law as to the scope and effect of national certification marks. The conditions and modalities of Member States’ laws on certification marks were not harmonised under the Trade Marks Directives 89/104 (1) or 2008/95 (2) and yet the EUTMR provides that such national marks can form the basis of earlier rights which prevent registration of EUTMs. Such rights should be considered in the light of national case law and national provisions, by analogy with the various national rights under Article 8(4) EUTMR (which rights are also not harmonised and vary greatly in their nature, scope and effect from Member State to Member State).

         (1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989, L 40, p. 1).

         (2)  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-776/18: Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 10 December 2018 — U.B. and T.V. v Eurowings GmbH

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/13

      Request for a preliminary ruling from the Amtsgericht Erding (Germany) lodged on 10 December 2018 — U.B. and T.V. v Eurowings GmbH
      (Case C-776/18)
      (2019/C 82/13)
      Language of the case: German

         Referring court

      Amtsgericht Erding

         Parties to the main proceedings

         Applicants: U.B., T.V.

         Defendant: Eurowings GmbH

         Question referred

      In the event of a cancellation within the meaning of Article 5 of Regulation (EC) No 261/2004, (1) is it to be assumed that there has been an offer to re-route allowing passengers to reach their final destination no more than two hours after their scheduled time of arrival also in the case where replacement transportation is provided to an airport other than that named in the booking confirmation, if that other airport is located in the same region?

         (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case C-801/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — EU v Caisse pour l’avenir des enfants

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/14

      Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — EU v Caisse pour l’avenir des enfants
      (Case C-801/18)
      (2019/C 82/14)
      Language of the case: French

         Referring court

      Conseil supérieur de la Sécurité sociale

         Parties to the main proceedings

         Appellant: EU

         Respondent: Caisse pour l’avenir des enfants

         Questions referred

                  1.

                  Are the competent social security authorities of one Member State (in this case the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) required, pursuant to their Community obligations under Article 45 TFEU, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (1) and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (2) in particular Article 4 thereof, to pay family benefits to a national of a second Member State when, under identical conditions for the grant of those benefits, those competent authorities recognise the entitlement of their own nationals and residents to family benefits, pursuant to a bilateral international convention concluded between the first Member State (Luxembourg) and the third country (Brazil)?

                  2.

                  In the affirmative, and in the event that the approach taken in the judgment in Gottardo (3) is extended to the context of family benefits, can the competent social security authority, more particularly the competent authority for family benefits — in this case, the Caisse pour l’avenir des enfants (Children’s Future Fund), the national agency of the Grand-Duchy of Luxembourg for family benefits — rely on objective grounds based on considerations relating to the extremely heavy financial and administrative burdens faced by the authority in question to justify a difference in treatment between nationals of countries that are contracting parties (to the bilateral convention concerned) and other nationals of European Union Member States?

         (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

         (2)  OJ 2004 L 166, p. 1.

         (3)  Judgment of 15 January 2002, Gottardo (C-55/00, EU:C:2002:16).


title: Case C-802/18: Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/15

      Request for a preliminary ruling from the Conseil supérieur de la Sécurité sociale (Luxembourg) lodged on 19 December 2018 — Caisse pour l’avenir des enfants v FV, GW
      (Case C-802/18)
      (2019/C 82/15)
      Language of the case: French

         Referring court

      Conseil supérieur de la Sécurité sociale

         Parties to the main proceedings

         Appellant: Caisse pour l’avenir des enfants

         Respondents: FV, GW

         Questions referred

                  1.

                  Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 of the Code de la sécurité sociale (Social Security Code) be treated as a social advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation 492/2011 on freedom of movement for workers within the Union? (1)

                  2.

                  If they are so treated, the definition of member of the family applicable under Article 1(i) of Regulation 883/2004 (2) is at odds with the broader definition of family member in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council (3) when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a member of the family, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of member of the family under Article 1(i) of Regulation 883/2004 prevail given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances?

                  3.

                  If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council is applicable to family benefits and more precisely to Luxembourg family allowances, can the exclusion of the child of a spouse from the definition of a member of the family be considered indirect discrimination that is justified in view of the domestic objective of the Member State of safeguarding the personal right of the child and the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48 % of its family benefits?

         (1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).

         (2)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

         (3)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).


title: Case C-803/18: Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 20 December 2018 — AAS BALTA v UAB GRIFS AG

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/15

      Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 20 December 2018 — AAS BALTA v UAB GRIFS AG
      (Case C-803/18)
      (2019/C 82/16)
      Language of the case: Lithuanian

         Referring court

      Lietuvos Aukščiausiasis Teismas

         Parties to the main proceedings

         Appellant in cassation: AAS BALTA

         Other party to the proceedings in cassation: UAB GRIFS AG

         Question referred

      Must Articles 15(5) and 16(5) of Regulation (EU) No 1215/2012 (1) of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be construed as meaning that, in the case of large-risk insurance, an agreement conferring jurisdiction included in the insurance contract concluded between the policyholder and the insurer may be relied on against a person insured under that contract who has not expressly subscribed to that clause and who is habitually resident or established in a Member State other than that of the policyholder and the insurer?

