title: Case C-594/18 P: Appeal brought on 21 September 2018 by the Republic of Austria against the judgment of the General Court (Fifth Chamber) delivered on 12 July 2018 in Case T-356/15, Republic of Austria v European Commission

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/22

      Appeal brought on 21 September 2018 by the Republic of Austria against the judgment of the General Court (Fifth Chamber) delivered on 12 July 2018 in Case T-356/15, Republic of Austria v European Commission
      (Case C-594/18 P)
      (2018/C 427/30)
      Language of the case: German

         Parties

         Appellant: Republic of Austria (represented by: G. Hesse, acting as Agent)

         Other parties to the proceedings: European Commission, Grand Duchy of Luxembourg, Czech Republic, French Republic, Hungary, Republic of Poland, Romania, Slovak Republic, United Kingdom of Great Britain and Northern Ireland

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside in full the judgment of the General Court of 12 July 2018 in Case T-356/15, Republic of Austria v European Commission;

                  —

                  grant, in its entirety, the application at first instance for annulment of Commission Decision (EU) 2015/658 of 8 October 2014 on the aid measure SA.34947 (2013/C) (ex 2013/N) which the United Kingdom is planning to implement for support to the Hinkley Point C nuclear power station; (1)

                  —

                  order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      The appellant relies on five grounds of appeal.

         First ground of appeal, alleging that there is no objective in the common interest of the European Union

      The judgment under appeal appears to be unlawful inasmuch as, contrary to the position adopted by the General Court, the construction of a new nuclear power station does not constitute an objective in the interest of the European Union; consequently the fourth plea in law, in conjunction with the fifth part of the ninth plea in law, in which it was claimed that the promotion of nuclear energy does not correspond to a common interest, which is necessary for approval of aid in accordance with Article 107(3)(c) TFEU, should not have been rejected.

         Second ground of appeal, alleging misapplication of Article 107(3)(c) TFEU

      The aid measures were wrongly found to be compliant with Article 107(3)(c) TFEU. The judgment under appeal incorrectly defines the relevant economic area within the meaning of Article 107(3)(c) TFEU and wrongly omits to assess the failure of that market. The first plea in law and the first and second parts of the ninth plea in law, which related to the definition of the market and the market failure, should therefore not have been rejected.

         Third ground of appeal, alleging insufficient assessment of proportionality

      The judgment under appeal of the General Court wrongly endorsed the insufficient assessment of proportionality carried out by the European Commission. The European Commission’s considerations on the proportionality of the aid are neither correct nor comprehensible, with the result that the decision is invalid; in that respect, the sixth plea in law, the second complaint of the third part of the ninth plea in law and the sixth part of the ninth plea in law, by which, in essence, the insufficient nature of the review of the proportionality of the measures was pointed out, should not have been rejected.

         Fourth ground of appeal, alleging prohibited operating aid

      The General Court failed to recognise that the measures envisaged in support of Hinkley Point C constitute prohibited operating aid. Consequently, the third plea in law and the first complaint of the third part of the ninth plea in law, in which it was claimed that the United Kingdom’s measures should be treated as equivalent to prohibited operating aid, ought not to have been rejected.

         Fifth ground of appeal, alleging insufficient determination of the aid elements and infringement of the Guarantee Notice

      Lastly, the General Court, first, insufficiently determined the aid elements and, second, failed to take into account an infringement of the Guarantee Notice. In such circumstances, the fifth plea in law, the eighth plea in law and the fourth part of the ninth plea in law, which related to the inadequate determination of the aid elements and the infringement of the Guarantee Notice, should not have been rejected.

         (1)  OJ 2015 L 109, p. 44.


title: Case T-884/16: Judgment of the General Court of 9 October 2018 — Multiconnect v Commission (Action for annulment — Competition — Concentrations — Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany — Acquisition of E-plus by Telefónica Deutschland — Decision declaring the concentration to be compatible with the internal market and the EEA Agreement — Implementation of the non-MNO component of the Final Commitments — Measures against which no action may be brought — Inadmissibility)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/46

      Judgment of the General Court of 9 October 2018 — Multiconnect v Commission
      (Case T-884/16) (1)

      (Action for annulment - Competition - Concentrations - Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany - Acquisition of E-plus by Telefónica Deutschland - Decision declaring the concentration to be compatible with the internal market and the EEA Agreement - Implementation of the non-MNO component of the Final Commitments - Measures against which no action may be brought - Inadmissibility)
      (2018/C 427/58)
      Language of the case: German

         Parties

         Applicant: Multiconnect GmbH (Munich, Germany) (represented by: J.-M. Schultze, S. Pautke and C. Ehlenz, lawyers)

         Defendant: European Commission (represented by: N. Khan, M. Farley and C. Vollrath, acting as Agents)

         Re:

      Action based on Article 263 TFEU and seeking, inter alia, annulment of the purported decisions of the Commission contained in the emails of 11 and 29 October 2016 relating to the implementation of the non-MNO remedy provided for in the Final Commitments made obligatory by Commission Decision C(2014) 4443 final of 2 July 2014 declaring a concentration to be compatible with the internal market and the EEA Agreement, subject to compliance with certain commitments (Case COMP/M.7018 Telefónica Deutschland/E-plus).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Declares that there is no need to adjudicate on the applications for leave to intervene submitted by Telefónica Deutschland Holding AG and by Drillisch AG;

                  3.

                  Orders Multiconnect GmbH to bear its own costs and to pay the costs incurred by the European Commission;

                  4.

                  Orders Telefónica Deutschland Holding to bear its own costs relating to the application for leave to intervene;

                  5.

                  Orders Drillisch to bear its own costs relating to the application for leave to intervene.

         (1)  OJ C 38, 6.2.2017.


title: Case T-192/17: Order of the General Court of 20 September 2018 — RZ v EESC and Committee of the Regions (Civil service — Officials — [confidential] — Action for annulment and damages — No act adversely affecting an official)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/66

      Order of the General Court of 20 September 2018 — RZ v EESC and Committee of the Regions
      (Case T-192/17) (1)

      (Civil service - Officials - [confidential] (2) - Action for annulment and damages - No act adversely affecting an official)
      (2018/C 427/88)
      Language of the case: French

         Parties

         Applicant: RZ (represented by: M.-A. Lucas, lawyer)

         Defendants: European Economic and Social Committee (represented by: M. Pascua Mateo, K. Gambino and L. Camarena Januzec, acting as Agents, and M. Troncoso Ferrer and F.-M. Hislaire, lawyers), Committee of the Regions (represented by: S. Bachotet, M. Antonini and M. Esparrago Arzadun, acting as Agents, and B. Wägenbaur, lawyer)

         Re:

      Application under Article 270 essentially seeking, first, annulment of the decision of 11 May 2016 by which the Secretary General of the Committee of the Regions [confidential], a joint service between the Committee of the Regions and the European Economic Social Committee (EESC), [confidential] and second, compensation for the harm the applicant allegedly suffered as a result of those decisions.

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  RZ is ordered to pay the costs.

         (1)  OJ C 178, 6.6.2017.

         (2)  Confidential information redacted.


title: Case C-596/18 P: Appeal brought on 21 September 2018 by LS Cable & System Ltd against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-439/14: LS Cable & System v Commission

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/23

      Appeal brought on 21 September 2018 by LS Cable & System Ltd against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-439/14: LS Cable & System v Commission
      (Case C-596/18 P)
      (2018/C 427/31)
      Language of the case: English

         Parties

         Appellant: LS Cable & System Ltd (represented by: S. Spinks, S. Kinsella, Solicitors)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the contested judgment;

                  —

                  rule definitively, in accordance with Article 61 of the Statute of the Court of Justice and, on that basis, annul the decision (1) in so far as it concerns appellant and, in the exercise of its unlimited jurisdiction, reduce the fine imposed on appellant;

                  —

                  should the Court of Justice not rule on the present case, reserve costs and refer the case back to the General Court for re-examination, in accordance with the Court’s ruling;

                  —

                  order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice, pursuant to Article 184 of the Rules of Procedure.

         Pleas in law and main arguments

                  1.

                  The contested judgment erred in law in manifestly distorting the clear sense of the evidence regarding appellant’s bids for EEA projects.

                  2.

                  The contested judgment erred in law in holding that appellant adhered to the home territory agreement resulting from its representative’s attendance at a meeting and that, therefore, the public distancing case-law applied to it.

                  3.

                  The contested judgment erred in law in holding that appellant could rebut the presumption of adherence to the home territory principle resulting from its representative’s attendance only by ‘publicly distancing’ itself at the meeting.

