title: Case C-139/18 P: Judgment of the Court (First Chamber) of 3 April 2019 — CJ v European Centre for Disease Prevention and Control (Appeal — Civil service — Member of the contract staff — European Centre for Disease Prevention and Control (ECDC) — Appraisal report — 2011 Appraisal exercise — Application for annulment of the decision closing the appraisal report)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/12

      Judgment of the Court (First Chamber) of 3 April 2019 — CJ v European Centre for Disease Prevention and Control
      (Case C-139/18 P) (1)

      (Appeal - Civil service - Member of the contract staff - European Centre for Disease Prevention and Control (ECDC) - Appraisal report - 2011 Appraisal exercise - Application for annulment of the decision closing the appraisal report)
      (2019/C 206/14)
      Language of the case: English

         Parties

         Appellant: CJ (represented by: V. Kolias, dikigoros)

         Other party to the proceedings: European Centre for Disease Prevention and Control (represented by: J. Mannheim and A. Daume, acting as Agents, and by D. Waelbroeck and A. Duron, avocats)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 13 December 2017, CJ v ECDC (T-602/16, not published, EU:T:2017:893);

                  2.

                  Annuls the decision of the appeal assessor of the European Centre for Disease Prevention and Control (ECDC) of 21 September 2015 closing CJ’s appraisal report for 2011;

                  3.

                  Orders the European Centre for Disease Prevention and Control to bear its own costs and to pay the costs incurred by CJ relating both to the proceedings at first instance and the appeal.

         (1)  OJ C 211, 18.6.2018.


title: Case C-254/18: Judgment of the Court (Second Chamber) of 11 April 2019 (request for a preliminary ruling from the Conseil d’État — France) — Syndicat des cadres de la sécurité intérieure v Premier ministre, Ministre de l’Intérieur, Ministre de l’Action et des Comptes publics (Reference for a preliminary ruling — Directive 2003/88/EC — Organisation of working time — Protection of the safety and health of workers — Maximum weekly working time — Reference period — Rolling or fixed nature — Derogation — Police officers)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/14

      Judgment of the Court (Second Chamber) of 11 April 2019 (request for a preliminary ruling from the Conseil d’État — France) — Syndicat des cadres de la sécurité intérieure v Premier ministre, Ministre de l’Intérieur, Ministre de l’Action et des Comptes publics
      (Case C-254/18) (1)

      (Reference for a preliminary ruling - Directive 2003/88/EC - Organisation of working time - Protection of the safety and health of workers - Maximum weekly working time - Reference period - Rolling or fixed nature - Derogation - Police officers)
      (2019/C 206/16)
      Language of the case: French

         Referring court

      Conseil d’État

         Parties to the main proceedings

         Applicant: Syndicat des cadres de la sécurité intérieure

         Defendants: Premier ministre, Ministre de l’Intérieur, Ministre de l’Action et des Comptes publics

         Operative part of the judgment

      Article 6(b), Article 16(b) and the first paragraph of Article 19 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation which lays down, for the purpose of calculating the average weekly working time, reference periods which start and end on fixed calendar dates, provided that that legislation contains mechanisms which make it possible to ensure that the maximum average weekly working time of 48 hours is respected during each six-month period straddling two consecutive fixed reference periods.

         (1)  OJ C 211, 18.6.2018.


title: Case C-266/18: Judgment of the Court (First Chamber) of 3 April 2019 (request for a preliminary ruling from the Sąd Okręgowy w Poznaniu — Poland) — Aqua Med sp. z o.o. v Irena Skóra (Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms in consumer contracts — Article 1(2) — Scope of the directive — Contractual term conferring territorial jurisdiction on the court determined pursuant to the general rules — Article 6(1) — Review of unfairness of the court’s own motion — Article 7(1) — Obligations and powers of the national court)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/14

      Judgment of the Court (First Chamber) of 3 April 2019 (request for a preliminary ruling from the Sąd Okręgowy w Poznaniu — Poland) — Aqua Med sp. z o.o. v Irena Skóra
      (Case C-266/18) (1)

      (Reference for a preliminary ruling - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Article 1(2) - Scope of the directive - Contractual term conferring territorial jurisdiction on the court determined pursuant to the general rules - Article 6(1) - Review of unfairness of the court’s own motion - Article 7(1) - Obligations and powers of the national court)
      (2019/C 206/17)
      Language of the case: Polish

         Referring court

      Sąd Okręgowy w Poznaniu

         Parties to the main proceedings

         Applicant: Aqua Med sp. z o.o.

         Defendant: Irena Skóra

         Operative part of the judgment

                  1.

                  Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a contractual term, such as that at issue in the main proceedings, which refers to the national law applicable so far as concerns the determination of jurisdiction to hear disputes between the parties to the contract, does not fall outside the scope of that directive.

                  2.

                  Article 7(1) of Directive 93/13 must be interpreted as not precluding procedural rules, to which a contractual term refers, which allow the seller or supplier to choose, in the event of an action for alleged non-performance of a contract by the consumer, between the court which has jurisdiction in the place where the defendant is domiciled and that which has jurisdiction in the place of performance of the contract, unless the choice of place of performance of the contract gives rise, for the consumer, to procedural conditions which are such as to restrict excessively the right to an effective remedy conferred on him by the European Union legal order, which is a matter for the national court to determine.

         (1)  OJ C 249, 16.7.2018.


title: Case C-288/18: Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X BV v Staatssecretaris van Financiën (Reference for a preliminary ruling — Common Customs Tariff — Classification of goods — Combined Nomenclature — Subheadings 85285100 and 85285940 — Flat screen monitors with liquid crystal display capable of displaying signals from automatic data processing systems — Agreement on trade in information technology products)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/16

      Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X BV v Staatssecretaris van Financiën
      (Case C-288/18) (1)

      (Reference for a preliminary ruling - Common Customs Tariff - Classification of goods - Combined Nomenclature - Subheadings 85285100 and 85285940 - Flat screen monitors with liquid crystal display capable of displaying signals from automatic data processing systems - Agreement on trade in information technology products)
      (2019/C 206/19)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Parties to the main proceedings

         Applicant: X BV

         Defendant: Staatssecretaris van Financiën

         Operative part

      The Combined Nomenclature, which appears in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Implementing Regulation (EU) No 927/2012 of 9 October 2012, must be interpreted as meaning that, in order to determine whether flat panel monitors with screens of the liquid crystal display (LCD) technology, designed and manufactured for displaying both data from an automatic data-processing machine and also composite video signals from other sources, must be classified under subheading 85285100 of the Combined Nomenclature or the subheading 85285940 of that nomenclature, it is necessary, when examining all their objective characteristics and properties, to assess both the degree to which they are capable of performing several functions and the standard of performance that they achieve when performing those functions, in order to determine whether their principal function is to be used in an automatic data-processing system. In that context, particular importance should be given to the question whether they are designed to be viewed close up. Whether the person who uses the screen and the person who processes and/or enters data into an automatic data-processing machine are one and the same is not a relevant criterion for the purposes of that assessment.