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


title: Case C-810/18: Request for a preliminary ruling from the Krajský súd v Trnave (Slovakia) lodged on 21 December 2018 — DHL Logistics (Slovakia), spol. s r.o. v Finančné riaditeľstvo Slovenskej republiky

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/16

      Request for a preliminary ruling from the Krajský súd v Trnave (Slovakia) lodged on 21 December 2018 — DHL Logistics (Slovakia), spol. s r.o. v Finančné riaditeľstvo Slovenskej republiky
      (Case C-810/18)
      (2019/C 82/17)
      Language of the case: Slovak

         Referring court

      Krajský súd v Trnave

         Parties to the main proceedings

         Appellant: DHL Logistics (Slovakia), spol. s r.o.

         Respondent: Finančné riaditeľstvo Slovenskej republiky

         Question referred

      Must the wording of Combined Nomenclature subheading 8525 80 91 set out in Annex I to Council Regulation (EEC) No 2658/87 (1) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff resulting from the Explanatory Notes published pursuant to that regulation in 2011 (2) (Commission Communication 2011/C 137/01) be interpreted as meaning that goods such as the digital video camera recorders at issue in the present case may also be classified under that subheading even though they are capable of capturing and recording video images only of a quality of less than 800 x 600 pixels, specifically, 720 x 576 pixels, given that their other function — the capturing and recording of still images — is limited to a still image quality of 1 600 x 1 200 pixels (1,92 megapixels)?

         (1)  OJ 1987 L 256, p. 1.

         (2)  OJ 2011 C 137, p. 1.


title: Case C-817/18 P: Appeal brought on 21 December 2018 by Vereniging tot Behoud van Natuurmonumenten in Nederland and Others against the judgment of the General Court (Second Chamber) of 15 October 2018 in Case T-79/16, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/17

      Appeal brought on 21 December 2018 by Vereniging tot Behoud van Natuurmonumenten in Nederland and Others against the judgment of the General Court (Second Chamber) of 15 October 2018 in Case T-79/16, Vereniging Gelijkberechtiging Grondbezitters and Others v Commission
      (Case C-817/18 P)
      (2019/C 82/18)
      Language of the case: Dutch

         Parties

         Appellants: Vereniging tot Behoud van Natuurmonumenten in Nederland, Stichting Het Groninger Landschap, It Fryske Gea, Stichting Het Drentse Landschap, Stichting Het Overijssels Landschap, Stichting Het Geldersch Landschap, Stichting Flevo-Landschap, Stichting Het Utrechts Landschap, Stichting Landschap Noord-Holland, Stichting Het Zuid-Hollands Landschap, Stichting Het Zeeuwse Landschap, Stichting Het Noordbrabants Landschap, Stichting Het Limburgs Landschap (represented by: P. Kuypers, M. de Wit, advocaten)

         Other parties to the proceedings: European Commission, Vereniging Gelijkberechtiging Grondbezitters, Exploitatiemaatschappij De Berghaaf BV, Stichting Het Nationale Park De Hoge Veluwe, BV Landgoed Den Alerdinck II, Landgoed Ampsen BV, Pallandt van Keppel Stichting, Landgoed Kasteel Keppel BV, Baron van Lynden, Stichting het Lijndensche Fonds voor Kerk en Zending, Landgoed Welna BV, Landgoed ‘Huis te Maarn’ BV, Vicariestichting De Vijf Capellarijen / Ambachtsheerlijkheid Kloetinge, Maatschappij tot Exploitatie van het Landgoed Tongeren onder Epe BV, Landgoed Anderstein NV, Landgoed Bekspring BV, Landgoed Nijenhuis en Westerflier BV, Landgoed Caprera BV, Landgoed Schapenduinen BV, Stichting Schapenduinen, Landgoed de Noetselenberg BV

         Form of order sought

                  —

                  Set aside the judgment under appeal (judgment delivered in Case T-79/16);

                  —

                  Order the VGG to pay the costs at first instance and in the appeal;

                  —

                  In the alternative, should the case be referred back to the General Court, reserve the costs at first instance and in the appeal for final judgment.

         Grounds of appeal and main arguments

         First ground: the General Court erred in law by declaring VGG’s action admissible

      The test that the VGG must satisfy in order to be deemed an interested party — that there be a competitive relationship between the VGG and the applicants; that the provided aid threatens to influence the VGG’s situation concretely and will distort the competitive relationship in question — was misapplied by the General Court.
      The General Court connects the admissibility of the VGG and its members directly to the admissibility of Stichting Het Nationale Park De Hoge Veluwe, the only complainant remaining from 2008.
      In doing so, however, the General Court did not state or insufficiently stated the activities in respect of which the applicants and Stichting Het Nationale Park De Hoge Veluwe compete with each other concretely. The General Court thus wrongly assumed that a competitive relationship exists between Stichting Het Nationale Park De Hoge Veluwe.
      Operating on the assumption that a competitive relationship exist, the General Court then made the finding, wrongly, that the aid has had concrete consequences for the competitive position of the VGG members and has distorted it.
      On the basis of the assessment of the admissibility of Stichting Het Nationale Park De Hoge Veluwe, the General Court was not entitled to arrive at the conclusion according to which the VGG is admissible in its appeal.