         (1)  Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement.


title: Case T-885/16: Judgment of the General Court of 9 October 2018 — Mass Response Service v Commission (Action for annulment — Competition — Concentrations — Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany — Acquisition of E-plus by Telefónica Deutschland — Decision declaring the concentration to be compatible with the internal market and the EEA Agreement — Implementation of the non-MNO component of the Final Commitments — Acts against which no action may be brought — Inadmissibility)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/47

      Judgment of the General Court of 9 October 2018 — Mass Response Service v Commission
      (Case T-885/16) (1)

      (Action for annulment - Competition - Concentrations - Retail market for mobile telecommunications services and market for wholesale access and call origination in Germany - Acquisition of E-plus by Telefónica Deutschland - Decision declaring the concentration to be compatible with the internal market and the EEA Agreement - Implementation of the non-MNO component of the Final Commitments - Acts against which no action may be brought - Inadmissibility)
      (2018/C 427/59)
      Language of the case: German

         Parties

         Applicant: Mass Response Service GmbH (Vienna, Austria) (represented by: J.-M. Schultze, S. Pautke and C. Ehlenz, lawyers)

         Defendant: European Commission (represented by: N. Khan, M. Farley and C. Vollrath, acting as agents)

         Re:

      Application based on Article 263 TFEU and seeking, in particular, annulment of the alleged decisions of the Commission contained in the emails of 24 and 29 October 2016 relating to the implementation of the non-MNO remedy provided for in the Final Commitments made obligatory by Commission Decision C(2014) 4443 final of 2 July 2014 declaring a concentration to be compatible with the internal market and the EEA agreement, subject to compliance with certain commitments (Case COMP/M.7018 Telefónica Deutschland v E-plus).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action.

                  2.

                  Declares that there is no need to rule on the applications to intervene lodged by Telefónica Deutschland Holding AG and Drillisch AG.

                  3.

                  Orders Mass Response Service GmbH to bear its own costs and to pay those incurred by the European Commission.

                  4.

                  Orders Telefónica Deutschland Holding to bear its own costs relating to the application to intervene.

                  5.

                  Orders Drillisch AG to bear its own costs relating to the application to intervene.

         (1)  OJ C 38, 6.2.2017.


title: Case T-242/17: Order of the General Court of 19 September 2018 — SC v Eulex Kosovo (Action for annulment and for damages — Arbitration clause — Common foreign and security policy — Staff of EU international missions — Consecutive fixed-term employment contracts — Internal competition — Impartiality of the selection board — Non-renewal of a fixed term contract — Partial reclassification of the action — Contractual liability — Non-contractual liability — Material and non-material harm — Action in part manifestly inadmissible and in part manifestly unfounded in law)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/67

      Order of the General Court of 19 September 2018 — SC v Eulex Kosovo
      (Case T-242/17) (1)

      (Action for annulment and for damages - Arbitration clause - Common foreign and security policy - Staff of EU international missions - Consecutive fixed-term employment contracts - Internal competition - Impartiality of the selection board - Non-renewal of a fixed term contract - Partial reclassification of the action - Contractual liability - Non-contractual liability - Material and non-material harm - Action in part manifestly inadmissible and in part manifestly unfounded in law)
      (2018/C 427/89)
      Language of the case: English

         Parties

         Applicant: SC (represented by: L. Moro and A. Kunst, lawyers)

         Defendant: Eulex Kosovo (represented by: E. Raoult, lawyer)

         Re:

      Application, first, under Article 263 TFEU seeking annulment of the decision rejecting the applicant’s application for the internal competition organised by Eulex Kosovo in 2016 for the position of prosecutor (EK 30077) and of the decision of that mission not to renew her fixed-term contract, secondly, under Article 268 TFEU seeking compensation for the material and non-material harm that the applicant allegedly sustained as a result of the infringement by Eulex Kosovo of its non-contractual obligations and, thirdly, under Article 272 TFEU seeking an order that Eulex Kosovo be ordered to pay compensation for breach of its contractual obligations

         Operative part of the order

                  1.

                  The action is dismissed.

                  2.

                  SC is ordered to pay the costs.

         (1)  OJ C 231, 17.7.2017.


title: Case C-597/18 P: Appeal brought on 21 September 2018 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 13 July 2018 in Case T-680/13: Dr. K. Chrysostomides & Co. LLC and Others v Council of the European Union and Others

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/24

      Appeal brought on 21 September 2018 by the Council of the European Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 13 July 2018 in Case T-680/13: Dr. K. Chrysostomides & Co. LLC and Others v Council of the European Union and Others
      (Case C-597/18 P)
      (2018/C 427/32)
      Language of the case: English

         Parties

         Appellant: Council of the European Union (represented by: A. de Gregorio Merino, E. Chatziioakeimidou, I. Gurov, Agents)

         Other parties to the proceedings: Dr. K. Chrysostomides & Co. LLC and Others, European Commission, European Central Bank, Euro Group, represented by the Council of the European Union, European Union, represented by the European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the parts of the contested judgments in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group;

                  —

                  and order the respondents to pay the costs of the appeal.

         Pleas in law and main arguments

      The appeal of the Council seeks to set aside the parts of the contested judgment in which the General Court dismisses the plea of inadmissibility raised by the Council in respect of the Euro Group and is based on the following grounds:

                  —

                  the General Court has erred in law in deciding that the Euro Group is a ‘body of the Union formally established by the Treaties’;

                  —

                  the General Court has erred in law in dismissing the plea of inadmissibility of the Council while failing to identify any ‘powers’ conferred on the Euro Group by the Treaties;

                  —

                  the General Court has erred in law in deciding that the admission of the plea of inadmissibility, submitted by the Council, would result in ‘the establishment, within the legal system of the European Union itself, of entities whose acts and conduct could not result in the European Union incurring liability’.


title: Case T-257/17: Order of the General Court of 12 September 2018 — RE v Commission (Action for annulment and damages — Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — No need to adjudicate — Explicit refusal of access — Modification of the form of order — Article 86(4)(a) and (b) of the Rules of Procedure — Article 76(d) of the Rules of Procedure — Inadmissibility)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/68

      Order of the General Court of 12 September 2018 — RE v Commission
      (Case T-257/17) (1)

      (Action for annulment and damages - Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - No need to adjudicate - Explicit refusal of access - Modification of the form of order - Article 86(4)(a) and (b) of the Rules of Procedure - Article 76(d) of the Rules of Procedure - Inadmissibility)
      (2018/C 427/90)
      Language of the case: English

         Parties

         Applicant: RE (represented by: S. Pappas, lawyer)

         Defendant: European Commission (represented by: A. Buchet and C. Ehrbar, acting as Agents)

         Re:

      First, application based on Article 263 TFEU seeking annulment of an implied decision of the European Commission rejecting the confirmatory application of the applicant of 20 January 2017 for access to documents and decision C(2017) 3718 final of the Secretary General of the Commission of 24 May 2017, in so far as it refuses access to a note concerning the applicant’s recruitment, and, second, application based on Article 268 TFEU seeking compensation for the harm allegedly suffered as a result of the refusal of access to those documents and of the delay in examining the application for access to the said documents.

         Operative part of the order

                  1.

                  There is no longer any need to adjudicate on the claim for annulment of the implied decision of the European Commission rejecting the confirmatory application of RE of 20 January 2017 for access to documents.

                  2.

                  The action is dismissed for the remainder.

                  3.

                  Each party shall bear its own costs.

         (1)  OJ C 221, 10.7.2017.


title: Case T-421/17: Order of the General Court of 20 September 2018 — Leino-Sandberg v Parliament (Access to documents — Document relating to a decision refusing a third party full access to trilogue tables relating to the proposal for a regulation of the European Parliament and of the Council on Europol and repealing Decisions 2009/371/JHA and 2005/681/JHA — Refusal to grant access — Second indent of Article 4(2) of Regulation (EC) No 1049/2001 — Exception for the protection of court proceedings — Disclosure after the action had been brought — No longer any interest in bringing proceedings — No need to adjudicate)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/68

      Order of the General Court of 20 September 2018 — Leino-Sandberg v Parliament
      (Case T-421/17) (1)

      (Access to documents - Document relating to a decision refusing a third party full access to trilogue tables relating to the proposal for a regulation of the European Parliament and of the Council on Europol and repealing Decisions 2009/371/JHA and 2005/681/JHA - Refusal to grant access - Second indent of Article 4(2) of Regulation (EC) No 1049/2001 - Exception for the protection of court proceedings - Disclosure after the action had been brought - No longer any interest in bringing proceedings - No need to adjudicate)
      (2018/C 427/91)
      Language of the case: English

         Parties

         Applicant: Päivi Leino-Sandberg (Helsinki, Finland) (represented by: O. Brouwer and S. Schubert, lawyers)

         Defendant: European Parliament (represented by: C. Burgos, S. Alves and L. Anagnostopoulou)

         Re:

      Application pursuant to Article 263 TFEU seeking annulment of Decision A(2016) 15112 of the European Parliament of 3 April 2017 refusing to grant the applicant access to Decision A(2015) 4931 of the Parliament of 8 July 2015 addressed to Mr Emilio De Capitani.

