title: Case T-542/11 RENV: Judgment of the General Court of 13 March 2018 — Alouminion tis Ellados v Commission (State aid — Electricity — Decision declaring the aid unlawful and incompatible with the internal market and ordering its recovery — Preferential electricity tariff granted by a contract entered into with the incumbent supplier — Termination of the contract by the incumbent supplier — Judicial suspension, by way of interim measures, of the effects of termination of the contract — Annulment of the Commission’s decision by the General Court — Judgment of the General Court set aside by the Court of Justice — Referral of the case back to the General Court — Scope of the action after being referred back — Classification of the order granting interim measures as constituting new aid — Competence of the Commission — Effective judicial protection — Classification of the preferential tariff as State aid — Advantage — Legitimate expectations — Rights of defence of the recipient — Obligation to recover — Obligation to state reasons)

text:
               30.4.2018

               EN

               Official Journal of the European Union

               C 152/24

         Judgment of the General Court of 13 March 2018 — Alouminion tis Ellados v Commission
   (Case T-542/11 RENV) (1)

   ((State aid - Electricity - Decision declaring the aid unlawful and incompatible with the internal market and ordering its recovery - Preferential electricity tariff granted by a contract entered into with the incumbent supplier - Termination of the contract by the incumbent supplier - Judicial suspension, by way of interim measures, of the effects of termination of the contract - Annulment of the Commission’s decision by the General Court - Judgment of the General Court set aside by the Court of Justice - Referral of the case back to the General Court - Scope of the action after being referred back - Classification of the order granting interim measures as constituting new aid - Competence of the Commission - Effective judicial protection - Classification of the preferential tariff as State aid - Advantage - Legitimate expectations - Rights of defence of the recipient - Obligation to recover - Obligation to state reasons))
   (2018/C 152/28)
   Language of the case: Greek

      Parties

      Applicant: Alouminion tis Ellados VEAE, formerly Alouminion AE (Athens, Greece) (represented by: G. Dellis, N. Korogiannakis, E. Chrysafis, D. Diakopoulos and N. Keramidas, lawyers)

      Defendant: European Commission (represented by: A. Bouchagiar and É. Gippini Fournier, acting as Agents)

      Intervener in support of the defendant: Dimosia Epicheirisi Ilektrismou AE (DEI) (Athens, Greece) (represented by: E. Bourtzalas, C. Synodinos, A. Oikonomou and H. Tagaras, lawyers)

      Re:

   Action based on Article 263 TFEU and seeking annulment of Commission Decision 2012/339/EU of 13 July 2011 on State aid SA.26117 — C 2/2010 (ex NN 62/2009) implemented by Greece in favour of Aluminium of Greece SA (OJ 2012 L 166, p. 83).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Alouminion tis Ellados VEAE to bear its own costs and to pay those incurred by the European Commission and by Dimosia Epicheirisi Ilektrismou AE (DEI).

      (1)  OJ C 370, 17.12.2011.


title: Case T-162/18: Action brought on 7 March 2018 — Beko v EUIPO — Acer (ALTUS)

text:
               30.4.2018

               EN

               Official Journal of the European Union

               C 152/58

         Action brought on 7 March 2018 — Beko v EUIPO — Acer (ALTUS)
   (Case T-162/18)
   (2018/C 152/68)
   Language in which the application was lodged: English

      Parties

      Applicant: Beko plc (Watford, United Kingdom) (represented by: G. Tritton, barrister)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Acer, Inc. (Taipei City, Taiwan).

      Details of the proceedings before EUIPO

   Applicant: Applicant

      Trade mark at issue: EU figurative mark ALTUS — Application for registration No 6 490 809

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 13 December 2017 in Case R 1991/2016-5.

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and remit the matter back to EUIPO to reconsider the request for suspension;

               —

               order the suspension of the proceedings;

               —

               order EUIPO to pay its own costs and pay the costs of the applicant.

      Plea in law

               —

               EUIPO was wrong not to grant the request for suspension of the opposition pending the outcome of the Slovakian proceedings. In particular, it is submitted that the reasoning of the Fifth Board of Appeal was manifestly flawed and/or unreasonable and/or failed to address the ‘the whole picture’ and accordingly was not in a position to weigh properly the various interests involved and/or amounted to a misuse of powers.


title: Case T-155/16: Order of the General Court of 6 March 2018 — CFA Institute v EUIPO — Bloss and Others (CERTIFIED FINANCIAL ENGINEER CFE)

text:
               30.4.2018

               EN

               Official Journal of the European Union

               C 152/59

         Order of the General Court of 6 March 2018 — CFA Institute v EUIPO — Bloss and Others (CERTIFIED FINANCIAL ENGINEER CFE)
   (Case T-155/16) (1)