         Second ground: the General Court wrongly accepted the existence of ‘serious difficulties’

      The finding of the General Court that there has been an infringement of the procedural rights laid down in Article 108(2) TFEU is incorrect. In finding that the Commission encountered ‘serious difficulties’ in assessing the compatibility of the PNB scheme (Regeling bijdragen Particuliere Terreinbeherende Natuurbeschermingsorganisaties) with State aid law, the General Court misapplied the law.
      Thus, the classification of services of general economic interest (SGEI) as ‘atypical’ and ‘global’ in the decision is not indicative of serious difficulties; the absence of separate accounting is no indication of serious difficulties; and there lacked no mechanism for avoiding overcompensation.


title: Case C-828/18: Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 24 December 2018 — Trendsetteuse SARL v DCA SARL

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/18

      Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 24 December 2018 — Trendsetteuse SARL v DCA SARL
      (Case C-828/18)
      (2019/C 82/19)
      Language of the case: French

         Referring court

      Tribunal de commerce de Paris

         Parties to the main proceedings

         Applicant: Trendsetteuse SARL

         Defendant: DCA SARL

         Question referred

      Should Article 1(2) of Directive 86/653/EEC of 18 December 1986 (1) on the status of commercial agents be interpreted as meaning that a self-employed intermediary who is acting as an agent on behalf of and in the name of his principal, but does not have the power to change the prices and contractual conditions of his principal’s sales contracts, does not have the authority to negotiate those contracts for the purposes of that article, and consequently cannot be classified as a commercial agent and benefit from the status provided for in the Directive?

         (1)  Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17).


title: Case C-829/18: Request for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 December 2018 — Crédit Logement SA v OE

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/18

      Request for a preliminary ruling from the Tribunal de grande instance de Paris (France) lodged on 27 December 2018 — Crédit Logement SA v OE
      (Case C-829/18)
      (2019/C 82/20)
      Language of the case: French

         Referring court

      Tribunal de grande instance de Paris

         Parties to the main proceedings

         Applicant: Crédit Logement SA

         Defendant: OE

         Questions referred

                  1.

                  Must Directive 93/13/EEC of 5 April 1993 (1) and the principle of effectiveness of [EU] law be interpreted as precluding the application of a rule of national law preventing the courts from assessing whether a term in a contract entered into with a trader is unfair, where the trade guarantor guaranteeing performance of the contract informed the debtor/consumer that it was going to proceed to payment and the debtor/consumer did not inform the trade guarantor of the exceptions to be raised?

                  2.

                  Is the reference in the body of the contract to the fact that the foreign exchange risk lies with the borrower, supplemented by amortisation tables, capable of rendering the term ‘plain and intelligible’ for the purpose of the directive, where no simulations have been provided illustrating different scenarios, including negative ones, relating to exchange rate movements?

                  3.

                  Does the burden of proving that the consumer was provided with the necessary information for ensuring that the term at issue was plain and intelligible and of proving that that term was plain and intelligible lie with the trader or the consumer?

                  4.

                  If the court finds that Articles 1.2.1 to 1.2.9 and 2.8 of the contract are unfair because they were not drafted in sufficiently plain and intelligible language, should all the financial terms, including the term concerning interest, be declared not written? Or should only those terms concerning the variation of the exchange rate and the term concerning currency be declared not written, retaining a fixed-interest rate, in euros? Or should another option be considered?

                  5.

                  In considering the previous question, is it necessary for the court to satisfy itself that the penalty thus imposed is effective, proportionate and dissuasive?

         (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).


title: Case C-833/18: Request for a preliminary ruling from the tribunal de l’entreprise de Liège (Belgium) lodged on 31 December 2018 — SI, Brompton Bicycle Ltd v Chedech / Get2Get

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/19

      Request for a preliminary ruling from the tribunal de l’entreprise de Liège (Belgium) lodged on 31 December 2018 — SI, Brompton Bicycle Ltd v Chedech / Get2Get
      (Case C-833/18)
      (2019/C 82/21)
      Language of the case: French

         Referring court

      Tribunal de l’entreprise de Liège

         Parties to the main proceedings

         Applicants: SI, Brompton Bicycle Ltd

         Defendant: Chedech / Get2Get

         Questions referred

                  —

                  Must EU law, in particular Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) which determines, inter alia, the various exclusive rights conferred on copyright holders, in Articles 2 to 5 thereof, be interpreted as excluding from copyright protection works whose shape is necessary to achieve a technical result?

                  —

                  In order to assess whether a shape is necessary to achieve a technical result, must account be taken of the following criteria:

                              —

                              The existence of other possible shapes which allow the same technical result to be achieved?

                              —

                              The effectiveness of the shape in achieving that result?

                              —

                              The intention of the alleged infringer to achieve that result?

                              —

                              The existence of an earlier, now expired, patent on the process for achieving the technical result sought?

