title: Case T-788/16: Judgment of the General Court of 12 September 2018 — De Geoffroy and Others v Parliament. (Civil service — Officials — Leave — Adoption of the Parliament’s new Guidelines on leave management — Individual decisions taken under the new guidelines in the interpretation services — Obligation to state reasons — Manifest error of assessment — Interests of the service — Plea of illegality)

text:
               22.10.2018

               EN

               Official Journal of the European Union

               C 381/21

      Judgment of the General Court of 12 September 2018 — De Geoffroy and Others v Parliament.
      (Case T-788/16) (1)

      ((Civil service - Officials - Leave - Adoption of the Parliament’s new Guidelines on leave management - Individual decisions taken under the new guidelines in the interpretation services - Obligation to state reasons - Manifest error of assessment - Interests of the service - Plea of illegality))
      (2018/C 381/23)
      Language of the case: French

         Parties

         Applicants: Dominique De Geoffroy (Brussels, Belgium) and the 14 other applicants whose names are annexed to the judgment (represented initially by N. de Montigny and J.-N. Louis, and subsequently by N. de Montigny, lawyers)

         Defendant: European Parliament (represented by: E. Taneva and L. Deneys, acting as Agents)

         Re:

      Application pursuant to Article 270 TFEU seeking the annulment, first, of Parliament’s guidelines of 21 March 2016 on the implementation, for interpretation services, of Article 4(5) of the internal rules on leave management; secondly, of Parliament’s decision of 12 April 2016 accepting Ms Françoise Joostens’ application for leave, but including the requested days of leave within a quota of three and a half days; thirdly, of Parliament’s decision of 2 June 2016 refusing to grant leave applied for by Mrs Joostens and, fourthly, of the Parliament’s decision of 13 June 2016 refusing to grant leave applied for by Mr Stéphane Grosjean.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Parliament of 13 June 2016 refusing to grant leave applied for by Mr Stéphane Grosjean.

                  2.

                  Dismisses the remainder of the action.

                  3.

                  Orders each party to bear its own costs.

         (1)  OJ C 14, 16.1.2017.


title: Case T-563/18: Action brought on 21 September 2018 — YP v Commission

text:
               12.11.2018

               EN

               Official Journal of the European Union

               C 408/59

      Action brought on 21 September 2018 — YP v Commission
      (Case T-563/18)
      (2018/C 408/76)
      Language of the case: French

         Parties

         Applicant: YP (represented by: J.-N. Louis, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the Commission decision of 13 November 2017 not to promote her to grade AD 14;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of Article 45 of the Staff Regulations of Officials of the European Union and of the presumption of innocence.

                  2.

                  Second plea in law, alleging infringement of Article 9(3) of Annex IX to the Staff Regulations of Officials of the European Union.

                  3.

                  Third plea in law, alleging infringement of the obligation to state reasons.


title: Judgment of the Court of 27 October 2017 in Case E-21/16 — Pascal Nobile v DAS Rechtsschutz-Versicherungs AG (Directive 87/344/EEC — Article 201(1)(a) of Directive 2009/138/EC — Legal expenses insurance — Free choice of lawyer)

text:
               22.11.2018

               EN

               Official Journal of the European Union

               C 422/9

      JUDGMENT OF THE COURT
      of 27 October 2017
      in Case E-21/16
      Pascal Nobile v DAS Rechtsschutz-Versicherungs AG

         (Directive 87/344/EEC — Article 201(1)(a) of Directive 2009/138/EC — Legal expenses insurance — Free choice of lawyer)

      (2018/C 422/07)
      In Case E-21/16, Pascal Nobile v DAS Rechtsschutz-Versicherungs AG – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Princely Court of Appeal (Fürstliches Obergericht) concerning the interpretation of Article 201(1)(a) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Benedikt Bogason (ad hoc), Judges, gave judgment on 27 October 2017, the operative part of which is as follows:
      Article 201(1)(a) of Directive 2009/138/EC precludes terms and conditions in a legal expenses insurance contract that release the insurance company from its obligations under the contract if the insured person mandates an attorney to represent his interests, without the consent of the company, at a point in time when the insured person would be entitled to make a claim under the contract.


title: Case T-596/18: Action brought on 28 September 2018 — ZL v EUIPO

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/20

      Action brought on 28 September 2018 — ZL v EUIPO
      (Case T-596/18)
      (2018/C 445/25)
      Language of the case: English

         Parties

         Applicant: ZL (represented by: E. Fontes Vila, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of 1 December 2017 of the selection board for open competition EUIPO/AD/01/17 which indicated the applicant’s results in that competition and confirmed that she had not been placed on the ‘reserve list’ of successful candidates;

                  —

                  annul, on a subsidiary basis, as connected decisions, the following: first, the decision of 7 March 2018 of the selection board by which it replied to the applicant’s request for review and confirmed the decision of 1 December 2017; second, the decision of 27 June 2018 of the appointing authority which rejected the applicant’s complaint of 7 June 2018 and confirmed the decision of 1 December 2017;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging the lack of sufficient legal reasoning and supporting documents in all the correspondence and decisions received from EPSO and/or EUIPO with regard to the open competition in question, in that the applicant could not ascertain whether or not the decisions adversely affecting her were well founded and subject to judicial review, therefore creating legal uncertainty and leaving the applicant defenceless before the administration.

                  2.

                  Second plea in law, alleging (i) infringement of the applicant’s fundamental rights to good administration and access to documents (Article 41 and 42 of the Charter of Fundamental Rights of the European Union; Article 15 of the TFEU; Article 2(1) of Regulation No 1049/2001 (1)) and of the horizontal principle of transparency, in that the applicant’s access to the disputed questions of the verbal reasoning multiple-choice computer-based tests was denied by the appointing authority by claiming that the applicant’s allegation challenging the relevance and validity of the said questions was too general but without grounding the specific motives of not meeting the case-law conditions for not granting them; and (ii) infringement of the applicant’s right of defence, in that the request of the appointing authority that the disputed questions be challenged in more detail is impracticable for the applicant, creating a particular vulnerability in terms of having to provide an impossible proof.

                  3.

                  Third plea in law, alleging infringement of the applicant’s right of defence and of the principles of merit and capacity in the competition in question, transparency in the free access to public service, and of fair and equal treatment, in that the applicant could not allege a material irregularity of the disputed questions based on their poor or erroneous formulation (e.g. translation problems) after obtaining her competition results. A candidate should always be able to challenge the fact of having been subject to material errors in questions at any point of the competition process, particularly following the release of the results. The applicant further argues that poor translations could place candidates who choose the source language of the verbal computer-based tests at a clear advantage.

                  4.

                  Fourth plea in law, alleging that the contested decision of 1 December 2017 is vitiated by a manifest error in the competition process, in that the disputed questions of the verbal reasoning computer-based tests were subject to a material irregularity.

         (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case C-613/18: Request for a preliminary ruling from the Tribunal Tributário de Lisboa (Portugal) lodged on 28 September 2018 — State of Canada v Autoridade Tributária e Aduaneira

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/8

      Request for a preliminary ruling from the Tribunal Tributário de Lisboa (Portugal) lodged on 28 September 2018 — State of Canada v Autoridade Tributária e Aduaneira
      (Case C-613/18)
      (2018/C 445/09)
      Language of the case: Portuguese

         Referring court

      Tribunal Tributário de Lisboa

         Parties to the main proceedings

         Applicant: State of Canada

         Defendant: Autoridade Tributária e Aduaneira

         Question referred

      In the context of taxation of dividends distributed by a company established in the national territory to a non-resident entity, is it compatible with the principle precluding restrictions on movements of capital between Member States and third countries for there to be an effective rate of corporation tax which is applied more disadvantageously to entities resident in a third country than to a resident in the national territory which is similar in nature?


title: Case C-636/18: Action brought on 11 October 2018 — European Commission v French Republic

text:
               10.12.2018

               EN

               Official Journal of the European Union

               C 445/10

      Action brought on 11 October 2018 — European Commission v French Republic
      (Case C-636/18)
      (2018/C 445/13)
      Language of the case: French

         Parties

         Applicant: European Commission (represented by: J.-F. Brakeland, acting as Agent)

         Defendant: French Republic

         Form of order sought

      The applicant claims that the Court should:
      declare, first, that, by systematically and persistently exceeding the annual limit value for NO2 from 1 January 2010 in the following 12 agglomerations and air quality zones: Marseille (FR03A02), Toulon (FR03A03), Paris (FR04A01), Auvergne-Clermont-Ferrand (FR07A01), Montpellier (FR08A01), Toulouse Midi-Pyrénées (FR12A01), ZUR Reims Champagne-Ardenne (FR14N10), Grenoble Rhône-Alpes (FR15A01), Strasbourg (FR16A02), Lyon-Rhône-Alpes (FR20A01), ZUR Vallée de l’Arve Rhône-Alpes (FR20N10) and Nice (FR24A01) and by systematically and persistently exceeding the hourly limit value for NO2 from 1 January 2010 in the following two agglomerations and air quality zones: Paris (FR04A01) and Lyon Rhône-Alpes (FR20A01), the French Republic has continued to fail to fulfil its obligations under Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, (1) read in conjunction with Annex XI to that directive, from the coming into force of the limit values in 2010,
      and
      secondly, that the French Republic has failed, from 11 June 2010, to fulfil its obligations under Article 23(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with Annex XV to that directive, and in particular the obligation laid down in the second subparagraph of Article 23(1) of that directive to ensure that the exceedance period is kept as short as possible;
      order the French Republic to pay the costs.

