title: Case C-505/17 P: Judgment of the Court (Ninth Chamber) of 28 February 2019 — Groupe Léa Nature v European Union Intellectual Property Office (EUIPO), Debonair Trading Internacional Lda (Appeal — EU trade mark — Regulation (EC) No 207/2009 — Article 8(1)(b) and Article 8(5) — Figurative mark containing the word elements ‘SO’BiO ētic’ — EU and national word and figurative marks containing the word element ‘SO…?’ — Opposition by the proprietor — Refusal of registration)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/13

      Judgment of the Court (Ninth Chamber) of 28 February 2019 — Groupe Léa Nature v European Union Intellectual Property Office (EUIPO), Debonair Trading Internacional Lda
      (Case C-505/17 P) (1)

      (Appeal - EU trade mark - Regulation (EC) No 207/2009 - Article 8(1)(b) and Article 8(5) - Figurative mark containing the word elements ‘SO’BiO ētic’ - EU and national word and figurative marks containing the word element ‘SO…?’ - Opposition by the proprietor - Refusal of registration)
      (2019/C 139/10)
      Language of the case: English

         Parties

         Appellant: Groupe Léa Nature SA (represented by: E. Baud, Avocat)

         Other parties to the proceedings: European Union Intellectual Property Office (represented by: E. Markakis and D. Botis, Agents), Debonair Trading Internacional Lda (represented by T. Alkin, Barrister)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Groupe Léa Nature SA to pay, in addition to its own costs, those incurred by Debonair Trading Internacional Lda and by The Office of the European Union for Intellectual Property (EUIPO).

         (1)  OJ C 437, 18.12.2017.


title: Case C-563/17: Judgment of the Court of Justice (Second Chamber) of 27 February 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Associação Peço a Palavra and Others v Conselho de Ministros (Reference for a preliminary ruling — Freedom of establishment — Regulation (EC) No 1008/2008 — Air carrier company — Reprivatisation process — Sale of shares representing up to 61 % of the share capital — Conditions — Requirement to keep the headquarters and effective management in a Member State — Public service obligations — Requirement to maintain and develop the existing national hub)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/13

      Judgment of the Court of Justice (Second Chamber) of 27 February 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Associação Peço a Palavra and Others v Conselho de Ministros
      (Case C-563/17) (1)

      (Reference for a preliminary ruling - Freedom of establishment - Regulation (EC) No 1008/2008 - Air carrier company - Reprivatisation process - Sale of shares representing up to 61 % of the share capital - Conditions - Requirement to keep the headquarters and effective management in a Member State - Public service obligations - Requirement to maintain and develop the existing national hub)
      (2019/C 139/11)
      Language of the case: Portuguese

         Referring court

      Supremo Tribunal Administrativo

         Parties to the main proceedings

         Applicants: Associação Peço a Palavra, João Carlos Constantino Pereira Osório, Maria Clara Marques Pires Sarmento Franco, Sofia da Silva Santos Arauz, Maria João Galhardas Fitas

         Defendants: Conselho de Ministros

         Interveners: Parpública — Participações Públicas SGPS SA, TAP — Transportes Aéreos Portugueses SGPS SA

         Operative part of the judgment

                  1.

                  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as irrelevant for the purposes of assessing the compatibility with EU law of certain requirements relating to the activities carried out by an air carrier company, imposed on the purchaser of a qualified holding in the share capital of that company, in particular of the requirement that that purchaser be required to perform public service obligations and to maintain and develop that company’s national hub.

                  2.

                  Article 49 TFEU must be interpreted as not precluding tender specifications governing the conditions to which a reprivatisation process of an air carrier company is subject from including:

                              —

                              a requirement that the purchaser of the shares subject to the reprivatisation process has the capacity to fulfil the performance of the public service obligations on that air carrier company, and

                              —

                              a requirement that the purchaser maintain that air carrier company’s headquarters and effective management in the Member State concerned, in so far as the transfer of that company’s principal place of business outside of that Member State would mean that company losing the air traffic rights conferred on it under bilateral agreements between that Member State and third countries with which that Member State has particular historical, cultural and social ties, which is for the referring court to ascertain.
                              Article 49 TFEU must be interpreted as precluding those tender specifications from including a requirement that the purchaser of those shares ensure that the existing national hub is maintained and developed.

         (1)  OJ C 424, 11.12.2017.


title: Case C-567/17: Judgment of the Court (Third Chamber) of 28 February 2019 (Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Bene Factum’UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (Reference for a preliminary ruling — Tax provisions — Excise duty — Directive 92/83/EEC — Article 27(1)(b) — Exemptions — Definition of ‘products not for human consumption’ — Assessment criteria)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/14

      Judgment of the Court (Third Chamber) of 28 February 2019 (Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — ‘Bene Factum’UAB v Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
      (Case C-567/17) (1)

      (Reference for a preliminary ruling - Tax provisions - Excise duty - Directive 92/83/EEC - Article 27(1)(b) - Exemptions - Definition of ‘products not for human consumption’ - Assessment criteria)
      (2019/C 139/12)
      Language of the case: Lithuanian

         Referring court

      Lietuvos vyriausiasis administracinis teismas

         Parties to the main proceedings

         Applicant:‘Bene Factum’ UAB

         Defendant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

         Operative part of the judgment

                  1.

                  Article 27(1)(b) of Council Directive 92/83/EEC of 19 October 1992 on the harmonization of the structures of excise duties on alcohol and alcoholic beverages must be interpreted as applying to ethyl alcohol that has been denatured in accordance with the requirements of a Member State and is contained in cosmetics or mouthwashes which, although not intended, as such, for human consumption, are nevertheless consumed as alcoholic beverages by certain individuals.

                  2.

                  Article 27(1)(b) of Directive 92/83 must be interpreted as applying to ethyl alcohol that has been denatured in accordance with the requirements of a Member State and is contained in cosmetics or mouthwashes which, although not intended, as such, for human consumption, are nevertheless consumed as alcoholic beverages by certain individuals, when the person who imports those products from a Member State in order for them to be supplied to the end consumers in the Member State of destination by other persons, knowing that they are also consumed as alcoholic beverages, has them manufactured and labelled with that in mind in order to increase the sale of those products.

         (1)  OJ C 402, 27.11.2017.


title: Case C-579/17: Judgment of the Court (Second Chamber) of 28 February 2019 (request for a preliminary ruling from the Arbeits- und Sozialgericht Wien — Austria) — BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o. (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Article 1(1) — Scope — Civil and commercial matters — Article 1(2) — Matters excluded — Social security — Article 53 — Application for the issue of the certificate certifying that the judgment delivered by the court of origin is enforceable — Judgment relating to a claim for wage supplements regarding annual leave pay that a social security body has against an employer with respect to the posting of workers — Exercise of a judicial function by the court ruling in the case)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/15

      Judgment of the Court (Second Chamber) of 28 February 2019 (request for a preliminary ruling from the Arbeits- und Sozialgericht Wien — Austria) — BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.
      (Case C-579/17) (1)

      (Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 1215/2012 - Article 1(1) - Scope - Civil and commercial matters - Article 1(2) - Matters excluded - Social security - Article 53 - Application for the issue of the certificate certifying that the judgment delivered by the court of origin is enforceable - Judgment relating to a claim for wage supplements regarding annual leave pay that a social security body has against an employer with respect to the posting of workers - Exercise of a judicial function by the court ruling in the case)
      (2019/C 139/13)
      Language of the case: German

         Referring court

      Arbeits- und Sozialgericht Wien

         Parties to the main proceedings

         Applicant: BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse

         Defendant: Gradbeništvo Korana d.o.o.

         Operative part of the judgment

      Article 1 of 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 must be interpreted as meaning that an action for payment of wage supplements in respect of annual leave pay brought by a body governed by public law against an employer, in connection with the posting of workers to a Member State where they do not have their habitual place of work, or in the context of the provision of labour in that Member State, or against an employer established outside of the territory of that Member State in connection with the employment of workers who have their habitual place of work in that Member State, falls within the scope of application of that regulation, in so far as the modalities for bringing such an action do not infringe the rules of general law and, in particular, do not exclude the possibility for the court ruling on the case to verify the merits of the information on which the establishment of that claim is based, which is a matter to be determined by the referring court.

