title: Case C-220/17: Judgment of the Court (First Chamber) of 30 January 2019 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v Land Berlin (Reference for a preliminary ruling — Approximation of laws — Validity of Directive 2014/40/EU — Manufacture, presentation and sale of tobacco products — Regulation of ‘ingredients’ — Prohibition of flavoured tobacco products)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/3

      Judgment of the Court (First Chamber) of 30 January 2019 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG v Land Berlin
      (Case C-220/17) (1)

      ((Reference for a preliminary ruling - Approximation of laws - Validity of Directive 2014/40/EU - Manufacture, presentation and sale of tobacco products - Regulation of ‘ingredients’ - Prohibition of flavoured tobacco products))
      (2019/C 112/04)
      Language of the case: German

         Referring court

      Verwaltungsgericht Berlin

         Parties to the main proceedings

         Applicant: Planta Tabak-Manufaktur Dr. Manfred Obermann GmbH & Co. KG

         Defendant: Land Berlin

         Operative part of the judgment

                  1.

                  Examination of the first question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 7(1), (7) and (14) of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC.

                  2.

                  Article 7(14) of Directive 2014/40 must be interpreted as meaning, first, that the concept of ‘product category’ within the meaning of that provision covers cigarettes and roll-your-own tobacco and, second, that the procedure to be followed for determining whether a particular tobacco product reaches the 3 % limit laid down in that provision must be established in accordance with the domestic law of the Member State concerned.

                  3.

                  Articles 8 to 11 of Directive 2014/40 must be interpreted as not allowing the Member States to determine transposition periods additional to those provided for in Articles 29 and 30 of that directive.

                  4.

                  Examination of the second question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of the second subparagraph of Article 9(1), the second sentence of Article 9(4)(a), Article 9(6), Article 10(1)(b), (e) and (f), and the first sentence of the first subparagraph of Article 11(1) of Directive 2014/40.

                  5.

                  Article 13(1)(c) and (3) of Directive 2014/40 must be interpreted as requiring the Member States to prohibit the use of information referring to taste, smell, flavourings or other additives even where that information is not promotional information and the use of the ingredients concerned is still permitted.

                  6.

                  Examination of the third question referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Article 13(1)(c) and (3) of Directive 2014/40.

         (1)  OJ C 239, 24.7.2017.


title: Case C-225/17 P: Judgment of the Court (Fourth Chamber) of 31 January 2019 — Islamic Republic of Iran Shipping Lines and Others v Council of the European Union, European Commission (Appeal — Common foreign and security policy — Restrictive measures taken against the Islamic Republic of Iran — Freezing of funds and economic resources — Annulment of a listing by the General Court of the European Union — Amendment of the criteria governing inclusion on a list of persons and entities whose assets are to be frozen — Re-listing — Evidence dating from before the first listing — Facts known before the first listing — Force of res judicata — Scope — Legal certainty — Protection of legitimate expectations — Principle Non bis in idem — Effective judicial protection)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/4

      Judgment of the Court (Fourth Chamber) of 31 January 2019 — Islamic Republic of Iran Shipping Lines and Others v Council of the European Union, European Commission
      (Case C-225/17 P) (1)

      ((Appeal - Common foreign and security policy - Restrictive measures taken against the Islamic Republic of Iran - Freezing of funds and economic resources - Annulment of a listing by the General Court of the European Union - Amendment of the criteria governing inclusion on a list of persons and entities whose assets are to be frozen - Re-listing - Evidence dating from before the first listing - Facts known before the first listing - Force of res judicata - Scope - Legal certainty - Protection of legitimate expectations - Principle Non bis in idem - Effective judicial protection))
      (2019/C 112/05)
      Language of the case: English

         Parties

         Appellants: Islamic Republic of Iran Shipping Lines, Hafize Darya Shipping Lines (HDSL), Khazar Shipping Lines, IRISL Europe GmbH, Qeshm Marine Services & Engineering Co., Irano Misr Shipping Co., Safiran Payam Darya Shipping Lines, Marine Information Technology Development Co., Rahbaran Omid Darya Ship Management Co., Hoopad Darya Shipping Agency and Valfajr 8th Shipping Line Co. (represented by: M. Lester QC and M. Taher, Solicitor)

         Other parties to the proceedings: Council of the European Union (represented by: J. Kneale and M. Bishop, Agents), European Commission (represented by: D. Gauci and by T. Scharf, Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders Islamic Republic of Iran Shipping Lines, Hafize Darya Shipping Lines (HDSL), Khazar Shipping Lines, IRISL Europe GmbH, Qeshm Marine Services & Engineering Co., Irano Misr Shipping Co., Safiran Payam Darya Shipping Lines, Marine Information Technology Development Co., Rahbaran Omid Darya Ship Management Co., Hoopad Darya Shipping Agency and Valfajr 8th Shipping Line Co. to bear their own costs and to pay those incurred by the Council of the European Union;

                  3.

                  Orders the European Commission to bear its own costs.

         (1)  OJ C 231, 17.7.2017.


title: Case C-587/17 P: Judgment of the Court of Justice (Fourth Chamber) of 30 January 2019 — Kingdom of Belgium v European Commission (Appeal — European Agricultural Guarantee Fund (EAGF) — Regulation (EC) No 1290/2005 — Regulation (EU) No 1306/2013 — Expenses excluded from financing by the European Union — Unduly paid export refunds — Recovery — Not all judicial remedies were exhausted — No appeal on a point of law following the negative opinion of a lawyer authorised to act before the Cour de cassation (Belgium) — Article 267 TFEU — No reference for a preliminary ruling to the Court of Justice — Negligence on the part of a Member State)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/5

      Judgment of the Court of Justice (Fourth Chamber) of 30 January 2019 — Kingdom of Belgium v European Commission
      (Case C-587/17 P) (1)

      ((Appeal - European Agricultural Guarantee Fund (EAGF) - Regulation (EC) No 1290/2005 - Regulation (EU) No 1306/2013 - Expenses excluded from financing by the European Union - Unduly paid export refunds - Recovery - Not all judicial remedies were exhausted - No appeal on a point of law following the negative opinion of a lawyer authorised to act before the Cour de cassation (Belgium) - Article 267 TFEU - No reference for a preliminary ruling to the Court of Justice - Negligence on the part of a Member State))
      (2019/C 112/06)
      Language of the case: French

         Parties

         Appellant: Kingdom of Belgium (represented by: J.-C. Halleux, M. Jacobs and C. Pochet, acting as Agents, and by E. Grégoire and J. Mariani, avocats)

         Other party to the proceedings: European Commission (represented by: A. Bouquet and B. Hofstötter, acting as Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 20 July 2017, Belgium v Commission (T-287/16, not published, EU:T:2017:531);

                  2.

                  Refers Case T-287/16 back to the General Court of the European Union;

                  3.

                  Reserves the costs.

         (1)  OJ C 412, 4.12.2017.


title: Case C-6/18 P: Judgment of the Court (Eighth Chamber) of 31 January 2019 — Hellenic Republic v European Commission (Appeal — European Agricultural Guarantee Fund (EAGF) — European Agricultural Fund for Rural Development (EAFRD) — Regulation (EC) No 1290/2005 — Financing of the common agricultural policy — Excluded expenditure — Expenditure incurred by the Hellenic Republic)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/6

      Judgment of the Court (Eighth Chamber) of 31 January 2019 — Hellenic Republic v European Commission
      (Case C-6/18 P) (1)

      ((Appeal - European Agricultural Guarantee Fund (EAGF) - European Agricultural Fund for Rural Development (EAFRD) - Regulation (EC) No 1290/2005 - Financing of the common agricultural policy - Excluded expenditure - Expenditure incurred by the Hellenic Republic))
      (2019/C 112/07)
      Language of the case: Greek

         Parties

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

         Other party to the proceedings: European Commission (represented by: D. Triantafyllou and A. Sauka, Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the appeal;

                  2.

                  Orders the Hellenic Republic to pay the costs.