         Pleas in law and main arguments

      From 2010, the annual and hourly limit values of NO2 were systematically and persistently exceeded in the 12 and two zones, respectively. Those exceedances in themselves constitute an infringement of Article 13(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, read in conjunction with Annex XI to that directive.
      Notwithstanding that infringement of Article 13(1) of Directive 2008/50/EC, read in conjunction with Annex XI thereto, the French Republic has not adopted, contrary to what is provided for by the second subparagraph of Article 23(1) of Directive 2008/50/EC, any appropriate measures in air quality plans in order to ensure that the period during which limits are exceeded can be kept as short as possible.
      The lack of effectiveness of those measures is apparent from, inter alia, the duration of the period during which limit values were exceeded, the level of those exceedances, their development and the detailed analysis of each of the plans adopted by the French authorities for the 12 zones concerned.

         (1)  OJ 2008 L 152, p. 1.


title: Case T-337/18 R II: Order of the President of the General Court of 25 October 2018 — Laboratoire Pareva v Commission (Interim relief — Regulation (EU) No 528/2012 — Biocidal products — Active substance PHMB (1415; 4.7) — Approval refused — Application for interim measures — New application — No new facts — Inadmissibility)

text:
               4.2.2019

               EN

               Official Journal of the European Union

               C 44/71

      Order of the President of the General Court of 25 October 2018 — Laboratoire Pareva v Commission
      (Case T-337/18 R II)
      ((Interim relief - Regulation (EU) No 528/2012 - Biocidal products - Active substance PHMB (1415; 4.7) - Approval refused - Application for interim measures - New application - No new facts - Inadmissibility))
      (2019/C 44/94)
      Language of the case: English

         Parties

         Applicant: Laboratoire Pareva (St. Martin de Crau, France) (represented by: K. Van Maldegem and S. Engelbert, lawyers)

         Defendant: European Commission (represented by: R. Lindenthal and K. Mifsud-Bonnici, acting as Agents)

         Re:

      Application pursuant to Articles 278 TFEU and 279 TFEU seeking, first, suspension of operation of Commission Implementing Decision (EU) 2018/619 of 20 April 2018 not approving PHMB (1415; 4.7) as an existing active substance for use in biocidal products of product-types 1, 5 and 6 (OJ 2018 L 102, p. 21), and, secondly, the adoption of any other appropriate interim measure.

         Operative part of the order

                  1.

                  The application for interim measures is dismissed.

                  2.

                  The costs are reserved.


title: Case T-632/16: Judgment of the General Court of 13 December 2018 — Haeberlen v ENISA (Civil service — Remuneration — Annual adjustment of remunerations and pensions of officials and other agents — Regulations (EU) Nos 422/2014 and 423/2014 — Adjustments of salaries and pensions for 2011 and 2012 — Obligation to state reasons — Proportionality — Legitimate expectations — Rules on social dialogue)

text:
               4.3.2019

               EN

               Official Journal of the European Union

               C 82/46

      Judgment of the General Court of 13 December 2018 — Haeberlen v ENISA
      (Case T-632/16) (1)

      ((Civil service - Remuneration - Annual adjustment of remunerations and pensions of officials and other agents - Regulations (EU) Nos 422/2014 and 423/2014 - Adjustments of salaries and pensions for 2011 and 2012 - Obligation to state reasons - Proportionality - Legitimate expectations - Rules on social dialogue))
      (2019/C 82/52)
      Language of the case: French

         Parties

         Applicant: Thomas Haeberlen (Swisttal, Germany) (represented initially by L. Levi and A. Tymen, subsequently by L. Levi and last by L. Levi and C. Bernard-Glanz, lawyers)

         Defendant: European Union Agency for Network and Information Security (represented by: A. Ryan, acting as Agent, and D. Waelbroeck and A. Duron, lawyers)

         Interveners in support of the defendant: European Parliament (represented by: E. Taneva and M. Ecker, acting as Agents); and Council of the European Union (represented by: M. Bauer and R. Meyer, acting as Agents)

         Re:

      Application based on Article 270 TFEU seeking, first, annulment of the decision of ENISA of 21 October 2015, ordering the applicant to pay the sum of EUR 3 133,19, following the application to his remuneration of the adjustment of 0 % for 2011 provided for in Regulation (EU) No 422/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2011 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 5), and the adjustment of 0.8 % for 2012 provided for in Regulation (EU) No 423/2014 of the European Parliament and of the Council of 16 April 2014 adjusting with effect from 1 July 2012 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ 2014 L 129, p. 12), and, second, compensation for the non-material harm the applicant allegedly suffered as a result of that decision.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Thomas Haeberlen to bear his own costs and to pay those incurred by the European Union Agency for Network and Information Security;

                  3.

                  Orders the Council of the European Union and the European Parliament to bear their own costs.

         (1)  OJ C 410, 7.11.2016.


title: Case T-160/17: Judgment of the General Court of 10 January 2019 — RY v Commission (Civil service — Temporary staff — Article 2(c) of the Conditions of Employment of Other Servants — Open-ended contract — Dismissal — Breakdown in the relationship of trust — Right to be heard — Burden of proof)

text:
               11.3.2019

               EN

               Official Journal of the European Union

               C 93/50

      Judgment of the General Court of 10 January 2019 — RY v Commission
      (Case T-160/17) (1)

      ((Civil service - Temporary staff - Article 2(c) of the Conditions of Employment of Other Servants - Open-ended contract - Dismissal - Breakdown in the relationship of trust - Right to be heard - Burden of proof))
      (2019/C 93/62)
      Language of the case: French

         Parties

         Applicant: RY (represented initially by J.-N. Louis and N. de Montigny, and subsequently by J.-N. Louis, lawyers)

         Defendant: European Commission (represented by: G. Berscheid and L. Radu Bouyon, acting as Agents)

         Re:

      Application on the basis of Article 270 TFEU seeking annulment of the decision of the Commission of 27 April 2016 terminating the applicant’s open-ended contract.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the European Commission of 27 April 2016 terminating RY’s open-ended contract;

                  2.

                  Orders the Commission to pay the costs.

         (1)  OJ C 144, 8.5.2017.


title: Case C-713/18: Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 14 November 2018 — ZR, BS, AR

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/4

      Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 14 November 2018 — ZR, BS, AR
      (Case C-713/18)
      (2019/C 122/05)
      Language of the case: German

         Referring court

      Landesverwaltungsgericht Steiermark

         Parties to the main proceedings

         Appellants: ZR, BS and AR

         Respondent authority: Bezirkshauptmannschaft Hartberg-Fürstenfeld

         Interested party: Finanzpolizei

         Questions referred

                  1.

                  Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

                  2.

                  If the answer to Question 1 is in the negative:
                  Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

         (1)  OJ 1997 L 18, p. 1.