         (1)  OJ C 276, 6.8.2018


title: Case C-295/18: Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Tribunal da Relação do Porto — Portugal) — Mediterranean Shipping Company (Portugal) — Agentes de Navegação SA v Banco Comercial Português SA, Caixa Geral de Depósitos SA (Reference for a preliminary ruling — Payment services in the internal market — Directive 2007/64/EC — Articles 2 and 58 — Scope — Payment service user — Meaning — Execution of a direct-debit payment order issued by a third party in respect of an account of which that party is not the holder — No authorisation from the holder of the debited account — Unauthorised payment transactions)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/16

      Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Tribunal da Relação do Porto — Portugal) — Mediterranean Shipping Company (Portugal) — Agentes de Navegação SA v Banco Comercial Português SA, Caixa Geral de Depósitos SA
      (Case C-295/18) (1)

      (Reference for a preliminary ruling - Payment services in the internal market - Directive 2007/64/EC - Articles 2 and 58 - Scope - Payment service user - Meaning - Execution of a direct-debit payment order issued by a third party in respect of an account of which that party is not the holder - No authorisation from the holder of the debited account - Unauthorised payment transactions)
      (2019/C 206/20)
      Language of the case: Portuguese

         Referring court

      Tribunal da Relação do Porto

         Parties to the main proceedings

         Applicant: Mediterranean Shipping Company (Portugal) — Agentes de Navegação SA

         Defendants: Banco Comercial Português SA, Caixa Geral de Depósitos SA

         Operative part of the judgment

                  1.

                  Article 2(1) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, must be interpreted to the effect that the notion of ‘payment services’, for the purposes of that provision, includes the execution of direct debits, initiated by the payee, on a payment account of which it is not the holder, where the holder of the account thus debited does not consent to those direct debits.

                  2.

                  Article 58 of Directive 2007/64 must be interpreted to the effect that the notion of ‘payment service user’, for the purposes of that article, includes the holder of a payment account on which direct debits were executed without its consent.

         (1)  OJ C 259, 23.7.2018.


title: Case C-464/18: Judgment of the Court (Sixth Chamber) of 11 April 2019 (request for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Gerona — Spain) — ZX v Ryanair DAC (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Determination of the court having jurisdiction to hear an application for compensation in respect of a delayed flight — Article 7(5) — Operations of a branch — Article 26 — Implied prorogation — Requirement that the defendant enter an appearance)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/17

      Judgment of the Court (Sixth Chamber) of 11 April 2019 (request for a preliminary ruling from the Juzgado de lo Mercantil No 1 de Gerona — Spain) — ZX v Ryanair DAC
      (Case C-464/18) (1)

      (Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EU) No 1215/2012 - Determination of the court having jurisdiction to hear an application for compensation in respect of a delayed flight - Article 7(5) - Operations of a branch - Article 26 - Implied prorogation - Requirement that the defendant enter an appearance)
      (2019/C 206/21)
      Language of the case: Spanish

         Referring court

      Juzgado de lo Mercantil No 1 de Gerona

         Parties to the main proceedings

         Applicant: ZX

         Defendant: Ryanair DAC

         Operative part of the judgment

                  1.

                  Article 7(5) 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 a court of a Member State does not have jurisdiction to hear a dispute concerning a claim for compensation brought under Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and directed against an airline, established in the territory of another Member State, on the ground that that company has a branch within the territorial jurisdiction of the court seised, without that branch having been involved in the legal relationship between the airline and the passenger concerned.

                  2.

                  Article 26(1) of Regulation No 1215/2012 must be interpreted as not applying in a case, such as that at issue in the main proceedings, where the defendant has not submitted observations or entered an appearance.

         (1)  OJ C 392, 29.10.2018.


title: Case C-155/19: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 22 February 2019 — Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/18

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 22 February 2019 — Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl
      (Case C-155/19)
      (2019/C 206/22)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Appellants: Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl

         Respondent: De Vellis Servizi Globali Srl

         Questions referred

                  1.

                  First question

                              —

                              On the basis of the characteristics of national sports law, can the Federazione calcistica italiana (Italian Football Federation, ‘FIGC’) be classified as a body governed by public law in so far as it was established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character?

                              —

                              In particular, is the requirement relating to the purpose of the body satisfied in respect of the Federation, even in the absence of a formal act establishing a public authority and despite its membership base, on account of its incorporation into a sector (sports) organised in accordance with models of a public-law nature and the fact that it is required to comply with the principles and rules drawn up by the Comitato olimpico nationale italiano (Italian National Olympic Committee, ‘the CONI’) and international sporting bodies, as a result of the recognition, for sporting purposes, of the national public entity?

                              —

                              Furthermore, can this requirement arise in relation to a sports federation such as the Federazione italiana giuoco calcio, which has the ability to fund itself, in respect of an activity of no significance in the context of public law, such as that at issue in this case, or must the requirement that the application of the rules on public and open tendering be ensured in any event, where such an entity awards any type of contract to third parties, be regarded as taking precedence?

                  2.

                  Second question

                              —

                              On the basis of the legal relationship between the CONI and the FIGC (Federazione Italiana Giuoco Calcio), does the former have a dominant influence over the latter in the light of the legal powers relating to recognition of the undertaking for sporting purposes, approval of annual budgets, supervision of the management and proper functioning of the bodies, and placing the entity into receivership?

                              —

                              On the other hand, are those powers insufficient to meet the requirement relating to the dominant public influence of a body governed by public law on account of the significant participation of the presidents and representatives of the sports federations in the key bodies of the Olympic Committee?


title: Case C-156/19: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 22 February 2019 — Federazone Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/19

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 22 February 2019 — Federazone Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl
      (Case C-156/19)
      (2019/C 206/23)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Appellants: Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl

         Respondent: De Vellis Servizi Globali Srl

         Questions referred

                  1.

                  First question

                              —

                              On the basis of the characteristics of national sports law, can the Federazione calcistica italiana (Italian Football Federation, ‘FIGC’) be classified as a body governed by public law in so far as it was established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character?

                              —

                              In particular, is the requirement relating to the purpose of the body satisfied in respect of the Federation, even in the absence of a formal act establishing a public authority and despite its membership base, on account of its incorporation into a sector (sports) organised in accordance with models of a public-law nature and the fact that it is required to comply with the principles and rules drawn up by the Comitato olimpico nationale italiano (Italian National Olympic Committee, ‘the CONI’) and international sporting bodies, as a result of the recognition, for sporting purposes, of the national public entity?

                              —

                              Furthermore, can this requirement arise in relation to a sports federation such as the Federazione italiana giuoco calcio, which has the ability to fund itself, in respect of an activity of no significance in the context of public law, such as that at issue in this case, or must the requirement that the application of the rules on public and open tendering be ensured in any event, where such an entity awards any type of contract to third parties, be regarded as taking precedence?

                  2.

                  Second question

                              —

                              On the basis of the legal relationship between the CONI and the FIGC (Federazione Italiana Giuoco Calcio), does the former have a dominant influence over the latter in the light of the legal powers relating to recognition of the undertaking for sporting purposes, approval of annual budgets, supervision of the management and proper functioning of the bodies, and placing the entity into receivership?

                              —

                              On the other hand, are those powers insufficient to meet the requirement relating to the dominant public influence of a body governed by public law on account of the significant participation of the presidents and representatives of the sports federations in the key bodies of the Olympic Committee?


title: Case C-191/19: Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 27 February 2019 — OI v Air Nostrum Lineas Aereas del Mediterraneo SA

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/22

      Request for a preliminary ruling from the Landgericht Frankfurt am Main (Germany) lodged on 27 February 2019 — OI v Air Nostrum Lineas Aereas del Mediterraneo SA
      (Case C-191/19)
      (2019/C 206/26)
      Language of the case: German

         Referring court

      Landgericht Frankfurt am Main

         Parties to the main proceedings

         Applicant and appellant: OI

         Defendant and respondent: Air Nostrum Lineas Aereas del Mediterraneo SA

         Questions referred

                  1.