         Operative part of the order

                  1.

                  There is no longer any need to adjudicate on the action brought by Ms Päivi Leino-Sandberg.

                  2.

                  There is no longer any need to adjudicate on the applications to intervene lodged by the Republic of Finland and the Kingdom of Sweden.

                  3.

                  Each party shall bear its own costs, including those incurred in respect of the applications to intervene.

                  4.

                  The Republic of Finland and the Kingdom of Sweden shall each bear their own costs. A copy of this order shall be transmitted to them.

         (1)  OJ C 293, 4.9.2017.


title: Case T-914/16: Judgment of the General Court of 4 October 2018 — Proof IT v EIGE (Public service contracts — Tender procedure — Request for services that were split into two lots — Management consultancy services — Maintenance and updating of statistical tools and resources — Rejection of the tender submitted by a tenderer — Award criteria — Transparency — Equal treatment — Manifest error of assessment — Non-contractual liability)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/48

      Judgment of the General Court of 4 October 2018 — Proof IT v EIGE
      (Case T-914/16) (1)

      (Public service contracts - Tender procedure - Request for services that were split into two lots - Management consultancy services - Maintenance and updating of statistical tools and resources - Rejection of the tender submitted by a tenderer - Award criteria - Transparency - Equal treatment - Manifest error of assessment - Non-contractual liability)
      (2018/C 427/60)
      Language of the case: English

         Parties

         Applicant: Proof IT SIA (Riga, Latvia) (represented by: J. Jerņeva and D. Pāvila, lawyers)

         Defendant: European Institute for Gender Equality (EIGE) (represented by: J. Stuyck, V. Ost and M.Vanderstraeten, lawyers)

         Re:

      Application, first, under Article 263 TFEU for annulment of EIGE’s decision, communicated to the applicant by the letter with reference EIGE/VL/mpD/2016/594 of 14 October 2016, rejecting the tender submitted by the applicant in the context of both lots relating to invitation to tender EIGE/2016/OPER/01 entitled ‘Framework contract on maintenance and update of EIGE’s gender statistics tools and resources’ and awarding the framework contract to another tenderer and, second, under Article 268 TFEU seeking compensation for the harm allegedly suffered by the applicant in respect of loss of opportunity or loss of the contract itself.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Proof IT SIA to pay the costs.

         (1)  OJ C 78, 13.3.2017.


title: Joined Cases T-495/17 and T-496/17: Order of the General Court of 13 September 2018 — Gratis iç ve Dis Ticaret v EUIPO (gratis) (EU trade mark — Applications for EU figurative marks gratis — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) and Article 7(2) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and Article 7(2) of Regulation (EU) 2017/1001) — Action manifestly lacking any foundation in law)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/69

      Order of the General Court of 13 September 2018 — Gratis iç ve Dis Ticaret v EUIPO (gratis)
      (Joined Cases T-495/17 and T-496/17) (1)

      (EU trade mark - Applications for EU figurative marks gratis - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) and Article 7(2) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and Article 7(2) of Regulation (EU) 2017/1001) - Action manifestly lacking any foundation in law)
      (2018/C 427/92)
      Language of the case: Dutch

         Parties

         Applicant: Gratis iç ve Dis Ticaret AȘ (Istanbul, Turkey) authorised to replace Sedes Holding AȘ (represented by: K. Ongena and C. Du Jardin, lawyers)

         Defendant: European Union Intellectual Property Office (represented by: M. Vuijst and A. Folliard-Monguiral, acting as Agents)

         Re:

      Actions brought against the decisions of the Second Board of Appeal of EUIPO of 30 May 2017 (Cases R 506/2017-2 and R 507/2017-2) concerning the applications for registration of the figurative signs gratis as EU trade marks.

         Operative part of the order

                  1.

                  The actions are dismissed.

                  2.

                  Gratis iç ve Dis Ticaret AȘ shall pay the costs.

         (1)  OJ C 318, 25.9.2017.


title: Case C-432/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 July 2018 — Consorzio Tutela Aceto Balsamico di Modena v BALEMA GmbH

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/3

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 July 2018 — Consorzio Tutela Aceto Balsamico di Modena v BALEMA GmbH
      (Case C-432/18)
      (2018/C 427/05)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Appellant: Consorzio Tutela Aceto Balsamico di Modena

         Respondent: BALEMA GmbH

         Question referred

      Does the protection of the entire name ‘Aceto Balsamico di Modena’ extend to the use of the individual non-geographical components of the term as a whole (‘Aceto’, ‘Balsamico’, ‘Aceto Balsamico’)? (1)

         (1)  Interpretation of Article 1 of Commission Regulation (EC) No 583/2009 of 3 July 2009 entering a name in the register of protected designations of origin and protected geographical indications (OJ 2009 L 175, p. 7).


title: Case C-473/18: Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 20 July 2018 — GP v Bundesagentur für Arbeit, Familienkasse Baden-Württemberg West

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/5

      Request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 20 July 2018 — GP v Bundesagentur für Arbeit, Familienkasse Baden-Württemberg West
      (Case C-473/18)
      (2018/C 427/09)
      Language of the case: German

         Referring court

      Finanzgericht Baden-Württemberg

         Parties to the main proceedings

         Applicant: GP

         Defendant: Bundesagentur für Arbeit, Familienkasse Baden-Württemberg West

         Questions referred

                  1.

                  Which provision of Decision No H3 of 15 October 2009 (1) is to be applied in circumstances such as those in the main proceedings for the purposes of a currency conversion of family benefits relating to children and taking the form of child allowance?

                  2.

                  How is the applicable provision of that decision to be interpreted specifically for the purposes of determining the amount of differential child allowance, which is dependent on the exchange rate?

                              (a)

                              If Paragraph 2 of Decision No H3 is to be applied: within the meaning of that provision, which day is the day ‘when the operation is performed by the institution’?

                              (b)

                              If Paragraph 3(b) (where necessary, in combination with Paragraph 4) of Decision No H3 is to be applied: within the meaning of that provision, which month is the month ‘when the provision must be applied’?

                              (c)

                              If Paragraph 5 of Decision No H3 is to be applied: is the saving clause relating to national law compatible with the enabling provision in Article 90 of Regulation (EC) No 987/2009? (2) If yes: in order for it to be ‘provided for differently’ in national legislation, is legislation under a formal statute necessary or is an administrative instruction from the national administrative authorities sufficient?

                  3.

                  Are there any special features to be taken into account specifically in the case of a currency conversion of Swiss child allowance by the German family allowance office?

                              (a)

                              When Decision No H3 is applied, in relation to Switzerland, is it significant that the German national rule in point 2 in sentence 1 of Paragraph 65(1) of the Einkommensteuergesetzes (Law on Income Tax) in itself lays down an exclusion from the payment of benefits?

                              (b)

                              Is the relevant date for the purposes of the currency conversion pursuant to Decision No H3 the date on which the Swiss institution granted or paid the family benefits?

                              (c)

                              Is the relevant date for the purposes of the currency conversion pursuant to Decision No H3 the date on which the German institution refused or granted the differential child allowance?

         (1)  Decision No H3 of 15 October 2009 concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009 of the European Parliament and of the Council (OJ 2010 C 106, p. 56).

         (2)  Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).


title: Case T-713/17: Order of the General Court of 28 September 2018 — Motex v Commission (Action for annulment — State Aid — Aid implemented by Hungary in favour of undertakings which have employed persons with disabilities — Preliminary review procedure — Decisions allegedly taken by the Commission declaring the aid to be compatible with the internal market — Concept of party concerned — Lack of individual concern — Inadmissibility)

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/73

      Order of the General Court of 28 September 2018 — Motex v Commission
      (Case T-713/17) (1)

      (Action for annulment - State Aid - Aid implemented by Hungary in favour of undertakings which have employed persons with disabilities - Preliminary review procedure - Decisions allegedly taken by the Commission declaring the aid to be compatible with the internal market - Concept of party concerned - Lack of individual concern - Inadmissibility)
      (2018/C 427/98)
      Language of the case: Hungarian

         Parties

         Applicant: Motex Ipari és Szolgáltató Rehabilitációs Kft. (Motex Kft.) (Esztergom-Kertváros, Hungary) (represented by: L. Szabó, lawyer)

         Defendant: European Commission (represented by: V. Bottka and C. Georgieva-Kecsmar, acting as Agents)

         Re:

      Application pursuant to Article 263 TFEU seeking annulment of the decisions allegedly adopted by the Commission concerning the complaints SA.29432 — CP 290/2009 — Hungary — Aid for the employment of disabled workers that is alleged to be illegal due to the discriminatory nature of the legislation, and SA.45498 (FC/2016) — Complaint by OPS Újpest-lift Kft concerning State aid provided to undertakings which employed disabled workers between 2006 and 2012.