         (2)  OJ 2014 L 159, p. 11.


title: Case C-799/18: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 17 December 2018 — Athesia Energy Srl and Others v Ministero dello Sviluppo Economico, Gestore dei Servizi Energetici (GSE) SpA

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/7

      Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 17 December 2018 — Athesia Energy Srl and Others v Ministero dello Sviluppo Economico, Gestore dei Servizi Energetici (GSE) SpA
      (Case C-799/18)
      (2019/C 122/08)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per il Lazio

         Parties to the main proceedings

         Applicants: Athesia Energy Srl, Pv Project Cologna S.r.l., Belriccetto S.r.l., Itt Energy S.r.l., Pietra dei Fiori S.r.l., Energia Solare S.r.l., Green Hunter S.p.A, Actasol 5 S.r.l., Actasol 6 S.r.l., Cinque S.r.l., Spf Energy Uno S.r.l., Spr Energy Due S.r.l., Spf Energy Tre S.r.l., Bulicata S.r.l., Energy Line S.r.l., Marche Solare 1 S.r.l.

         Defendants: Ministero dello Sviluppo Economico, Gestore dei servizi energetici (GSE) SpA

         Question referred

      Does EU law preclude the application of a provision of national law, such as that in Article 26(2) and (3) of Decree-Law No 91/2014, as converted by Law No 116/2014, which significantly reduces or delays the payment of incentives already granted by law and defined on the basis of corresponding agreements concluded by undertakings generating electrical energy by means of photovoltaic conversion with Gestore dei servizi energetici SpA, a public company responsible for that process?
      In particular, is that provision of national law compatible with the general principles of EU law relating to legitimate expectation, legal certainty, sincere cooperation and effectiveness, with Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, with Directive 2009/28/EC (1) and with the rules governing support schemes laid down in that directive, and with Article 216(2) TFEU, in particular in relation to the European Energy Charter Treaty?

         (1)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).


title: Case C-806/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 20 December 2018 — JZ

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/8

      Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 20 December 2018 — JZ
      (Case C-806/18)
      (2019/C 122/09)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Party to the main proceedings

         Applicant: JZ

         Question referred

      Is the criminalisation under national law which criminalises the stay of a third-country national in the territory of the Netherlands after an entry ban has been imposed on him pursuant to Article 66a(7) of the Vreemdelingenwet 2000 compatible with EU law, in particular with the finding of the Court of Justice of the European Union in the judgment of 26 July 2017, Ouhrami v Netherlands (C-225/16, EU:C:2017:590, paragraph 49) according to which the entry ban provided for in Article 11 of the Return Directive (1) produces its ‘effects’ only from the point in time the foreign national has returned to his country of origin or to another third country, when national law also holds that that foreign national has no lawful residence and moreover it is established that the steps of the return procedure set out in the Return Directive have been followed but the actual return has not taken place?

         (1)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).


title: Case C-814/18: Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 21 December 2018 — Ursa Major Services B.V. v Minister van Landbouw, Natuur en Voedselkwaliteit

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/9

      Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 21 December 2018 — Ursa Major Services B.V. v Minister van Landbouw, Natuur en Voedselkwaliteit
      (Case C-814/18)
      (2019/C 122/10)
      Language of the case: Dutch

         Referring court

      College van Beroep voor het bedrijfsleven

         Parties to the main proceedings

         Applicant: Ursa Major Services B.V.

         Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

         Questions referred

                  1.

                  Is Article 55(1) of Regulation 1198/2006 (1) applicable to the relationship between the provider of a subsidy, in the present case the Minister, and the beneficiary (the recipient of the subsidy)?

                  2.

                  If the first question is answered to the effect that Article 55(1) of Regulation 1198/2006 does apply to the relationship between the provider of the subsidy and the beneficiary: can expenditure that has been paid by a third party (whether or not by set-off) be regarded as expenditure actually paid by the beneficiary as referred to in Article 55(1) of Regulation 1198/2006?

                  3.

                  If the second question is answered to the effect that expenditure paid by a third party (whether or not by set-off) cannot be regarded as expenditure actually paid by the beneficiary as referred to in Article 55(1) of Regulation 1198/2006:

                              (a)

                              does an executive practice whereby the provider of the subsidy has consistently considered contributions from third parties to be expenditure actually paid by the beneficiary as referred to in Article 55(1) of Regulation 1198/2006 mean that the beneficiary could not have been expected to detect such an incorrect interpretation of Article 55(1) of Regulation 1198/2006 by the provider of the subsidy, with the result that the beneficiary is entitled to the subsidy as granted to him, and

                              (b)

                              should the contributions from third parties then be included in the expenditure actually paid by the beneficiary as referred to in Article 55(1) of Regulation 1198/2006 (in which case the subsidy is set higher) or

                              (c)

                              should recovery of the wrongly granted subsidy then be waived on the basis of the principle of the protection of legitimate expectations and/or the principle of legal certainty?

                              (d)

                              does it make any difference in that regard if the provider of the subsidy, as in the present case, has granted an advance on the subsidy?

         (1)  Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (OJ 2006 L 223, p. 1).


title: Case C-815/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 December 2018 — Federatie Nederlandse Vakbeweging v Van den Bosch Transporten B.V., Van den Bosch Transporte GmbH, Silo-Tank Kft

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/10

      Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 21 December 2018 — Federatie Nederlandse Vakbeweging v Van den Bosch Transporten B.V., Van den Bosch Transporte GmbH, Silo-Tank Kft
      (Case C-815/18)
      (2019/C 122/11)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Parties to the main proceedings

         Appellant: Federatie Nederlandse Vakbeweging

         Respondents: Van den Bosch Transporten B.V., Van den Bosch Transporte GmbH, Silo-Tank Kft

         Questions referred

                  1.

                  Must Directive 96/71/EC (1) of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services [OJ 1997 L 18, p. 1; ‘the Posting of Workers Directive’] be interpreted as meaning that it also applies to a worker who works as a driver in international road transport and thus carries out his work in more than one Member State?

                  2.

                              (a)

                              If the answer to Question 1 is in the affirmative, what criterion or considerations should be used to determine whether a worker working as a driver in international road transport is posted ‘to the territory of a Member State’ as referred to in Article 1(1) and (3) of the Posting of Workers Directive, and whether that worker ‘for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works’ as referred to in Article 2(1) of the Posting of Workers Directive?

                              (b)

                              When answering question 2 (a), should any significance be attached to the fact that the undertaking posting the worker referred to in question 2(a) is affiliated — for example, in a group of companies — to the undertaking to which that worker is posted and, if so, what should that significance be?

                              (c)

                              If the work undertaken by the worker referred to in question 2(a) relates partly to cabotage transport — that is to say: transport carried out exclusively in the territory of a Member State other than that in which that worker habitually works — will that worker then in any case for that part of his work, be considered to be working temporarily in the territory of the first Member State? If so, does a lower limit apply in that regard, for example, in the form of a minimum period per month in which that cabotage transport takes place?

                  3.

                              (a)

                              If the answer to Question 1 is in the affirmative, how should the term ‘collective agreements. which have been declared universally applicable’, as referred to in Article 3(1) and the first subparagraph of Article 3(8) of the Posting of Workers Directive, be interpreted? Is that an autonomous concept of European Union law and is it therefore sufficient that the conditions laid down in the first subparagraph of Article 3(8) of the Posting of Workers Directive have for practical purposes been met, or do those provisions also require that the collective labour agreement was declared universally applicable on the basis of national law?

                              (b)

                              If a collective labour agreement cannot be regarded as a universally applicable collective labour agreement within the meaning of Article 3(1) and the first subparagraph of Article 3(8) of the Posting of Workers Directive, does Article 56 TFEU preclude an undertaking which is established in a Member State and which posts a worker to the territory of another Member State from being obliged by contractual means to comply with the provisions of such a collective labour agreement which is in force in the latter Member State?

         (1)  Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).


title: Case C-826/18: Request for a preliminary ruling from the Rechtbank Limburg (Netherlands) lodged on 28 December 2018 — LB, Stichting Varkens in Nood, Stichting Dierenrecht, Stichting Leefbaar Buitengebied v College van burgemeester en wethouders van de gemeente Echt-Susteren, other party: Sebava BV

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/11

      Request for a preliminary ruling from the Rechtbank Limburg (Netherlands) lodged on 28 December 2018 — LB, Stichting Varkens in Nood, Stichting Dierenrecht, Stichting Leefbaar Buitengebied v College van burgemeester en wethouders van de gemeente Echt-Susteren, other party: Sebava BV
      (Case C-826/18)
      (2019/C 122/12)
      Language of the case: Dutch

         Referring court

      Rechtbank Limburg

         Parties to the main proceedings

         Applicants: LB, Stichting Varkens in Nood, Stichting Dierenrecht, Stichting Leefbaar Buitengebied

         Defendant: College van burgemeester en wethouders van de gemeente Echt-Susteren

         Other party: Sebava B.V.