         (1)  OJ 2001 L 167, p. 10.


title: Case C-12/19 P: Appeal brought on 7 January 2019 by Mylène Troszczynski against the judgment of the General Court (Sixth Chamber) delivered on 8 November 2018 in Case T-550/17, Troszczynski v Parliament

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/20

      Appeal brought on 7 January 2019 by Mylène Troszczynski against the judgment of the General Court (Sixth Chamber) delivered on 8 November 2018 in Case T-550/17, Troszczynski v Parliament

      (Case C-12/19 P)
      (2019/C 82/22)
      Language of the case: French

         Parties

         Appellant: Mylène Troszczynski (represented by: F. Wagner, avocat)

         Other party to the proceedings: European Parliament

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment delivered by the Sixth Chamber of the General Court of the European Union on 8 November 2018 in Case T-550/17;

            and accordingly,

                  —

                  annul the decision of the European Parliament of 14 June 2017 adopting Report No A8-0218/2017 of the Committee on Legal Affairs on the request for waiver of the immunity and privileges of Mylène Troszczynski, a Member of the European Parliament;

                  —

                  make an appropriate order as to the amount to be awarded to the appellant in respect of the costs of the proceedings;

                  —

                  order the European Parliament to pay all costs.

         Pleas in law and main arguments

                  1.

                  The General Court’s analysis of the second plea in law
                  The General Court does not consider that the disputed tweet of Mylene Troszczynski constitutes the expression of an opinion in the performance of parliamentary duties on the ground that it relates to a specific event, deemed to have taken place in France, which cannot be regarded as constituting the taking of a general position on current topical issues or issues dealt with by the Parliament, which are conditions required in order for an opinion to be protected under the Protocol.
                  The General Court errs manifestly in its assessment, since:

                              —

                              each Member of Parliament is an elected representative in his country, he represents his electors and must maintain a link with them during his mandate, inter alia by making reference to facts that interest or concern them,

                              —

                              principle No 2 of Notice to Members 11/2003 does not make such a distinction,

                              —

                              the wearing of full veils in public places concerns the electorate of France and of all European countries and such an external manifestation of adherence to Islam is a subject of general interest that relates to public life and the rights of women,

                              —

                              the General Court ought to have applied the principles of the Patriciello judgment.

                  2.

                  The General Court’s analysis of the third plea in law
                  It has been established, and accepted by the General Court, that Mylène Troszczynski is not the author of the tweet at issue and that she erased it as soon as she had become aware of it. Nevertheless, the General Court considers that those two facts need not be taken into account in determining whether the conditions for the waiver of parliamentary immunity are fulfilled.
                  The General Court makes a manifest error of assessment:

                              —

                              by asserting that it is not for the Parliament to know whether the allegations against the Member of Parliament in question are established, even though the Parliament does examine the facts by acknowledging in its decision that Mylène Troszczynski is not the author of the tweet,

                              —

                              in so far as it fails to draw the legal consequences from certain of the documents annexed to the report of the Committee on Legal Affairs, namely the excerpts from the Law of 29 July 1881, and in particular Article 42 thereof,

                              —

                              in so far as the order for reference before the Criminal Court of 26 April 2018 reflects the persecution of an elected representative by a member of the national legal service and thus an intention to harm that elected representative politically, a characteristic element of fumus persecutionis.


title: Case C-38/19 P: Appeal brought on 21 January 2019 by Marion Le Pen against the judgment of the General Court (Sixth Chamber) of 28 November 2018 in Case T-161/17, Le Pen v Parliament

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/21

      Appeal brought on 21 January 2019 by Marion Le Pen against the judgment of the General Court (Sixth Chamber) of 28 November 2018 in Case T-161/17, Le Pen v Parliament

      (Case C-38/19 P)
      (2019/C 82/23)
      Language of the case: French

         Parties

         Appellant: Marion Anne Perrine, known as Marine, Le Pen (represented by: R. Bosselut, avocat)

         Other party to the proceedings: European Parliament

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Set aside the judgment delivered on 28 November 2018 by the Sixth Chamber of the General Court of the European Union in Case T-161/17.

            Accordingly:

                  —

                  Annul the decision of the Secretary General of the Parliament of 6 January 2017, taken pursuant to Article 68 of Decision 2009/C 159/01 of the European Parliament Bureau of 19 May and 9 July 2008‘concerning implementing measures for the Statute of Members of the European Parliament’, as amended, finding that there was a debt in the amount of EUR 41 554;

                  —

                  Annul debit note No 2017-22 of 11 January 2017, informing the appellant that a debt had been established against her pursuant to the decision of the Secretary General of 6 January 2017, recovery of sums unduly paid for parliamentary assistance, application of Article 68 of the Implementing Measures for the Statute for Members of the European Parliament and Articles 78, 79 and 80 of the Financial Regulation;

                  —

                  Order the Parliament to pay all of the costs.