         Operative part of the order

                  1.

                  The action is dimissed.

                  2.

                  Motex Ipari és Szolgáltató Rehabilitációs Kft. (Motex Kft.) shall pay the costs.

         (1)  OJ C 437, 18.12.2017.


title: Case T-583/18: Action brought on 26 September 2018 — Gesamtverband Verkehrsgewerbe Niedersachsen v Commission

text:
               26.11.2018

               EN

               Official Journal of the European Union

               C 427/95

      Action brought on 26 September 2018 — Gesamtverband Verkehrsgewerbe Niedersachsen v Commission
      (Case T-583/18)
      (2018/C 427/125)
      Language of the case: German

         Parties

         Applicant: Gesamtverband Verkehrsgewerbe Niedersachsen e.V. (Hanover, Germany) (represented by: C. Antweiler, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:
      annul Commission Decision C(2018) 4385 final of 12 July 2018 concerning the applicant’s aid complaint of 28 September 2016 — SA.46538 (2017/NN).

         Pleas in law and main arguments

      By the present action, the applicant seeks annulment of Commission Decision C(2018) 4385 final of 12 July 2018 relating to its aid complaint in respect of the provision laid down in Paragraph 7a of the Niedersächsisches Nahverkehrsgesetz (Law of Lower Saxony relating to Local Transport; ‘the NNVG’) (Case SA. 46538 (2017/NN)) (OJ 2018 C 292, p. 2).
      The action is based on the following pleas in law:

                  1.

                  Failure to notify as an aid scheme (infringement of Article 108(3) TFEU)
                  By the first plea in law, the applicant submits that the provision laid down in Paragraph 7a of the NNVG concerns a new aid scheme which ought to have been notified to the Commission pursuant to Article 108(3) TFEU.

                  2.

                  Failure to notify as a general rule (infringement of Article 3(3) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council (1))
                  By the second plea in law, the applicant submits that the provision laid down in Paragraph 7a of the NNVG constitutes an autonomous rule on financial compensation for public service obligations which establishes maximum tariffs for pupils, students, apprentices and persons with reduced mobility and which the Land of Lower Saxony intended should be excluded from the scope of Regulation No 1370/2007. Consequently, Paragraph 7a of the NNVG ought to have been notified to the Commission in accordance with the second sentence of Article 3(3) of that regulation.

         (1)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).


title: Case T-617/18: Action brought on 12 October 2018 — ZH/ECHA

text:
               3.12.2018

               EN

               Official Journal of the European Union

               C 436/63

      Action brought on 12 October 2018 — ZH/ECHA
      (Case T-617/18)
      (2018/C 436/87)
      Language of the case: English

         Parties

         Applicant: ZH (represented by: L. Levi and N. Flandin, lawyers)

         Defendant: European Chemicals Agency (ECHA)

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the applicant’s 2016 appraisal report;

                  —

                  annul also, in so far as necessary, the decision of ECHA of 2 July 2018, notified to the applicant on 3 July 2018, which rejects the applicant’s complaint against the 2016 appraisal report;

                  —

                  order the compensation of the moral prejudice suffered by the applicant;

                  —

                  order the defendant to pay all 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 a violation of Article 2.2 of the ECHA Decision of 18 June 2015 laying down general provisions for implementing Article 15(2) of the Conditions of employment of other servants of the European Union (‘CEOS’) and implementing the first paragraph of Article 44 of the Staff Regulations of the European Union.

                  2.

                  Second plea in law, alleging a violation of the procedural framework to conduct appraisal reports as laid down by the ECHA decision and in particular by Article 7, as well as a violation of Article 43 of the Staff Regulations, applicable by analogy to temporary staff by virtue of article 15 of the CEOS.

                  3.

                  Third plea in law, alleging manifest errors of appreciation by the reporting officer, with regard to the negative criticism of the applicant.

                  4.

                  Fourth plea in law, alleging a breach of the duty to state reasons.


title: Case C-548/17: Judgment of the Court (Sixth Chamber) of 29 November 2018 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Goslar v baumgarten sports & more GmbH (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Taxation of professional football player agencies — Payment by instalments and subject to a condition — Chargeable event, chargeability and collection of the tax)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/7

      Judgment of the Court (Sixth Chamber) of 29 November 2018 (request for a preliminary ruling from the Bundesfinanzhof — Germany) — Finanzamt Goslar v baumgarten sports & more GmbH
      (Case C-548/17) (1)

      ((Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Taxation of professional football player agencies - Payment by instalments and subject to a condition - Chargeable event, chargeability and collection of the tax))
      (2019/C 35/09)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant: Finanzamt Goslar

         Defendant: baumgarten sports & more GmbH

         Operative part of the judgment

      Article 63 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Article 64(1) thereof, must be interpreted as precluding the chargeable event and chargeability of a tax on the supply of agency services for professional football players by an agent, such as that at issue in the main proceedings, paid in conditional instalments over several years further to the placement, from being regarded as occurring or taking effect when the player is placed.

         (1)  OJ C 437, 18.12.2017.


title: Case C-654/18: Request for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 18 October 2018 — Interseroh Dienstleistungs GmbH v SAA Sonderabfallagentur Baden-Württemberg GmbH

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/8

      Request for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany) lodged on 18 October 2018 — Interseroh Dienstleistungs GmbH v SAA Sonderabfallagentur Baden-Württemberg GmbH
      (Case C-654/18)
      (2019/C 35/10)
      Language of the case: German

         Referring court

      Verwaltungsgericht Stuttgart

         Parties to the main proceedings

         Applicant: Interseroh Dienstleistungs GmbH

         Defendant: SAA Sonderabfallagentur Baden-Württemberg GmbH

         Questions referred

                  1.

                  Is Article 3(2) of Regulation (EC) No 1013/2006, (1)

                  according to which shipments of the following wastes destined for recovery are to be subject to the general information requirements laid down in Article 18, if the amount of waste shipped exceeds 20 kg:

                              (a)

                              waste listed in Annex III or IIIB;

                              (b)

                              mixtures, not classified under one single entry in Annex III, of two or more wastes listed in Annex III, provided that the composition of these mixtures does not impair their environmentally sound recovery and provided that such mixtures are listed in Annex IIIA, in accordance with Article 58,

                        to be interpreted as meaning that mixtures of paper, paperboard and paper product wastes, which — being composed in such a way that the fractions of the waste considered individually — come within the first three indents of entry B3020 of Annex IX to the Basel Convention, and which also contain up to 10 % impurities, come under Basel Code B3020 and are accordingly subject to the general information requirements laid down in Article 18, and not to the notification requirement under Article 4?
                  If Question 1 is answered in the negative:

                  2.

                  Is Article 3(2) of Regulation (EC) No 1013/2006,
                  according to which shipments of the following wastes destined for recovery are to be subject to the general information requirements laid down in Article 18, if the amount of waste shipped exceeds 20 kg:

                              (a)

                              waste listed in Annex III or IIIB;

                              (b)

                              mixtures, not classified under one single entry in Annex III, of two or more wastes listed in Annex III, provided that the composition of these mixtures does not impair their environmentally sound recovery and provided that such mixtures are listed in Annex IIIA, in accordance with Article 58,

                        to be interpreted as meaning that mixtures of paper, paperboard and paper product wastes, which — being composed in such a way that the fractions of the waste considered individually — come within the first three indents of entry B3020 of Annex IX to the Basel Convention, and which also contain up to 10 % impurities, are not covered by point 3(g) of Annex IIIA and accordingly are subject, not to the general information requirements laid down in Article 18, but instead to the notification requirement under Article 4?

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


title: Case T-692/18: Action brought on 23 November 2018 — Montanari v EEAS

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/27

      Action brought on 23 November 2018 — Montanari v EEAS
      (Case T-692/18)
      (2019/C 35/33)
      Language of the case: French

         Parties

         Applicant: Marco Montanari (Reggio Emilia, Italy) (represented by: A. Champetier and S. Rodrigues, lawyers)

         Defendant: European External Action Service

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare this action admissible and well founded;

                  —

                  annul the contested decision refusing the applicant access wholly or in part to the document referred to [below]; and

                  —

                  order the defendant to pay the full costs of the proceedings.