         Questions referred

                  1.

                  Must European law and, in particular, Article 9(2) of the Aarhus Convention (1) be interpreted as precluding a total exclusion of the right of access to justice for the public (any person), in so far as the latter is not the public concerned (interested parties)?
                  If Question 1 is answered in the affirmative:

                  2.

                  Must European law and, in particular, Article 9(2) of the Aarhus Convention be interpreted as meaning that it follows therefrom that the public (any person) should, in the event of an alleged infringement of the procedural requirements and public-participation rights applicable to that public, as contained in Article 6 of that Convention, have access to justice?
                  Is it important in that regard that the public concerned (interested parties) should have access to justice in that respect and can also raise substantive complaints before the courts?

                  3.

                  Must European law and, in particular, Article 9(2) of the Aarhus Convention be interpreted as precluding a situation in which access to justice for the public concerned (interested parties) is made dependent on the exercise of public-participation rights within the meaning of Article 6 of that Convention?
                  If Question 3 is answered in the negative:

                  4.

                  Must European law and, in particular, Article 9(2) of the Aarhus Convention be interpreted as precluding a provision of national law which excludes access to justice in respect of a decision on the part of the public concerned (interested parties) if that public can reasonably be criticised for not having set out any views against (parts of) the draft decision?
                  If Question 4 is answered in the negative:

                  5.

                  Is it entirely up to the national court to provide an opinion, on the basis of the circumstances of the case, as to what should be understood by the term ‘who can reasonably be criticised’ or is the court obliged to take certain European legal safeguards into account in that regard?

                  6.

                  To what extent are the answers to Questions 3, 4 and 5 different in relation to the public (any person), in so far as that is not the public concerned (interested parties)?

         (1)  Convention on access to information, public participation in decision-making and access to justice in environmental matters, concluded in Aarhus on 25 June 1998 and approved, on behalf of the European Community, by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).


title: Case C-7/19: Request for a preliminary ruling from the Amtsgericht Köln (Germany) lodged on 4 January 2019 — QG v Germanwings GmbH

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/12

      Request for a preliminary ruling from the Amtsgericht Köln (Germany) lodged on 4 January 2019 — QG v Germanwings GmbH
      (Case C-7/19)
      (2019/C 122/13)
      Language of the case: German

         Referring court

      Amtsgericht Köln

         Parties to the main proceedings

         Applicant: QG

         Defendant: Germanwings GmbH

         Question referred:

      Does a regular strike under national law announced by a trade union and involving an operating air carrier’s own staff members constitute an extraordinary circumstance within the meaning of Article 5(3) of Regulation (EC) No 261/2004? (1)

         (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-33/19: Action brought on 18 January 2019 — European Commission v Republic of Bulgaria

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/12

      Action brought on 18 January 2019 — European Commission v Republic of Bulgaria
      (Case C-33/19)
      (2019/C 122/14)
      Language of the case: Bulgarian

         Parties

         Applicant: European Commission (represented by C. Georgieva-Kecsmar and J. Hottiaux)

         Defendant: Republic of Bulgaria

         Form of order sought

      The Commission claims that the Court should:
      Declare that Bulgaria has failed to fulfil its obligations in accordance with Article 21 of Directive 2004/49/EC (1) as follows:

                  —

                  by failing to ensure the independence of the specialised investigation unit from the infrastructure manager, Bulgaria failed to fulfil its obligations under Article 21(1) of Directive 2004/49/ЕC;

                  —

                  by failing to ensure sufficient resources for the specialised investigation unit in order for it to carry out its functions independently, Bulgaria failed to fulfil its obligations under Article 21(2) of Directive 2004/49/ЕC;

                  —

                  Order the Republic of Bulgaria to pay the costs of the proceedings.

         Pleas in law and main arguments

                  1.

                  Under Article 21 of Directive 2004/49/ЕC, Member States must ensure that investigations of accidents and incidents referred to in Article 19 are conducted by a permanent body, which is to comprise at least one investigator able to perform the function of investigator-in-charge in the event of an accident or incident. This body is to be independent in its organisation, legal structure and decision-making from any infrastructure manager, railway undertaking, charging body, allocation body and notified body, and from any party whose interests could conflict with the tasks entrusted to the investigating body. It is furthermore to be functionally independent from the safety authority and from any regulator of railways.

                  2.

                  In its application, the Commission maintains that the specialised unit for investigation of accidents and incidents set up under the Ministry of Transport, is not independent from the infrastructure manager — the national company ‘Zhelezoputna infrastruktura’. More specifically, the unit lacks decision-making autonomy. In that regard, the Republic of Bulgaria has failed to comply with the provisions of Article 21(1) of Directive 2004/49/ЕC.

                  3.

                  In its application, the Commission also submits that the legislation of the Republic of Bulgaria does not ensure access to sufficient resources for the specialised unit to be able to carry out its functions independently, in accordance with Article 21(2) of Directive 2004/49/ЕC.

         (1)  Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive)
      OJ 2004, L 164, p. 44.


title: Case C-82/19: Reference for a preliminary ruling from the High Court (Ireland) made on 5 February 2019 — Minister for Justice and Equality v PI

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/13

      Reference for a preliminary ruling from the High Court (Ireland) made on 5 February 2019 — Minister for Justice and Equality v PI
      (Case C-82/19)
      (2019/C 122/15)
      Language of the case: English

         Referring court

      High Court (Ireland)

         Parties to the main proceedings

         Applicant: Minister for Justice and Equality

         Defendant: PI

         Questions referred

                  1.

                  Is the independence from the executive of a public prosecutor to be decided in accordance with his position under the relevant national legal system? If not what are the criteria according to which independence from the executive is to be decided?

                  2.

                  Is a public prosecutor who, in accordance with national law, is subject to a possible direction or instruction either directly or indirectly from a Ministry of Justice, sufficiently independent of the executive to be considered a judicial authority within the meaning of Article 6(1) of the Framework Decision (1)?

                  3.

                  If so, must the public prosecutor also be functionally independent of the executive and what are the criteria according to which functional independence is to be decided?

                  4.

                  If independent of the executive, is a public prosecutor who is confined to initiating and conducting investigations and assuring that such investigations are conducted objectively and lawfully, the issuing of indictments, executing judicial decisions and conducting the prosecution of criminal offences, and does not issue national warrants and may not perform judicial functions a ‘judicial authority’ for the purposes of Article 6(1) of the Framework Decision?

                  5.

                  Is the Public Prosecutor in Zwickau a judicial authority within the meaning of Article 6(1) of the Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States?

         (1)  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States (OJ 2002, L 190, p. 1).


title: Case T-134/17: Judgment of the General Court of 12 February 2019 — Hércules Club de Fútbol v Commission [Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a procedure for reviewing State aid — Refusal of access — Lis alibi pendens — Exception relating to protection of the purpose of inspections, investigations and audits — Exception relating to protection of the commercial interests of a third party — Obligation to conduct a specific and individual examination — Overriding public interest]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/15

      Judgment of the General Court of 12 February 2019 — Hércules Club de Fútbol v Commission
      (Case T-134/17) (1)

      (Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a procedure for reviewing State aid - Refusal of access - Lis alibi pendens - Exception relating to protection of the purpose of inspections, investigations and audits - Exception relating to protection of the commercial interests of a third party - Obligation to conduct a specific and individual examination - Overriding public interest)
      (2019/C 122/16)
      Language of the case: Spanish

         Parties

         Applicant: Hércules Club de Fútbol, SAD (Alicante, Spain) (represented by: S. Rating and Y. Martínez Mata, lawyers)

         Defendant: European Commission (represented by: J. Baquero Cruz, G. Luengo and P. Němečková, acting as Agents)

         Re:

      Action under Article 263 TFEU seeking annulment of Commission Decision C(2017) 736 final of 2 February 2017, refusing Hércules Club de Fútbol access to documents relating to the procedure for reviewing State aid SA.363872.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Hércules Club de Fútbol, SAD to pay the costs, including those relating to the application for interim measures.