         Grounds of appeal and main arguments

                  A —

                  Ground involving an issue of public policy: Infringement of EU Law — Errors of law — Infringement of substantive requirements — Infringement of the rights of the defence
                  It is submitted that the Secretary General failed to conduct a personal hearing of the appellant and also failed to forward the file, particularly the European Anti-Fraud Office (OLAF) report.
                  The appellant’s rights of defence have been infringed by the General Court, particularly in the light of the Charter of Fundamental Rights of the European Union and Article 6 of the ECHR.

                  B —

                  Infringement of EU law — Errors of law — Breach of the principles of the protection of legitimate expectations and of legal certainty — Error in the characterisation of the legal nature of the facts, distortion of the facts and of the evidence
                  The General Court distorted the meaning of the evidence produced as an annex by the appellant in her letter of 14 March 2016 addressed to OLAF.
                  It cannot be argued that the sums paid on the basis of the ‘artificial’ contract were not used in a manner compliant with the Implementing Measures for the Statute for Members of the European Parliament. There is therefore neither distortion of the purpose or nature of those funds, and no harm has been caused to the European Parliament.

                  C —

                  Misuse of powers — Fumus persecutionis

                  The discrimination and unfairness against, and the withholding of evidence from, the appellant, as well as the infringement of her rights of defence, attributable to the Secretary General of the European Parliament, constitute, and ought to have constituted in the view taken by the General Court, ‘objective, relevant and consistent factors and actions taken with the exclusive purpose, or at any rate the main purpose, of achieving ends other than those pleaded or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case’; furthermore, they reveal, and are vitiated by, a fumus persecutionis to the detriment of the appellant.


title: Case T-167/13: Judgment of the General Court of 13 December 2018 — Comune di Milano v Commission (State aid — Ground-handling services — Capital injections provided by SEA in favour of SEA Handling — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of aid — Imputability to the State — Private investor test — Principle of the right to be heard — Rights of the defence — Right to good administration — Legitimate expectations)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/23

      Judgment of the General Court of 13 December 2018 — Comune di Milano v Commission
      (Case T-167/13) (1)

      ((State aid - Ground-handling services - Capital injections provided by SEA in favour of SEA Handling - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of aid - Imputability to the State - Private investor test - Principle of the right to be heard - Rights of the defence - Right to good administration - Legitimate expectations))
      (2019/C 82/24)
      Language of the case: Italian

         Parties

         Applicant: Comune di Milano (Italy) (represented by: S. Grassani and A. Franchi, lawyers)

         Defendant: European Commission (represented by: G. Conte and D. Grespan, acting as Agents)

         Re:

      Action pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2015/1225 of 19 December 2012 regarding injections of capital by SEA SpA into SEA Handling SpA [SA.21420 (C 14/10) (ex NN 25/10) (ex CP 175/06)] (OJ 2015 L 201, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders the Comune di Milano to pay the costs, including those relating to the interim proceedings.

         (1)  OJ C 129, 4.5.2013.


title: Case T-498/14: Judgment of the General Court of 12 December 2018 — Deutsche Umwelthilfe v Commission (Access to documents — Documents related to correspondence between the European Commission and car manufacturers concerning refrigerant R1234yf used in motor vehicles — Documents not included — New plea put forward in the course of the proceedings — Inadmissibility — Measure of inquiry ordering the production of the contested documents in accordance with Article 104 of the Rules of Procedure — Derogation to the principle of adversarial proceedings — Regulation (EC) No 1049/2001 — Exception relating to the protection of commercial interests — Public interest in disclosure — Balance — Regulation (EC) No 1367/2006 — Article 6(1) — Overriding public interest justifying disclosure of the environmental information or relating to emissions into the environment — General proposition — Partial refusal to grant access — No need to adjudicate)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/23

      Judgment of the General Court of 12 December 2018 — Deutsche Umwelthilfe v Commission
      (Case T-498/14) (1)

      ((Access to documents - Documents related to correspondence between the European Commission and car manufacturers concerning refrigerant R1234yf used in motor vehicles - Documents not included - New plea put forward in the course of the proceedings - Inadmissibility - Measure of inquiry ordering the production of the contested documents in accordance with Article 104 of the Rules of Procedure - Derogation to the principle of adversarial proceedings - Regulation (EC) No 1049/2001 - Exception relating to the protection of commercial interests - Public interest in disclosure - Balance - Regulation (EC) No 1367/2006 - Article 6(1) - Overriding public interest justifying disclosure of the environmental information or relating to emissions into the environment - General proposition - Partial refusal to grant access - No need to adjudicate))
      (2019/C 82/25)
      Language of the case: German

         Parties

         Applicant: Deutsche Umwelthilfe eV (Radolfzell, Germany) (represented by: R. Klinger and R. Geulen, lawyers)

         Defendant: European Commission (represented by: initially F. Clotuche-Duvieusart and J. Vondung, then F. Clotuche-Duvieusart and H. Krämer, acting as Agents, in cooperation initially with R. van der Hout and A. Köhler, then R. van der Hout and C. Wagner, lawyers)

         Re:

      Application on the basis of Article 263 TFEU seeking the annulment in part of Commission Decision GESTDEM 2014/547 of 2 June 2014, confirming the refusal to grant access to all the documents related to correspondence between the European Commission, on the one hand, and the undertakings Honeywell et DuPont or car manufacturers, on the other hand, during the period from September 2011 until April 2012 and from September 2012 until the end of January 2014, concerning refrigerant R1234yf used in motor vehicles.