         (1)  OJ C 424, 11.12.2017.


title: Case C-581/17: Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Martin Wächtler v Finanzamt Konstanz (Reference for a preliminary ruling — Agreement between the European Community and the Swiss Confederation on the free movement of persons — Transfer by a natural person of his domicile from a Member State to Switzerland — Taxation of unrealised capital gains with respect to shares in a company — Direct taxation — Freedom of movement of self-employed persons — Equal treatment)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/16

      Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Martin Wächtler v Finanzamt Konstanz
      (Case C-581/17) (1)

      (Reference for a preliminary ruling - Agreement between the European Community and the Swiss Confederation on the free movement of persons - Transfer by a natural person of his domicile from a Member State to Switzerland - Taxation of unrealised capital gains with respect to shares in a company - Direct taxation - Freedom of movement of self-employed persons - Equal treatment)
      (2019/C 139/14)
      Language of the case: German

         Referring court

      Finanzgericht Baden-Württemberg

         Parties to the main proceedings

         Applicant: Martin Wächtler

         Defendant: Finanzamt Konstanz

         Operative part of the judgment

      The provisions of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, must be interpreted as precluding a tax regime of a Member State which, in a situation where a natural person who is a national of a Member State and who pursues an economic activity in the territory of the Swiss Confederation transfers his domicile from the Member State whose tax regime is at issue to Switzerland, provides for the collection, at the time of that transfer, of the tax payable on unrealised capital gains with respect to shares owned by that national, whereas, if domicile is retained in that Member State, the collection of the tax takes place only at the time when the capital gains are realised, that is on a disposal of the shares concerned.

         (1)  OJ C 13, 15.1.2018.


title: Case C-670/17 P: Judgment of the Court (First Chamber) of 27 February 2019 — Hellenic Republic v European Commission (Appeal — European Agricultural Guidance and Guarantee Fund (EAGGF) — Guidance Section — Reduction of financial assistance — Regulation (EC) No 1260/1999 — Operational programme — Financial corrections — Article 39 — Legal basis — Transitional provisions)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/17

      Judgment of the Court (First Chamber) of 27 February 2019 — Hellenic Republic v European Commission
      (Case C-670/17 P) (1)

      (Appeal - European Agricultural Guidance and Guarantee Fund (EAGGF) - Guidance Section - Reduction of financial assistance - Regulation (EC) No 1260/1999 - Operational programme - Financial corrections - Article 39 - Legal basis - Transitional provisions)
      (2019/C 139/15)
      Language of the case: Greek

         Parties

         Appellant: Hellenic Republic (represented by: G. Kanellopoulos, A. Vasilopoulou and I. Pachi, acting as Agents)

         Other party to the proceedings: European Commission (represented by: D. Triantafyllou and J. Aquilina, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 19 September 2017, Greece v Commission (T-327/15, not published, EU:T:2017:631);

                  2.

                  Annuls Commission Implementing Decision C(2015) 1936 final of 25 March 2015 on applying financial correction on the EAGGF Guidance Section of the operational programme CCI No 2000GR061PO021 (Greece — Objective 1 — Rural Reconstruction);

                  3.

                  Orders the European Commission to bear its own costs and to pay those incurred by the Hellenic Republic both in the proceedings at first instance and on appeal.

         (1)  OJ C 42, 5.2.2018.


title: Case C-9/18: Judgment of the Court (Seventh Chamber) of 28 February 2019 (request for a preliminary ruling from the Oberlandesgericht Karlsruhe — Germany) — Criminal proceedings against Detlef Meyn (Reference for a preliminary ruling — Transport — Directive 2006/126/EC — Mutual recognition of driving licences — Refusal to recognise a driving licence issued in another Member State — Right to drive established on the basis of a driving licence)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/18

      Judgment of the Court (Seventh Chamber) of 28 February 2019 (request for a preliminary ruling from the Oberlandesgericht Karlsruhe — Germany) — Criminal proceedings against Detlef Meyn
      (Case C-9/18) (1)

      (Reference for a preliminary ruling - Transport - Directive 2006/126/EC - Mutual recognition of driving licences - Refusal to recognise a driving licence issued in another Member State - Right to drive established on the basis of a driving licence)
      (2019/C 139/16)
      Language of the case: German

         Referring court

      Oberlandesgericht Karlsruhe

         Party in the main proceedings

      Detlef Meyn

         Operative part of the judgment

      The provisions of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences must be interpreted as meaning that they do not preclude a Member State from refusing to recognise a driving licence — the holder of which has his normal residence in its territory — which has been issued by another Member State, without a test of fitness to drive, on the basis of a driving licence issued by another Member State, for its part based on the exchange of a driving licence issued by a third country.

         (1)  OJ C 134, 16.4.2018.


title: Case C-14/18 P: Judgment of the Court (Sixth Chamber) of 28 February 2019 — Alfamicro — Sistemas de computadores, Sociedade Unipessoal, Lda. v European Commission (Appeal — Arbitration clause — Article 272 TFEU — Concept of a ‘declaratory action’ — Article 263 TFEU — Concept of an ‘administrative decision’ — Grant agreement concluded under the Competitiveness and Innovation Framework Programme (CIP) (2007-2013) — Audit reports finding certain declared costs to be ineligible)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/18

      Judgment of the Court (Sixth Chamber) of 28 February 2019 — Alfamicro — Sistemas de computadores, Sociedade Unipessoal, Lda. v European Commission
      (Case C-14/18 P) (1)

      (Appeal - Arbitration clause - Article 272 TFEU - Concept of a ‘declaratory action’ - Article 263 TFEU - Concept of an ‘administrative decision’ - Grant agreement concluded under the Competitiveness and Innovation Framework Programme (CIP) (2007-2013) - Audit reports finding certain declared costs to be ineligible)
      (2019/C 139/17)
      Language of the case: Portuguese

         Parties

         Appellants: Alfamicro — Sistemas de computadores, Sociedade Unipessoal, Lda. (represented by: G. Gentil Anastácio and D. Pirra Xarepe, advogados)

         Other party to the proceedings: European Commission (represented by: J. Estrada de Solà and M.M. Farrajota, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Alfamicro — Sistemas de computadores, Sociedade Unipessoal, Lda to pay the costs.

         (1)  OJ C 72, 26.2.2018.


title: Joined Cases C-202/18 and C-238/18: Judgment of the Court (Grand Chamber) of 26 February 2019 — Ilmārs Rimšēvičs (C-202/18), European Central Bank (ECB) (C-238/18) v Republic of Latvia (European System of Central Banks — Action based on infringement of the second subparagraph of Article 14.2 of the Statute of the European System of Central Banks and of the European Central Bank — Decision of a national authority suspending the governor of the national central bank from office)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/19

      Judgment of the Court (Grand Chamber) of 26 February 2019 — Ilmārs Rimšēvičs (C-202/18), European Central Bank (ECB) (C-238/18) v Republic of Latvia
      (Joined Cases C-202/18 and C-238/18) (1)

      (European System of Central Banks - Action based on infringement of the second subparagraph of Article 14.2 of the Statute of the European System of Central Banks and of the European Central Bank - Decision of a national authority suspending the governor of the national central bank from office)
      (2019/C 139/18)
      Language of the case: Latvian

         Parties

         Applicants: Ilmārs Rimšēvičs (represented by: S. Vārpiņš, M. Kvēps and I. Pazare, advokāti) (C-202/18), European Central Bank (ECB) (represented by: C. Zilioli, K. Kaiser and C. Kroppenstedt, acting as Agents, and by D. Sarmiento Ramírez-Escudero, abogado, and by V. Čuske-Jurjeva, advokāte) (C–238/18)

         Defendant: Republic of Latvia (represented by: I. Kucina and J. Davidoviča, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Joins Cases C-202/18 and C-238/18 for the purposes of the judgment;

                  2.