         (1)  OJ C 144, 8.5.2017.


title: Case T-201/17: Judgment of the General Court of 12 February 2019 — Printeos v Commission [Non-contractual liability — Competition — Cartels — Decision finding infringement of Article 101 TFEU — Fines — Judgment annulling the decision in part — Reimbursement of the principal amount of the fine — Default interest — Sufficiently serious breach of a rule of law conferring rights on individuals — Causal link — Harm — Article 266 TFEU — Article 90(4)(a), second sentence, of Delegated Regulation (EU) No 1268/2012]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/15

      Judgment of the General Court of 12 February 2019 — Printeos v Commission
      (Case T-201/17) (1)

      (Non-contractual liability - Competition - Cartels - Decision finding infringement of Article 101 TFEU - Fines - Judgment annulling the decision in part - Reimbursement of the principal amount of the fine - Default interest - Sufficiently serious breach of a rule of law conferring rights on individuals - Causal link - Harm - Article 266 TFEU - Article 90(4)(a), second sentence, of Delegated Regulation (EU) No 1268/2012)
      (2019/C 122/17)
      Language of the case: Spanish

         Parties

         Applicant: Printeos, SA (Alcalá de Henares, Spain) (represented by: H. Brokelmann and P. Martínez-Lage Sobredo, lawyers)

         Defendant: European Commission (represented by: F. Dintilhac and F. Jimeno Fernández, acting as Agents)

         Re:

      Principally, application under Article 268 TFEU seeking compensation in respect of the harm suffered as a result of the Commission’s refusal to pay the applicant default interest on the principal amount of a fine which was reimbursed following the annulment of its Decision C(2014) 92 95 final of 10 December 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (AT.39780 — Envelopes), by the judgment of 13 December 2016, Printeos and Others v Commission (T-95/15, EU:T:2016:722); and, in the alternative, application under Article 263 TFEU seeking annulment of the Commission’s decision of 26 January 2017 refusing that reimbursement.

         Operative part of the judgment

                  1.

                     The European Union, represented by the European Commission, is required to pay compensation in respect of the damage suffered by Printeos, SA, on account of the failure to pay to that company the amount of EUR 184 592.95 due to it in respect of default interest, incurred during the period from 9 March 2015 to 1 February 2017, pursuant to the first paragraph of Article 266 TFEU, in enforcement of the judgment of 13 December 2016, Printeos and Others v Commission (T-95/15);

                  2.

                     The compensation referred to in paragraph 1 is to bear default interest, starting from the date of delivery of this judgment and continuing until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, plus 3.5 percentage points;

                  3.

                     The action is dismissed as to the remainder;

                  4.

                     The Commission is ordered to pay the costs.

         (1)  OJ C 168, 29.5.2017.


title: Case T-453/17: Judgment of the General Court of 12 February 2019 — TV v Council [Civil service — Probationary officials — Probationary period — Probation report — Opinion of the Reports Committee — Dismissal at the end of the probationary period — Work not adequate — Article 34 of the Staff Regulations — Manifest error of assessment — Duty to state reasons]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/16

      Judgment of the General Court of 12 February 2019 — TV v Council
      (Case T-453/17) (1)

      (Civil service - Probationary officials - Probationary period - Probation report - Opinion of the Reports Committee - Dismissal at the end of the probationary period - Work not adequate - Article 34 of the Staff Regulations - Manifest error of assessment - Duty to state reasons)
      (2019/C 122/18)
      Language of the case: French

         Parties

         Applicant: TV (represented by: L. Levi and A. Blot, lawyers)

         Defendant: Council of the European Union (represented by: M. Bauer and R. Meyer, acting as Agents)

         Re:

      Application pursuant to Article 270 TFEU seeking first, the annulment of the decision of the Council of 19 August 2016 dismissing the applicant at the end of his probationary period and the decision of the Council of 11 April 2017 rejecting the applicant’s complaint and, secondly, compensation for the non-material damage which the applicant claims to have suffered as a result of those decisions.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders TV to pay the costs.

         (1)  OJ C 347, 16.10.2017.


title: Case T-796/17: Judgment of the General Court of 14 February 2019 — Mouldpro v EUIPO — Wenz Kunststoff (MOULDPRO) [EU trade mark — Invalidity proceedings — EU word mark MOULDPRO — Absolute ground for invalidity — Bad faith — Article 59(1)(b) of Regulation (EU) 2017/1001 — Relative grounds for invalidity — Article 60(1)(b) and Article 8(3) of Regulation 2017/1001 — Article 60(1)(c) and Article 8(4) of Regulation 2017/1001]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/17

      Judgment of the General Court of 14 February 2019 — Mouldpro v EUIPO — Wenz Kunststoff (MOULDPRO)
      (Case T-796/17) (1)

      (EU trade mark - Invalidity proceedings - EU word mark MOULDPRO - Absolute ground for invalidity - Bad faith - Article 59(1)(b) of Regulation (EU) 2017/1001 - Relative grounds for invalidity - Article 60(1)(b) and Article 8(3) of Regulation 2017/1001 - Article 60(1)(c) and Article 8(4) of Regulation 2017/1001)
      (2019/C 122/19)
      Language of the case: English

         Parties

         Applicant: Mouldpro ApS (Ballerup, Denmark) (represented by: W Rebernik, lawyer)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Wenz Kunststoff GmbH & Co. KG (Lüdenscheid, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 16 October 2017 (Case R 2153/2015-4), relating to invalidity proceedings between Mouldpro and Wenz Kunststoff.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Mouldpro ApS to pay the costs.

         (1)  OJ C 32, 29.1.2018.


title: Case T-823/17: Judgment of the General Court of 13 February 2019 — Etnia Dreams v EUIPO — Poisson (Etnik) [EU trade mark — Opposition proceedings — Application for EU word mark Etnik — Earlier EU trade mark — Relative ground for refusal — Failure to identify the earlier trade mark in the notice of opposition — Principle of sound administration — Right to an effective remedy — Equality of arms — Principle of good faith — Legitimate expectations]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/18

      Judgment of the General Court of 13 February 2019 — Etnia Dreams v EUIPO — Poisson (Etnik)
      (Case T-823/17) (1)

      (EU trade mark - Opposition proceedings - Application for EU word mark Etnik - Earlier EU trade mark - Relative ground for refusal - Failure to identify the earlier trade mark in the notice of opposition - Principle of sound administration - Right to an effective remedy - Equality of arms - Principle of good faith - Legitimate expectations)
      (2019/C 122/20)
      Language of the case: Spanish

         Parties

         Applicant: Etnia Dreams, SL (Valencia, Spain) (represented by: P. Gago Comes, lawyer)

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

         Other party to the proceedings before the Board of Appeal of EUIPO: Serge Poisson (Limal, Belgium)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 19 October 2017 (Case R 880/2017-4) relating to opposition proceedings between Etnia Dreams and Mr Poisson.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Etnia Dreams SL to pay the costs.

         (1)  OJ C 72, 26.2.2018.


title: Case T-231/18: Judgment of the General Court of 12 February 2019 — Et Djili Soy Dzhihangir Ibryam v EUIPO — Lupu (Djili) [EU trade mark — Opposition proceedings — Application for the EU figurative mark Djili — Earlier national word mark GILLY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/18

      Judgment of the General Court of 12 February 2019 — Et Djili Soy Dzhihangir Ibryam v EUIPO — Lupu (Djili)
      (Case T-231/18) (1)

      (EU trade mark - Opposition proceedings - Application for the EU figurative mark Djili - Earlier national word mark GILLY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001)
      (2019/C 122/21)
      Language of the case: English

         Parties

         Applicant: Et Djili Soy Dzhihangir Ibryam (Dulovo, Bulgaria) (represented by C.-R. Romițan, lawyer)

         Defendant: European Union Intellectual Property Office (represented initially by D. Gája and D. Walicka, and subsequently by D. Gája and H. O’Neill, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO: Victor Lupu (Bucharest, Romania)

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 31 January 2018 (Case R 1902/2017-5) relating to opposition proceedings between Mr Lupu and Et Djili Soy Dzhihangir Ibryam.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Et Djili Soy Dzhihangir Ibryam to pay the costs.

         (1)  OJ C 200, 11.6.2018.


title: Case T-278/18: Judgment of the General Court of 13 February 2019 — Nemius Group v EUIPO (DENTALDISK) [EU trade mark — Application for EU word mark DENTALDISK — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EU) 2017/1001]

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/19

      Judgment of the General Court of 13 February 2019 — Nemius Group v EUIPO (DENTALDISK)
      (Case T-278/18) (1)

      (EU trade mark - Application for EU word mark DENTALDISK - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EU) 2017/1001)
      (2019/C 122/22)
      Language of the case: German

         Parties

         Applicant: Nemius Group GmbH (Obertshausen, Germany) (represented by: C. Bildhäuser, lawyer)

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

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 30 January 2018 (Case R 741/2017-5) concerning an application for registration of the word sign DENTALDISK as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                     Dismisses the action;

                  2.