         (1)  OJ C 63, 19.2.2018.


title: Case C-149/18: Judgment of the Court (Sixth Chamber) of 31 January 2019 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — Agostinho da Silva Martins v Dekra Claims Services Portugal SA (Reference for a preliminary ruling — Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Regulation (EC) No 864/2007 (Rome II) — Articles 16 and 27 — Overriding mandatory provisions — Directive 2009/103/EC — Civil liability insurance for motor vehicles — Article 28)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/6

      Judgment of the Court (Sixth Chamber) of 31 January 2019 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — Agostinho da Silva Martins v Dekra Claims Services Portugal SA
      (Case C-149/18) (1)

      ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Law applicable to non-contractual obligations - Regulation (EC) No 864/2007 (Rome II) - Articles 16 and 27 - Overriding mandatory provisions - Directive 2009/103/EC - Civil liability insurance for motor vehicles - Article 28))
      (2019/C 112/08)
      Language of the case: Portuguese

         Referring court

      Tribunal da Relação de Lisboa

         Parties to the main proceedings

         Appellant: Agostinho da Silva Martins

         Respondent: Dekra Claims Services Portugal SA

         Operative part of the judgment

                  1.

                  Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that a national provision, such as that at issue in the main proceedings, which provides that the limitation period for actions seeking compensation for damage resulting from an accident is three years, cannot be considered to be an overriding mandatory provision, within the meaning of that article, unless the court hearing the case finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the law applicable, designated pursuant to Article 4 of that regulation.

                  2.

                  Article 27 of Regulation No 864/2007 must be interpreted as meaning that Article 28 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, as transposed into national law, does not constitute a provision of EU law which lays down a conflict-of-law rule relating to non-contractual obligations, within the meaning of Article 27 of that regulation.

         (1)  OJ C 161, 7.5.2018.


title: Case C-626/17: Order of the Court (Second Chamber) of 17 January 2019 (request for a preliminary ruling from the Giudice di Pace di Roma — Italy) — Alberto Rossi v Ministero di Giustizia (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court of Justice — Social policy — Fixed-term employment — Justices of the Peace — Manifest inadmissibility)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/7

      Order of the Court (Second Chamber) of 17 January 2019 (request for a preliminary ruling from the Giudice di Pace di Roma — Italy) — Alberto Rossi v Ministero di Giustizia
      (Case C-626/17) (1)

      ((Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - Social policy - Fixed-term employment - Justices of the Peace - Manifest inadmissibility))
      (2019/C 112/10)
      Language of the case: Italian

         Referring court

      Giudice di Pace di Roma

         Parties to the main proceedings

         Applicant: Alberto Rossi

         Defendant: Ministero di Giustizia

         Intervener in support of the applicant: Unione Nazionale Giudici di Pace (Unagipa), Associazione Nazionale Guidici di Pace, Coordinamento Nazionale Giustizia di Pace, Organismo Unitario della Magistratura Onoraria — Magistrati Onorari Riuniti, Maria Maddalena Acernese and 656 other Justices of the Peace, Angela Abbondandolo and 139 honorary vice-prosecutors, Santina Adelfio and 101 other honorary judges

         Operative part of the order

      The request for a preliminary ruling made by the Giudice di Pace di Roma (Justice of the Peace of Rome, Italy), by decision of 17 October 2017, is manifestly inadmissible.

         (1)  OJ C 52, 12.2.2018.


title: Case C-169/18: Order of the Court (First Chamber) of 10 January 2019 (request for a preliminary ruling from the Court of Appeal — Ireland) — Atif Mahmood and Others v Minister for Justice and Equality (Reference for a preliminary ruling — No need to adjudicate)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/8

      Order of the Court (First Chamber) of 10 January 2019 (request for a preliminary ruling from the Court of Appeal — Ireland) — Atif Mahmood and Others v Minister for Justice and Equality
      (Case C-169/18) (1)

      ((Reference for a preliminary ruling - No need to adjudicate))
      (2019/C 112/11)
      Language of the case: English

         Referring court

      Court of Appeal

         Parties to the main proceedings

         Appellants: Atif Mahmood, Shabina Atif, Mohammed Ahsan, Mohammed Haroon, Nik Bibi Haroon, Noor Habib and Others

         Respondent: Minister for Justice and Equality

         Operative part of the order

      There is no need to give a ruling on the request for a preliminary ruling made by the Court of Appeal (Ireland) by decision of 23 February 2018 in Case C-169/18.

         (1)  OJ C 166, 14.5.2018.


title: Joined Cases C-335/18 and C-336/18: Order of the Court (Eighth Chamber Chamber) of 30 January 2019 — (requests for a preliminary ruling from the Sofiyski gradski sad, Apelativen sad — Sofia — Bulgaria) — Criminal proceedings against AK (C-335/18), EP (C-336/18) (References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Controls of cash entering or leaving the European Union — Regulation (EC) No 1889/2005 — Article 3(1) — Infringement of the obligation to declare — Article 4(2) — Measure to detain — Article 9(1) — Penalties provided for by national law — National legislation providing that, in addition to the imposition of a penalty of a term of imprisonment or a fine in the amount of one fifth of the amount of the undeclared sum, that sum is to be confiscated by the State — Proportionality)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/9

      Order of the Court (Eighth Chamber Chamber) of 30 January 2019 — (requests for a preliminary ruling from the Sofiyski gradski sad, Apelativen sad — Sofia — Bulgaria) — Criminal proceedings against AK (C-335/18), EP (C-336/18)
      (Joined Cases C-335/18 and C-336/18) (1)

      ((References for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Controls of cash entering or leaving the European Union - Regulation (EC) No 1889/2005 - Article 3(1) - Infringement of the obligation to declare - Article 4(2) - Measure to detain - Article 9(1) - Penalties provided for by national law - National legislation providing that, in addition to the imposition of a penalty of a term of imprisonment or a fine in the amount of one fifth of the amount of the undeclared sum, that sum is to be confiscated by the State - Proportionality))
      (2019/C 112/12)
      Language of the case: Bulgarian

         Referring court

      Sofiyski gradski sad, Apelativen sad — Sofia

         Criminal proceedings against

      AK (C-335/18), EP (C-336/18)

         Operative part of the order

      Articles 4(2) and 9(1) of Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, for the purpose of penalising an infringement of the obligation to declare provided for in Article 3 of that regulation, provides that, in addition to the imposition of a penalty of a term of imprisonment of up to five years or a fine in the amount of one fifth of the amount of the undeclared sum of cash, that undeclared sum is to be confiscated by the State.

         (1)  OJ C 276, 6.8.2018.


title: Case C-440/18 P: Order of the Court (Eighth Chamber) of 30 January 2019 — Verein Deutsche Sprache eV v European Commission (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Access to documents — Regulation (EC) No 1049/2001 — Documents relating to a Commission decision concerning the alteration of the appearance of the press room in the Berlaymont Building to display only the French and English languages — Refusal to grant full access)

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/9

      Order of the Court (Eighth Chamber) of 30 January 2019 — Verein Deutsche Sprache eV v European Commission
      (Case C-440/18 P) (1)

      ((Appeal - Article 181 of the Rules of Procedure of the Court of Justice - Access to documents - Regulation (EC) No 1049/2001 - Documents relating to a Commission decision concerning the alteration of the appearance of the press room in the Berlaymont Building to display only the French and English languages - Refusal to grant full access))
      (2019/C 112/13)
      Language of the case: German

         Parties

         Appellant: Verein Deutsche Sprache eV (represented by: W. Ehrhardt, Rechtsanwalt)

         Other party to the proceedings: European Commission (represented by: F. Erlbacher and F. Clotuche-Duvieusart, acting as Agents)

         Operative part of the order

                  1.

                  The appeal is dismissed as manifestly inadmissible.

                  2.

                  Verein Deutsche Sprache eV is ordered to bear its own costs and to pay those incurred by the European Commission.