                  Annuls the decision of the Korupcijas novēršanas un apkarošanas birojs (Anti-Corruption Office, Latvia) of 19 February 2018 in so far as it prohibits Mr Ilmārs Rimšēvičs from performing his duties as Governor of the Central Bank of Latvia;

                  3.

                  Orders the Republic of Latvia to bear its own costs and to pay those incurred by the European Central Bank (ECB).

         (1)  OJ C 161, 7.5.2018.


title: Case C-278/18: Judgment of the Court (Eighth Chamber) of 28 February 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Manuel Jorge Sequeira Mesquita v Fazenda Pública (Reference for a preliminary ruling — Value added tax (VAT) — Sixth Directive 77/388/EEC — Exemption — Article 13B(b) — Leasing or letting of immovable property — Meaning — Contract for the transfer of the use of land comprising vineyards for agricultural purposes)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/20

      Judgment of the Court (Eighth Chamber) of 28 February 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Manuel Jorge Sequeira Mesquita v Fazenda Pública
      (Case C-278/18) (1)

      (Reference for a preliminary ruling - Value added tax (VAT) - Sixth Directive 77/388/EEC - Exemption - Article 13B(b) - Leasing or letting of immovable property - Meaning - Contract for the transfer of the use of land comprising vineyards for agricultural purposes)
      (2019/C 139/19)
      Language of the case: Portuguese

         Referring court

      Supremo Tribunal Administrativo

         Parties to the main proceedings

         Applicant: Manuel Jorge Sequeira Mesquita

         Defendant: Fazenda Pública

         Operative part of the judgment

      Article 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the exemption from value added tax on the leasing or letting of immovable property provided for in that provision is applicable to a contract for transfer of the use of land comprising vineyards for agricultural purposes to a company engaged in viticulture, entered into for a period of one year, automatically renewable and under which rent is paid at the end of each year

         (1)  OJ C 259, 23.7.2018.


title: Case C-771/18: Action brought on 7 December 2018 — European Commission v Hungary

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/20

      Action brought on 7 December 2018 — European Commission v Hungary
      (Case C-771/18)
      (2019/C 139/20)
      Language of the case: Hungarian

         Parties

         Applicant: European Commission (represented by: O. Beynet and K. Talabér-Ritz, acting as Agents)

         Defendant: Hungary

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare that Hungary has failed to fulfil its obligations under Article 14(1) of Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003, (1) and Article 13(1) of Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005, (2) by failing to take account of the costs actually incurred by network operators;

                  —

                  declare that Hungary has failed to fulfil its obligations under Article 37(17) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, (3) and Article 41(17) of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, (4) by failing to establish a suitable mechanism guaranteeing the right to appeal against the decisions of the national regulatory authority, as provided for under the abovementioned provisions of Directives 2009/72/EC and 2009/73/EC;

                  —

                  order Hungary to pay the costs.

         Pleas in law and main arguments

      Article 14(1) of Regulation (EC) No 714/2009 and Article 13(1) of Regulation (EC) No 715/2009 establish the principle that tariffs for the use of networks must be cost-oriented.
      However, the Law on electricity and the Law on natural gas currently in force in Hungary do not allow the national regulatory authority, when setting tariffs for the use of networks, to take into account all the costs actually incurred by system operators, such as excise duty on energy networks and commission costs related to banking operations.
      The Commission claims that there is no objective reason for preventing the national regulatory authority from taking into account the abovementioned costs when setting tariffs for the use of the networks.
      In addition, under Article 37(17) of Directive 2009/72/EC and Article 41(17) of Directive 2009/73/EC, Member States must ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
      According to the Commission, Hungary has failed to establish a suitable mechanism guaranteeing the right to appeal against the decisions of the national regulatory authority.

         (1)  OJ 2009 L 211, p. 15.

         (2)  OJ 2009 L 211, p. 36.

         (3)  OJ 2009 L 211, p. 55.

         (4)  OJ 2009 L 211, p. 94.


title: Case C-777/18: Request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 11 December 2018 — WO v Vas Megyei Kormányhivatal

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/22

      Request for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 11 December 2018 — WO v Vas Megyei Kormányhivatal
      (Case C-777/18)
      (2019/C 139/21)
      Language of the case: Hungarian

         Referring court

      Szombathelyi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: WO

         Defendant: Vas Megyei Kormányhivatal

         Questions referred

                  1.

                  Does national legislation, such as that at issue in the main proceedings, which, as regards the reimbursement of the costs of cross-border healthcare, precludes the healthcare provided in another Member State without prior authorisation from being subsequently authorised, even when there is a genuine risk that the patient’s state of health may irreversibly deteriorate while waiting for that prior authorisation, amount to a restriction contrary to Article 56 of the Treaty on the Functioning of the European Union (TFEU)?

                  2.

                  Does a Member State’s authorisation system which, as regards the reimbursement of the costs of cross-border healthcare, precludes subsequent authorisation, even when there is a genuine risk that the patient’s state of health will irreversibly deteriorate while waiting for prior authorisation, comply with the principles of necessity and proportionality set out in Article 8(1) of Directive 2011/24/EU (1) of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare and with the principle of the free movement of patients?

                  3.

                  Does national legislation which, regardless of the state of health of the patient submitting the request, establishes a procedural time limit of 31 days within which the competent authority may grant prior authorisation and of 23 days within which it may refuse authorisation, comply with the requirement to set a reasonable procedural period taking into account specific medical conditions, urgency and individual circumstances, laid down in Article 9(3) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare? The authority may assess, in respect of the request, whether the provision of healthcare is covered by social security and, if so, whether it may be delivered, within a time limit that is medically justifiable, by a publicly-funded healthcare provider, whereas if it is not covered by social security, the authority assesses the quality, safety and cost effectiveness of the healthcare delivered by the provider indicated by the patient.

                  4.

                  Must Article 20(1) of Regulation (EC) No 883/2004 (2) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems be interpreted as meaning that the reimbursement of cross-border healthcare costs may only be requested if the patient has applied for prior authorisation to the competent authority? Or does Article 20(1) not in itself in such a case preclude applying for subsequent authorisation for reimbursement of the costs?

                  5.

                  Does the situation where a patient travels to another Member State having obtained a specific appointment for a medical examination and a provisional appointment for possible surgery or medical intervention on the day following the examination and, given the state of the patient’s health, the surgery or intervention is actually performed, come within the scope of Article 20(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems? Is it possible, in that case, to apply for subsequent authorisation for reimbursement of the costs under Article 20(1)?

                  6.

                  Is the situation where a patient travels to another Member State having obtained a specific appointment for a medical examination and a provisional appointment for possible surgery or medical intervention on the day following the examination and, given the state of the patient’s health, the surgery or intervention is actually performed, covered by the concept of scheduled treatment within the meaning of Article 26 of Regulation (EC) No 987/2009 (3) of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems? If so, is it possible, under Article 26, to apply for subsequent authorisation for reimbursement of the costs? In the case of an urgent vitally necessary treatment, referred to in Article 26(3), does the regulation also require prior authorisation in terms of Article 26(1)?

         (1)  OJ 2011 L 88, p. 45.

         (2)  OJ 2004 L 166, p. 1.

         (3)  OJ 2009 L 284, p. 1.


title: Case C-807/18: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 20 December 2018 — Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/23

      Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 20 December 2018 — Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke
      (Case C-807/18)
      (2019/C 139/22)
      Language of the case: Hungarian

         Referring court

      Fővárosi Törvényszék

         Parties to the main proceedings

         Applicant: Telenor Magyarország Zrt.

         Defendant: Nemzeti Média- és Hírközlési Hatóság Elnöke

         Questions referred

                  1.

                  Must a commercial agreement between a provider of internet access services and an end user under which the service provider charges the end user a zero-cost tariff for certain applications (that is to say, the traffic generated by a given application is not taken into account for the purposes of data usage and does not slow down once the contracted data volume has been used), and under which that provider engages in discrimination which is confined to the terms of the commercial agreement concluded with the end consumer and is directed only against the end user party to that agreement and not against any end user not a party to it, be interpreted in the light of Article 3(2) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 (1) laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (ʻthe Regulation’)?