                     Orders Nemius Group GmbH to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

         (1)  OJ C 221, 25.6.2018.


title: Case T-63/19: Action brought on 31 January 2019 — Rot Front v EUIPO — Kondyterska korporatsiia ‘Roshen’ (РОШЕН)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/21

      Action brought on 31 January 2019 — Rot Front v EUIPO — Kondyterska korporatsiia ‘Roshen’ (РОШЕН)
      (Case T-63/19)
      (2019/C 122/24)
      Language of the case: English

         Parties

         Applicant: Rot Front OAO (Moscow, Russia) (represented by: M. Geitz and J. Stock, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’ (Kiev, Ukraine)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: International registration designating the European Union in respect of the figurative mark РОШЕН — International registration designating the European Union No 11 233 784

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 16 November 2018 in Case R 1872/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant to pay the costs of the proceedings.

         Pleas in law

                  —

                  Infringement of Articles 94(1), 47(5) and 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-66/19: Action brought on 4 February 2019 — Vlaamse Gemeenschap and Vlaams Gewest v Parliament and Council

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/22

      Action brought on 4 February 2019 — Vlaamse Gemeenschap and Vlaams Gewest v Parliament and Council
      (Case T-66/19)
      (2019/C 122/25)
      Language of the case: Dutch

         Parties

         Applicants: Vlaamse Gemeenschap and Vlaams Gewest (represented by: T. Eyskens, N. Nonbled and P. Geysens, lawyers)

         Defendants: European Parliament and Council of the European Union

         Form of order sought

      The applicants claim that the General Court should:

                  —

                  declare the action admissible and well founded;

                  —

                  annul Regulation (EU) 2018/1724;

                  —

                  order the European Parliament and the Council to pay the costs.

         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 infringement of Article 4(2) TEU.
                  The language obligations imposed by Regulation (EU) 2018/1724 (1) are contrary to domestic language legislation in the field of administrative matters, as constitutionally protected in Belgium. That domestic language regime forms part of the political and constitutional foundation of the Belgian State and is part of the identity of the Belgian State. Regulation (EU) 2018/1724 is therefore contrary to Article 4(2) TEU, according to which the Union is to respect the national identities of Member States.

                  2.

                  Second plea in law, alleging infringement of Article 5(1) and (4) TEU and of Protocol (No 2) on the application of the principles of subsidiarity and proportionality.
                  The linguistic obligations imposed by Regulation (EU) 2018/1724 are not in accordance with the principle of conferral (1) or with the proportionality principle (2).

                              (1)

                              There is not a single provision of the Treaty which confers on the Union the competence to govern the use of languages within and by public administrations in the Member States.

                              (2)

                              The obligation to make a translation available to the public ‘in an official language of the Union broadly understood by the largest possible number of cross-border users’ (Article 12(1) of Regulation (EU) 2018/1724) is not in accordance with and contains no reasons in respect of the proportionality principle. The language requirements that are imposed by Regulation (EU) 2018/1724 are disproportionate in view of the intended objective.

                  3.

                  Third plea in law, alleging infringement of Article 3(3) TEU, Article 22 of the Charter of Fundamental Rights of the European Union, and breach of the general principle of non-discrimination on the basis of language and of the principle of equality between the Member States.
                  Regulation (EU) 2018/1724 infringes Article 3(3) TEU, Article 22 of the Charter of Fundamental Rights of the European Union, and breaches the general principle of non-discrimination on the basis of language and the principle of equality between the Member States in so far as it discourages citizens who wish to establish themselves in a Member State which is not their own Member State from learning the official language or one of the official languages of that Member State, and also in so far as it imposes the generalisation of the use of one unique working language, which in that way becomes the de facto European language of public services and administrations.

                  4.

                  Fourth plea in law, alleging breach of the principles of legal certainty and of normative clarity and infringement of point I.2 of the Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on ‘Better Law-Making’.
                  The language obligations imposed on the Member States by Regulation (EU) 2018/1724 are manifestly contrary to the principles of clarity, precision, foreseeability and coherence. The translation obligations imposed by Regulation (EU) 2018/1724 are unclear, imprecise, unforeseeable and incoherent as regards the language into which it is necessary to translate.

                  5.

                  Fifth plea in law, alleging infringement of Article 291(2) TFEU.
                  The implementation of the translation obligations imposed by Regulation (EU) 2018/1724 requires that the language into which it is necessary to translate be stated in a certain and express manner. The institutional arrangement of Regulation (EU) 2018/1724 is, however, unclear in that respect. Regulation (EU) 2018/1724 is then also not in accordance with the delicate institutional balance provided for in Article 291 TFEU and Regulation (EU) No 182/2011 (2) (the ‘Comitology Regulation’), given that the arrangement effectively allows the European Commission to bypass the procedure laid down in Regulation (EU) No 182/2011 and adopt legislation in the informal way.

         (1)  Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October establishing a single digital gateway to provide access to information, to procedures and to assistance and problem-solving services and amending Regulation (EU) No 1024/2012 (OJ 2018 L 295, p. 1).

         (2)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).


title: Case T-70/19: Action brought on 6 February 2019 — Nosio v EUIPO — Passi (LA PASSIATA)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/23

      Action brought on 6 February 2019 — Nosio v EUIPO — Passi (LA PASSIATA)
      (Case T-70/19)
      (2019/C 122/26)
      Language of the case: English

         Parties

         Applicant: Nosio SpA (Mezzocorona, Italy) (represented by: J. Graffer and A. Ottolini, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Passi AG (Rothrist, Switzerland)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union word mark LA PASSIATA — Application for registration No 14 593 131

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 November 2018 in Case R 928/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the adverse parties to bear the costs of the present proceedings.

         Plea in law

                  —

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


title: Case T-73/19: Action brought on 7 February 2019 — Bergslagernas Järnvaru v EUIPO — Scheppach Fabrikation von Holzbearbeitungsmaschinen (Wood splitting tools)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/25

      Action brought on 7 February 2019 — Bergslagernas Järnvaru v EUIPO — Scheppach Fabrikation von Holzbearbeitungsmaschinen (Wood splitting tools)
      (Case T-73/19)
      (2019/C 122/28)
      Language of the case: English

         Parties

         Applicant: Bergslagernas Järnvaruaktiebolag (Saltsjö-Boo, Sweden) (represented by: S. Kirschstein-Freund, V. Dalichau and B. Breitinger, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Scheppach Fabrikation von Holzbearbeitungsmaschinen GmbH (Ichenhausen, Germany)

         Details of the proceedings before EUIPO

         Proprietor of the design at issue: Applicant before the General Court

         Design at issue: European Union design No 1 289 243-0001

         Contested decision: Decision of the Third Board of Appeal of EUIPO of 23 November 2018 in Case R 1455/2018-3

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  alternatively, amend the contested decision and rule that the appeal is justified;

                  —

                  order EUIPO to pay the costs of the appeal proceedings and of the proceedings before the Court.

         Pleas in law

                  —

                  Infringement of Article 62 of Council Regulation (EC) No 6/2002;

                  —

                  Infringement of Article 6(1) of Council Regulation (EC) No 6/2002.


title: Case T-76/19: Action brought on 7 February 2019 — Pontinova v EUIPO — Ponti & Partners (pontinova)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/26

      Action brought on 7 February 2019 — Pontinova v EUIPO — Ponti & Partners (pontinova)
      (Case T-76/19)
      (2019/C 122/29)
      Language of the case: English

         Parties

         Applicant: Pontinova AG (Zürich, Switzerland) (represented by: K. Loth, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Ponti & Partners, SLP (Barcelona, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union figurative mark pontinova — Application for registration No 15 878 085

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 27 November 2018 in Case R 566/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  award the costs in favour of the applicant.