         (1)  OJ C 294, 20.8.2018.


title: Case C-426/18 P: Appeal brought on 26 June 2018 by Adrian Iordăchescu, Florina Iordăchescu, Mihaela Iordăchescu and Cristinel Iordăchescu against the order of the General Court (Seventh Chamber) made on 18 April 2018 in Case T-298/17, Iordăchescu and Others v Parliament and Others

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/10

      Appeal brought on 26 June 2018 by Adrian Iordăchescu, Florina Iordăchescu, Mihaela Iordăchescu and Cristinel Iordăchescu against the order of the General Court (Seventh Chamber) made on 18 April 2018 in Case T-298/17, Iordăchescu and Others v Parliament and Others

      (Case C-426/18 P)
      (2019/C 112/14)
      Language of the case: Romanian

         Parties

         Appellants: Adrian Iordăchescu, Florina Iordăchescu, Mihaela Iordăchescu, Cristinel Iordăchescu (represented by: A. Cuculis, avocat)

         Other parties to the proceedings: European Parliament, Council of the European Union, European Commission
      By order of 31 January 2019, the Court (Ninth Chamber) dismissed the appeal.


title: Case C-730/18 P: Appeal brought on 23 November 2018 by SC against the order of the General Court (Ninth Chamber) delivered on 19 September 2018 in Case T-242/17: SC v Eulex Kosovo

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/12

      Appeal brought on 23 November 2018 by SC against the order of the General Court (Ninth Chamber) delivered on 19 September 2018 in Case T-242/17: SC v Eulex Kosovo
      (Case C-730/18 P)
      (2019/C 112/16)
      Language of the case: English

         Parties

         Appellant: SC (represented by: A. Kunst, Rechtsanwältin, L. Moro, avvocato)

         Other party to the proceedings: Eulex Kosovo

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the order under appeal;

                  —

                  hold the application except for the fifth plea in law,

            and consequently:

                  —

                  hold that there has been an infringement by EULEX of its contractual obligations in the performance of the contract and in the application of the OPLAN and the Concept of Operations (Conops), the Standard Operating Procedures (SOPs), i.e. the SOP on reconfiguration and the SOP on selection of staff, and the principles of fairness and of good faith, entitling her to compensation;

                  —

                  hold that there here has been an infringement by EULEX of its non-contractual obligations vis-à-vis the appellant, including her right to fair and just working conditions (Art. 31 of the EU Charter), her right to sound administration, as well as the principle of impartiality (Art. 41 of the EU Charter) entitling her to compensation;

                  —

                  declare the decision on the 2016 internal competition and the non-renewal of the appellant’s contract of employment unlawful;

                  —

                  order EULEX to pay the appellant, in respect of material damage, an amount corresponding to unpaid wages amounting to 19 months' gross salary, to which should be added a daily subsistence allowance and salary increase, and, moreover, in respect of non-material damage, the sum of EUR 50 000 on account of EULEX’s unlawful decisions/ acts;

            in the alternative:

                  —

                  refer the case back to the General Court to rule on the substance;

                  —

                  order the defendant to pay the costs of the proceedings at first instance and on appeal.

         Pleas in law and main arguments

      By means of her appeal the appellant contends that the General Court had jurisdiction to rule in her case. It erred in law by dismissing the application as, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.
      In support of the appeal, the appellant relies on five pleas in law.

         First plea in law, alleging an infringement of Art. 272 TFEU in that the General Court erred in law by re-classifying the third head of claim it (i.e. the appellant’s action based on Art. 272 TFEU to declare the decision on the internal competition of 2016 and the non-renewal of contract unlawful) into an action of annulment pursuant to Art. 263 TFEU and dismissing that action as inadmissible.
      The Court had no jurisdiction for a re-classification, it is against the express intention of the appellant. The Court erred in law by denying her the opportunity to express her views on the reclassification.

         Second plea in law, alleging an infringement of Art. 272 TFEU, the appellant’s right to an effective remedy pursuant to Art. 47 of the EU Charter and the principle of equal treatment in that the General Court erred in law in failing to accept jurisdiction on the basis of Art. 272 TFEU regarding the third head of claim and consider the merits of the case.
      The General Court erred in law by holding that the action for a declaration of unlawfulness pursuant to Art. 272 TFEU in relation to the decision on the 2016 internal competition and non-renewal of contract is in reality an annulment action pursuant to Art. 263 TFEU; that those decisions are not based on rules governing the contractual relationship but are administrative acts and cannot be challenged under Art. 272 TFEU.

         Third plea in law, alleging (i) an infringement of the SOPS on reconfiguration and staff selection, the right to sound administration including the principle of impartiality and (b) defective statement of reasons in that the General Court made an error of law by holding that the non-renewal of the appellant’s contract was justified by her failure to pass the 2016 internal competition.
      The General Court failed to address the appellant’s arguments set out in the first, second and third pleas in law of her application, i.e., that she failed to pass the 2016 internal competition because the Chairperson of the selection board did not recuse herself respectively was not removed because of a clear conflict of interest and bias on her part.

         Fourth plea in law, alleging an infringement of Arts. 268 and 340.2 TFEU in that the General Court erred in law by holding that the action for compensation for non-contractual liability regarding the decision on the 2016 competition and the non-renewal of contract is inadmissible. The appellant submitted an action for declaration which is admissible, consequently the related action for compensation is admissible.

         Fifth plea in law, alleging an infringement of (i) Arts. 268 and 340.2 TFEU, and the appellant's rights pursuant to Arts. 31 and 41 of the EU Charter (non-contractual liability) and (ii) Arts. 272 and 340.1 TFEU, and the requirements set out in the 2014 calls for contributions (contractual liability), in that the General Court erred in law by holding that the actions for compensation based on non-contractual and contractual liability regarding the repeated requests to undertake driving tests harassing the appellant are unfounded in law.
      EULEX repeated requests forcing the appellant again and again to undertake a driving test notwithstanding that it knew of her disability in relation to her right hand were unlawful. As a consequence she suffered non-material harm entitling her to compensation.


title: Case C-736/18 P: Appeal brought on 26 November 2018 by Gugler France against the judgment of the General Court (Eighth Chamber) delivered on 25 September 2018 in Case T-238/17: Gugler v EUIPO

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/13

      Appeal brought on 26 November 2018 by Gugler France against the judgment of the General Court (Eighth Chamber) delivered on 25 September 2018 in Case T-238/17: Gugler v EUIPO
      (Case C-736/18 P)
      (2019/C 112/17)
      Language of the case: English

         Parties

         Appellant: Gugler France (represented by: S. Guerlain, avocat)

         Other parties to the proceedings: European Union Intellectual Property Office, Alexander Gugler

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the September 25th, 2018 decision of the General Court (8th Chamber) in case T-238/17 for violation of article 8 (4) EUTMR regarding the assessment of the likelihood of confusion which correspond to the concepts of article 8 (1) (b) EUTMR;

                  —

                  order Mr Alexander Gugler to bear the applicants costs in relation to the present proceeding.

         Pleas in law and main arguments

      The applicant alleges infringement of article 8 (4) of the EUTMR and consequently article L711-4 of the French Code of Intellectual Property by failing to establish the existence of an economic link originating from the owner of the earlier right (the applicant) and towards the applicant of the contested mark (the defendant) and, also, the possible absence of a likelihood of confusion.


title: Case C-741/18 P: Appeal brought on 27 November 2018 by OPS Újpesti Csökkentmunkaképességűek Ipari és Kereskedelmi Kft. (OPS Újpest Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-708/17 OPS Ujpest v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/14

      Appeal brought on 27 November 2018 by OPS Újpesti Csökkentmunkaképességűek Ipari és Kereskedelmi Kft. (OPS Újpest Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-708/17 OPS Ujpest v Commission
      (Case C-741/18 P)
      (2019/C 112/18)
      Language of the case: Hungarian

         Parties

         Appellant: OPS Újpesti Csökkentmunkaképességűek Ipari és Kereskedelmi Kft. (OPS Újpest Kft.) (represented by: L. Szabó, ügyvéd)

         Other party to the proceedings: European Commission

         Form of order sought

      In its appeal, OPS Újpest Kft. submits that the Court of Justice should:

                  —

                  Declare the appeal admissible and well-founded and, accordingly, set aside the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-708/17 OPS Újpest v Commission, and notified to the appellant on 2 October 2018;

                  —

                  Furthermore, refer the case back to the General Court so that it may rule on the second, third and fourth grounds of inadmissibility raised;

                  —

                  Moreover, order the European Commission to pay the costs of the proceedings at first instance and on appeal, unless the case is referred back to the General Court, in which case the appellant requests that no ruling be given on the abovementioned costs, but rather that they be reserved for the final judgment.