                  2.

                  If the first question referred is answered in the negative, must Article 3(3) of the Regulation be interpreted as meaning that — having regard also to recital 7 of the Regulation — an assessment of whether there is an infringement requires an impact- and market-based evaluation which determines whether and to what extent the measures adopted by the internet access services provider do actually limit the rights which Article 3(1) of the Regulation confers on the end user?

                  3.

                  Notwithstanding the first and second questions referred for a preliminary ruling, must Article 3(3) of the Regulation be interpreted as meaning that the prohibition laid down therein is a general and objective one, so that it prohibits any traffic management measure which distinguishes between certain forms of internet content, regardless of whether the internet access services provider draws those distinctions by means of an agreement, a commercial practice or some other form of conduct?

                  4.

                  If the third question is answered in the affirmative, can an infringement of Article 3(3) of the Regulation also be found to exist solely on the basis that there is discrimination, without the further need for a market and impact evaluation, so that an evaluation under Article 3(1) and (2) of the Regulation is unnecessary in such circumstances?

         (1)  OJ 2015 L 310, p. 1.


title: Case C-811/18: Request for a preliminary ruling from the Tribunal Superior de Justicia de Canarias (Spain) lodged on 21 December 2018 — KA v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/24

      Request for a preliminary ruling from the Tribunal Superior de Justicia de Canarias (Spain) lodged on 21 December 2018 — KA v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)
      (Case C-811/18)
      (2019/C 139/23)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de Canarias

         Parties to the main proceedings

         Appellant: KA

         Respondents: Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)

         Questions referred

                  1.

                  Must Article 157 TFEU be interpreted as meaning that a ‘maternity supplement’ applicable to contributory retirement, survivor’s and permanent incapacity pensions, such as that at issue in the main proceedings, entitlement to which in the case of fathers in receipt of a pension who are able to prove that they have assumed the task of bringing up their children is absolutely and unconditionally excluded, is a cause of discrimination as regards remuneration between working mothers and working fathers?

                  2.

                  Is the prohibition of discrimination on grounds of sex laid down in Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (1) to be interpreted as precluding a national provision such as Article 60 of Royal Legislative Decree 8/2015 approving the consolidated text of the General Law on Social Security (Real Decreto legislativo 8/2015 por el que se aprueba el texto refundido de la Ley General de la Seguridad Social) of 30 October 2015, which absolutely and unconditionally excludes fathers in receipt of a pension, who are able to prove that they have assumed the task of bringing up their children, from entitlement to the credit it establishes for the purposes of calculating retirement, survivor’s and permanent incapacity pensions?

                  3.

                  Must Article 2(2), (3) and (4) and Article 5 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, (2) vocational training and promotion, and working conditions be interpreted as precluding a measure like that at issue in the main proceedings which absolutely and unconditionally excludes fathers in receipt of a pension, who are able to prove that they have assumed the task of bringing up their children, from entitlement to the credit it establishes for the purposes of calculating retirement, survivor’s and permanent incapacity pensions?

                  4.

                  Is the exclusion of the applicant from entitlement to the credit derived from the Spanish ‘maternity supplement’ contrary to the requirement of non-discrimination laid down in Article 21(1) of the Charter of Fundamental Rights of the European Union (2000/C 364/01)?

         (1)  OJ 1979 L 6, P. 24.

         (2)  OJ 1976 L 39, p. 40.


title: Case C-836/18: Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) lodged on 28 December 2018 — Subdelegación del Gobierno en Ciudad Real v RH

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/25

      Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) lodged on 28 December 2018 — Subdelegación del Gobierno en Ciudad Real v RH
      (Case C-836/18)
      (2019/C 139/24)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de Castilla-La Mancha

         Parties to the main proceedings

         Applicant: Subdelegación del Gobierno en Ciudad Real

         Defendant: RH

         Questions referred

                  1.

                  Is the requirement that a Spanish citizen who has not exercised his right of free movement must satisfy the conditions laid down in Article 7(1) of Royal Decree 240/2007, as a necessary condition for the grant of a right of residence to his third-country spouse under Article 7(2) of that Royal Decree, liable, in the event that those conditions are not satisfied, to constitute an infringement of Article 20 TFEU if, as a result of the refusal to grant that right, the Spanish citizen is compelled to leave the territory of the European Union as a whole?
                  All of the above presupposes the requirement laid down in Article 68 of the Spanish Civil Code (Código Civil) for spouses to live together.

                  2.

                  In any event, notwithstanding the foregoing, does the practice of the Spanish State of automatically applying the rule laid down in Article 7 of Royal Decree 240/2007, and refusing to grant a residence permit to a family member of an EU citizen where that EU citizen has never exercised freedom of movement, solely and exclusively on the ground that the EU citizen does not satisfy the conditions laid down in that provision, without having examined specifically and individually whether there exists a relationship of dependency between that EU citizen and the third-country national of such a nature that, for any reason and in the light of the circumstances, it would mean that were the third-country national refused a right of residence, the EU citizen could not be separated from the family member on which he is dependent and would have to leave the territory of the European Union, infringe Article 20 TFEU in the terms set out above?
                  All of this is in the light of the case-law of the Court of Justice of the European Union, including, inter alia, the judgment of 8 May 2018, C-82/16, K.A. and Others v Belgische Staat. (1)

         (1)  Judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium) (C-82/16, EU:C:2018:308).


title: Case C-21/19: Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against XN

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/26

      Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against XN
      (Case C-21/19)
      (2019/C 139/25)
      Language of the case: Dutch

         Referring court

      Gerechtshof Arnhem-Leeuwarden, sitting in Arnhem

         Party to the main proceedings

      XN

         Questions referred

                  1.

                  Is a substance which is not a by-product within the meaning of the Waste Framework Directive (1) by definition also not an animal by-product within the meaning of the Animal By-Products Regulation 2009, such that that substance is not excluded from the operation EWSR (2) pursuant to Article 1(3) EWSR? Or can it not be ruled out that a substance falls within the definition of animal by-products within the meaning of the Animal By-Products Regulation 2009 if that substance does not meet the requirements of Article 5(1) of the Waste Framework Directive, such that that substance does not necessarily fall under the EWSR?

                  2.

                  How should a shipment covered by the approval requirements of Regulation (EC) No 1774/2002 (3) (now Regulation (EC) No 1069/2009 (4)) be understood within the meaning of Article 1(3) EWSR: does it refer to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs? Or does it refer to the transport of material referred to in Article 48 of the Animal By-Products Regulation 2009 (formerly Article 8 of Regulation 1774/2002), which is limited to animal by-products or derived products within the meaning of that provision, thus Category 1 material and Category 2 material, and certain products derived therefrom, including processed animal proteins derived from Category 3 material?

                  3.

                  If a shipment subject to the approval requirements of Regulation (EC) No 1774/2002 (now Regulation (EC) No 1069/2009) should be understood to refer, within the meaning of Article 1(3)(d) EWSR, to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs, should Article 1(3)(d) EWSR then be read as referring also to shipments of mixtures of animal by-products and other substances and — if so — is the mixing ratio between the animal by-products and the other substances relevant in that regard? Or does an animal by-product lose the status of animal by-product within the meaning of the Animal By-Products Regulation 2009 and does that animal by-product become waste within the meaning of the EWSR as a result of being mixed with another substance?

         (1)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

         (2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1).

         (3)  Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1).

         (4)  Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1).


title: Case C-22/19: Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against YO

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/27

      Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against YO
      (Case C-22/19)
      (2019/C 139/26)
      Language of the case: Dutch

         Referring court

      Gerechtshof Arnhem-Leeuwarden, sitting in Arnhem

         Party to the main proceedings

      YO

         Questions referred

                  1.

                  Is a substance which is not a by-product within the meaning of the Waste Framework Directive (1) by definition also not an animal by-product within the meaning of the Animal By-Products Regulation 2009, such that that substance is not excluded from the operation EWSR (2) pursuant to Article 1(3) EWSR? Or can it not be ruled out that a substance falls within the definition of animal by-products within the meaning of the Animal By-Products Regulation 2009 if that substance does not meet the requirements of Article 5(1) of the Waste Framework Directive, such that that substance does not necessarily fall under the EWSR?