         Plea in law

                  —

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


title: Case T-78/19: Action brought on 8 February 2019 — Lidl Stiftung v EUIPO — Plásticos Hidrosolubles (green cycles)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/27

      Action brought on 8 February 2019 — Lidl Stiftung v EUIPO — Plásticos Hidrosolubles (green cycles)
      (Case T-78/19)
      (2019/C 122/30)
      Language of the case: English

         Parties

         Applicant: Lidl Stiftung & Co. KG (Neckarsulm, Germany) (represented by: A. Marx and K. Bonhagen, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Plásticos Hidrosolubles, SL (Rafelbuñol, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union figurative mark green cycles in colours blue, grey and white — European Union trade mark No 8 807 265

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 29 November 2018 in Case R 778/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant to pay the costs of the proceedings;

                  —

                  order Plásticos Hidrosolubles, SL to pay the costs of the proceedings before EUIPO.

         Plea in law

                  —

                  Infringement of Article 18(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council in combination with Article 10(3) and (4) of Delegated Regulation 2018/625.


title: Case T-80/19: Action brought on 12 February 2019 — Dekoback v EUIPO — DecoPac (DECOPAC)

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/27

      Action brought on 12 February 2019 — Dekoback v EUIPO — DecoPac (DECOPAC)
      (Case T-80/19)
      (2019/C 122/31)
      Language in which the application was lodged: German

         Parties

         Applicant: Dekoback GmbH (Helmstadt-Bargen, Germany) (represented by: V. von Moers, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: DecoPac, Inc. (Anoka, Minnesota, United States)

         Details of the proceedings before EUIPO

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

         Mark at issue: EU word mark DECOPAC — EU trade mark No 160 747

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 26 November 2018 in Case R 1795/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision and declare invalid, in its entirety, the trade mark DECOPAC registered for the other party to the proceedings before the Board of Appeal.

         Pleas in law

                  —

                  No confidentiality of business data;

                  —

                  Infringement of the right to be heard;

                  —

                  No submission of invoices to any significant extent;

                  —

                  No use of the trade mark as the other party’s own brand;

                  —

                  Sale also to consumers was planned but did not take place;

                  —

                  A distinction between edible and inedible decorations is necessary.


title: Case T-131/17: Order of the General Court of 6 February 2019 — Argus Security Projects v EEAS

text:
               1.4.2019

               EN

               Official Journal of the European Union

               C 122/32

      Order of the General Court of 6 February 2019 — Argus Security Projects v EEAS
      (Case T-131/17) (1)

      (2019/C 122/37)
      Language of the case: French
      The President of the Ninth Chamber has ordered that the case be removed from the register.

         (1)  OJ C 129, 24.4.2017.


title: Joined Cases C-116/16 and C-117/16: Judgment of the Court (Grand Chamber) of 26 February 2019 (requests for a preliminary ruling from the Østre Landsret — Denmark) — Skatteministeriet v T Danmark (C-116/16), Y Denmark Aps (C-117/16) (Reference for a preliminary ruling — Approximation of laws — Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States — Directive 90/435/EEC — Exemption of the profits distributed by companies of a Member State to companies of other Member States — Beneficial owner of the distributed profits — Abuse of rights — Company established in a Member State and paying to an associated company established in another Member State dividends all or almost all of which are then transferred outside the European Union — Subsidiary subject to an obligation to withhold tax on the profits at source)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/7

      Judgment of the Court (Grand Chamber) of 26 February 2019 (requests for a preliminary ruling from the Østre Landsret — Denmark) — Skatteministeriet v T Danmark (C-116/16), Y Denmark Aps (C-117/16)
      (Joined Cases C-116/16 and C-117/16) (1)

      (Reference for a preliminary ruling - Approximation of laws - Common system of taxation applicable in the case of parent companies and subsidiaries of different Member States - Directive 90/435/EEC - Exemption of the profits distributed by companies of a Member State to companies of other Member States - Beneficial owner of the distributed profits - Abuse of rights - Company established in a Member State and paying to an associated company established in another Member State dividends all or almost all of which are then transferred outside the European Union - Subsidiary subject to an obligation to withhold tax on the profits at source)
      (2019/C 139/04)
      Language of the case: Danish

         Referring court

      Østre Landsret

         Parties to the main proceedings

         Applicant: Skatteministeriet

         Defendants: T Danmark (C-116/16), Y Denmark Aps (C-117/16)

         Operative part of the judgment

                  1.

                  Cases C-116/16 and C-117/16 are joined for the purposes of the judgment.

                  2.

                  The general principle of EU law that EU law cannot be relied on for abusive or fraudulent ends must be interpreted as meaning that, where there is a fraudulent or abusive practice, the national authorities and courts are to refuse a taxpayer the exemption from withholding tax on profits distributed by a subsidiary to its parent company, provided for in Article 5 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, as amended by Council Directive 2003/123/EC of 22 December 2003, even if there are no domestic or agreement-based provisions providing for such a refusal.

                  3.

                  Proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. The presence of a certain number of indications may demonstrate that there is an abuse of rights, in so far as those indications are objective and consistent. Such indications can include, in particular, the existence of conduit companies which are without economic justification and the purely formal nature of the structure of the group of companies, the financial arrangements and the loans.

                  4.

                  In order to refuse to accord a company the status of beneficial owner of dividends, or to establish the existence of an abuse of rights, a national authority is not required to identify the entity or entities which it regards as being the beneficial owner(s) of those dividends.

                  5.

                  In a situation where the system, laid down by Directive 90/435, as amended by Directive 2003/123, of exemption from withholding tax on dividends paid by a company resident in a Member State to a company resident in another Member State is not applicable because there is found to be fraud or abuse, within the meaning of Article 1(2) of that directive, application of the freedoms enshrined in the FEU Treaty cannot be relied on in order to call into question the legislation of the first Member State governing the taxation of those dividends.

         (1)  OJ C 270, 25.7.2016.


title: Case C-465/16 P: Judgment of the Court (Third Chamber) of 28 February 2019 — Council of the European Union v Growth Energy, Renewable Fuels Association, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (Appeal — Dumping — Implementing Regulation (EU) No 157/2013 — Imports of bioethanol originating in the United States of America — Definitive anti-dumping duty — Country-wide dumping margin — Actions for annulment — Associations representing non-exporting producers and traders/blenders — Locus standi — Direct concern — Individual concern)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/8

      Judgment of the Court (Third Chamber) of 28 February 2019 — Council of the European Union v Growth Energy, Renewable Fuels Association, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol
      (Case C-465/16 P) (1)

      (Appeal - Dumping - Implementing Regulation (EU) No 157/2013 - Imports of bioethanol originating in the United States of America - Definitive anti-dumping duty - Country-wide dumping margin - Actions for annulment - Associations representing non-exporting producers and traders/blenders - Locus standi - Direct concern - Individual concern)
      (2019/C 139/05)
      Language of the case: English

         Parties

         Appellant: Council of the European Union (represented by: S. Boelaert, Agent, and N. Tuominen, avocată)

         Other parties to the proceedings: Growth Energy, Renewable Fuels Association (represented by: P. Vander Schueren, advocaat, and N. Mizulin and M. Peristeraki, avocats), European Commission (represented by: T. Maxian Rusche and M. França, Agents), ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (represented by: O. Prost and A. Massot, avocats)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 9 June 2016, Growth Energy and Renewable Fuels Association v Council (T-276/13, EU:T:2016:340), except inasmuch as it dismissed the action brought by Growth Energy and Renewable Fuels Association in their own right as interested parties in the proceedings;

                  2.

                  Dismisses the action for annulment of Growth Energy and Renewable Fuels Association as inadmissible in so far as they brought that action in their capacity as representatives of the interests of the sampled US bioethanol producers;

                  3.

                  Refers the case back to the General Court of the European Union for it to rule on the action for annulment of Growth Energy and Renewable Fuels Association in so far as they brought that action in their capacity as representatives of the interests of the traders/blenders Murex and CHS;

                  4.

                  Reserves the costs.

         (1)  OJ C 402, 31.10.2016.


title: Case C-466/16 P: Judgment of the Court (Third Chamber) of 28 February 2019 — Council of the European Union v Marquis Energy LLC, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (Appeal — Dumping — Implementing Regulation (EU) No 157/2013 — Imports of bioethanol originating in the United States of America — Definitive anti-dumping duty — Country-wide dumping margin — Actions for annulment — Non-exporting producer — Locus standi — Direct concern)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/9

      Judgment of the Court (Third Chamber) of 28 February 2019 — Council of the European Union v Marquis Energy LLC, European Commission, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol
      (Case C-466/16 P) (1)

      (Appeal - Dumping - Implementing Regulation (EU) No 157/2013 - Imports of bioethanol originating in the United States of America - Definitive anti-dumping duty - Country-wide dumping margin - Actions for annulment - Non-exporting producer - Locus standi - Direct concern)
      (2019/C 139/06)
      Language of the case: English

         Parties

         Appellant: Council of the European Union (represented by: S. Boelaert, Agent, and N. Tuominen, avocată)

         Other parties to the proceedings: Marquis Energy LLC (represented by: P. Vander Schueren, advocaat, and N. Mizulin and M. Peristeraki, avocats), European Commission (represented by: T. Maxian Rusche and M. França, Agents), ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (represented by: O. Prost and A. Massot, avocats)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 9 June 2016, Marquis Energy v Council (T-277/13, not published, EU:T:2016:343);

                  2.