         Grounds of appeal and main arguments

                  1.

                  First ground of appeal
                  The appellant submits that the principle of legal certainty requires that interested persons know precisely the scope of the obligations under the legislation to which they are subject, which is guaranteed where the legislation concerned has been duly published in the official language of the intended recipient.
                  In the case of a legal act which has not been duly published, the procedural time-limits relating to notification can begin to run only from the date on which the first notification is properly issued.

                  2.

                  Second ground of appeal
                  Inasmuch as the Commission claimed in the proceedings at first instance that the application was inadmissible as the decisions in respect of which annulment was sought were not final, since the investigation was ongoing, a judicial decision in that regard must come before any decision on the other questions concerning admissibility.


title: Case C-747/18 P: Appeal brought on 30 November 2018 by Lux-Rehab Foglalkoztató Non-Profit Kft. (Lux-Rehab Non-Profit Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-710/17, Lux-Rehab Non-Profit v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/15

      Appeal brought on 30 November 2018 by Lux-Rehab Foglalkoztató Non-Profit Kft. (Lux-Rehab Non-Profit Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-710/17, Lux-Rehab Non-Profit v Commission
      (Case C-747/18 P)
      (2019/C 112/19)
      Language of the case: Hungarian

         Parties

         Appellant: Lux-Rehab Foglalkoztató Non-Profit Kft. (Lux-Rehab Non-Profit Kft.) (represented by: L. Szabó)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  declare the appeal admissible and well-founded and, consequently, annul the order of the General Court (Seventh Chamber) of 28 September 2018 in Lux-Rehab Non-Profit v Commission (T-710/17, not published, EU:T:2018:630), as notified to the appellant on 2 October 2018;

                  —

                  refer the case back to the General Court for a ruling on the second and fourth pleas of inadmissibility;

                  —

                  order the defendant at first instance to pay the costs of the proceedings at first instance and on appeal, unless the case is referred back to the General Court, in which case the Court should reserve the costs at first instance and on appeal for final judgment by the General Court.

         Ground of appeal and main arguments

      1. First ground of appeal
      The appellant submits that it referred to the safeguarding of its procedural rights and it should therefore be regarded as an interested party if its action seeks the annulment of a decision not to raise objections, within the meaning of Article 4(3) of Regulation No 659/1999, (1) and that the application refers implicitly and by allusion to the safeguarding of rights.
      2. Second ground of appeal
      Since the General Court interpreted an annex to the application and ruled on the merits of the case on the basis of that interpretation, it cannot assert that it is not for it to seek and identify in the annexes the pleas invoked by the appellant.
      By requiring the appellant to adduce evidence of a ‘concrete and tangible effect’ of the distortion of competition on its situation and thus demonstrate that it is directly concerned by the contested measure, the Commission enters into the factual assessment of the situation. In doing so, it distorts the condition of direct concern.
      3. Third ground of appeal
      If the defendant argues, during the proceedings, that the contested decisions cannot be challenged because they cannot be regarded as final decisions on the ground that the examination is still ongoing, the judicial determination on that issue must be made before the other admissibility issues are dealt with.

         (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case C-748/18 P: Appeal brought on 30 November 2018 by Motex Ipari és Szolgáltató Rehabilitációs Kft. (Motex Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-713/17 Motex v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/16

      Appeal brought on 30 November 2018 by Motex Ipari és Szolgáltató Rehabilitációs Kft. (Motex Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-713/17 Motex v Commission
      (Case C-748/18 P)
      (2019/C 112/20)
      Language of the case: Hungarian

         Parties

         Appellant: Motex Ipari és Szolgáltató Rehabilitációs Kft. (Motex Kft.) (represented by: L. Szabó, ügyvéd)

         Other party to the proceedings: European Commission

         Form of order sought

      In its appeal, Motex Kft. submits that the Court of Justice should:

                  —

                  Declare the appeal admissible and well-founded and, accordingly, set aside the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-713/17 Motex v Commission, and notified to the appellant on 1 October 2018;

                  —

                  Furthermore, refer the case back to the General Court so that it may rule on the second and fourth grounds of inadmissibility raised;

                  —

                  Moreover, order the European Commission to pay the costs of the proceedings at first instance and on appeal, unless the case is referred back to the General Court, in which case the appellant requests that no ruling be given on the abovementioned costs, but rather that they be reserved for the final judgment.

         Grounds of appeal and main arguments

                  1.

                  First ground of appeal
                  The appellant submits that the fact that its application seeks the annulment of a decision not to raise objections, taken under Article 4(3) of Regulation No 659/1999, (1) forms the basis of its plea relating to the defence of its procedural rights, so that it should be considered to be a party concerned, and that its application tacitly alludes, by way of reference, to judicial protection.

                  2.

                  Second ground of appeal
                  Bearing in mind the fact that the General Court interpreted the annexes to the application and also ruled on the merits of that application on the basis of that interpretation, it could not validly hold that it was not under a duty to find and identify the grounds argued by the applicant in those annexes.
                  The General Court’s requirement, whereby the applicant must state the ‘concrete and tangible’ effects caused by the distortion of competition in its situation and, therefore, establish that the contested legal act is of direct concern to it, impacts the Court’s assessment of the facts. The requirement of direct concern is thereby distorted.

                  3.

                  Third ground of appeal
                  Inasmuch as the Commission argued in the proceedings at first instance that the contested decisions could not be subject to appeal as they were not final, since the investigation was ongoing, a judicial decision in that regard must come before any decision on the other questions concerning admissibility.

         (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case C-764/18: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 5 December 2018 — Ayuntamiento de Pamplona v Orange España, S.A.U.

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/17

      Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 5 December 2018 — Ayuntamiento de Pamplona v Orange España, S.A.U.
      (Case C-764/18)
      (2019/C 112/21)
      Language of the case: Spanish

         Referring court

      Tribunal Supremo

         Parties to the main proceedings

         Appellant: Ayuntamiento de Pamplona

         Respondent: Orange España, S.A.U.

         Questions referred

                  1.

                  Is Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), (1) as interpreted by the Court of Justice in relation to undertakings operating in the mobile telecommunications sector, and, specifically, the limitations set out in Articles 12 and 13 of that directive on the taxation powers of the Member States, applicable to undertakings providing fixed telephony and Internet services?

                  2.

                  If the first question is answered in the affirmative (and it is held that that directive is applicable to providers of fixed telephony and Internet services), do Articles 12 and 13 of Directive 2002/20/EC allow Member States to impose a charge or fee calculated exclusively by reference to the gross annual revenue earned by the company — the proprietor of the installed facilities — from the provision of fixed telephony and Internet services in the territory concerned?

         (1)  OJ 2002 L 108, p. 21.


title: Case C-765/18: Request for a preliminary ruling from the Landgericht Koblenz (Germany) lodged on 6 December 2018 — Stadtwerke Neuwied GmbH v RI

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/17

      Request for a preliminary ruling from the Landgericht Koblenz (Germany) lodged on 6 December 2018 — Stadtwerke Neuwied GmbH v RI
      (Case C-765/18)
      (2019/C 112/22)
      Language of the case: German

         Referring court

      Landgericht Koblenz

         Parties to the main proceedings

         Applicant: Stadtwerke Neuwied GmbH

         Defendant: RI

         Questions referred

                  1.

                  Is Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, (1) read in conjunction with points (b) and (c) of Annex A thereto, to be interpreted as meaning that failure to give gas customers timely and direct notice of the preconditions, reasons for and extent of an imminent change in the tariff for gas supplies precludes the effectiveness of such a change in tariff?