         Pleas in law and main arguments

      The action has been brought against the decision of 24 October 2018 of the European External Action Service refusing to grant the applicant access to the report of 29 July 2017 drawn up following the mediation mission carried out by the Head of the ‘Mission Support’ Division.
      In support of the action, the applicant invokes three pleas in law.

                  1.

                  First plea in law, alleging infringement of Regulation No 1049/2001, Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union. More specifically, the applicant submits that public access to the documents of the institutions is, in principle, the legal rule and the possibility of refusal is the exception. However, the exceptions provided for by Article 4 of Regulation No 1049/2001 and relied on by the European External Action Service cannot justify refusal of access to the documents, on the ground that the conditions set out in that article are not met.

                  2.

                  Second plea in law, alleging infringement of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union, in that the contested decisions are vitiated by a failure to state reasons or by an inadequate statement of reasons.

                  3.

                  Third plea in law, alleging breach of the principle of proportionality.


title: Case C-659/18: Request for a preliminary ruling from the Juzgado de Instrucción de Badalona (Spain) lodged on 22 October 2018 — Criminal proceedings against VW

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/9

      Request for a preliminary ruling from the Juzgado de Instrucción de Badalona (Spain) lodged on 22 October 2018 — Criminal proceedings against VW
      (Case C-659/18)
      (2019/C 35/11)
      Language of the case: Spanish

         Referring court

      Juzgado de Instrucción de Badalona

         Party to the main proceedings

      VW

         Question referred

      Must Article 47 of the Charter of Fundamental Rights of the European Union and, in particular, Article 3(2) of Directive 2013/48/EU (1) be interpreted as meaning that the right of access to a lawyer may justifiably be delayed where the suspect or accused fails to appear when first summoned by the court and a national, European or international arrest warrant is issued, and that the assistance of a lawyer and the entering of an appearance by the lawyer in the proceedings may be delayed until the warrant is executed and the suspect is brought to court by the police?

         (1)  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294 p. 1).


title: Case C-727/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 22 November 2018 — HX v Procureur général at the Cour d’appel de Paris, Ville de Paris

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/13

      Request for a preliminary ruling from the Cour de cassation (France) lodged on 22 November 2018 — HX v Procureur général at the Cour d’appel de Paris, Ville de Paris
      (Case C-727/18)
      (2019/C 35/17)
      Language of the case: French

         Referring court

      Cour de cassation

         Parties to the main proceedings

         Appellant in cassation: HX

         Respondents in cassation: Procureur général at the Cour d’appel de Paris, Ville de Paris

         Questions referred

                  1.

                  Having regard to the definition of the purpose and scope of application of Directive 2006/123/EC of 12 December 2006, (1) as set out in Articles 1 and 2 thereof, does that directive apply to the repeated letting for short periods, against consideration, including on a non-professional basis, of furnished accommodation for residential use, not constituting the lessor’s main residence, to a transient clientele which does not take up residence there, particularly in the light of the concepts of ‘providers’ and ‘services’?

                  2.

                  If the above question is answered in the affirmative, does national legislation such as that provided for in Article L. 631-7 of the Code de la construction et de l’habitation (Construction and Housing Code) constitute an authorisation scheme for the abovementioned activity for the purposes of Articles 9 to 13 of Directive 2006/123 of 12 December 2006, or solely a requirement subject to the provisions of Articles 14 and 15?
                  In the event that Articles 9 to 13 of Directive 2006/123/EC of 12 December 2006 are applicable:

                  3.

                  Should Article 9(b) of that directive be interpreted as meaning that the objective of tackling the shortage of rental housing constitutes an overriding reason relating to the public interest capable of justifying a national measure which requires authorisation to be obtained, in certain geographical areas, for the repeated letting of furnished accommodation for residential use for short periods to a transient clientele which does not take up residence there?

                  4.

                  If so, is such a measure proportionate to the objective pursued?

                  5.

                  Does Article 10(2)(d) and (e) of the Directive preclude a national measure which requires authorisation to be obtained for the ‘repeated’ letting of furnished accommodation for residential use for ‘short periods’ to a ‘transient clientele which does not take up residence there’?

                  6.

                  Does Article 10(2)(d) to (g) of the Directive preclude an authorisation scheme whereby the conditions for granting authorisation are set, by decision of the municipal council, in the light of social diversity objectives, according to, inter alia, the characteristics of the markets for residential premises and the need to avoid exacerbating the housing shortage?

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


title: Case C-681/18: Request for a preliminary ruling from the Tribunale ordinario di Brescia (Italy) lodged on 31 October 2018 — JH v KG

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/9

      Request for a preliminary ruling from the Tribunale ordinario di Brescia (Italy) lodged on 31 October 2018 — JH v KG
      (Case C-681/18)
      (2019/C 35/12)
      Language of the case: Italian

         Referring court

      Tribunale ordinario di Brescia

         Parties to the main proceedings

         Applicant: JH

         Defendant: KG

         Question referred

      Must Article 5(5) of Directive 2008/104/EC (1) of 19 November 2008 be interpreted as precluding the application of Legislative Decree No 276/2003, as amended by Decree Law 34/2014, which: (a) does not place limits on successive assignments of the same worker to the same user undertaking; (b) does not require that, in order for the use of fixed-term supply work to be lawful, there must be technical, production, organisational or replacement reasons for having recourse to such supply work; (c) does not provide that, in order for the use of such a form of employment contract to be lawful, the production requirement of the user undertaking must be temporary in nature?

         (1)  Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (OJ 2008 L 327, p. 9).


title: Case C-600/16 P: Judgment of the Court (Fourth Chamber) of 29 November 2018 — National Iranian Tanker Company v Council of the European Union (Appeal — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran — Freezing of funds and economic resources — Annulment of a listing by the General Court — Re-listing — Evidence dating from before the first listing — Facts known before the first listing — Res judicata — Scope — Legal certainty — Protection of legitimate expectations — Effective judicial protection — Reasons for the listing relating to logistical support to the Government of Iran — Scope — Activity of transporting crude oil)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/2

      Judgment of the Court (Fourth Chamber) of 29 November 2018 — National Iranian Tanker Company v Council of the European Union
      (Case C-600/16 P) (1)

      ((Appeal - Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran - Freezing of funds and economic resources - Annulment of a listing by the General Court - Re-listing - Evidence dating from before the first listing - Facts known before the first listing - Res judicata - Scope - Legal certainty - Protection of legitimate expectations - Effective judicial protection - Reasons for the listing relating to logistical support to the Government of Iran - Scope - Activity of transporting crude oil))
      (2019/C 35/02)
      Language of the case: English

         Parties

         Appellant: National Iranian Tanker Company (represented by: T. de la Mare QC, M. Lester QC, J. Pobjoy, Barrister, and by R. Chandrasekera, S. Ashley and C. Murphy, Solicitors)

         Other party to the proceedings: Council of the European Union (represented by: A. Vitro and M. Bishop, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders National Iranian Tanker Company to bear its own costs and to pay those incurred by the Council of the European Union.

         (1)  OJ C 30, 30.1.2017.


title: Case T-296/17: Judgment of the General Court of 22 November 2018 — Buck-Chemie v EUIPO — Henkel (Cleansing block for toilets) (Community design — Invalidity proceedings — Registered Community design representing a cleansing block for toilets — Ground for invalidity — Individual character — Article 25 of Regulation (EC) No 6/2002)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/21

      Judgment of the General Court of 22 November 2018 — Buck-Chemie v EUIPO — Henkel (Cleansing block for toilets)
      (Case T-296/17) (1)

      ((Community design - Invalidity proceedings - Registered Community design representing a cleansing block for toilets - Ground for invalidity - Individual character - Article 25 of Regulation (EC) No 6/2002))
      (2019/C 35/25)
      Language of the case: German

         Parties

         Applicant: Buck-Chemie GmbH (Herrenberg, Germany) (represented by: C. Schultze, J. Ossing, R.-D. Härer, C. Weber, H. Ranzinger, C. Brockmann and C. Gehweiler, lawyers)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Henkel AG & Co. KGaA (Düsseldorf, Germany) (represented by: J. Schmidt, lawyer)

         Re:

      Action brought against the decision of the Third Board of Appeal of EUIPO of 8 March 2017 (Case R 2113/2015-3), relating to invalidity proceedings between Buck-Chemie and Henkel.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Buck-Chemie GmbH to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Henkel AG & Co. KGaA, including the costs necessarily incurred before the Board of Appeal of EUIPO.