                  Does the change in reservation of a passenger at check-in, who has a confirmed reservation on a specific flight, to a later flight against his will constitute denied boarding within the meaning of Article 4(3) of the Air Passenger Rights Regulation, (1) if the flight on which the passenger had a confirmed reservation is then carried out?

                  2.

                  If Question 1 is answered in the affirmative: Does Article 5(1)(c)(iii) of the Air Passenger Rights Regulation apply by analogy in the event of denied boarding within the meaning of Article 4(3) of the Air Passenger Rights Regulation?

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


title: Case C-209/19: Request for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 5 March 2019 — SM v Sparkasse Saarbrücken

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/22

      Request for a preliminary ruling from the Landgericht Saarbrücken (Germany) lodged on 5 March 2019 — SM v Sparkasse Saarbrücken
      (Case C-209/19)
      (2019/C 206/27)
      Language of the case: German

         Referring court

      Landgericht Saarbrücken

         Parties to the main proceedings

         Applicant: SM

         Defendant: Sparkasse Saarbrücken

         Questions referred

                  1.

                  Is Article 10(2)(p) of Directive 2008/48/EC (1) of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC 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 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 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 mean 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-216/19: Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 11 March 2019 — WQ v Land Berlin

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/24

      Request for a preliminary ruling from the Verwaltungsgericht Berlin (Germany) lodged on 11 March 2019 — WQ v Land Berlin
      (Case C-216/19)
      (2019/C 206/28)
      Language of the case: German

         Referring court

      Verwaltungsgericht Berlin

         Parties to the main proceedings

         Applicant: WQ

         Defendant: Land Berlin

         Questions referred

                  1.

                  Does the owner of eligible hectares have those hectares at his disposal within the meaning of the first sentence of Article 24(2) of Regulation (EU) No 1307/2013 (1) if no third party has a right of use in respect of the eligible hectares, and, in particular, no right of use derived from the owner, or is the area at the disposal of a third party or at no one’s disposal if a third party is actually using that area for agricultural purposes without any right of use?

                  2.

                  Is the phrase ‘any area which gave a right to payments in 2008 under the single payment scheme or the single area payment scheme laid down, respectively, in Titles III and IVA of Regulation (EC) No 1782/2003’ (2) in Article 32(2)(b) of Regulation No 1307/2013 to be interpreted as meaning that the area must in 2008 have satisfied the conditions laid down in Titles III and IVA of Regulation No 1782/2003 for a right to payments under the single payment scheme or the single area payment scheme?

                  3.

                  If the answer to Question 2 is in the negative: Is the phrase ‘any area which gave a right to payments in 2008 under the single payment scheme or the single area payment scheme laid down, respectively, in Titles III and IVA of Regulation No 1782/2003’ in Article 32(2)(b) of Regulation No 1307/2013 to be interpreted as meaning that, in order for an area that is afforested in accordance with Article 31 of Regulation No 1257/1999 (3) to be classified as eligible hectares within the meaning of Article 32(2)(b)(ii) of Regulation No 1307/2013, it is necessary that a set-aside entitlement or other payment entitlement within the meaning of Article 44(1) or Article 54(1) of Regulation No 1782/2003 has been granted in respect of that area?

                  4.

                  If the answer to Question 3 is in the negative: Is the phrase ‘any area which gave a right to payments in 2008 under the single payment scheme or the single area payment scheme laid down, respectively, in Titles III and IVA of Regulation No 1782/2003’ in Article 32(2)(b) of Regulation No 1307/2013 to be interpreted as meaning that, in order for an area that is afforested in accordance with Article 31 of Regulation (EC) No 1257/1999 to be classified as eligible hectares within the meaning of Article 32(2)(b)(ii) of Regulation No 1307/2013, it is necessary that in 2008 the farmer made an application under Article 22(1) and/or Article 34(1) of Regulation No 1782/2003 and satisfied the other conditions for a direct payment under Titles III or IVA?

         (1)  Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608).

         (2)  Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

         (3)  Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80).


title: Case C-238/19: Request for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 20 March 2019 — EZ v Federal Republic of Germany

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/25

      Request for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 20 March 2019 — EZ v Federal Republic of Germany
      (Case C-238/19)
      (2019/C 206/30)
      Language of the case: German

         Referring court

      Verwaltungsgericht Hannover

         Parties to the main proceedings

         Applicant: EZ

         Defendant: Federal Republic of Germany

         Questions referred

                  1.

                  Is Article 9(2)(e) of Directive 2011/95/EU (1) to be interpreted as meaning that a ‘refusal to perform military service in a conflict’ does not require the person concerned to have refused to perform military service in a formalised refusal procedure, where the law of the country of origin does not provide for a right to refuse to perform military service?

                  2.

                  If Question 1 is to be answered in the affirmative:
                  By the reference to ‘refusal to perform military service in a conflict’, does Article 9(2)(e) of Directive 2011/95/EU also protect persons who, after the deferment of military service has expired, do not make themselves available to the military administration of the State of origin and evade compulsory conscription by fleeing?

                  3.

                  If Question 2 is to be answered in the affirmative:
                  Is Article 9(2)(e) of Directive 2011/95/EU to be interpreted as meaning that, for a conscript who does not know what his future field of military operation will be, the performance of military service would, directly or indirectly, include ‘crimes or acts falling within the grounds for exclusion as set out in Article 12(2)’ solely because the armed forces of his State of origin repeatedly and systematically commit such crimes or acts using conscripts?

                  4.

                  Is Article 9(3) of Directive 2011/95/EU to be interpreted as meaning that, in accordance with Article 2(d), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in Article 9(1) and (2) of Directive 2011/95/EU or the absence of protection against such acts, even in the event of persecution under Article 9(2)(e) of Directive 2011/95/EU?

                  5.

                  In the event that Question 4 is to be answered in the affirmative, is the connection, within the meaning of Article 9(3) in conjunction with Article 2(d) of Directive 2011/95/EU, between persecution by virtue of prosecution or punishment for refusal to perform military service and the reason for persecution already established in the case where prosecution or punishment is triggered by refusal?

         (1)  Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).


title: Case C-242/19: Request for a preliminary ruling from Tribunalul București (Romania) lodged on 20 March 2019 — CHEP Equipment Pooling NV v Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Serviciul Soluționare Contestații, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Nerezidenți

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/27

      Request for a preliminary ruling from Tribunalul București (Romania) lodged on 20 March 2019 — CHEP Equipment Pooling NV v Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Serviciul Soluționare Contestații, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Nerezidenți
      (Case C-242/19)
      (2019/C 206/31)
      Language of the case: Romanian

         Referring court

      Tribunalul București

         Parties to the main proceedings

         Applicant: CHEP Equipment Pooling NV

         Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Serviciul Soluționare Contestații, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Fiscală pentru Contribuabili Nerezidenți

         Questions referred

                  1.

                  Does the transport of pallets from one Member State to another Member State, for the purposes of their subsequent rental in the latter Member State to a taxable person established and registered for VAT purposes in Romania, constitute a non-transfer in accordance with Article 17(2) of Directive [2006/112/EC]? (1)

                  2.