                  2.

                  If that question is answered in the affirmative:
                  Has Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, read in conjunction with points (b) and (c) of Annex A thereto, had direct effect since 1 July 2004 in respect of a supply company incorporated under private law (as a German GmbH), because the abovementioned provisions of that directive are unconditional, so far as their subject matter is concerned, and can therefore be applied without any further implementing act, and confer rights on citizens vis-à-vis an organisation which, despite its private-law legal form, is subject to the authority of the State because the State is the sole shareholder in the undertaking?

         (1)  OJ 2003 L 176, p. 57.


title: Case C-773/18: Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — TK v Land Sachsen-Anhalt

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/18

      Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — TK v Land Sachsen-Anhalt
      (Case C-773/18)
      (2019/C 112/23)
      Language of the case: German

         Referring court

      Verwaltungsgericht Halle

         Parties to the main proceedings

         Applicant: TK

         Defendant: Land Sachsen-Anhalt

         Questions referred

                  1.

                  Is the ex post facto percentage increase within the context of an age-related discriminatory pay system a new form of discrimination if the percentage increase is the same for all stages of a pay grade and therefore the absolute, but not the relative gap between those discriminated against and those not discriminated against varies?

                  2.

                  If the answer to Question 1 is in the affirmative, is such a percentage increase over all age brackets justified in cases where the increase is due to the initial payment falling below a minimum set by the constitution of a Member State?

                  3.

                  Does EU law, in particular Article 9 of Directive 2000/78/EC, (1) preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if:

                              —

                              the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 9 September 2015, Unland (C-20/13, EU:C:2015:561);

                              —

                              the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources;

                              —

                              the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially;

                              —

                              the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the judgment of 19 June 2014, Specht and Others, C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005;

                              —

                              the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others;

                              —

                              in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months;

                              —

                              Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs;

                              —

                              national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?

                  4.

                  Does it affect the answer to question 3 if the legal position is unclear or confusing?

                  5.

                  Is it sufficient for the commencement of an exclusion period if the disadvantaged category of persons is aware of the difference in treatment, or must the reason for the unequal treatment, i.e. the differentiation criterion, also be known?

         (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-774/18: Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — UL v Land Sachsen-Anhalt

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/19

      Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — UL v Land Sachsen-Anhalt
      (Case C-774/18)
      (2019/C 112/24)
      Language of the case: German

         Referring court

      Verwaltungsgericht Halle

         Parties to the main proceedings

         Applicant: UL

         Defendant: Land Sachsen-Anhalt

         Questions referred

                  1.

                  Is the ex post facto percentage increase within the context of an age-related discriminatory pay system a new form of discrimination if the percentage increase is the same for all stages of a pay grade and therefore the absolute, but not the relative gap between those discriminated against and those not discriminated against varies?

                  2.

                  If the answer to Question 1 is in the affirmative, is such a percentage increase over all age brackets justified in cases where the increase is due to the initial payment falling below a minimum set by the constitution of a Member State?

                  3.

                  Does EU law, in particular Article 9 of Directive 2000/78/EC, (1) preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if:

                              —

                              the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 19 June 2014, Specht and Others (C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005);

                              —

                              the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources;

                              —

                              the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially;

                              —

                              the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the judgment in Specht and Others;

                              —

                              the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others;

                              —

                              in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months;

                              —

                              Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs;

                              —

                              national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?

                  4.

                  Does it affect the answer to question 3 if the legal position is unclear or confusing?

                  5.

                  Is it sufficient for the commencement of an exclusion period if the disadvantaged category of persons is aware of the difference in treatment, or must the reason for the unequal treatment, i.e. the differentiation criterion, also be known?

         (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-775/18: Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — VM v Land Sachsen-Anhalt

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/20

      Request for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 10 December 2018 — VM v Land Sachsen-Anhalt
      (Case C-775/18)
      (2019/C 112/25)
      Language of the case: German

         Referring court

      Verwaltungsgericht Halle

         Parties to the main proceedings

         Applicant: VM

         Defendant: Land Sachsen-Anhalt

         Questions referred

                  1.

                  Is the ex post facto percentage increase within the context of an age-related discriminatory pay system a new form of discrimination if the percentage increase is the same for all stages of a pay grade and therefore the absolute, but not the relative gap between those discriminated against and those not discriminated against varies?

                  2.

                  If the answer to Question 1 is in the affirmative, is such a percentage increase over all age brackets justified in cases where the increase is due to the initial payment falling below a minimum set by the constitution of a Member State?

                  3.

                  Does EU law, in particular Article 9 of Directive 2000/78/EC, (1) preclude an arrangement which cancels a right to compensation for age-related discriminatory payment after two months if:

                              —

                              the time limit starts with the delivery of the judgment of 8 September 2011, Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560 although the person concerned is not covered by the Bundesangestelltentarifvertrag (Federal Collective Agreement for contractual employees), but his personal situation is the same as in the judgment of 19 June 2014, Specht and Others (C-501/12 to C-506/12, C-540/12 and C-541/12, EU:C:2014:2005);

                              —

                              the aforementioned judgment can be obtained from the officials and judges concerned (employees) only from general public sources;

                              —

                              the employers have denied transferability to officials following the delivery of the abovementioned judgment, thereby denying the existence of age discrimination, whereby that legal opinion has also been communicated externally, at least partially;

                              —

                              the case-law of the administrative courts at first instance has, for the most part, denied the existence of age discrimination within the time limit referred to and also subsequently, until delivery of the judgment in Specht and Others;

                              —

                              the case-law of the higher courts did not exist within the time limit and the first decision at highest instance was only taken following the delivery of the judgment in Specht and Others;

                              —

                              in the civil service or judicial relationship (employment relationship) exclusion periods apply only to the reimbursement of special costs and such periods are not shorter than six months;

                              —

                              Rights to salary (remuneration) are subject to a three-year limitation period, starting from the end of the year in which the right has become due and the beneficiary is aware of or ought to be aware of the right, or a limitation period of ten years runs;

                              —

                              national rights to salary (remuneration), which are not legally fixed in a timely manner, i.e. within the financial year for which it is sought, are to be asserted?

                  4.

                  Does it affect the answer to question 3 if the legal position is unclear or confusing?

                  5.

                  Is it sufficient for the commencement of an exclusion period if the disadvantaged category of persons is aware of the difference in treatment, or must the reason for the unequal treatment, i.e. the differentiation criterion, also be known?

         (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case C-781/18: Request for a preliminary ruling from the Tribunale ordinario di Roma (Italy) lodged on 12 December 2018 — Società Italiana degli Autori ed Editori (S.I.A.E.) v Soundreef Ltd

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/21

      Request for a preliminary ruling from the Tribunale ordinario di Roma (Italy) lodged on 12 December 2018 — Società Italiana degli Autori ed Editori (S.I.A.E.) v Soundreef Ltd
      (Case C-781/18)
      (2019/C 112/26)
      Language of the case: Italian

         Referring court

      Tribunale ordinario di Roma

         Parties to the main proceedings

         Applicant: S.I.A.E. — Società Italiana degli Autori ed Editori

         Defendant: Soundreef Ltd

         Question referred

      Must Directive 2014/26/EU (1) be interpreted as precluding national legislation that reserves access to the copyright intermediation market, or in any event the granting of licences to users, solely to entities which can be classified, according to the definition in that directive, as collective management organisations, to the exclusion of those which can be classified as independent management entities incorporated in that Member State or in other Member States?

         (1)  Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72).


title: Case C-783/18 P: Appeal brought on 12 December 2018 by the European Union Intellectual Property Office against the judgment of the General Court (Sixth Chamber) delivered on 3 October 2018 in Case T-313/17, Wajos GmbH v European Union Intellectual Property Office

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/22

      Appeal brought on 12 December 2018 by the European Union Intellectual Property Office against the judgment of the General Court (Sixth Chamber) delivered on 3 October 2018 in Case T-313/17, Wajos GmbH v European Union Intellectual Property Office
      (Case C-783/18 P)
      (2019/C 112/27)
      Language of the case: German

         Parties

         Appellant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

         Other party to the proceedings: European Union Intellectual Property Office

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment under appeal;

                  —

                  order Wajos GmbH to pay the costs incurred by EUIPO.