                  2.

                  How should a shipment covered by the approval requirements of Regulation (EC) No 1774/2002 (3) (now Regulation (EC) No 1069/2009 (4)) be understood within the meaning of Article 1(3) EWSR: does it refer to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs? Or does it refer to the transport of material referred to in Article 48 of the Animal By-Products Regulation 2009 (formerly Article 8 of Regulation 1774/2002), which is limited to animal by-products or derived products within the meaning of that provision, thus Category 1 material and Category 2 material, and certain products derived therefrom, including processed animal proteins derived from Category 3 material?

                  3.

                  If a shipment subject to the approval requirements of Regulation (EC) No 1774/2002 (now Regulation (EC) No 1069/2009) should be understood to refer, within the meaning of Article 1(3)(d) EWSR, to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs, should Article 1(3)(d) EWSR then be read as referring also to shipments of mixtures of animal by-products and other substances and — if so — is the mixing ratio between the animal by-products and the other substances relevant in that regard? Or does an animal by-product lose the status of animal by-product within the meaning of the Animal By-Products Regulation 2009 and does that animal by-product become waste within the meaning of the EWSR as a result of being mixed with another substance?

         (1)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

         (2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1).

         (3)  Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1).

         (4)  Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1).


title: Case C-23/19: Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against P.F. Kamstra Recycling BV

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/28

      Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Netherlands) lodged on 15 January 2019 — Criminal proceedings against P.F. Kamstra Recycling BV
      (Case C-23/19)
      (2019/C 139/27)
      Language of the case: Dutch

         Referring court

      Gerechtshof Arnhem-Leeuwarden, sitting in Arnhem

         Party to the main proceedings

      P.F. Kamstra Recycling BV

         Questions referred

                  1.

                  Is a substance which is not a by-product within the meaning of the Waste Framework Directive (1) by definition also not an animal by-product within the meaning of the Animal By-Products Regulation 2009, such that that substance is not excluded from the operation EWSR (2) pursuant to Article 1(3) EWSR? Or can it not be ruled out that a substance falls within the definition of animal by-products within the meaning of the Animal By-Products Regulation 2009 if that substance does not meet the requirements of Article 5(1) of the Waste Framework Directive, such that that substance does not necessarily fall under the EWSR?

                  2.

                  How should a shipment covered by the approval requirements of Regulation (EC) No 1774/2002 (3) (now Regulation (EC) No 1069/2009 (4)) be understood within the meaning of Article 1(3) EWSR: does it refer to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs? Or does it refer to the transport of material referred to in Article 48 of the Animal By-Products Regulation 2009 (formerly Article 8 of Regulation 1774/2002), which is limited to animal by-products or derived products within the meaning of that provision, thus Category 1 material and Category 2 material, and certain products derived therefrom, including processed animal proteins derived from Category 3 material?

                  3.

                  If a shipment subject to the approval requirements of Regulation (EC) No 1774/2002 (now Regulation (EC) No 1069/2009) should be understood to refer, within the meaning of Article 1(3)(d) EWSR, to the transport (between one country and another country) of animal by-products, irrespective of the category to which that material belongs, should Article 1(3)(d) EWSR then be read as referring also to shipments of mixtures of animal by-products and other substances and — if so — is the mixing ratio between the animal by-products and the other substances relevant in that regard? Or does an animal by-product lose the status of animal by-product within the meaning of the Animal By-Products Regulation 2009 and does that animal by-product become waste within the meaning of the EWSR as a result of being mixed with another substance?

         (1)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

         (2)  Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1).

         (3)  Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1).

         (4)  Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1).


title: Case C-24/19: Request for a preliminary ruling from the Raad voor Vergunningsbetwistingen (Belgium) lodged on 15 January 2019 — A, B, C, D, E v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/29

      Request for a preliminary ruling from the Raad voor Vergunningsbetwistingen (Belgium) lodged on 15 January 2019 — A, B, C, D, E v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen
      (Case C-24/19)
      (2019/C 139/28)
      Language of the case: Dutch

         Referring court

      Raad voor Vergunningsbetwistingen

         Parties to the main proceedings

         Applicants: A, B, C, D, E

         Defendant: Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen, afdeling Oost-Vlaanderen

         Questions referred

      Do Article 2(a) and Article 3(2)(a) of Directive 2001/42/EC (1) (‘the SEA Directive) mean that Article 99 of the besluit van de Vlaamse regering van 23 december 2011 tot wijziging van het besluit van de Vlaamse regering van 6 februari 1991 houdende de vaststelling van het Vlaams reglement betreffende de milieuvergunning en van het besluit van de Vlaamse regering van 1 juni 1995 houdende algemene en sectorale bepalingen inzake milieuhygiëne (Order of the Flemish Government of 23 December 2011 amending the Order of the Flemish Government of 6 February 1991 on the adoption of Flemish regulations concerning environmental consent and of the Order of the Flemish Government of 1 June 1995 on general and sectoral provisions relating to environmental health), as regards the updating of the aforementioned Orders in keeping with the evolution of technology, which introduces into VLAREM II Section 5.20.6 on installations for the generation of electricity by means of wind energy, and the Omzendbrief ‘Afwegingskader en randvoorwaarden voor de inplanting van windturbines’ (Circular “Assessment framework and preconditions for the installation of wind turbines) of 2006 [together referred to as ‘the instruments in question’], which both contain various provisions regarding the installation of wind turbines, including measures on safety, and standards relating to shadow flicker and noise levels, having regard to town and country planning zones, must be classified as a ‘plan or programme’ within the meaning of the provisions of the Directive? If it appears that an environmental assessment should have been carried out before the adoption of the instruments in question, can the Raad (Council) modulate the legal effects of the illegal nature of those instruments in time? To that end, a number of sub-questions must be asked:

                  1.

                  Can a policy instrument such as the present Circular, which the public authority concerned is competent to draw up on the basis of its discretionary and policy-making powers, so that the competent authority was not actually designated to draw up the ‘plan or programme’, and in respect of which there is also no provision for a formal drafting procedure, be regarded as a plan or programme within the meaning of Article 2(a) of the SEA Directive?

                  2.

                  Is it sufficient that a policy instrument or general rule, such as the instruments in question, partially curtails the margin of appreciation of a public authority responsible for granting development consent, in order to be considered a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, even if they do not represent a requirement, or a necessary condition, for the granting of consent or are not intended to constitute a framework for future development consent, notwithstanding the fact that the European legislature has indicated that that purpose is an element of the definition of ‘plans and programmes’?

                  3.

                  Can a policy instrument such as the Circular in question, the format of which is drawn up on grounds of legal certainty and thus constitutes a completely voluntary decision, be regarded as a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

                  4.

                  Can Section 5.20.6 VLAREM II, where there was no mandatory requirement to draw up the rules contained therein, be defined as a ‘plan or programme’ within the meaning of Article 2(a) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

                  5.

                  Can a policy instrument and a normative government Order, such as the instruments in question, which have a limited indicative value, or at least do not constitute a framework from which any right to execute a project may be derived and from which no right to any framework, as a measure by which projects may be approved, may be derived, be regarded as a ‘plan or programme’ that constitute the ‘framework for future development consent’ within the meaning of Article 2(a) and 3(2) of the SEA Directive, and does such an interpretation not run counter to the case-law of the Court of Justice that a purposive interpretation of a directive may not deviate fundamentally from the clearly expressed will of the EU legislature?

                  6.

                  Can a policy instrument such as Circular: EME/2006/01- RO/2006/02 which has a purely indicative value and/or a normative government Order such as Section 5.20.6 VLAREM II that only sets a minimum threshold for development consent and in addition operates fully autonomously as a general rule, both of which only contain a limited number of criteria and modalities, and neither of which is the only determinant for even a single criterion or modality, and in relation to which it could be argued that, on the basis of objective information, it can be excluded that they are likely to have significant effects on the environment, be regarded as a”plan or programme’ on a joint reading of Article 2(a) and Article 3(1) and (2) of the SEA Directive, and can they thus be regarded as acts which, by the adoption of rules and control procedures applicable to the sector concerned, establish a whole package of criteria and modalities for the approval and execution of one or more projects that are likely to have significant effects on the environment?