                  Irrespective of the answer to the first question, is the taxable person under Article 9(1) of Directive 2006/112/EC, who is not established in the Member State of refund but in the territory of another Member State, considered a taxable person under Article 2(1) of Directive 2008/9/EC, (2) even where that person is registered for VAT purposes or would be required to be registered for VAT purposes in the Member State of refund?

                  3.

                  In the light of the provisions of Directive 2008/9/EC, does the condition of not being registered for VAT purposes in the Member State of refund constitute a further condition to those laid down in Article 3 of Directive 2008/9/EC in order that a taxable person established in another Member State and not established in the Member State of refund may be entitled to a refund in a case such as the present?

                  4.

                  Must Article 3 of Directive 2008/9/EC be interpreted as precluding a practice of a national administration of refusing to refund VAT on grounds of failure to satisfy a condition laid down exclusively in national law?

         (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

         (2)  Council Directive 2008/9/EC of 12 February 2008 laying down detailed rules for the refund of value added tax, provided for in Directive 2006/112/EC, to taxable persons not established in the Member State of refund but established in another Member State (OJ 2008 L 44, p. 23).


title: Case C-249/19: Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 25 March 2019 — JE v KF

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/28

      Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 25 March 2019 — JE v KF
      (Case C-249/19)
      (2019/C 206/32)
      Language of the case: Romanian

         Referring court

      Tribunalul București

         Parties to the main proceedings

         Appellant: JE

         Rrespondent: KF

         Question referred

      On a proper construction of Article 10 of Regulation No 1259/2010, (1) under which ‘[w]here the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply’, is the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ to be interpreted in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?

         (1)  Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10).


title: Case C-254/19: Reference for a preliminary ruling from the High Court (Ireland) made on 26 March 2019 — Friends of the Irish Environment Limited v An Bord Pleanála

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/29

      Reference for a preliminary ruling from the High Court (Ireland) made on 26 March 2019 — Friends of the Irish Environment Limited v An Bord Pleanála
      (Case C-254/19)
      (2019/C 206/34)
      Language of the case: English

         Referring court

      High Court (Ireland)

         Parties to the main proceedings

         Applicant: Friends of the Irish Environment Limited

         Defendant: An Bord Pleanála

         Questions referred

                  1)

                  Does a decision to extend the duration of a development consent constitute the agreement of a project such as to trigger Article 6(3) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (hereinafter ‘the Habitats Directive’)?

                  2)

                  Is the answer to Question (1) above affected by any of the following considerations?

                              a)

                              The development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive in that the legislation incorrectly equated an appropriate assessment for the purposes of the Habitats Directive with an environmental impact assessment for the purposes of the EIA Directive (Directive 2011/92/EU (2)).

                              b)

                              The development consent as originally granted does not record whether the consent application was dealt with under Stage 1 or Stage 2 of Article 6(3) of the Habitats Directive, and does not contain ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the site concerned’ as required under Case C-404/09, Commission v. Spain (3).

                              c)

                              The original period of the development consent has expired, and as a consequence the development consent has ceased to have effect in respect of the entire development. No development works can be carried out pursuant to the development consent pending its possible extension.

                              d)

                              No development works were ever carried out pursuant to the development consent.

                  3)

                  In the event that the answer to Question (1) is ‘yes’, what considerations are the competent authority required to have regard to in carrying out a Stage 1 screening exercise pursuant to Article 6(3) of the Habitats Directive? For example, is the competent authority required to have regard to any or all of the following considerations: (i) whether there are any changes to the proposed works and use; (ii) whether there has been any change in the environmental background, e.g. in terms of the designation of European Sites subsequent to the date of the decision to grant development consent; (iii) whether there have been any relevant changes in scientific knowledge, e.g., more up-to-date surveys in respect of qualifying interests of European Sites? Alternatively, is the competent authority required to assess the environmental impacts of the entire development?

                  4)

                  Is there any distinction to be drawn between (i) a development consent which imposes a time-limit on the period of an activity (operational phase), and (ii) a development consent which only imposes a time-limit on the period during which construction works may take place (construction phase) but, provided that the construction works are completed within that time-limit, does not impose any time-limit on the activity or operation?

                  5)

                  To what extent, if any, is the obligation of a national court to interpret legislation insofar as possible in accordance with the provisions of the Habitats Directive and the Aarhus Convention subject to a requirement that the parties to the litigation have expressly raised those interpretive issues? More specifically, if national law provides two decision-making processes, only one of which ensures compliance with the Habitats Directive, is the national court obliged to interpret national legislation to the effect that only the compliant decision-making process can be invoked, notwithstanding that this precise interpretation has not been expressly pleaded by the parties in the case before it?

                  6)

                  If the answer to Question (2)(a) above is to the effect that it is relevant to consider whether the development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive, is the national court required to disapply a rule of domestic procedural law which precludes an objector from questioning the validity of an earlier (expired) development consent in the context of a subsequent application for development consent? Is such a rule of domestic procedural law inconsistent with the remedial obligation as recently restated in Case C-348/15, Stadt Wiener (4)?

         (1)  OJ 1992, L 206, p. 7.

         (2)  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012, L 26, p. 1).

         (3)  EU:C:2011:768.

         (4)  EU:C:2016:882.


title: Case C-257/19: Action brought on 26 March 2019 — European Commission v Ireland

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/31

      Action brought on 26 March 2019 — European Commission v Ireland
      (Case C-257/19)
      (2019/C 206/36)
      Language of the case: English

         Parties

         Applicant: European Commission (represented by: S. L. Kalėda, N. Yerrell, Agents)

         Defendant: Ireland

         The applicant claims that the Court should:

                  —

                  declare that by failing to provide for an investigative body which is independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it, Ireland has failed to fulfil its obligations under Article 8(1) of Directive 2009/18/EC (1) of the European Parliament and of the Council establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council;

                  —

                  order Ireland to pay the costs.

         Pleas in law and main arguments

      According to Article 8(1) of Directive 2009/18/EC, Member States must ensure that safety investigations into very serious marine casualties are conducted under the responsibility of an impartial permanent investigative body. In order to carry out a safety investigation in an unbiased manner, Article 8(1) requires the investigative body to be independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to it.
      The Commission considers that this requirement is not satisfied by the Marine Casualty Investigation Board set up by Ireland, on the grounds that two of its five members also have general regulatory and enforcement responsibilities in relation to the maritime safety of vessels flying the Irish flag and safety inspections in Irish waters.

         (1)  OJ 2009, L 131, p. 114.


title: Case C-263/19: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 28 March 2019 — T Systems Magyarország Zrt. and Others v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság and Others

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/32

      Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 28 March 2019 — T Systems Magyarország Zrt. and Others v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság and Others
      (Case C-263/19)
      (2019/C 206/37)
      Language of the case: Hungarian

         Referring court

      Fővárosi Törvényszék

         Parties to the main proceedings

         Applicants: T Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt., Közbeszerzési Hatóság Közbeszerzési Döntőbizottság

         Defendants: Közbeszerzési Hatóság Közbeszerzési Döntőbizottság, BKK Budapesti Közlekedési Központ Zrt., T Systems Magyarország Zrt

         Intervener: Közbeszerzési Hatóság Elnöke

         Questions referred

                  1.