         Pleas in law and main arguments

      EUIPO submits that the judgment under appeal infringes Article 7(1)(b) of Regulation (EC) No 207/2009. (1) The Court applied an incorrect test in the assessment of the distinctiveness of the mark at issue, did not examine the relevant criteria and relied on incorrect assessment criteria.
      The judgment under appeal also infringes Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union, since it allows neither the appellant nor the Court of Justice to understand the grounds on which the General Court came to conclusion — which was decisive as regards the operative part of the judgment — that the form of the mark at issue had ‘an exceptional nature, in view of the customs of the sector’.

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


title: Case C-786/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 December 2018 — ratiopharm GmbH v Novartis Consumer Health GmbH

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/23

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 14 December 2018 — ratiopharm GmbH v Novartis Consumer Health GmbH
      (Case C-786/18)
      (2019/C 112/28)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Appellant on a point of law: ratiopharm GmbH

         Respondent in the appeal on a point of law: Novartis Consumer Health GmbH

         Questions referred

                  1.

                  Is Article 96(1) of Directive 2001/83/EC (1) to be interpreted as meaning that pharmaceutical companies may also distribute free finished medicinal products to pharmacists, if their packaging is labelled ‘for demonstration purposes’, the medicinal products are used by the pharmacist to test the product, there is no risk of further distribution (of the unopened product) to end users and the further conditions for distribution set out in Article 96(1)(a) to (d) and (f) to (g) of that directive are met?

                  2.

                  If the answer to Question 1 is in the affirmative: Does Article 96(2) of Directive 2001/83/EC permit a national provision such as Paragraph 47(3) of the Arzneimittelgesetz (Law on medicinal products; ‘the AMG’), if that provision is interpreted as meaning that pharmaceutical companies may not distribute free finished medicinal products to pharmacists, if their packaging is labelled ‘for demonstration purposes’, the medicinal products are used by the pharmacist to test the product, there is no risk of further distribution (of the unopened product) to end users and the further conditions for distribution set out in Article 96(1)(a) to (d) and (f) to (g) of that directive and in Paragraph 47(4) of the AMG are met?

         (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), in the version last amended by Regulation (EU) No 2017/745 (OJ 2017 L 117, p. 1).


title: Case C-788/18: Request for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 14 December 2018 — Stanleyparma Sas, Stanleybet Malta Ltd v Agenzia delle Dogane e dei Monopoli UM Emilia Romagna — SOT Parma

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/23

      Request for a preliminary ruling from the Commissione tributaria provinciale di Parma (Italy) lodged on 14 December 2018 — Stanleyparma Sas, Stanleybet Malta Ltd v Agenzia delle Dogane e dei Monopoli UM Emilia Romagna — SOT Parma
      (Case C-788/18)
      (2019/C 112/29)
      Language of the case: Italian

         Referring court

      Commissione tributaria provinciale di Parma

         Parties to the main proceedings

         Applicants: Stanleyparma Sas, Stanleybet Malta Ltd

         Defendant: Agenzia delle Dogane e dei Monopoli UM Emilia Romagna — SOT Parma

         Questions referred

                  1.

                  Are Articles 56, 57 and 52 of the Treaty on the Functioning of the European Union, the case-law of the Court of Justice on gambling and betting services, particularly the judgments in Gambelli (Case C-243/01), Placanica (Case C-338/04), Costa and Cifone (Joined Cases C-72/10 and C-77/10) and Laezza (Case C-375/14), and on tax discrimination, particularly the judgments in Lindman (Case C-42/02), Commission v Spain (Case C-153/08) and Blanco and Fabretti (Joined Cases C-344/13 and C-367/13), and the principles of equal treatment and non-discrimination under EU law, having regard also to the judgment of the Italian Constitutional Court of 23 January 2018, to be interpreted as precluding national legislation, such as the Italian legislation at issue, which makes national intermediaries transmitting gambling data on behalf of bookmakers established in a different EU Member State, and particularly those sharing the characteristics of the company Stanleybet Malta Ltd, and possibly those bookmakers jointly with their national intermediaries, liable to the single tax on betting and pools provided for in Articles 1 to 3 of D.Lgs. 23.12.1998 n. 504 (Legislative Decree No 504 of 23 December 1998), as amended by Article 1(66)(b) of the Legge di Stabilità 2011 (Italian Stability Law 2011)?

                  2.

                  Are Articles 56, 57 and 52 of the Treaty on the Functioning of the European Union, the case-law of the Court of Justice on gambling and betting services, particularly the judgments in Gambelli (Case C-243/01), Placanica (Case C-338/04), Costa and Cifone (Joined Cases C-72/10 and C-77/10) and Laezza (Case C-375/14), and on tax discrimination, particularly the judgments in Lindman (Case C-42/02), Commission v Spain (Case C-153/08) and Blanco and Fabretti (Joined Cases C-344/13 and C-367/13), and the principles of equal treatment and non-discrimination under EU law, having regard also to the judgment of the Italian Constitutional Court of 23 January 2018, to be interpreted as precluding national legislation, such as the Italian legislation at issue, which makes national intermediaries transmitting gambling data on behalf of bookmakers established in a different EU Member State, and particularly those sharing the characteristics of the company Stanleybet Malta Ltd, and not the national intermediaries transmitting gambling data on behalf of State-licensed bookmakers involved in the same activity, liable to the single tax on betting and pools provided for in Articles 1 to 3 of Legislative Decree No 504 of 23 December 1998, as amended by Article 1(66)(b) of the Stability Law 2011?

                  3.

                  Do Articles 52 and 56 et seq. of the Treaty on the Functioning of the European Union, the case-law of the Court of Justice on gambling and betting services, and the principles of equal treatment and non-discrimination, having regard also to the judgment of the Italian Constitutional Court of 23 January 2018, preclude national legislation such as the Italian legislation enshrined in Article 1(644)(g) of L. 190/2014 (Law No 190/2014), which requires national intermediaries transmitting gambling data on behalf of bookmakers established in a different EU Member State, particularly those sharing the characteristics of the company Stanleybet Malta Ltd, and possibly those bookmakers jointly with their national intermediaries, to pay the single tax on betting provided for in Legislative Decree No 504/1998, on a flat-rate taxable amount corresponding to three times the average amount collected in the province where the business or collection point is located, as inferred from the data recorded in the national totaliser for the tax period preceding the reference period?


title: Case C-790/18: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 December 2018 — ZQ v Corte dei Conti and Others

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/26

      Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 12 December 2018 — ZQ v Corte dei Conti and Others
      (Case C-790/18)
      (2019/C 112/31)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per il Lazio (Italy)

         Parties to the main proceedings

         Applicant: ZQ

         Defendants: Corte dei Conti, Presidenza del Consiglio dei Ministri, Ministero dell’Economia e delle Finanze

         Questions referred

                  1.

                  Do Article 3(2) and (3) TEU, Articles 9, 45, 126, 145, 146 and 147 TFEU and the first paragraph of Article 151 TFEU, Article 15(2) of the Charter of Fundamental Rights of the European Union, and Articles 3 and 5 of the European Pillar of Social Rights preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, in so far as that provision encourages Italian public administrative authorities to give preference, when recruiting or when awarding contracts, only to workers who already hold a pension provided by Italian public social security bodies?

                  2.

                  Do Articles 106(1) and 107 TFEU preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, which permits Italian public administrative authorities engaged in economic activity, subject to compliance with Article 101 et seq. TFEU, to make use of the work of persons who have agreed to waive, in full or in part, the corresponding remuneration, thereby obtaining a cost saving likely to place those administrative authorities at a competitive advantage in relation to other economic operators?

                  3.