                  7.

                  If the answer to the previous question is in the negative, can a court or tribunal determine this itself, after the Order or the pseudo-legislation (such as the VLAREM standards and the Circular in question) has been adopted?

                  8.

                  Can a court or tribunal, if it has only indirect jurisdiction through an exception being raised, the result of which applies inter partes, and if the answer to the questions referred for a preliminary ruling shows that the instruments in question are illegal, order that the effects of the unlawful Order and/or the unlawful Circular be maintained if the unlawful instruments contribute to an objective of environmental protection, as also pursued by a directive within the meaning of Article 288 TFEU, and if the requirements laid down in EU law for such maintenance (as laid down in the judgment in Association France Nature Environnement, [Case C-379/15]) have been met?

                  9.

                  If the answer to Question 8 is in the negative, can a court or tribunal order that the effects of the contested project be maintained in order to comply indirectly with the requirements imposed by EU law (as laid down in the judgment in Association France Nature Environnement) for the continued maintenance of the legal effects of plans or programmes that do not conform to the SEA Directive?

         (1)  Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).


title: Case C-39/19: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 23 January 2019 — Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/31

      Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 23 January 2019 — Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke
      (Case C-39/19)
      (2019/C 139/29)
      Language of the case: Hungarian

         Referring court

      Fővárosi Törvényszék

         Parties to the main proceedings

         Applicant: Telenor Magyarország Zrt.

         Defendant: Nemzeti Média- és Hírközlési Hatóság Elnöke

         Questions referred

                  1.

                  Must a commercial agreement between a provider of internet access services and an end user under which the service provider charges the end user a zero-cost tariff for certain applications (that is to say, the traffic generated by a given application is not taken into account for the purposes of data usage and does not slow down once the contracted data volume has been used), and under which that provider engages in discrimination which is confined to the terms of the commercial agreement concluded with the end consumer and is directed only against the end user party to that agreement and not against any end user not a party to it, be interpreted in the light of Article 3(2) of Regulation (EU) 2015/2120 (1) of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (‘the Regulation’)?

                  2.

                  If the first question referred is answered in the negative, must Article 3(3) of the Regulation be interpreted as meaning that — having regard also to recital 7 of the Regulation — an assessment of whether there is an infringement requires an impact- and market-based evaluation which determines whether and to what extent the measures adopted by the internet access services provider do actually limit the rights which Article 3(1) of the Regulation confers on the end user?

                  3.

                  3. Notwithstanding the first and second questions referred for a preliminary ruling, must Article 3(3) of the Regulation be interpreted as meaning that the prohibition laid down therein is an unconditional, general and objective one, so that it prohibits any traffic management measure which distinguishes between certain forms of internet content, regardless of whether the internet access services provider draws those distinctions by means of an agreement, a commercial practice or some other form of conduct?

                  4.

                  If the third question is answered in the affirmative, can an infringement of Article 3(3) of the Regulation also be found to exist solely on the basis that there is discrimination, without the further need for a market and impact evaluation, so that an evaluation under Article 3(1) and (2) of the Regulation is unnecessary in such circumstances?

         (1)  OJ 2015 L 310, p. 1.


title: Case C-40/19: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 23 January 2019 — EY v Bevándorlási és Menekültügyi Hivatal

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/32

      Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 23 January 2019 — EY v Bevándorlási és Menekültügyi Hivatal
      (Case C-40/19)
      (2019/C 139/30)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: EY

         Defendant: Bevándorlási és Menekültügyi Hivatal

         Questions referred

                  1.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU (1) of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

                  2.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/3[2]/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?

         (1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).


title: Case C-42/19: Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 24 January 2019 — SONAECOM, SGPS S.A. v Autoridade Tributária e Aduaneira

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/33

      Request for a preliminary ruling from the Supremo Tribunal Administrativo (Portugal) lodged on 24 January 2019 — SONAECOM, SGPS S.A. v Autoridade Tributária e Aduaneira
      (Case C-42/19)
      (2019/C 139/31)
      Language of the case: Portuguese

         Referring court

      Supremo Tribunal Administrativo

         Parties to the main proceedings

         Appellant: SONAECOM, SGPS S.A.

         Respondent: Autoridade Tributária e Aduaneira

         Questions referred

                  1.

                  Is it compatible with the deductibility rules laid down in the Sixth VAT Directive, (1) specifically Articles 4(1) and (2) and 17(1), (2) and (5), to deduct tax borne by the appellant, Sonaecom SGPS, in respect of consultancy services connected with a market study commissioned with a view to acquiring shares, where that acquisition did not materialise?

                  2.

                  Is it compatible with the deductibility rules laid down in the Sixth VAT Directive, specifically Articles 4(1) and (2) and 17(1), (2) and (5), to deduct tax borne by the appellant, Sonaecom SGPS, in respect of the payment to BCP of a commission for organising and putting together a bond loan, allegedly taken out with a view to integrating the financial structure of its affiliated companies, and which, since those investments failed to materialise, was ultimately transferred to Sonae, SGPS, the parent company of the group?

         (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).


title: Case C-43/19: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 24 January 2019 — Vodafone Portugal — Comunicações Pessoais, SA v Autoridade Tributária e Aduaneira

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/34

      Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 24 January 2019 — Vodafone Portugal — Comunicações Pessoais, SA v Autoridade Tributária e Aduaneira
      (Case C-43/19)
      (2019/C 139/32)
      Language of the case: Portuguese

         Referring court

      Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

         Parties to the main proceedings

         Applicant: Vodafone Portugal — Comunicações Pessoais, SA

         Defendant: Autoridade Tributária e Aduaneira

         Questions referred

                  1.

                  Must Articles 2(1)(c), 9, 24, 72 and 73 of Council Directive 2006/112/EC of 28 November 2006 be construed as meaning that the levying by an electronic communications operator on its former customers (to whom it granted promotional benefits in the form of free-of-charge installation, service activation, portability or equipment, or the application of special rates, in exchange for a commitment by customers to observe a tie-in period, which those customers have not fulfilled for reasons attributable to themselves) of an amount which, as required by law, must not exceed the costs incurred by the supplier undertaking for the installation of the service and must be proportionate to the benefit granted to the customer, that benefit being identified and quantified as such in the contract concluded, and therefore may not automatically reflect the total value of the instalments outstanding on the date of termination, constitutes a supply of services liable to VAT?

                  2.

                  In the light of the provisions cited above, does the fact that the amounts concerned are payable following termination of the contract, when the operator no longer supplies services to the customer, and the fact that no specific act of consumption has occurred since the contract was terminated, preclude the classification of such amounts as consideration for the supply of services?

                  3.

                  In the light of the provisions cited above, is it impossible for the amount concerned to be treated as consideration for the supply of services because the operator and its former customers specified in advance, as required by law, in a standard-form contract, the formula for calculating the amount which former customers must pay if they fail to comply with the tie-in period provided for in the service contract?

                  4.

                  In the light of the provisions cited above, is it impossible for the amount concerned to be treated as consideration for the supply of services when the amount at issue does not reflect the amount which the operator would have received during the remainder of the tie-in period if the contract had not been terminated?


title: Case C-66/19: Request for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 29 January 2019 — JC v Kreissparkasse Saarlouis

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/35

      Request for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 29 January 2019 — JC v Kreissparkasse Saarlouis
      (Case C-66/19)
      (2019/C 139/33)
      Language of the case: German

         Referring court

      Landgericht Saarbrücken

         Parties to the main proceedings

         Applicant: JC

         Defendant: Kreissparkasse Saarlouis

         Questions referred

                  1.

                  Is Article 10(2)(p) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (1) to be interpreted as meaning that the required information in relation to the ‘period during which the right of withdrawal may be exercised’ or ‘other conditions governing the exercise thereof’ must also include the requirements governing the start of the withdrawal period?

                  2.