         Operative part of the judgment

      The Court:

                  1.

                  Rules that there is no longer any need to adjudicate on the application for annulment in part of Commission Decision GESTDEM 2014/547 of 2 June 2014, in so far as it concerns the initially redacted parts of document No 34 which, subsequently, were made public;

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders Deutsche Umwelthilfe eV to pay the costs.

         (1)  OJ C 329, 22.9.2014.


title: Case T-677/14: Judgment of the General Court of 12 December 2018 — Biogaran v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 TFEU and 102 TFEU — Agreements intended to delay, or even prevent, the market entry of generic versions of perindopril — Participation of a subsidiary in the infringement committed by its parent company — Imputation of the infringement — Joint and several liability — Ceiling of the fine)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/24

      Judgment of the General Court of 12 December 2018 — Biogaran v Commission
      (Case T-677/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Articles 101 TFEU and 102 TFEU - Agreements intended to delay, or even prevent, the market entry of generic versions of perindopril - Participation of a subsidiary in the infringement committed by its parent company - Imputation of the infringement - Joint and several liability - Ceiling of the fine))
      (2019/C 82/26)
      Language of the case: French

         Parties

         Applicant: Biogaran (Colombes, France) (represented by: T. Reymond, O. de Juvigny and J. Jourdan, lawyers)

         Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Biogaran to pay the costs.

         (1)  OJ C 395, 10.11.2014.


title: Case T-679/14: Judgment of the General Court of 12 December 2018 — Teva UK and Others v Commission (Competition — Agreements, decisions and concerted practices — Perindopril market, medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Patent dispute settlement and exclusive purchasing agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/25

      Judgment of the General Court of 12 December 2018 — Teva UK and Others v Commission
      (Case T-679/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Perindopril market, medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Principle of impartiality - Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions - Patent dispute settlement and exclusive purchasing agreement - Potential competition - Restriction of competition by object - Balance between competition law and patent law - Conditions for exemption under Article 101(3) TFEU - Fines))
      (2019/C 82/27)
      Language of the case: English

         Parties

         Applicants: Teva UK Ltd (West Yorkshire, United Kingdom), Teva Pharmaceuticals Europe BV (Utrecht, Netherlands), Teva Pharmaceutical Industries Ltd (Jerusalem, Israel) (represented by D Tayar and A. Richard, lawyers)

         Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by G. Peretz, Barrister)

         Intervener in support of the applicants: European Generic medicines Association AISBL (EGA) (Brussels, Belgium) (represented by S.-P. Brankin, Solicitor, and E. Wijckmans, lawyer)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for reduction of the fine imposed on the applicants by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Teva UK Ltd, Teva Pharmaceuticals Europe BV and Teva Pharmaceutical Industries Ltd to pay, in addition to their own costs, the costs incurred by the Commission;

                  3.

                  Orders the European Generic medicines Association AISBL (EGA) to bear its own costs.

         (1)  OJ C 409, 17.11.2014.


title: Case T-680/14: Judgment of the General Court of 12 December 2018 — Lupin v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Technology acquisition agreement — Restriction of competition by object — Balance between competition law and patent law — Fines)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/26

      Judgment of the General Court of 12 December 2018 — Lupin v Commission
      (Case T-680/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Technology acquisition agreement - Restriction of competition by object - Balance between competition law and patent law - Fines))
      (2019/C 82/28)
      Language of the case: English

         Parties

         Applicant: Lupin Ltd (Maharashtra, India) (represented initially by M. Pullen, R. Fawcett-Feuillette, Solicitors, M. Hoskins QC, V. Wakefield, Barrister and M. Boles, Solicitor, and subsequently by M. Hoskins, V. Wakefield, M. Boles, K. Vernon and S. Smith, Solicitors, and lastly by M. Hoskins, V. Wakefield, S. Smith and C. Wall, Solicitor)

         Defendant: European Commission (represented initially by F. Castilla Contreras, B. Mongin and T. Vecchi, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by B. Rayment, Barrister)

         Re:

      Application under Article 263 TFEU for partial annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant, and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Lupin Ltd to pay the costs.

         (1)  OJ C 439, 8.12.2014.


title: Case T-682/14: Judgment of the General Court of 12 December 2018 — Mylan Laboratories and Mylan v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Potential competition — Restriction of competition by object — Balance between competition law and patent law — Imputation of the unlawful conduct — Fines)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/26

      Judgment of the General Court of 12 December 2018 — Mylan Laboratories and Mylan v Commission
      (Case T-682/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Potential competition - Restriction of competition by object - Balance between competition law and patent law - Imputation of the unlawful conduct - Fines))
      (2019/C 82/29)
      Language of the case: English

         Parties

         Applicants: Mylan Laboratories Ltd (Hyderabad, India) and Mylan, Inc. (Canonsburg, Pennsylvania, United States) (represented by S. Kon, C. Firth and C. Humpe, Solicitors)

         Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi, and B. Mongin and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by S. Kingston, Barrister-at-law)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for annulment or reduction of the fine imposed on the applicants by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mylan Laboratories Ltd and Mylan, Inc. to pay the costs.