                  Do Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union, as well as recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, (1) preclude a national rule or a practice in relation to the interpretation and application of that rule which, taking into account the contractual legal relationship between the contracting parties, stipulates that an infringement for an unlawful failure to hold a public tender, allegedly violating the rules concerning the modification of contracts, and a failure to comply with the provisions governing the modification of contracts, is committed not only by the contracting entity, but also by the successful tenderer which concluded the contract with it, on the basis that the unlawful modification of the contracts requires joint action by the parties?

                  2.

                  In the event that the first question is answered in the negative, taking into account the provisions of Articles 41(1) and 47 of the Charter of Fundamental Rights of the European Union and recitals 10, 29, 107, 109 and 111 and Articles 1(2) and 72 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, do recitals 19, 20 and 21 of Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, (2) and Article 2(2) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, (3) and Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, (4) preclude a national rule or a practice in relation to the interpretation and application of that rule which allows a penalty (fine) — other than a reduction in the duration of the contract — for unlawful failure to hold a public tendering procedure and for failure to comply with the rules on the modification of contracts to be imposed also on the successful tenderer which concluded the contract with the contracting entity?

                  3.

                  If the first two questions are answered in the negative, the referring court asks the Court of Justice of the European Union to also provide it with guidance as to whether, in order to determine the amount of the penalty (fine), it is sufficient that there is a contractual legal relationship between the parties, without it being necessary to examine the action and the contribution of the parties which led to the modification of the contract.

         (1)  OJ 2014 L 94, p. 65.

         (2)  OJ 2007 L 335, p. 31.

         (3)  OJ 1989 L 395, p. 33.

         (4)  OJ 1992 L 76, p. 14.


title: Case C-265/19: Reference for a preliminary ruling from the High Court (Ireland) made on 29 March 2019 — Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, Minister for Jobs Enterprise and Innovation, Ireland, Attorney General

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/33

      Reference for a preliminary ruling from the High Court (Ireland) made on 29 March 2019 — Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, Minister for Jobs Enterprise and Innovation, Ireland, Attorney General
      (Case C-265/19)
      (2019/C 206/38)
      Language of the case: English

         Referring court

      High Court (Ireland)

         Parties to the main proceedings

         Applicant: Recorded Artists Actors Performers Ltd

         Defendants: Phonographic Performance (Ireland) Ltd, Minister for Jobs Enterprise and Innovation, Ireland, Attorney General

         Questions referred

                  1.

                  Is the obligation on a national court to interpret the Directive 2006/115 (1) on rental right and lending right and on certain rights related to copyright in the field of intellectual property (‘the Directive’) in the light of the purpose and objective of the Rome Convention (2) and/or the WPPT (3) confined to concepts which are expressly referenced in the Directive, or does it, alternatively, extend to concepts which are only to be found in the two international agreements? In particular, to what extent must Article 8 of the Directive be interpreted in light of the requirement for ‘national treatment’ under Article 4 of the WPPT?

                  2.

                  Does a Member State have discretion to prescribe criteria for determining which performers qualify as ‘relevant performers’ under Article 8 of the Directive? In particular, can a Member State restrict the right to share in equitable remuneration to circumstances where either (i) the performance takes place in a European Economic Area (‘EEA’) country, or (ii) the performers are domiciles or residents of an EEA country?

                  3.

                  What discretion does a Member State enjoy in responding to a reservation entered by another Contracting Party under article 15(3) of the WPPT? In particular, is the Member State required to mirror precisely the terms of the reservation entered by the other Contracting Party? Is a Contracting Party required not to apply the 30-day rule in Article 5 of the Rome Convention to the extent that it may result in a producer from the reserving party receiving remuneration under Article 15(1) but not the performers of the same recording receiving remuneration? Alternatively, is the responding party entitled to provide rights to the nationals of the reserving party on a more generous basis than the reserving party has done, i.e. can the responding party provide rights which are not reciprocated by the reserving party?

                  4.

                  Is it permissible in any circumstances to confine the right to equitable remuneration to the producers of a sound recording, i.e. to deny the right to the performers whose performances have been fixed in that sound recording?

         (1)  OJ 2006, L 376, p. 28.

         (2)  International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961).

         (3)  WIPO Performances and Phonograms Treaty 1996.


title: Case C-276/19: Action brought on 1 April 2019 — European Commission v United Kingdom of Great Britain and Northern Ireland

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/35

      Action brought on 1 April 2019 — European Commission v United Kingdom of Great Britain and Northern Ireland
      (Case C-276/19)
      (2019/C 206/40)
      Language of the case: English

         Parties

         Applicant: European Commission (represented by: A. X. P. Lewis, J. Jokubauskaitė, Agents)

         Defendant: United Kingdom of Great Britain and Northern Ireland

         The applicant claims that the Court should:

                  —

                  declare that by introducing new simplification measures that extend the zero-rating and the exception to the normal requirement of keeping Value Added Tax records provided for by the original Terminal Markets Order 1973 without applying to the Commission with a view to seek the Council’s authorisation, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 395 (2) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax (‘VAT Directive’);

                  —

                  order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

         Pleas in law and main arguments

      On 28 December 1977, the United Kingdom notified special measures including the Value Added Tax (Terminal Markets) Order 1973 that permits commodity futures to be traded on certain markets in the United Kingdom free of VAT and of the recording requirements of VAT subject to certain conditions.
      The Value Added Tax (Terminal Markets) Order 1973 was amended several times to add to its scope a number of commodities markets that were not listed in the original notification.
      The Commission claims that the amendments made to the Value Added Tax (Terminal Markets) Order 1973 enlarge the scope of the original derogation that the United Kingdom had notified in 1977. They should consequently have been notified to the Commission pursuant to Article 395 (1) of the VAT Directive but they were not.

         (1)  OJ 2006, L 347, p. 1.


title: Case C-286/19: Request for a preliminary ruling from the Tribunal d’instance d’Aulnay-Sous-Bois (France) lodged on 5 April 2019 — JE, KF v XL Airways SA

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/37

      Request for a preliminary ruling from the Tribunal d’instance d’Aulnay-Sous-Bois (France) lodged on 5 April 2019 — JE, KF v XL Airways SA
      (Case C-286/19)
      (2019/C 206/42)
      Language of the case: French

         Referring court

      Tribunal d’instance d’Aulnay-Sous-Bois

         Parties to the main proceedings

         Applicants: JE, KF

         Defendant: XL Airways SA

         Questions referred

                  1.

                  Whether both limbs of Article 3(2)(a) apply in the case of a delayed flight:

                              (a)

                              Having regard to the fact that as the result of a case-law construct (judgment of 19 November 2009, Sturgeon, C-402/07 and C-432/07, EU:C:2009:716) the right to compensation that Article 7 of Regulation (EC) No 261/2004 of 11 February 2004 (1) establishes for denied boarding or cancellation was extended to include delayed flights, does the express condition that passengers must present themselves for check-in laid down in Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004, which applies only in the case of denied boarding, apply in the context of compensation claimed by a passenger who has not been denied boarding but whose flight has been delayed?

                              (b)

                              If the answer to question 1(a) is in the affirmative, having regard to the objectives of the time limit laid down by Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 (‘not later than 45 minutes before the published departure time’) that relate to overbooked flights and security objectives, must that time limit be interpreted, in that case, as being ‘not later than 45 minutes before the new departure time of the delayed flight published on the airport information boards or communicated to passengers’?

                  2.