                  If the answer to Question 1 is in the affirmative:
                  Does Article 10(2)(p) of Directive 2008/48/EC preclude an interpretation to the effect that withdrawal information is ‘clear’ and ‘concise’ if it does not itself cite in full the mandatory information to be provided with regard to the start of the withdrawal period, but in this respect refers to a provision of national law — in the present case, Paragraph 492(2) of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’) in the version valid up to 12 June 2014 — which in turn refers to further national provisions — in the present case, Article 247, Paragraphs 3 to 13, of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil Code; ‘the EGBGB’) in the version valid up to 12 June 2014 — and the consumer is therefore obliged to read numerous legislative provisions in a variety of legislative texts so as to gain clarity as to what mandatory information must be provided in order for the withdrawal period to start to run in the case of his loan agreement?

                  3.

                  If Question 2 is answered in the negative (and there are no concerns in principle against a reference to provisions of national law):
                  Does Article 10(2)(p) of Directive 2008/48/EC preclude an interpretation to the effect that withdrawal information is ‘clear’ and ‘concise’ if the reference to a provision of national law — in the present case, Paragraph 492(2) of the BGB in the version valid from 30 July 2010 up to 12 June 2014 — and the further reference — in the present case, to Article 247, Paragraphs 3 to 13, of the EGBGB in the version valid from 4 August 2011 up to 12 June 2014 — necessarily means that the consumer has to carry out a process of legal inference beyond simply reading the provisions — for instance, as to whether the loan was granted to him under conditions customary for contracts secured by mortgage and the interim financing thereof or whether linked agreements exist, so that he can gain clarity as to what mandatory information must be provided in order for the period of withdrawal to start to run in the case of his loan agreement?

         (1)  OJ 2008 L 133, p. 66.


title: Case C-67/19: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 30 January 2019 — KD v Bevándorlási és Menekültügyi Hivatal

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/36

      Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 30 January 2019 — KD v Bevándorlási és Menekültügyi Hivatal
      (Case C-67/19)
      (2019/C 139/34)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: KD

         Defendant: Bevándorlási és Menekültügyi Hivatal

         Questions referred

                  1.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU (1) of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

                  2.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/32/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?

         (1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).


title: Case C-73/19: Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 31 January 2019 — Belgische Staat, vertegenwoordigd door de Minister van Werk, Economie en Consumenten, belast met Buitenlandse handel, Belgische Staat, vertegenwoordigd door de Directeur-Generaal van de Algemene Directie Economische Inspectie, Directeur-Generaal van de Algemene Directie Economische Inspectie v Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/36

      Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 31 January 2019 — Belgische Staat, vertegenwoordigd door de Minister van Werk, Economie en Consumenten, belast met Buitenlandse handel, Belgische Staat, vertegenwoordigd door de Directeur-Generaal van de Algemene Directie Economische Inspectie, Directeur-Generaal van de Algemene Directie Economische Inspectie v Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV
      (Case C-73/19)
      (2019/C 139/35)
      Language of the case: Dutch

         Referring court

      Hof van beroep te Antwerpen

         Parties to the main proceedings

         Appellants: Belgische Staat, vertegenwoordigd door de Minister van Werk, Economie en Consumenten, belast met Buitenlandse handel, Belgische Staat, vertegenwoordigd door de Directeur-Generaal van de Algemene Directie Economische Inspectie, Directeur-Generaal van de Algemene Directie Economische Inspectie

         Respondents: Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV

         Question referred

      Is an action concerning a claim aimed at determining and stopping infringing market practices and/or commercial practices towards consumers, instituted by the Belgian Government in respect of Dutch companies which from the Netherlands, via websites, focus on a mainly Belgian clientele for the resale of tickets for events taking place in Belgium, pursuant to Article 14 of the wet van 30 juli 2013 betreffende de verkoop van toegangsbewijzen tot evenementen (Law of 30 July 2013 regarding the sale of admission tickets to events) and pursuant to Article XVII.7 WER, a civil or commercial matter within the meaning of Article 1(1) of the European Regulation 1215/2012 (1) of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and can a judicial decision in such a case, for that reason, fall within the scope of that Regulation?

         (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-176/19 P: Appeal brought on 22 February 2019 by the European Commission against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 12 December 2018 in Case T-691/14, Servier and Others v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/37

      Appeal brought on 22 February 2019 by the European Commission against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 12 December 2018 in Case T-691/14, Servier and Others v Commission
      (Case C-176/19 P)
      (2019/C 139/36)
      Language of the case: French

         Parties

         Appellant: European Commission (represented by: B. Mongin, F. Castilla Contreras, J. Norris, C. Vollrath, acting as Agents)

         Other parties to the proceedings: Servier SAS, Servier Laboratories Ltd, Les Laboratoires Servier SA, European Federation of Pharmaceutical Industries and Associations (EFPIA)

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside points 1, 2, and 3 of the operative part of the judgment, which annul (i) 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 participated in the agreements concluded between Servier and the company Krka, (ii) Article 7(4)(b) of the decision which sets the fine imposed on Servier for concluding those agreements, (iii) Article 6 of the decision which finds that Servier infringed Article 102 TFEU and (iv) Article 7(6) of the decision which sets the amount of the fine imposed on Servier in relation to that infringement;

                  —

                  set aside the judgment in so far as it declares Annexes A 286 and A 287 to the application and Annex C 29 to the reply admissible (paragraphs 1461, 1462 and 1463 of the judgment);

                  —

                  give final judgment on Servier’s action for annulment of the decision and reject Servier’s request for annulment of Articles 4, 7(4)(b), 6 and 7(6) of the decision and uphold the Commission’s claim that Annexes A 286 and A 287 to the application before the General Court and Annex C 29 to the reply before the General Court should be declared inadmissible (paragraphs 1461 to 1463 of the judgment);

                  —

                  order Servier to bear all the costs of the present appeal.

         Pleas in law and main arguments

      In support of the appeal, the Commission relies on a first group of grounds concerning the infringement of Article 101 TFUE (setting aside of points 1 and 3 of the operative part of the judgment in so far as they annul Articles 4 and 7(4)(b) of the decision finding that the three agreements concluded between Servier and Others and the company Krka constituted a single infringement of Article 101 TFEU and ordering Servier to pay a fine).
      The first ground alleges that the General Court erred in law in finding that Krka was not a source of competitive pressure on Servier when the agreements in question were concluded.
      The second ground alleges that the General Court erred in law in assessing the content and the objectives of the licence agreement as an inducement for Krka to accept the restrictions set out in the settlement.
      The third ground alleges that the General Court erred in law in the application of the concept of a restriction by object within the meaning of Article 101(1) TFEU.
      The fourth ground alleges that the General Court erred in law in the analysis of the parties’ intentions for the application of Article 101 TFUE.
      The fifth ground alleges that the General Court erred in law in taking into account the pro-competitive effects of the licence on markets which do not fall within the scope of the infringement of Article 101(1) TFEU identified in the decision.
      The sixth ground alleges that the General Court erred in law in analysing the object of the transfer agreement.
      The seventh ground alleges an error of law in the application of the concept of a restriction of competition by effect for the purpose of Article 101(1) TFEU.
      In addition, the Commission relies on a second group of grounds concerning the infringement of Article 102 TFEU (setting aside of points 2 and 3 of the operative part of the judgment in so far as they annul Articles 6 and 7(6) of the decision finding that Servier infringed Article 102 TFEU and ordering Servier to pay a fine).
      The eighth ground alleges that the General Court erred in law in its analysis of the consideration of the price criterion in the determination of the market for the finished products.
      The ninth ground alleges that the General Court erred in law in its analysis of the consideration of therapeutic substitutability in the determination of the market for the finished products.
      The tenth ground alleges that certain annexes are inadmissible.
      The eleventh ground alleges that the General Court erred in law in its analysis of the technology market.


title: Case C-201/19 P: Appeal brought on 28 February 2019 by Servier SAS, Servier Laboratories Ltd, Les Laboratoires Servier SA against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 12 December 2018 in Case T-691/14, Servier and Others v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/39