         (1)  OJ C 239, 24.7.2017.


title: Case C-686/18: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 5 November 2018 — OC and Others v Banca d’Italia and Others

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/10

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 5 November 2018 — OC and Others v Banca d’Italia and Others
      (Case C-686/18)
      (2019/C 35/13)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Applicants: OC and Others, Adusbef, Federconsumatori, PB and Others, QA and Others

         Defendants: Banca d’Italia, Presidenza del Consiglio dei Ministri, Ministero dell’Economia e delle Finanze

         Questions referred

                  1.

                  Do Article 29 of Regulation (EU) No 575/2013 [, on prudential requirements for credit institutions and investment firms], (1) Article 10 of Delegated Regulation (EU) No 241/2014, (2) and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, with reference to Article 6(4) of Council Regulation (EU) No 1024/2013 of 15 October 2013, (3) preclude a national provision such as that introduced by Article 1 of Decree-Law No 3/2015, converted, with amendments, by Law No 33/2015 (and currently also Article 1(15) of Legislative Decree No 72/2015, which has replaced Article 28(2-ter), [Consolidated Banking Law], substantially reproducing the text of Article 1(1)(a) of Decree-Law No 3/2015, as converted, with amendments that are not relevant to the present case), which imposes an asset threshold above which a people’s bank must be converted into a company limited by shares, setting that limit at EUR 8 billion of assets? Furthermore, do the abovementioned unified European parameters preclude a national provision which, if a people’s bank is converted into a company limited by shares, makes it possible for that company to defer or limit, including for an indefinite period, redemption of the shares held by the withdrawing shareholder?

                  2.

                  Do Articles 3 and 63 et seq. TFEU, on competition in the internal market and free movement of capital, preclude a national provision such as that introduced by Article 1 of Decree-Law No 3/2015 (converted, with amendments, by Law No 33/2015), which limits the exercise of cooperative banking activities within a given asset limit, requiring the bank concerned to be converted into a company limited by shares if it should exceed that limit?

                  3.

                  Do Article 107 et seq. TFEU on State aid preclude a national provision such as that introduced by Article 1 of Decree-Law No 3/2015, converted, with amendments, by Law No 33/2015 (and currently also Article 1(15) of Legislative Decree No 72/2015, which has replaced Article 28(2-ter), [Consolidated Banking Law], substantially reproducing the text of Article 1(1)(a) of Decree-Law No 3/2015, as converted, with amendments that are not relevant to the present case), which requires a people’s bank to be converted into a company limited by shares if it exceeds a certain asset threshold (set at EUR 8 billion), establishing restrictions on the redemption of the shares held by the shareholder in the event of withdrawal, to avoid the possible liquidation of the converted bank?

                  4.

                  Do the combined provisions of Article 29 of Regulation (EU) No 575/2013 and Article 10 of Delegated Regulation (EU) No 241/2014 preclude a national provision such as that introduced by Article 1 of Decree-Law No 3/2015 (converted, with amendments, by Law No 33/2015), as interpreted by the Corte costituzionale (Constitutional Court) in Judgment No 99/2018, which permits a people’s bank to defer redemption for an unlimited period and to limit the associated amount in full or in part?

                  5.

                  Where, in its interpretation, the Court of Justice holds that the European legislation is compatible with the interpretation asserted by the opposing parties, can the Court of Justice assess the lawfulness, in European terms, of Article 10 of Commission Delegated Regulation (EU) No 241/2014, in the light of Articles 16 and 17 of the Charter of Fundamental Rights of the European Union (whereby: ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest’), supplemented, also in the light of Article 52(3) of that Charter (whereby: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’) and the case-law of the European Court of Human Rights on Article 1 of the First Additional Protocol to the European Convention on Human Rights?

         (1)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

         (2)  Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards for Own Funds requirements for institutions (OJ 2014 L 74, p. 8).

         (3)  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).


title: Case C-248/17 P: Judgment of the Court (Fourth Chamber) of 29 November 2018 — Bank Tejarat v Council of the European Union (Appeal — Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran — Freezing of funds and economic resources — Annulment of a listing by the General Court — Re-listing — Reasons for the listing relating to financial support to the Government of Iran and the procurement of prohibited goods and technologies — Scope — Financing of oil and gas projects — Evidence dating from before the first listing — Facts known before the first listing — Article 266 TFEU — Res judicata — Scope — Effective judicial protection)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/3

      Judgment of the Court (Fourth Chamber) of 29 November 2018 — Bank Tejarat v Council of the European Union
      (Case C-248/17 P) (1)

      ((Appeal - Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran - Freezing of funds and economic resources - Annulment of a listing by the General Court - Re-listing - Reasons for the listing relating to financial support to the Government of Iran and the procurement of prohibited goods and technologies - Scope - Financing of oil and gas projects - Evidence dating from before the first listing - Facts known before the first listing - Article 266 TFEU - Res judicata - Scope - Effective judicial protection))
      (2019/C 35/03)
      Language of the case: English

         Parties

         Appellant: Bank Tejarat (represented by: S. Zaiwalla, P. Reddy and A. Meskarian, Solicitors, M. Brindle QC, T. Otty QC and R. Blakeley, Barrister)

         Other party to the proceedings: Council of the European Union (represented by: J. Kneale and M. Bishop, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Bank Tejarat to bear its own costs and to pay those incurred by the Council of the European Union.

         (1)  OJ C 249, 31.7.2017.


title: Case T-693/18: Action brought on 27 November 2018 — ZY v European Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/28

      Action brought on 27 November 2018 — ZY v European Commission
      (Case T-693/18)
      (2019/C 35/34)
      Language of the case: German

         Parties

         Applicant: ZY (represented by: N. Voß and D. Fouquet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul in its entirety Commission Decision C(2018) 3166 final SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 in respect of the years 2012 and 2013;

                  —

                  in the alternative, annul Commission Decision C(2018) 3166 final SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018, in so far as it orders, with respect to baseload consumers with at least 7 000 user hours per year, the repayment of 20 %, with respect to baseload consumers with at least 7 500 user hours per year, the repayment of 15 %, and with respect to baseload consumers with at least 8 000 user hours per year, the repayment of 10 % of the published network charges;

                  —

                  order the defendant to pay the costs of the proceedings, including legal and travel 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 a wrongful presumption of the existence of State aid for the purposes of Article 107(1) TFEU;
                  In the context of the first plea in law, it is claimed that the defendant erred in law during its examination of the contested exemption from network charges by presuming the use of State resources.
                  In addition, during the examination of the ‘selectivity’ criterion, the reference system was incorrectly and incompletely identified.

                  2.

                  Second plea in law, alleging an infringement of the principle of equal treatment;
                  In the context of the second plea in law, it is alleged that, the defendant’s decision only provided for the obligation to make repayments for baseload consumers who were entirely exempted from network charges in the years 2012 and 2013. As a result, those baseload consumers were unequally treated and unfairly disadvantaged vis-à-vis baseload consumers, who, over the same period, enjoyed flat-rate network charge reductions and in respect of which there were no obligations to make repayments.

                  3.

                  Third plea in law, alleging an infringement of the general principle of the protection of legitimate expectations;
                  In the context of the third plea in law, it is claimed that, in view of the particular circumstances, the applicant could rely on its right to retain the awarded special network charges.


title: Case T-339/17: Judgment of the General Court of 21 November 2018 — Shenzhen Jiayz Photo Industrial v EUIPO — Seven (SEVENOAK) (EU trade mark — Opposition proceedings — Application for EU figurative mark SEVENOAK — Earlier international figurative mark 7seven — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/21

      Judgment of the General Court of 21 November 2018 — Shenzhen Jiayz Photo Industrial v EUIPO — Seven (SEVENOAK)
      (Case T-339/17) (1)

      ((EU trade mark - Opposition proceedings - Application for EU figurative mark SEVENOAK - Earlier international figurative mark 7seven - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
      (2019/C 35/26)
      Language of the case: English

         Parties

         Applicant: Shenzhen Jiayz Photo Industrial Ltd (Shenzhen, China) (represented by: M. de Arpe Tejero, lawyer)

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

         Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Seven SpA (Leinì, Italy) (represented by: L. Trevisan, lawyer)

         Re:

      Action brought against the decision of the First Board of Appeal of EUIPO of 23 March 2017 (Case R 1326/2016-1), relating to opposition proceedings between Seven and Shenzhen Jiayz Photo Industrial.

         Operative part of the judgment

      The Court:

                  1.

                  Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 March 2017 (Case R 1326/2016-1);

                  2.