                  The burden of proving ‘presentation at check-in’
                  If the answer to question 1(a) is in the affirmative, that is to say, if Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 does apply to compensation applied for by a passenger whose flight has been delayed:

                              (a)

                              Are the conditions established in Article 3(2)(a) preconditions that the consumer must prove have been satisfied in order for the regulation to apply, or grounds for exonerating the airline by allowing it to produce the passenger list in order to show that the consumer did not present him or herself for check-in “as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time” to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed?

                              (b)

                              Do the principle of effectiveness, the objectives of Regulation (EC) No 261/2004 of 11 February 2004 and the high level of protection of passengers and consumers in general guaranteed by Regulation (EC) No 261/2004 of 11 February 2004 or other provisions of Community law preclude placing exclusively on passengers alone the burden of proving that they presented themselves for check-in ‘as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time’ to which Article 3(2)(a) of Regulation (EC) No 261/2004 of 11 February 2004 refers, in the light of technological developments that now allow boarding cards to be issued electronically, the absence of any time stamp on paper boarding cards, the correlative absence of any obligation for passengers to present themselves physically at a check-in counter and the fact that the airlines alone hold all the information about passenger check-in until check-in operations are closed?

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


title: Case C-288/19: Request for a preliminary ruling from the Finanzgericht des Saarlandes (Germany) lodged on 9 April 2019 — QM v Finanzamt Saarbrücken

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/38

      Request for a preliminary ruling from the Finanzgericht des Saarlandes (Germany) lodged on 9 April 2019 — QM v Finanzamt Saarbrücken
      (Case C-288/19)
      (2019/C 206/43)
      Language of the case: German

         Referring court

      Finanzgericht des Saarlandes

         Parties to the main proceedings

         Applicant: QM

         Defendant: Finanzamt Saarbrücken

         Question referred

      Is Article 56(2) of the VAT Directive (1) to be interpreted as meaning that ‘hiring of a means of transport to a non-taxable person’ should also be understood as referring to the provision of a vehicle (company car) forming part of the assets of the business of a taxable person to his staff, if the employee does not provide consideration for it that does not consist in (part of) the work performed by him, and thus does not make any payment, does not use any of his cash remuneration for it, and also does not choose between various benefits offered by the taxable person under an agreement between the parties according to which the entitlement to use the company car is contingent on the forgoing of other benefits?

         (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11).


title: Case T-226/17: Judgment of the General Court of 11 April 2019 — Adapta Color v EUIPO — Coatings Foreign IP (Rustproof System ADAPTA) (EU trade mark — Invalidity proceedings — European Union word mark Rustproof system ADAPTA — Partial declaration of invalidity by the Board of Appeal — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2007/1001) — No distinctive character acquired by use — Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) — Infringement of the right to be heard — Obligation to state reasons — Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001) — Evidence submitted for the first time before the Court)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/40

      Judgment of the General Court of 11 April 2019 — Adapta Color v EUIPO — Coatings Foreign IP (Rustproof System ADAPTA)
      (Case T-226/17) (1)

      (EU trade mark - Invalidity proceedings - European Union word mark Rustproof system ADAPTA - Partial declaration of invalidity by the Board of Appeal - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2007/1001) - No distinctive character acquired by use - Article 7(3) of Regulation No 207/2009 (now Article 7(3) of Regulation 2017/1001) - Infringement of the right to be heard - Obligation to state reasons - Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001) - Evidence submitted for the first time before the Court)
      (2019/C 206/44)
      Language of the case: English

         Parties

         Applicant: Adapta Color, SL (Peñiscola, Spain) (represented by: G. Macías Bonilla, G. Marín Raigal and E. Armero Lavie, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Coatings Foreign IP Co. LLC (Wilmington, Delaware, United States) (represented by: A. Rajendra, Solicitor, and by S. Malynicz QC)

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 February 2017 (Case R 2408/2015-5), relating to invalidity proceedings between Coatings Foreign IP and Adapta Color.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Adapta Color, SL to pay the costs.

         (1)  OJ C 202, 26.6.2017.


title: Case T-481/18: Order of the General Court of 8 April 2019 — Electroquimica Onubense v ECHA (REACH — Representation by a lawyer who is not a third party — Manifest inadmissibility)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/41

      Order of the General Court of 8 April 2019 — Electroquimica Onubense v ECHA
      (Case T-481/18) (1)

      (REACH - Representation by a lawyer who is not a third party - Manifest inadmissibility)
      (2019/C 206/45)
      Language of the case: Spanish

         Parties

         Applicant: Electroquimica Onubense (Palos de la Frontera, Spain) (represented by D.González Blanco, lawyer)

         Defendant: European Chemicals Agency (ECHA) (represented by J.-P Trnka, C.-M. Bergerat and M. Heikkila, acting as Agents, and C. García Molyneux, lawyer)

         Re:

      Action brought against ECHA Decision SME D(2018)2931-DC of 31 May 2018, finding that the applicant does not fulfil the requirements for the fee reduction provided for in respect of small enterprises and imposing an administrative charge on it.

         Operative part of the order

                  1.

                     The action is dismissed as manifestly inadmissible.

                  2.

                     Electroquimica Onubense, SL is ordered to pay the costs.

         (1)  OJ C 352, 1.10.2018.


title: Case T-79/19 R: Order of the President of the General Court of 2 April 2019 — Lantmännen and Lantmännen Agroetanol v Commission (Application for interim measures — Competition — Settlement procedure — Access to documents — No urgency)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/41

      Order of the President of the General Court of 2 April 2019 — Lantmännen and Lantmännen Agroetanol v Commission
      (Case T-79/19 R)
      (Application for interim measures - Competition - Settlement procedure - Access to documents - No urgency)
      (2019/C 206/46)
      Language of the case: English

         Parties

         Applicants: Lantmännen ek för (Stockholm, Sweden), Lantmännen Agroetanol AB (Norrköping, Sweden) (represented by: S. Perván Lindeborg, A. Johansson, lawyers, and R. Bachour, Solicitor)

         Defendant: European Commission (represented by: F. Jimeno Fernández, G. Conte and C. Urraca Caviedes, acting as Agents)

         Re:

      Application pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of the decision of the European Commission C(2019) 743 final of 28 January 2019 on an objection to disclosure submitted by Lantmännen ek för and Lantmännen Agroetanol AB pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the functioning and terms of reference of the hearing officer in certain competition proceedings (Case AT.40054 — Ethanol Benchmarks).

         Operative part of the order

                  1.

                     The application for interim measures is dismissed.

                  2.

                     The order of 14 February 2019, Lantmännen and Lantmännen Agroetanol v Commission (T-79/19 R), is cancelled.

                  3.