                  Dismisses the action for annulment brought by Marquis Energy LLC as inadmissible;

                  3.

                  Orders Marquis Energy LLC to bear its own costs and to pay those incurred by the Council of the European Union both in relation to the proceedings at first instance and the appeal;

                  4.

                  Orders the European Commission to bear its own costs both in the proceedings at first instance and on appeal.

         (1)  OJ C 402, 31.10.2016.


title: Case C-135/17: Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — X GmbH v Finanzamt Stuttgart — Körperschaften (Reference for a preliminary ruling — Free movement of capital — Movement of capital between Member States and third countries — Standstill clause — National legislation of a Member State regarding controlled companies established in third countries — Amendment of that legislation, followed by the reintroduction of the earlier legislation — Income of a company established in a third country derived from the holding of debts owed by a company established in a Member State — Incorporation of that income into the tax base of a taxable person resident for tax purposes in a Member State — Restriction on the free movement of capital — Justification)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/10

      Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — X GmbH v Finanzamt Stuttgart — Körperschaften
      (Case C-135/17) (1)

      (Reference for a preliminary ruling - Free movement of capital - Movement of capital between Member States and third countries - Standstill clause - National legislation of a Member State regarding controlled companies established in third countries - Amendment of that legislation, followed by the reintroduction of the earlier legislation - Income of a company established in a third country derived from the holding of debts owed by a company established in a Member State - Incorporation of that income into the tax base of a taxable person resident for tax purposes in a Member State - Restriction on the free movement of capital - Justification)
      (2019/C 139/07)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant: X GmbH

         Defendant: Finanzamt Stuttgart — Körperschaften

         Operative part of the judgment

                  1.

                  The standstill clause in Article 64(1) TFEU must be interpreted as meaning that Article 63(1) TFEU does not prejudice the application of a restriction on movements of capital to or from third countries involving direct investment which existed, in its essence, on 31 December 1993 in the legislation of a Member State, although the scope of the restriction was extended, after that date, to include shareholdings which do not involve direct investment.

                  2.

                  The standstill clause in Article 64(1) TFEU must be interpreted as meaning that the prohibition in Article 63(1) TFEU is applicable to a restriction on movements of capital to or from third countries involving direct investment where the national tax legislation laying down that restriction was substantially amended, after 31 December 1993, by means of the adoption of a law which entered into force, but which was replaced, before ever being applied in practice, by legislation essentially identical to that applicable on 31 December 1993, unless the applicability of that law was deferred in accordance with national law, so that, despite its entry into force, it was not applicable to cross-border movements of capital that are covered by Article 64(1) TFEU, which it is for the referring court to determine.

                  3.

                  Article 63(1) TFEU must be interpreted as not precluding legislation of a Member State under which income obtained by a company established in a third country that does not come from an activity of that company pursued on its own account, such as income classified as ‘controlled-company income from invested capital’ within the meaning of that legislation, is incorporated, pro rata to the amount of the shareholding, into the tax base of a taxable person residing in that Member State where that taxable person holds at least 1 % of the shares in that company and that income is taxed, in that third country, at a lower rate than the rate prevailing in the Member State concerned, unless there is a legal framework providing, in particular, treaty obligations that empower the national tax authorities of that Member State to verify, if necessary, the accuracy of information provided in respect of that company with a view to demonstrating that that taxable person’s shareholding in that company is not the result of an artificial scheme.

         (1)  OJ C 221, 10.7.2017.


title: Case C-388/17: Judgment of the Court (Ninth Chamber) of 28 February 2019 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Konkurrensverket v SJ AB (Reference for a preliminary ruling — Public procurement procedures in the transport sector — Directive 2004/17/EC — Scope — Article 5 — Activities relating to the provision or operation of networks to provide a service to the public in the field of transport by railways — Award, by a public national railway undertaking providing transport services, of cleaning service contracts for trains belonging to that undertaking — No prior publication)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/11

      Judgment of the Court (Ninth Chamber) of 28 February 2019 (request for a preliminary ruling from the Högsta förvaltningsdomstolen — Sweden) — Konkurrensverket v SJ AB
      (Case C-388/17) (1)

      (Reference for a preliminary ruling - Public procurement procedures in the transport sector - Directive 2004/17/EC - Scope - Article 5 - Activities relating to the provision or operation of networks to provide a service to the public in the field of transport by railways - Award, by a public national railway undertaking providing transport services, of cleaning service contracts for trains belonging to that undertaking - No prior publication)
      (2019/C 139/08)
      Language of the case: Swedish

         Referring court

      Högsta förvaltningsdomstolen

         Parties to the main proceedings

         Applicant: Konkurrensverket

         Defendant: SJ AB

         Operative part of the judgment

                  1.

                  The second subparagraph of Article 5(1) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors must be interpreted as meaning that there is a network of rail transport services, within the meaning of that provision, where transport services are provided, in application of national legislation transposing Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area, on a railway infrastructure managed by a national authority which allocates infrastructure capacity even if that authority is required to meet the requests of railway undertakings provided that the limits of that capacity are not reached;

                  2.

                  The first subparagraph of Article 5(1) of Directive 2004/17 must be interpreted as meaning that the activity pursued by a railway undertaking, which consists of providing transport services to the public in exercising a right of use of the railway network, is an ‘operation of networks’ for the purposes of that directive.

         (1)  OJ C 293, 4.9.2017.


title: Case C-497/17: Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Cour administrative d’appel de Versailles — France) — Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation, Bionoor, Ecocert France, Institut national de l’origine et de la qualité (INAO) (Reference for a preliminary ruling — Article 13 TFEU — Animal welfare — Regulation (EC) No 1099/2009 — Protection of animals at the time of killing — Particular methods of slaughter prescribed by religious rites — Regulation (EC) No 834/2007 — Articles 3 and 14(1)(b)(viii) — Compatibility with organic production — Regulation (EC) No 889/2008 — First paragraph of Article 57 — Organic production logo of the European Union)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/12

      Judgment of the Court (Grand Chamber) of 26 February 2019 (request for a preliminary ruling from the Cour administrative d’appel de Versailles — France) — Oeuvre d’assistance aux bêtes d’abattoirs (OABA) v Ministre de l’Agriculture et de l’Alimentation, Bionoor, Ecocert France, Institut national de l’origine et de la qualité (INAO)
      (Case C-497/17) (1)

      (Reference for a preliminary ruling - Article 13 TFEU - Animal welfare - Regulation (EC) No 1099/2009 - Protection of animals at the time of killing - Particular methods of slaughter prescribed by religious rites - Regulation (EC) No 834/2007 - Articles 3 and 14(1)(b)(viii) - Compatibility with organic production - Regulation (EC) No 889/2008 - First paragraph of Article 57 - Organic production logo of the European Union)
      (2019/C 139/09)
      Language of the case: French

         Referring court

      Cour administrative d’appel de Versailles

         Parties to the main proceedings

         Applicant: Oeuvre d’assistance aux bêtes d’abattoirs (OABA)

         Defendants: Ministre de l’Agriculture et de l’Alimentation, Bionoor, Ecocert France, Institut national de l’origine et de la qualité (INAO)

         Operative part of the judgment

      Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, in particular Article 3 and Article 14(1)(b)(viii) thereof, read in the light of Article 13 TFEU, must be interpreted as not authorising the placing of the organic production logo of the European Union, referred to in the first paragraph of Article 57 of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Regulation No 834/2007, as amended by Regulation (EU) No 271/2010 of 24 March 2010, on products derived from animals which have been slaughtered in accordance with religious rites without first being stunned, where such slaughter is conducted in accordance with the requirements laid down by Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, in particular Article 4(4) thereof.

         (1)  OJ C 347, 16.10.2017.