                  Dismisses the action as to the remainder;

                  3.

                  Orders EUIPO to bear, in addition to its own costs, eight tenths of the costs incurred by Shenzhen Jiayz Photo Industrial Ltd;

                  4.

                  Orders Seven SpA to bear, in addition to its own costs, a tenth of the costs incurred by Shenzhen Jiayz Photo Industrial;

                  5.

                  Orders Shenzhen Jiayz Photo Industrial to bear a tenth of its own costs.

         (1)  OJ C 239, 24.7.2017.


title: Case C-737/18 P: Appeal brought on 27 November 2018 by the Portuguese Republic against the judgment delivered by the General Court (Fourth Chamber) on 26 September 2018 in Case T-463/16 Portugal v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/14

      Appeal brought on 27 November 2018 by the Portuguese Republic against the judgment delivered by the General Court (Fourth Chamber) on 26 September 2018 in Case T-463/16 Portugal v Commission
      (Case C-737/18 P)
      (2019/C 35/18)
      Language of the case: Portuguese

         Parties

         Appellant: Portuguese Republic (represented by: L. Ines Fernandes, P. Barros da Costa, P. Estêvão and J. Saraiva de Almeida, Agents)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  1.

                  Set aside the judgment under appeal, in so far as, by that judgment, the General Court dismissed the action for annulment of European Commission (EC) Decision C(2016) 3753 (1) of 20 June 2016;

                  2.

                  Annul European Commission (EC) Decision C(2016) 3753 of 20 June 2016, given that the Court of Justice is in a position to ascertain the validity of the claims made by the Portuguese Republic;

                  3.

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      The Portuguese Republic requests that the judgment under appeal be set aside and, accordingly, that the decision at issue be annulled, on the following grounds:

                  1)

                     Error of law and infringement of the principle of legal certainty — Infringement of Article 24 of Regulation (EC) No 73/2009 (2), and the provisions of the second subparagraph of Article 54(1)(c), and Article 71(1) of Regulation (EC) No 1122/2009; (3) and clear contradiction, arising from an error of law, with the findings in paragraphs 43 and 44 of the judgment under appeal, in that, in finding that the Commission’s second ground was unfounded, the General Court presupposed that Portugal’s cross-compliance control system was an effective control system, and, thus, in rejecting the ground while failing to annul the decision at issue, the General Court committed a manifest error of law and contradicted its own findings, thereby also infringing the principle of legal certainty.

                  2)

                     Error of law, inconsistency, and infringement of the principle of proportionality, in so far as the judgment under appeal allows, in paragraph 41, the unequivocal distinction between eligibility and the cross-compliance control system, and, in paragraphs 46 and 47, it affirms, in a contradictory manner, that the total amount of the aid paid to farmers had to be corrected. Thus, in paragraph 43 of the judgment under appeal, the General Court erred in finding that the risk for the fund cannot be limited to the control sample, and in upholding the Commission’s financial correction applied to the entirety of the costs, which is neither appropriate nor necessary for the aim pursued, and is, as such, disproportionate. The General Court’s conclusion infringes the provisions of Article 5 TEU, Article 31(2) of Regulation No 1290/2005 (4) and Article 50(1) of Regulation No 1122/2009, from which it is apparent that the correction rate applies solely to that part of the costs exposed to the risk, that is, 1 %. Thus, the judgment under appeal contained a manifest error of law and was inconsistent in its reasoning, thereby infringing general principles and the rules laid down in the first and sixth paragraphs of point 2 of Commission Working Document, AGRI-2005-64043, through their incorrect application, and also infringed Commission Working Document DS/2010/29 REV and the principle of proportionality.

         (1)  Commission Implementing Decision (EU) 2016/1059 of 20 June 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2016) 3753) (OJ 2016 L 173, p. 59).

         (2)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16).

         (3)  Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65).

         (4)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2009 L 209, p. 1).


title: Case T-424/17: Judgment of the General Court of 22 November 2018 — Fruit of the Loom v EUIPO — Takko (FRUIT) (EU trade mark — Revocation proceedings — EU word mark FRUIT — Genuine use of the mark — Article 15(1)(a) of Regulation (EC) No 207/2009 (now Article 18(1)(a) of Regulation (EU) 2017/1001) — Res judicata — Article 65(6) of Regulation No 207/2009 (now Article 72(6) of Regulation 2017/1001))

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/22

      Judgment of the General Court of 22 November 2018 — Fruit of the Loom v EUIPO — Takko (FRUIT)
      (Case T-424/17) (1)

      ((EU trade mark - Revocation proceedings - EU word mark FRUIT - Genuine use of the mark - Article 15(1)(a) of Regulation (EC) No 207/2009 (now Article 18(1)(a) of Regulation (EU) 2017/1001) - Res judicata - Article 65(6) of Regulation No 207/2009 (now Article 72(6) of Regulation 2017/1001)))
      (2019/C 35/27)
      Language of the case: English

         Parties

         Applicant: Fruit of the Loom, Inc. (Bowling Green, Kentucky, United States) (represented by: S. Malynicz QC and V. Marsland, Solicitor)

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

         Other party to the proceedings before the Board of Appeal of EUIPO: Takko Holding GmbH (Telgte, Germany)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 25 April 2017 (Case R 2119/2016-4), relating to revocation proceedings between Takko Holding and Fruit of the Loom.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Fruit of the Loom, Inc. to pay the costs.

         (1)  OJ C 318, 25.9.2017.


title: Case C-706/18: Request for a preliminary ruling from the Raad voor Vreemdelingenbetwistingen (Belgium) lodged on 14 November 2018 — X v Belgische Staat

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/11

      Request for a preliminary ruling from the Raad voor Vreemdelingenbetwistingen (Belgium) lodged on 14 November 2018 — X v Belgische Staat
      (Case C-706/18)
      (2019/C 35/14)
      Language of the case: Dutch

         Referring court

      Raad voor Vreemdelingenbetwistingen

         Parties to the main proceedings

         Applicant: X

         Defendant: Belgische Staat

         Question referred

      Does Directive 2003/86/EC (1) — having regard to Article 3(5), as well as the objective thereof, in particular, the determination of the conditions for the exercise of the right to family reunification — preclude national legislation which requires that Article 5(4) of Directive 2003/86/EC be interpreted as meaning that the consequence of no decision having been taken by the expiry of the prescribed period is that national authorities are under an obligation to grant, of their own motion, a residence permit to the person concerned, without first establishing that that person in fact satisfies the conditions for residence in Belgium in conformity with EU law?

         (1)  Council Directive of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).


title: Case T-694/18: Action brought on 17 November 2018 — DEI v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/29

      Action brought on 17 November 2018 — DEI v Commission
      (Case T-694/18)
      (2019/C 35/35)
      Language of the case: Greek

         Parties

         Applicant: Dimosia Epicheirisi Ilektrismou AE (DEI) (Athens, Greece) (represented by: E. Bourtzalas, A. Iliadou and C. Synodinos, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul the decision of 30 July 2018 of the European Commission (C(2018) 4947 final in Case SA.50152) to the extent that the Commission decides not to raise objections to the aid scheme under the new Transitory Flexibility Remuneration Mechanism (‘the new TFRM’) which was notified by Greece, based on the conclusion that that scheme is compatible with the internal market pursuant to Article 107(3)(c) TFEU, and

                  —

                  order the European Commission to pay DEI’s costs.

         Pleas in law and main arguments

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

                  1.

                  According to the first plea in law, the Contested Decision is vitiated by a manifest error of assessment of the law and of the facts and a failure to comply with essential procedural requirements with respect to the interpretation and application of Article 108(2) TFEU, to the extent that the Commission did not initiate the formal investigation procedure.

                  2.