                  Do Articles 2, 3 and 6 TEU, Article 126 TFEU and the first paragraph of Article 151 TFEU, Article 15(2) of the Charter of Fundamental Rights of the European Union, and Articles 3 and 7(a) of the European Pillar of Social Rights preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, which, under the conditions laid down therein, accepts that a worker may validly waive remuneration, in full or in part, even if that waiving is solely in order to avoid losing work?

                  4.

                  Do Articles 2, 3 and 6 TEU, Articles 14, 15(1) and 126 TFEU and the first paragraph of Article 151 TFEU, Article 31(1) of the Charter of Fundamental Rights of the European Union, and Articles 5, 6 and 10 of the European Pillar of Social Rights preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, which, under the conditions laid down therein, enables a person to work for an Italian public administrative authority while waiving, in full or in part, the corresponding remuneration, even if no provision is made for any change in the working arrangements in the light of such waiving, either in terms of working time or from the perspective of the quantity and quality of work required and the resulting responsibilities, and thus even if the partial waiving of remuneration entails a significant change to the mutual working agreement, both from the point of view of the correlation between the remuneration and the quality and quantity of work provided and because the worker is thereby ultimately compelled to carry out his activities under sub-optimal working conditions, which lay the foundations for a lower degree of commitment to the work and for a reduced level of efficiency on the part of the administrative authority?

                  5.

                  Do Articles 2, 3 and 6 TEU, Article 126 TFEU and the first paragraph of Article 151 TFEU, Article 15(2) of the Charter of Fundamental Rights of the European Union, and Article 6 of the European Pillar of Social Rights preclude the combined provisions of Article 1(489) of Law No 147/2013 and Article 23b(1) of Decree-Law No 201/2011, converted into Law No 214/2011, in so far as those provisions enable/require an Italian public administrative authority, including while the employment or working relationship is ongoing, to reduce the remuneration due to the worker on the basis of fluctuations in the remuneration ceiling to which Article 23b(1) of Decree-Law No 201/2011, converted into Law No 214/2011, refers, and thus as a result of an unforeseeable event, and in any case by applying a mechanism that is not immediately comprehensible and regardless of the information provided to the worker at the beginning of the employment relationship?

                  6.

                  Do Articles 2, 3 and 6 TEU, Articles 8 and 126 TFEU, Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, and Articles 10 and 15 of the European Pillar of Social Rights preclude a provision of national legislation, such as Article 1(489) of Law No 147/2013, which, under the conditions laid down therein, requires Italian public administrative authorities to reduce the remuneration due to their employees and workers who hold a pension provided by a public social security body, penalising such workers for reasons connected with the availability of other sources of income, thereby discouraging the extension of working life, private economic initiative and the creation and accumulation of private income, even though these are valuable national resources?


title: Case C-834/18: Request for a preliminary ruling from the Tribunal Judicial da Comarca de Faro (Portugal) lodged on 28 December 2018 — Rolibérica, Lda v Autoridade para as Condições do Trabalho

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/27

      Request for a preliminary ruling from the Tribunal Judicial da Comarca de Faro (Portugal) lodged on 28 December 2018 — Rolibérica, Lda v Autoridade para as Condições do Trabalho
      (Case C-834/18)
      (2019/C 112/32)
      Language of the case: Portuguese

         Referring court

      Tribunal Judicial da Comarca de Faro

         Parties to the main proceedings

         Applicant: Rolibérica, Lda

         Defendant: Autoridade para as Condições do Trabalho

         Question referred

      Can Regulation (EC) No 561/2006 (1) of the European Parliament and of the Council of 15 March 2006 be interpreted to the effect that it requires the weekly rest period for drivers engaged in the carriage of goods and passengers by road to begin and end between 00:00 on Monday and 24:00 on Sunday or, on the other hand, can it be taken in full and without interruption between each week worked?

         (1)  Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1).


title: Case C-18/19: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2019 — WM v City of Frankfurt am Main

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/27

      Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 11 January 2019 — WM v City of Frankfurt am Main
      (Case C-18/19)
      (2019/C 112/33)
      Language of the case: German

         Referring court

      Bundesgerichtshof

         Parties to the main proceedings

         Appellant: WM

         Authority involved: City of Frankfurt am Main

         Question referred

      Does Article 16(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (1) preclude national provisions under which custody awaiting deportation may be enforced in an ordinary custodial institution if the foreign national poses a significant threat to the life and limb of others or to significant internal security interests, in which case the detainee awaiting deportation is accommodated separately from prisoners serving criminal sentences?

         (1)  OJ 2008 L 348, p. 98.


title: Case C-49/19: Action brought on 25 January 2019 — European Commission v Portuguese Republic

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/28

      Action brought on 25 January 2019 — European Commission v Portuguese Republic
      (Case C-49/19)
      (2019/C 112/34)
      Language of the case: Portuguese

         Parties

         Applicant: European Commission (represented by: P. Costa de Oliveira and L. Nicolae, acting as Agents)

         Defendant: Portuguese Republic

         Form of order sought

      The applicant claims that the Court of Justice should:

                  —

                  Declare that, by instituting an extraordinary contribution for the purposes of sharing the net cost of universal service obligations, from 2007 to the start of the provision of universal services, by the undertaking(s) designated under Article 99(3) of Law No 5/2004, as provided for in Articles 17 and 18 of Law No 35/2012 on the Compensation Fund, the Portuguese Republic has failed to fulfil its obligations under Article 13(3) and Part B of Annex IV to Directive 2002/22/EC of the European Parliament and of the Council on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive); (1) and

                  —

                  Order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments

      In accordance with the combined provisions of Article 13(3) and Part B of Annex IV to the Universal Service Directive, any mechanism for sharing the net cost of universal service obligations by electronic communications network operators and service providers is to respect the principles of transparency, least market distortion, non-discrimination and proportionality.
      Portuguese Law No 35/2012 establishes a compensation fund in respect of universal electronic communications services, intended to finance the net costs arising from compliance with universal service obligations, and guarantee that those costs are shared between the undertakings that are required to contribute.
      Under Article 6 of that Law, the compensation fund is intended to finance the net costs of universal services, determined in the context of the public procurement procedures referred to in Article 99(3) of Law No 5/2004 of 10 February 2004, and found to be excessive by the ICP-ANACOM. The fund is also intended to finance the net costs of universal services incurred up until the start of the provision of universal services by the undertaking(s) designated under the abovementioned provision, through the institution of an extraordinary contribution levied on undertakings that are required to contribute, in respect of each of the years 2013, 2014 and 2015.
      The Commission takes the view that by levying an extraordinary contribution which was intended to cover the costs of universal services during the period prior to the adoption of Law No 35/2012, the Portuguese Republic has failed to comply with the principles of transparency, least market distortion, non-discrimination and proportionality, as required by Article 13(3) and Part B of Annex IV to the Universal Service Directive.

         (1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).


title: Case C-50/19 P: Appeal brought on 25 January 2019 by Sigma Alimentos Exterior, S.L. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-239/11 Sigma Alimentos Exterior v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/29

      Appeal brought on 25 January 2019 by Sigma Alimentos Exterior, S.L. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-239/11 Sigma Alimentos Exterior v Commission
      (Case C-50/19 P)
      (2019/C 112/35)
      Language of the case: Spanish

         Parties

         Appellant: Sigma Alimentos Exterior, S.L. (represented by: M. Muñoz Pérez, abogado)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Uphold the present appeal;

                  —

                  Set aside the judgment of the General Court of 15 November 2018, given in Case T-239/11; (1)

                  —

                  Annul Article 1(1) of Commission Decision 2011/282/EU of 12 January 2011; (2)

                  —

                  In the alternative, annul Article 4 of the contested decision;

                  —

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      The present appeal is based on two grounds, the second of which is divided into three parts:

                  —

                  Incorrect interpretation of the judgment in World Duty Free, (3) setting erroneous comparability criteria which lead, in turn, to an incorrect assessment of the existence of selectivity and, accordingly, to the assessment of unlawful aid, thus infringing the provisions of Article 107 TFEU;

                  —

                  Error in holding, on the basis of an erroneous analysis of the three-step method used by the Commission in determining whether there was unlawful aid, that the finding that there may be legal obstacles to cross-border combinations does not preclude the contested measure being selective. The judgment therefore errs in the following respects:

                              —

                              Error in the identification of the national common tax scheme, infringing the provisions of Article 107 TFEU relating to the categorisation of unlawful State aid;

                              —

                              Error in failing to find that the measure examined was a general measure, thus also infringing the provisions of Article 107 TFEU;

                              —

                              Error in the assessment of whether there was an exception to the national common tax scheme as a reference framework, thereby infringing Article 107 TFEU.