                     The costs are reserved.


title: Case T-99/19: Action brought on 18 February 2019 — Magnan v Commission

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/42

      Action brought on 18 February 2019 — Magnan v Commission
      (Case T-99/19)
      (2019/C 206/47)
      Language of the case: French

         Parties

         Applicant: Nathaniel Magnan (Aix-en-Provence, France) (represented by: J. Fayolle, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  declare the present action admissible in respect of the European Commission’s failure to act and establish the non-contractual liability of the Commission on the basis of Article 340 TFEU;

                  —

                  declare the present action for annulment of the European Commission’s implicit decision to refuse to act, in a letter dated 20 December 2018, admissible;

                  —

                  as regards the substance, first,

                              —

                              give a ruling stating that Article 55(a) of the Loi sur l’Assurance-maladie (LAMal) (Law on medical insurance) infringes:

                                          —

                                          Article 2 (non-discrimination), Article 7 (right to equal treatment) and Article 13 (standstill obligation) of the Agreement on the Free Movement of Persons between Switzerland and the European Union (AFMP);

                                          —

                                          Article 55 of Directive 2005/36/EC on the recognition of professional qualifications;

                              —

                              find that the horizontal directive of the Canton of Geneva relating to ‘Recruitment procedure within public law institutions and subsidised entities’ infringes the Agreement on the Free Movement of Persons between Switzerland and the European Union (AFMP) and that all the other Swiss federal laws on national preference infringe the AFMP;

                              —

                              find that, in return, there are no discriminatory measures by the Member States vis-à-vis doctors who are Swiss nationals;

                              —

                              find that the European Commission, which must ensure the application of the Treaties, wrongfully failed to act, thereby infringing the principle of legitimate expectations and the principle of certainty of the acquired rights of Dr Nathaniel Magnan;

                              —

                              find that there is a causal link between the European Commission’s wrongful failure to act and the harm suffered by Dr Nathaniel Magnan;

                              —

                              find that the European Commission failed to act;

                              —

                              order the European Commission to pay the sum of EUR 1141 198.10 euros (one million one hundred and forty-thousand one hundred and ninety-eight euros and ten cents; exchange rate of 7 January 2019 at 11:39 UTC) corresponding to CHF 1 281 444 (one million two hundred and eighty-one thousand four hundred and forty-four Swiss francs) to Dr Nathaniel Magnan, in respect of damage already suffered since 2013 on the basis of the non-contractual liability of the Commission on the basis of Article 340 TFEU;

                              —

                              order the European Commission, on the basis of Article 340 TFEU, for failure to act, to pay the sum of EUR 500 (five hundred euros) per working day to Dr Nathaniel Magnan as a result of the continuous, permanent and current financial damage, corresponding to daily financial damage until the Swiss Confederation complies with the AFMP, or the withdrawal of one of the parties from the agreement;

                  —

                  secondly,

                              —

                              find that the European Commission’s letter of reply dated 20 December 2018 constitutes a decision to refuse;

                              —

                              annul the implied decision of the European Commission to refuse to act against the Swiss Confederation for infringement of the Treaties and not to pay compensation for the damage suffered.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging Switzerland’s failure to comply with 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 (OJ 2002 L 114, p. 6) and Directive No 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22). The applicant submits that the Swiss Confederation, in July 2013, adopted a provision restricting doctors from setting up in overstaffed areas covered by compulsory Swiss medical insurance, which constitutes indirect discrimination on grounds of nationality, in so far as that restriction does not relate to doctors with 3 years’ experience in Swiss university hospitals.

                  2.

                  Second plea in law, alleging that there are no discriminatory measures on the part of the European Union vis-à-vis doctors who are Swiss nationals, in the name of the principle of reciprocity in international law, which the General Court should find, in the submission of the applicant.

                  3.

                  Third plea in law, alleging the Commission’s wrongful failure to act, in so far as it was obliged to act because it is the guarantor of the Treaties under Article 17(1) TEU and of the fundamental rights of European Union citizens. In that regard, the applicant relies on the principles of legitimate expectations towards institutions and legal certainty of acquired rights.

                  4.

                  Fourth plea in law, alleging that the Commission’s failure to deal with the applicant’s request to act urgently constitutes, as fact, an implied refusal and therefore a decision adversely affecting him.

                  5.

                  Fifth plea in law, alleging that the Commission is non-contractually liable on the basis of Article 340 TFEU for failure to act.


title: Case T-181/19: Action brought on 27 March 2019 — Dickmanns v EUIPO

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/47

      Action brought on 27 March 2019 — Dickmanns v EUIPO
      (Case T-181/19)
      (2019/C 206/50)
      Language of the case: German

         Parties

         Applicant: Sigrid Dickmanns (Gran Alacant, Spain) (represented by: H. Tettenborn, lawyer)

         Defendant: European Union Intellectual Property Office

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul EUIPO’s decisions notified by letter of 4 June 2018 refusing the applicant’s applications made by letter of 25 January 2018 seeking:

                              i.

                              removal of the termination clause in Article 5 of the applicant’s contract, reclassification of her contract as a contract of indefinite duration under Article 2(f) of the Conditions of Employment of Other Servants of the European Communities (‘CEOS’) and, to the extent necessary for the above, the withdrawal of the decision of 14 December 2017; and

                              ii.

                              a second renewal of her contract under Article 2(f) CEOS beyond 30 June 2018 (or, as the end date of the contract was pushed back on account of the applicant’s ill health, beyond 30 September 2018) or, as a minimum, however, inclusion of the applicant in the procedure for a second renewal of the contracts of temporary agents under Article 2(f) CEOS whose contracts end in 2018 in accordance with the ‘Guidelines for the renewal of temporary agent contracts’ of 28 January 2016 (‘the Guidelines’);

                  —

                  order EUIPO to pay to the applicant compensation of a reasonable amount, at the Court’s discretion, in respect of the non-pecuniary and non-material loss caused to the applicant by EUIPO’s decision referred to above; and

                  —

                  order EUIPO to pay the costs of the proceedings.

         Pleas in law and main arguments

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

                  1.

                  Manifest error of assessment, failure to exercise the defendant’s discretion, infringement of the principles of non-discrimination and equal treatment, infringement of the principle of non-arbitrariness

                  2.

                  Unlawfulness of the termination clause due to infringement of the Guidelines, the principle of sound administration, the principles of non-discrimination and equal treatment and the principle that the ending of the contract of a temporary agent requires a justifying ground (a ‘iusta causa’) and infringement of Article 30 of the Charter of Fundamental Rights of the European Union, Directive 1999/70/EC, (1) the Framework Agreement (in particular Articles 1(b) and 5.1 thereof) and Article 4 of ILO Convention No 158 concerning Termination of Employment at the Initiative of the Employer

                  3.

                  Infringement of the Guidelines, which also constitutes a significant procedural defect, infringement of the principles of non-discrimination and equal treatment, of the principle of sound administration and sound financial management, of the right of every person to be heard, before any individual measure which would affect him or her adversely is taken (Article 41(2)(a) of the Charter of Fundamental Rights of the European Union), of the defendant’s duty to have regard for the welfare of its staff and of the duty to take into account the legitimate interests of the applicant, manifest error of assessment in its balancing of the applicant’s interests with those of the service and infringement of the principle of non-arbitrariness

                  4.

                  As a result of the infringement of the second and third sentences of the first paragraph of Article 8 CEOS and of the prohibition on repeated fixed-term employment, the applicant’s contract remains valid for an unlimited period of time without a termination clause

                  5.

                  Unlawful retention of a termination clause in the context of the Reinstatement Protocol and infringement of legitimate expectations, the applicant’s legitimate interests and the defendant’s duty to have regard for the welfare of its staff when exercising the clause at issue

                  6.