      Appeal brought on 28 February 2019 by Servier SAS, Servier Laboratories Ltd, Les Laboratoires Servier SA against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 12 December 2018 in Case T-691/14, Servier and Others v Commission
      (Case C-201/19 P)
      (2019/C 139/37)
      Language of the case: French

         Parties

         Appellants: Servier SAS, Servier Laboratories Ltd, Les Laboratoires Servier SA (represented by: M. Utges Manley, Solicitor, A. Robert, advocate, J. Killick, J. Jourdan, T. Reymond, O. de Juvigny, avocats)

         Other parties to the proceedings: European Commission, European Federation of Pharmaceutical Industries and Associations (EFPIA)

         Form of order sought

      The appellants claim that the Court should:
      Primarily, in the light of grounds 1 to 5 challenging the finding of an infringement of Article 101 TFEU:

                  —

                  set aside points 4, 5 and 6 of the operative part of the judgment delivered by the General Court on 12 December 2018 in Case T-691/14, Servier v Commission;

                  —

                  annul Articles 1(b), 2(b), 3(b) and 5(b) and, consequently, Articles 7(1)(b), 7(2)(b), 7(3)(b) and 7(5)(b) of Commission Decision C(2014) 4955 final of 9 July 2014 (Case AT.39612 — Perindopril (Servier)), or, in the alternative, refer the case back to the General Court for adjudication on the effects of the agreements concerned;

            In the alternative, in the light of ground 6:

                  —

                  set aside points 4 and 5 of the operative part of the judgment in so far as they confirm the conclusions in the contested decision concerning the existence of separate infringements and cumulative fines in respect of the Niche and Matrix agreements and, consequently, annul Articles 1(b), 2(b), 7(1)(b) and 7(2)(b) of the decision;

            And in the alternative:

                  —

                  set aside points 4 and 5 of the operative part of the judgment and annul Articles 7(1)(b), 7(2)(b), 7(3)(b) and 7(5)(b) of the decision in the light of grounds 7.1 and 7.2 challenging the principle and the amount of all the fines;

                  —

                  annul point 5 of the operative part of the judgment and Articles 5(b) and 7(5)(b) of the decision in the light of ground 5.4 concerning the duration of the alleged infringement and the calculation of the fine in relation to the agreement between Servier and Lupin and, consequently, set the fine, in the exercise of the Court’s unlimited jurisdiction.

            And in any event:

                  —

                  order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      By the first ground, which concerns all the agreements penalised, Servier submits that the judgment is vitiated by an error of law in that it is based on a broad interpretation of the concept of a restriction by object, which is not in accordance with the case-law. The judgment disregards the absence of experience and of an obvious restriction and is based on a mechanical test which ignores the context and the ambivalent effects of the settlement agreements at issue.
      By the second ground, which also concerns all the agreements in question, Servier submits that, in the judgment, the General Court incorrectly applied the case-law concerning the concept of potential competition and that it is based on an unjustified reversal of the burden of proof.
      The third ground alleges that the agreements concluded on the same day with Matrix and its distributor Niche are not anti-competitive by object. According to Servier, the General Court erred in law by classifying those companies as potential competitors and by regarding the payments as harmful and not inherent in the settlement agreement.
      By its fourth ground, Servier alleges errors of law in relation to the agreement with Teva, which is also not anti-competitive by object in view of the legal and economic context of which it forms part, its ambivalent effects and the complementarity of the parties, since Teva is, unlike Servier, a generics distributor in the United Kingdom.
      The fifth ground alleges errors of law concerning the agreement with Lupin. The General Court should have examined the effects of the agreement because of its scope, which is at the least ambivalent, if not pro-competitive. In the alternative, the appellants argue that duration of the infringement, and therefore the calculation of the fine, is vitiated by an error.
      In the alternative, Servier submits, in the sixth ground, that the General Court should have annulled the decision in so far as it penalises the agreement concluded with Matrix in addition to that concluded with Niche even though they are not separate infringements.
      In the further alternative, the seventh ground concerns the claim that the judgment should be set aside in so far as it validates the method of determining the fine.


title: Case C-207/19 P: Appeal brought on 28 February 2019 by Biogaran against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-677/14, Biogaran v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/40

      Appeal brought on 28 February 2019 by Biogaran against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-677/14, Biogaran v Commission
      (Case C-207/19 P)
      (2019/C 139/38)
      Language of the case: French

         Parties

         Appellant: Biogaran (represented by: M. Utges Manley, Solicitor, A. Robert, advocate, O. de Juvigny, T. Reymond, J. Killick, J. Jourdan, avocats)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of the General Court delivered on 12 December 2018 in Case T-677/14 in its entirety;

                  —

                  annul Articles 1(b)(iv), 7(1)(b) and 8 of Commission Decision C(2014) 4955 final (Case AT.39612 — Perindopril (Servier)), in so far as they concern Biogaran;

                  —

                  order the Commission to pay the costs.

         Grounds of appeal and main arguments

      By its first ground of appeal, Biogaran submits that the judgment is vitiated by errors of law in that it finds the licence to be infringing on the ground that the settlement agreement has an anti-competitive object. According to the applicant, the judgment is based on a broad interpretation of the concept of a ‘by object’ infringement and disregards the absence of experience and of an obvious restriction. Moreover, the judgment is based on an incorrect legal test which ignores both the context of the settlement agreement between Servier and Niche and the fact that those undertakings were not potential competitors.
      By its second ground of appeal, Biogaran submits that the General Court erred in law by substituting its own reasoning for that of the Commission. The General Court considered that Biogaran’s alleged inducement was ‘decisive’ in that it determined Niche’s decision not to enter the market. However, neither the statement of reasons, nor the decision state or establish that that inducement, characterised only as ‘additional’, was ‘decisive’ in Niche’s acceptance of the terms of the settlement.
      Biogaran argues, in the third ground of appeal, that the General Court disregarded the principle of proportionality and the objectives of Article 101 TFEU by finding it liable, in addition to its parent company. Since the General Court held that the parent company had directly participated in the infringement and used its power to influence its subsidiary to take part in its own infringing conduct, with the result that the subsidiary had no autonomy whatsoever, it could not find the subsidiary liable in addition to its parent company without going beyond what is strictly necessary for the proper application of the competition rules.
      By its fourth ground of appeal, Biogaran submits that the judgment must be set aside in that it validates the principle and the method of calculating the fine, despite the complex and unprecedented nature of the present case and the fact that Biogaran did not play a decisive role.


title: Case T-289/15: Judgment of the General Court of 6 March 2019 — Hamas v Council (Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Freezing of funds — Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Obligation to state reasons — Error of assessment — Right to property)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/42

      Judgment of the General Court of 6 March 2019 — Hamas v Council
      (Case T-289/15) (1)

      (Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Freezing of funds - Whether an authority of a third State can be classified as a competent authority within the meaning of Common Position 2001/931/CFSP - Factual basis of the decisions to freeze funds - Obligation to state reasons - Error of assessment - Right to property)
      (2019/C 139/39)
      Language of the case: French

         Parties

         Applicant: Hamas (Doha, Qatar) (represented by: L. Glock, lawyer)

         Defendant: Council of the European Union (represented by: initially B. Driessen and N. Rouam, and subsequently B. Driessen, F. Naert and A. Sikora-Kalėda, acting as Agents)

         Intervener in support of the defendant: European Commission (represented by: initially F. Castillo de la Torre and R. Tricot, and subsequently F. Castillo de la Torre, L. Baumgart and C. Zadra, acting as Agents)

         Re:

      Application under Article 263 TFEU for annulment of (i) Council Decision (CFSP) 2015/521 of 26 March 2015 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2014/483/CFSP (OJ 2015 L 82, p. 107), and (ii) Council Implementing Regulation (EU) 2015/513 of 26 March 2015 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 790/2014 (OJ 2015 L 82, p. 1), in so far as those measures concern the applicant.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Hamas to bear its own costs and to pay those incurred by the Council of the European Union;

                  3.

                     Orders the European Commission to bear its own costs.

         (1)  OJ C 245, 27.7.2015.