                  According to the second plea in law, the Contested Decision is vitiated by a manifest error of assessment of the law and of the facts, with respect to the judgment that the new Transitory Flexibility Remuneration Mechanism satisfies the criteria of the Guidelines on State aid for environmental protection and energy (2014-2020) for the assessment of the compatibility of the aid with the internal market pursuant to Article 107(3)(c) TFEU and in particular the criteria of necessity, proportionality, appropriateness, incentive effect and avoidance of undue negative effects on competition.


title: Joined Cases C-262/17, C-263/17 and C-273/17: Judgment of the Court (First Chamber) of 28 November 2018 (requests for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Solvay Chimica Italia SpA and Others (C-262/17), Whirlpool Europe Srl and Others (C-263/17), Sol Gas Primari Srl (C-273/17) v Autorità per l’energia elettrica, il gas e il sistema idrico (Reference for a preliminary ruling — Internal market in electricity — Directive 2009/72/EC — Distribution systems — Article 28 — Closed distribution systems — Definition — Exemptions — Limits — Article 32(1) — Third-party access — Article 15(7) and Article 37(6)(b) — Dispatching charges)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/3

      Judgment of the Court (First Chamber) of 28 November 2018 (requests for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Solvay Chimica Italia SpA and Others (C-262/17), Whirlpool Europe Srl and Others (C-263/17), Sol Gas Primari Srl (C-273/17) v Autorità per l’energia elettrica, il gas e il sistema idrico
      (Joined Cases C-262/17, C-263/17 and C-273/17) (1)

      ((Reference for a preliminary ruling - Internal market in electricity - Directive 2009/72/EC - Distribution systems - Article 28 - Closed distribution systems - Definition - Exemptions - Limits - Article 32(1) - Third-party access - Article 15(7) and Article 37(6)(b) - Dispatching charges))
      (2019/C 35/04)
      Language of the case: Italian

         Referring court

      Tribunale amministrativo regionale per la Lombardia

         Parties to the main proceedings

         Applicants: Solvay Chimica Italia SpA, Solvay Specialty Polymers Italy SpA, Solvay Chimica Bussi SpA, Ferrari f.lli Lunelli SpA, Fenice — Qualità Per L’ambiente SpA, Erg Power Srl, Erg Power Generation SpA, Eni SpA, Enipower SpA (C-262/17), Whirlpool Europe Srl, Fenice — Qualità Per L’ambiente SpA, FCA Italy SpA, FCA Group Purchasing Srl, FCA Melfi SpA, Barilla G. e R. Fratelli SpA, Versalis SpA (C-263/17), Sol Gas Primari Srl (C-273/17)

         Defendant: Autorità per l’energia elettrica, il gas e il sistema idrico

         Interveners: Nuova Solmine SpA, American Husky III, Inovyn Produzione Italia SpA, Sasol Italy SpA, Radici Chimica SpA, La Vecchia Soc. cons. arl, Zignago Power Srl, Santa Margherita e Kettmeir e Cantine Torresella SpA, Zignago Vetro SpA, Chemisol Italia Srl, Vinavil SpA, Italgen SpA, Arkema Srl, Yara Italia SpA, Ineos Manufacturing Italia SpA, ENEL Distribuzione SpA, Terna SpA, CSEA — Cassa per i servizi energetici e ambientali, Ministero dello Sviluppo economico (C-262/17), Terna SpA, CSEA — Cassa per i servizi energetici e ambientali, Ministero dello Sviluppo economico, ENEL Distribuzione SpA (C-263/17), Terna SpA, Ministero dello Sviluppo economico (C-273/17)

         Operative part of the judgment

                  1.

                  Article 2(5) and Article 28(1) of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC must be interpreted as meaning that systems, such as those at issue in the main proceedings, put in place for the purposes of self-consumption before the entry into force of that directive and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn are connected to the public network, constitute distribution systems falling within the scope of that directive.

                  2.

                  Article 28 of Directive 2009/72 must be interpreted as meaning that systems, such as those at issue in the main proceedings, which have been classified by a Member State as closed distribution systems within the meaning of paragraph 1 of that article, may, in that capacity, only be exempted by that Member State from the requirements laid down in paragraph 2 of that article, without prejudice to the fact that those systems are otherwise eligible for other exemptions provided for in that directive, in particular the exemption set out in Article 26(4) thereof, if they meet the conditions laid down therein, which it is for the referring court to ascertain. In any event, that Member State may not include those systems in a separate category of distribution systems in view of granting them exemptions not provided for in that directive.

                  3.

                  Article 32(1) of Directive 2009/72 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that closed distribution systems within the meaning of Article 28(1) of that directive are not subject to the obligation to provide third-party access, but must provide access only to third parties falling within the category of users that may be connected to those systems, those users having a right of access to the public network.

                  4.

                  Article 15(7) and Article 37(6)(b) of Directive 2009/72 must be interpreted as precluding, in the absence of any objective justification, national legislation such as that at issue in the main proceedings which provides that dispatching charges for the users of a closed distribution system are calculated on the basis of the electricity exchanged with that system by each of its users through their connection point to that system, should the users of a closed distribution system prove not to be in the same situation as the other users of the public network and should the provider of the dispatching service for the public network bear the limited costs with regard to those users of a closed distribution system, which it is for the referring court to ascertain.

         (1)  OJ C 309, 18.9.2017.


title: Case T-696/18: Action brought on 26 November 2018 — C.R.D.O.P. ‘Jamón de Teruel/Paleta de Teruel’ v EUIPO — Airesano Foods (AIRESANO BLACK El ibérico de Teruel)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/30

      Action brought on 26 November 2018 — C.R.D.O.P. ‘Jamón de Teruel/Paleta de Teruel’ v EUIPO — Airesano Foods (AIRESANO BLACK El ibérico de Teruel)
      (Case T-696/18)
      (2019/C 35/36)
      Language in which the application was lodged: Spanish

         Parties

         Applicant: Consejo Regulador de la Denominación de Origen Protegida ‘Jamón de Teruel/Paleta de Teruel’ (Teruel, Spain) (represented by: F. Pérez Álvarez, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Airesano Foods, SL (La Puebla de Valverde, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for EU figurative mark AIRESANO BLACK El ibérico de Teruel — Application for registration No 15 240 005

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 24 September 2018 in Case R 88/2018-4

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the parties to the proceedings to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 13(1)(b) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council;

                  —

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


title: Case C-264/17: Judgment of the Court (Fourth Chamber) of 29 November 2018 (request for a preliminary ruling from the Finanzgericht Münster — Germany) — Harry Mensing v Finanzamt Hamm (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Article 314 — Article 316 — Article 322 — Special arrangements for works of art — Margin scheme — Taxable dealers — Supply of works of art by the creator or his successors in title — Intra-Community transactions — National tax authorities’ refusal to grant a taxable person the right to opt for application of the margin scheme — Conditions under which applicable — Right to deduct input tax — Works of art, collectors’ items and antiques)

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/4

      Judgment of the Court (Fourth Chamber) of 29 November 2018 (request for a preliminary ruling from the Finanzgericht Münster — Germany) — Harry Mensing v Finanzamt Hamm
      (Case C-264/17) (1)

      ((Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Article 314 - Article 316 - Article 322 - Special arrangements for works of art - Margin scheme - Taxable dealers - Supply of works of art by the creator or his successors in title - Intra-Community transactions - National tax authorities’ refusal to grant a taxable person the right to opt for application of the margin scheme - Conditions under which applicable - Right to deduct input tax - Works of art, collectors’ items and antiques))
      (2019/C 35/05)
      Language of the case: German

         Referring court

      Finanzgericht Münster

         Parties to the main proceedings

         Applicant: Harry Mensing

         Defendant: Finanzamt Hamm

         Operative part of the judgment

                  1.

                  Article 316(1)(b) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that a taxable dealer may opt for the application of the margin scheme to the input supply of works of art which were supplied in the context of an exempt intra-Community supply, by the creator or his successors in title, when those persons do not fall within the categories of persons listed in Article 314 of that directive.

                  2.

                  A taxable dealer may not opt for the application of the margin scheme laid down in Article 316(1)(b) of the VAT Directive to an input supply of works of art that were supplied to him in the context of an exempt intra-Community supply and, at the same time, claim a right to deduct input VAT in the situations in which such a right is precluded under Article 322(b) of that directive, if that latter provision has not been transposed into national law.

         (1)  OJ C 283, 28.8.2017.


title: Case T-704/18: Action brought on 28 November 2018 — Wacker Chemie v Commission

text:
               28.1.2019

               EN

               Official Journal of the European Union

               C 35/30

      Action brought on 28 November 2018 — Wacker Chemie v Commission
      (Case T-704/18)
      (2019/C 35/37)
      Language of the case: German

         Parties

         Applicant: Wacker Chemie AG (Munich, Germany) (represented by: M. Kachel and D. Fouquet, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 insofar as it orders that, in respect of the years 2012 and 2013, baseload consumers with at least 7 000 hours of full use per year repay more than 20 % of published network charges, baseload consumers with at least 7 500 hours of full use per year repay more than 15 % of published network charges and baseload consumers with at least 8 000 hours of full use per year repay more than 10 % of published network charges;

                  —

                  in the alternative, annul in full the defendant’s Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 relating to Ref. C(2018) 3166 in respect of the years 2012 and 2013;

                  —

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

         Pleas in law and main arguments

      In support of the action, the applicant relies on three pleas in law which are, in essence, either identical or similar to the pleas in law relied on in Case T-693/18, ZY v Commission.