                  Infringement of the applicant’s legitimate expectations, of the defendant’s duty to have regard for the applicant’s welfare and failure to take into account the legitimate interests of the applicant as a result of the refusal to renew the contract and manifest error of assessment in the assessment of the interests of the service

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


title: Case T-192/19: Action brought on 4 April 2019 — Ceramica Flaminia v EUIPO — Ceramica Cielo (goclean)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/48

      Action brought on 4 April 2019 — Ceramica Flaminia v EUIPO — Ceramica Cielo (goclean)
      (Case T-192/19)
      (2019/C 206/51)
      Language in which the application was lodged: Italian

         Parties

         Applicant: Ceramica Flaminia SpA (Civita Castellana, Italy) (represented by: A. Improda and R. Arista, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Ceramica Cielo SpA (Fabrica di Roma, Italy)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: EU figurative mark goclean — EU trade mark No 13 270 046

         Procedure before EUIPO: Proceedings for a declaration of invalidity

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 30 January 2019 in Case R 991/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul and alter the contested decision;
                  and, consequently,

                  —

                  recognise the validity of EU trade mark No 13270046 ‘goclean’, registered on 9 February 2013, in respect of all or some of the goods in Class 11 (Flushing tanks for toilets; Toilet bowls; Water distribution installations);

                  —

                  order EUIPO and/or the applicant Ceramica Cielo S.p.A. to pay Ceramica Flaminia S.p.A.’s costs relating to the present proceedings as well as the two previous stages before the Cancellation Division and the Board of Appeal.

         Pleas in law

                  —

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

                  —

                  Interpretation of distinctive character within the meaning of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Unfounded classification of the mark as a slogan;

                  —

                  Infringement and misapplication of Article 95(1) in conjunction with Article 59 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement and misapplication of Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-193/19: Action brought on 4 April 2019 — Achema and Achema Gas Trade v Commission

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/50

      Action brought on 4 April 2019 — Achema and Achema Gas Trade v Commission
      (Case T-193/19)
      (2019/C 206/52)
      Language of the case: English

         Parties

         Applicants: Achema AB (Jonava, Lithuania) and Achema Gas Trade UAB (Jonava) (represented by: J. Ruiz Calzado, J. Wileur, and N. Solárová, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Commission decision C(2018) 7141 final, adopted by the European Commission on 31 October 2018 in State aid case SA.44678 (2018/N) — Lithuania — Modification of aid for LNG Terminal in Lithuania;

                  —

                  order the Commission and any interveners in support of the Commission to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicants rely on a single plea in law, to the effect that the Commission failed to initiate a formal investigation procedure, thereby depriving the applicants and other interested third parties of the procedural rights of Article 108(2) TFEU.

                  —

                  The applicants argue that all the evidence in this case indicates that the Commission should have had doubts about the compatibility of the State aid with the internal market and therefore should have opened a formal investigation. The evidence ranges from the length of the preliminary investigation, other circumstances under which the contested decision was adopted and the flaws reflected in the content of the decision, which is insufficiently reasoned and vitiated by serious errors of assessment. Moreover, it is alleged that the Commission ignored very relevant aspects that should have been considered before concluding that it had enough information to declare the aid compatible with the internal market.

                  —

                  In particular, the applicants argue that: (i) the assessment of the need for a Service of General Economic Interest (SGEI) and its scope is flawed and insufficient; (ii) the Commission erred in finding that the aid was compliant with the SGEI framework; (iii) the contested decision did not sufficiently assess the latest amendments to the aid and therefore lacks adequate reasoning; (iv) the assessment in the contested decision of the necessity and proportionality of the aid measures is flawed and insufficient; and (v) the contested decision fails to sufficiently assess the significant impact on competition in the supply of gas in Lithuania and trade with other Member States.


title: Case T-195/19: Action brought on 3 April 2019 — GEA Group v Commission

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/51

      Action brought on 3 April 2019 — GEA Group v Commission
      (Case T-195/19)
      (2019/C 206/53)
      Language of the case: English

         Parties

         Applicant: GEA Group AG (Düsseldorf, Germany) (represented by: I. du Mont, R. van der Hout and C. Wagner, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Commission decision BUDG/DGAl/C/4/PL/Ares(2019) s. 283284 of 24 January 2019; and

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the contested decision violates Article 266 TFEU as it would have declined to repay the fines paid by the applicant in order to comply with Commission decision C(2016) 3920 of 29 June 2016.

                  2.

                  Second plea in law, alleging that the contested decision violates Article 266 TFEU as it would have reapplied de facto decision C(2010) 727 (final) of 8 February 2010 or Commission decision C(2016) 3920 of 29 June 2016 which both would have been annulled by the General Court by the judgment of 15 July 2015, GEA Group v Commission, T-189/10, EU:T:2015:504 and by the judgment of 18 October 2018, GEA Group v Commission, T-640/16, EU:T:2018:700 respectively.


title: Case T-199/19: Action brought on 4 April 2019 — Glaswerk Ernstthal v Commission

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/53

      Action brought on 4 April 2019 — Glaswerk Ernstthal v Commission
      (Case T-199/19)
      (2019/C 206/55)
      Language of the case: German

         Parties

         Applicant: Glaswerk Ernstthal GmbH (Lauscha, Germany) (represented by F. Wagner and N. Voß, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 (OJ 2019 L 14, p. 1) in respect of the years 2012 and 2013;

                  —

                  in the alternative, annul Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 as against the applicant in respect of the year 2013;

                  —

                  in the further alternative, annul Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 in so far as it orders that baseload consumers with at least 7 000 annual hours of use repay more than 20 % of the published network charges, baseload consumers with at least 7 500 annual hours of use repay more than 15 % of the published network charges, and baseload consumers with at least 8 000 annual hours of use repay more than 10 % of the published network charges;

                  —

                  in the further alternative, annul Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 as against the applicant in so far as it orders that baseload consumers with at least 7 500 annual hours of use repay more than 15 % of the published network charges;

                  —

                  in the further alternative, annul Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 notified under document C(2018) 3166 as against the applicant in so far as it orders the repayment of more than 20 % of the published network charges; and

                  —

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

         Pleas in law and main arguments

      The application is based on the following grounds.

                  1.

                  Wrongful presumption of the existence of State aid for the purposes of Article 107(1) TFEU
                  In the first plea in law, it is claimed that the defendant erred in law in its examination of the contested exemption from network charges by presuming the use of State resources.
                  In addition, in the examination of the ‘selectivity’ criterion, the reference system was incorrectly and incompletely identified.
                  It is further claimed that, because of the incomplete identification of the reference system, the defendant failed to comply with its obligation to state reasons under the second paragraph of Article 296 TFEU.

                  2.

                  Infringement of the principle of equal treatment
                  In the second plea in law, it is alleged that the defendant’s decision provided for the obligation to make additional payments only for baseload consumers who were fully exempted from network charges in the years 2012 and 2013. Those baseload consumers were therefore unequally treated and unfairly disadvantaged vis-à-vis baseload consumers who, over the same period, enjoyed flat-rate network charge reductions and for whom there were no obligations to make additional payments.
                  In that respect, it is further claimed that the defendant, with regard to the unequal treatment, failed to comply with its obligation to state reasons under the second paragraph of Article 263 TFEU and Article 42(2)(c) of the Charter of Fundamental Rights of the European Union. Furthermore, the unequal treatment infringed the principle of non-discrimination under Article 32(1) of Directive 2009/72/EC. (1)

                  3.

                  Infringement of the principle of the protection of legitimate expectations
                  In the third plea in law, it is claimed that, in view of the particular circumstances, the applicant could expect to be allowed to retain the special network charges granted.

         (1)  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 (OJ 2009 L 211, p. 55).