         (1)  OJ C 431, 1.12.2014.


title: Case T-684/14: Judgment of the General Court of 12 December 2018 — Krka v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Licensing agreement — Technology acquisition agreement — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/27

      Judgment of the General Court of 12 December 2018 — Krka v Commission
      (Case T-684/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Licensing agreement - Technology acquisition agreement - Restriction of competition by object - Restriction of competition by effect - Balance between competition law and patent law))
      (2019/C 82/30)
      Language of the case: English

         Parties

         Applicant: Krka Tovarna Zdravil d.d. (Novo Mesto, Slovenia) (represented by T. Ilešič and M. Kocmut, lawyers)

         Defendant: European Commission (represented by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, assisted by D. Bailey, Barrister)

         Re:

      Application under Article 263 TFEU for partial annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Krka Tovarna Zdravil d.d. participated in the agreements referred to in that article;

                  2.

                  Annuls Article 7(4)(a) of Decision C(2014) 4955 final;

                  3.

                  Annuls Articles 8 and 9 of Decision C(2014) 4955 final, in so far as they concern Krka Tovarna Zdravil;

                  4.

                  Orders the Commission to pay the costs.

         (1)  OJ C 431, 1.12.2014.


title: Case T-691/14: Judgment of the General Court of 12 December 2018 — Servier and Others v Commission (Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Articles 101 and 102 TFEU — Principle of impartiality — Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions — Right to an effective remedy — Shortness of the period for lodging an action in view of the length of the contested decision — Patent dispute settlement agreements — Licence agreements — Technology acquisition agreements — Exclusive purchasing agreement — Potential competition — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law — Classification as separate infringements or as a single infringement — Definition of the relevant market at the level of the molecule of the medicinal product concerned — Fines — Cumulation of fines imposed under Articles 101 and 102 TFEU — Principle that offences and penalties must have a proper legal basis — Value of sales — Methods of calculation in the event of overlapping infringements on the same markets)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/28

      Judgment of the General Court of 12 December 2018 — Servier and Others v Commission
      (Case T-691/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Abuse of a dominant position - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Articles 101 and 102 TFEU - Principle of impartiality - Consultation of the Advisory Committee on Restrictive Practices and Dominant Positions - Right to an effective remedy - Shortness of the period for lodging an action in view of the length of the contested decision - Patent dispute settlement agreements - Licence agreements - Technology acquisition agreements - Exclusive purchasing agreement - Potential competition - Restriction of competition by object - Restriction of competition by effect - Balance between competition law and patent law - Classification as separate infringements or as a single infringement - Definition of the relevant market at the level of the molecule of the medicinal product concerned - Fines - Cumulation of fines imposed under Articles 101 and 102 TFEU - Principle that offences and penalties must have a proper legal basis - Value of sales - Methods of calculation in the event of overlapping infringements on the same markets))
      (2019/C 82/31)
      Language of the case: French

         Parties

         Applicants: Servier SAS (Suresnes, France), Servier Laboratories Ltd (Wexham, United Kingdom), Les Laboratoires Servier SAS (Suresnes) (represented initially by I. S. Forrester QC, J. Killick, Barrister, O. de Juvigny, lawyer, and M. Utges Manley, Solicitor, then by J. Killick, O. de Juvigny, M. Utges Manley, J. Jourdan and T. Reymond, lawyers)

         Defendant: European Commission (represented initially by T. Christoforou, B. Mongin, C. Vollrath, F. Castilla Contreras and T. Vecchi, then by T. Christoforou, B. Mongin, C. Vollrath, F. Castilla Contreras and J. Norris-Usher, acting as Agents)

         Intervener in support of the applicants: European Federation of Pharmaceutical Industries and Associations (EFPIA) (Geneva, Switzerland) (represented by F. Carlin, Barrister, N. Niejahr and C. Paillard, lawyers)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicants and, in the alternative, for reduction of the fine imposed on the applicants by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls Article 4 of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) in so far as it finds that Servier SAS and Laboratoires Servier SAS participated in the agreements referred to in that article;

                  2.

                  Annuls Article 6 of Decision C(2014) 4955 final;

                  3.

                  Annuls Article 7(4)(b) and (6) of Decision C(2014) 4955 final;

                  4.

                  Sets the amount of the fine imposed on Servier and on Laboratoires Servier in respect of the infringement referred to in Article 2 of Decision C(2014) 4955 final, as set out in Article 7(2)(b) thereof, at EUR 55 385 190;

                  5.

                  Dismisses the action as to the remainder;

                  6.

                  Orders Servier, Servier Laboratories Ltd and Laboratoires Servier, to pay, in addition to their own costs, the costs incurred by the Commission.

                  7.

                  Orders the European Federation of Pharmaceutical Industries and Associations (EFPIA) to bear its own costs.