            The appellant submits that the General Court of the European Union has committed various infringements of Article 107(1) TFEU and of the principle of fiscal neutrality and that, in various respects, it has essentially supplemented the reasoning set out by the Commission in the contested decision or even replaced it with its own, which would, in itself, constitute sufficient grounds for setting aside the judgment under appeal.

         (1)  Judgment of 15 November 2018, Sigma Alimentos Exterior v Commission (T-239/11, not published, EU:T:2018:781).

         (2)  Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

         (3)  Judgment of 21 December 2016, Commission v World Duty Free Group and Others (C-20/15 P and C-21/15 P, EU:C:2016:981).


title: Case C-51/19 P: Appeal brought on 25 January 2019 by World Duty Free Group, S.A., formerly Autogrill España, S.A., against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 15 November 2018 in Case T-219/10 RENV, World Duty Free Group v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/30

      Appeal brought on 25 January 2019 by World Duty Free Group, S.A., formerly Autogrill España, S.A., against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 15 November 2018 in Case T-219/10 RENV, World Duty Free Group v Commission
      (Case C-51/19 P)
      (2019/C 112/36)
      Language of the case: Spanish

         Parties

         Appellant: World Duty Free Group, S.A., formerly Autogrill España S.A. (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, abogados)

         Interveners in support of the applicant at first instance: Kingdom of Spain, Federal Republic of Germany, and Ireland

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Set aside the judgment of the General Court of 15 November 2018;

                  —

                  Uphold the application for annulment and definitively annul the contested decision; and

                  —

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      On 15 November 2018, the General Court gave judgment in Case T-219/10 RENV, World Duty free Group, S.A. v European Commission, (1) against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 28 October 2009, (2) on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).
      In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.
      In particular, it is submitted that the General Court erred:

                  —

                  In determining the reference system at the first stage of the selectivity analysis;

                  —

                  In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

                  —

                  Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

                  —

                  In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

                  —

                  In the alternative, in ruling out the severability of the measure according to the control percentage;

                  —

                  In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.

         (1)  Judgment of 15 November 2018, World Duty Free Group v Commission (T-219/10 RENV, EU:T:2018:784).

         (2)  Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).


title: Case C-52/19 P: Appeal brought on 25 January 2019 by Banco Santander, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-227/10 Banco Santander, S.A. v European Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/31

      Appeal brought on 25 January 2019 by Banco Santander, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-227/10 Banco Santander, S.A. v European Commission
      (Case C-52/19 P)
      (2019/C 112/37)
      Language of the case: Spanish

         Parties

         Appellant: Banco Santander, S.A. (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, abogados)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Set aside the judgment of the General Court of 15 November 2018;

                  —

                  Uphold the application for annulment and definitively annul the contested decision; and

                  —

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      On 15 November 2018, the General Court gave judgment in Case T-227/10, Banco Santander, S.A. v European Commission, (1) against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 28 October 2009, (2) on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).
      In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.
      In particular, it is submitted that the General Court erred:

                  —

                  In determining the reference system at the first stage of the selectivity analysis;

                  —

                  In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

                  —

                  Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

                  —

                  In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

                  —

                  In the alternative, in ruling out the severability of the measure according to the control percentage;

                  —

                  In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.

         (1)  Judgment of 15 November 2018, Banco Santander, S.A. v Commission (T-227/10, not published, EU:T:2018:785).

         (2)  Commission Decision 2011/5/EC of 28 October 2009 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 7, p. 48).


title: Case C-53/19 P: Appeal brought on 25 January 2019 by Banco Santander, S.A. and Santusa Holding, S.L against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 15 November 2018 in Case T-399/11 RENV Banco Santander and Santusa v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/32

      Appeal brought on 25 January 2019 by Banco Santander, S.A. and Santusa Holding, S.L against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 15 November 2018 in Case T-399/11 RENV Banco Santander and Santusa v Commission
      (Case C-53/19 P)
      (2019/C 112/38)
      Language of the case: Spanish

         Parties

         Appellants: Banco Santander, S.A. and Santusa Holding, S.L. (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, abogados)

         Interveners in support of the applicants at first instance: Kingdom of Spain, Federal Republic of Germany, and Ireland

         Other party to the proceedings: European Commission

         Form of order sought

      The appellants submit that the Court should:

                  —

                  Set aside the judgment of the General Court of 15 November 2018;

                  —

                  Uphold the application for annulment and definitively annul the contested decision; and

                  —

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      On 15 November 2018, the General Court gave judgment in Case T-399/11 RENV, Banco Santander and Santusa v Commission, (1) against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 12 January 2011, (2) on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).
      In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.
      In particular, it is submitted that the General Court erred:

                  —

                  In determining the reference system at the first stage of the selectivity analysis;

                  —

                  In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

                  —

                  Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

                  —

                  In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

                  —

                  In the alternative, in ruling out the severability of the measure according to the control percentage;

                  —

                  In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.

         (1)  Judgment of 15 November 2018, Banco Santander and Santusa v Commission (T-399/11 RENV, EU:T:2018:787).

         (2)  Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).


title: Case C-54/19 P: Appeal brought on 25 January 2019 by Axa Mediterranean Holding, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-405/11 Axa Mediterranean v Commission

text:
               25.3.2019

               EN

               Official Journal of the European Union

               C 112/33

      Appeal brought on 25 January 2019 by Axa Mediterranean Holding, S.A. against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-405/11 Axa Mediterranean v Commission
      (Case C-54/19 P)
      (2019/C 112/39)
      Language of the case: Spanish

         Parties

         Appellant: Axa Mediterranean Holding, S.A. (represented by: J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, abogados)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Set aside the judgment of the General Court of 15 November 2018;

                  —

                  Uphold the application for annulment and definitively annul the contested decision; and

                  —

                  Order the European Commission to pay the costs.

         Grounds of appeal and main arguments

      On 15 November 2018, the General Court gave judgment in Case T-405/11, Axa Mediterranean Holding, S.A. v European Commission, (1) against which this appeal is brought. The judgment dismissed the appellant’s action against the European Commission’s decision of 12 January 2011, (2) on ‘financial goodwill’ regulated by Article 12.5 of the Spanish Ley de Impuesto sobre Sociedades (Law on Corporation Tax).
      In support of its appeal, the appellant relies on a single ground of appeal, alleging that, in the judgment under appeal, the General Court erred in law in its interpretation of Article 107(1) of the Treaty on the Functioning of the European Union (TFEU), in relation to the concept of ‘selectivity’.
      In particular, it is submitted that the General Court erred:

                  —

                  In determining the reference system at the first stage of the selectivity analysis;

                  —

                  In determining the objective forming the basis for comparing the separate legal and factual situations at the second stage of the selectivity analysis;

                  —

                  Consequently, the General Court also erred in the attribution of the burden of proof and the application of the principle of proportionality;

                  —

                  In the alternative, in its examination relating to the supposed lack of proof of a causal link between the companies’ inability to merge abroad and the acquisition of holdings abroad; and

                  —

                  In the alternative, in ruling out the severability of the measure according to the control percentage;

                  —

                  In addition to maintaining a legally incorrect line of reasoning, the General Court substituted its own reasoning for that of the Commission’s decision in relation to a number of the abovementioned points, thus giving rise to further errors of law.

         (1)  Judgment of 15 November 2018, Axa Mediterranean v Commission (T-405/11, not published, EU:T:2018:780).

         (2)  Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).