         (1)  OJ C 462, 22.12.2014.


title: Case T-705/14: Judgment of the General Court of 12 December 2018 — Unichem Laboratories v Commission (Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Commission’s territorial jurisdiction — Imputation of the unlawful conduct — Administrative procedure — Legal professional privilege protecting communications between lawyers and their clients — Potential competition — Restriction of competition by object — Objective necessity of the restriction — Balance between competition law and patent law — Conditions for exemption under Article 101(3) TFEU — Fines)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/30

      Judgment of the General Court of 12 December 2018 — Unichem Laboratories v Commission
      (Case T-705/14) (1)

      ((Competition - Agreements, decisions and concerted practices - Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions - Decision finding an infringement of Article 101 TFEU - Patent dispute settlement agreement - Commission’s territorial jurisdiction - Imputation of the unlawful conduct - Administrative procedure - Legal professional privilege protecting communications between lawyers and their clients - Potential competition - Restriction of competition by object - Objective necessity of the restriction - Balance between competition law and patent law - Conditions for exemption under Article 101(3) TFEU - Fines))
      (2019/C 82/33)
      Language of the case: English

         Parties

         Applicant: Unichem Laboratories Ltd (Mumbai, India) (represented by S. Mobley, K. Shaw, K. Cousins, M. Healy, H. Sheraton, and E. Batchelor, Solicitors)

         Defendant: European Commission (represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents, and by S. Kingston, Barrister-at-law)

         Re:

      Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Unichem Laboratories Ltd to pay the costs.

         (1)  OJ C 448, 15.12.2014.


title: Case T-827/14: Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission (Competition — Abuse of a dominant position — Slovak market for broadband telecommunications services — Access by third-party undertakings to the ‘local loop’ of the incumbent operator on that market — Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement — Single and continuous infringement — Definition of ‘abuse’ — Refusal to grant access — Margin squeeze — Calculation of margin squeeze — Equally efficient competitor test — Rights of defence — Imputation to a parent company of an infringement committed by its subsidiary — Decisive influence of the parent company over the subsidiary’s commercial policy — Actual exercise of such influence — Burden of proof — Calculation of the amount of the fine — 2006 Guidelines on the method of setting fines — Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/30

      Judgment of the General Court of 13 December 2018 — Deutsche Telekom v Commission
      (Case T-827/14) (1)

      ((Competition - Abuse of a dominant position - Slovak market for broadband telecommunications services - Access by third-party undertakings to the ‘local loop’ of the incumbent operator on that market - Decision finding an infringement of Article 102 TFEU and of Article 54 of the EEA Agreement - Single and continuous infringement - Definition of ‘abuse’ - Refusal to grant access - Margin squeeze - Calculation of margin squeeze - Equally efficient competitor test - Rights of defence - Imputation to a parent company of an infringement committed by its subsidiary - Decisive influence of the parent company over the subsidiary’s commercial policy - Actual exercise of such influence - Burden of proof - Calculation of the amount of the fine - 2006 Guidelines on the method of setting fines - Separate fine imposed solely on the parent company for repeated infringement and application of a multiplier for the purpose of deterrence))
      (2019/C 82/34)
      Language of the case: German

         Parties

         Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: K. Apel and D. Schroeder, lawyers)

         Defendant: European Commission (represented by: M. Kellerbauer, L. Malferrari, C. Vollrath and L. Wildpanner, acting as Agents)

         Intervener in support of the defendant: Slovanet, a.s. (Bratislava, Slovakia) (represented by: P. Tisaj, lawyer)

         Re:

      Application under Article 263 TFEU for annulment, in whole or in part, of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom), as rectified by Commission Decision C(2014) 10119 final of 16 December 2014 and by Commission Decision C(2015) 2484 final of 17 April 2015, in so far as that decision concerns the applicant, and, in the alternative, for annulment or reduction of the amount of the fines imposed on the applicant by that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls Article 1(2)(d) of Commission Decision C(2014) 7465 final of 15 October 2014 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39523 — Slovak Telekom) in so far as it declares that, over the course of the period between 12 August and 31 December 2005, Deutsche Telekom AG imposed unfair tariffs which did not allow an equally efficient operator relying on wholesale access to its unbundled local loops to replicate the retail broadband services offered by it without incurring a loss;

                  2.

                  Annuls Article 2 of Decision C(2014) 7465 final in so far as it fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 838 000 and the amount of the fine imposed on Deutsche Telekom alone at EUR 31 070 000;

                  3.

                  Fixes the amount of the fine imposed jointly and severally on Deutsche Telekom at EUR 38 061 963 and the amount of the fine imposed on Deutsche Telekom alone at EUR 19 030 981;

                  4.

                  Dismisses the action as to the remainder;

                  5.

                  Orders Deutsche Telekom to pay four fifths of its own costs, four fifths of the costs of the European Commission and four fifths of the costs of Slovanet, a.s.;

                  6.

                  Orders the Commission to pay one fifth of its own costs and one fifth of the costs incurred by Deutsche Telekom;

                  7.

                  Orders Slovanet to bear one fifth of its own costs.

         (1)  OJ C 96, 23.3.2015.