   (2018/C 152/70)
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 211, 13.6.2016.


title: Case T-156/16: Order of the General Court of 6 March 2018 — CFA Institute v EUIPO — Ernst and Häcker (CERTIFIED FINANCIAL MODELER CFM)

text:
               30.4.2018

               EN

               Official Journal of the European Union

               C 152/59

         Order of the General Court of 6 March 2018 — CFA Institute v EUIPO — Ernst and Häcker (CERTIFIED FINANCIAL MODELER CFM)
   (Case T-156/16) (1)

   (2018/C 152/71)
   Language of the case: English
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 211, 13.6.2016.


title: Case T-641/17: Order of the General Court of 28 February 2018 — Ferri v ECB

text:
               30.4.2018

               EN

               Official Journal of the European Union

               C 152/59

         Order of the General Court of 28 February 2018 — Ferri v ECB
   (Case T-641/17) (1)

   (2018/C 152/72)
   Language of the case: Italian
   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 382, 13.11.2017.


title: Case C-72/18: Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Spain) lodged on 5 February 2018 — Daniel Ustariz Aróstegui v Consejería de Educación del Gobierno de Navarra

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/17

         Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Pamplona (Spain) lodged on 5 February 2018 — Daniel Ustariz Aróstegui v Consejería de Educación del Gobierno de Navarra
   (Case C-72/18)
   (2018/C 161/19)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Contencioso-Administrativo No 1 de Pamplona

      Parties to the main proceedings

      Applicant: Daniel Ustariz Aróstegui

      Defendant: Consejería de Educación del Gobierno de Navarra

      Question referred

               1.-

               Must Clause 4 of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP approved by Council Directive 1999/70/EC of 28 June 1999 (1) be interpreted as precluding a regional legislative provision, such as that at issue in the main proceedings, which expressly excludes the award and payment to staff employed by the Public Administration of Navarre who are classified as ‘employed under an administrative contract’ (a fixed-term contract) of particular additional remuneration, on the grounds that the additional remuneration in question constitutes remuneration for promotion and development in a professional career that is open only to staff classified as ‘established public officials’ (with a contract of indefinite duration)?

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


title: Case T-60/17: Judgment of the General Court of 22 March 2018 — Safe Skies v EUIPO — Travel Sentry (TSA LOCK) (EU trade mark — Invalidity proceedings — EU word mark TSA LOCK — Absolute grounds for refusal — Distinctive character — Lack of distinctive character — Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009 (now Article 7(1)(b), (c) and (g) of Regulation (EU) 2017/1001))

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/50

         Judgment of the General Court of 22 March 2018 — Safe Skies v EUIPO — Travel Sentry (TSA LOCK)
   (Case T-60/17) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark TSA LOCK - Absolute grounds for refusal - Distinctive character - Lack of distinctive character - Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009 (now Article 7(1)(b), (c) and (g) of Regulation (EU) 2017/1001)))
   (2018/C 161/55)
   Language of the case: English

      Parties

      Applicant: Safe Skies LLC (New York, New York, United States) (represented by: V. Schwepler, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General court: Travel Sentry, Inc. (Windermere, Florida, United States) (represented by: J.L. Gracia Albero and V. Torelli, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 24 November 2016 (Case R 233/2016-4), relating to invalidity proceedings between Safe Skies and Travel Sentry.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Safe Skies LLC to pay the costs.

      (1)  OJ C 104, 3.4.2017.


title: Case C-84/18 P: Appeal brought on 6 February 2018 by Sophie Montel against the judgment of the General Court (Sixth Chamber) delivered on 29 November 2017 in Case T-634/16, Montel v Parliament

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/17

         Appeal brought on 6 February 2018 by Sophie Montel against the judgment of the General Court (Sixth Chamber) delivered on 29 November 2017 in Case T-634/16, Montel v Parliament
   (Case C-84/18 P)
   (2018/C 161/20)
   Language of the case: French

      Parties

      Appellant: Sophie Montel (represented by: G. Sauveur, avocat)

      Other parties to the proceedings: European Parliament, Council of the European Union

      Form of order sought

   The appellant claims that the Court should reverse the judgment under appeal and thus:

               —

               annul the decision of the Secretary-General of the European Parliament of 24 June 2016, notified on 6 July 2016, stating that ‘a sum of EUR 77 276,42 was wrongly paid to Ms Sophie Montel’ and ordering the authorising officer responsible and the institution’s accounting officer to recover that sum;

               —

               annul also debit note No 2016-897 signed by the Director-General for Finance on 4 July 2016;

               —

               make an appropriate order as to the sum to be awarded to the appellant as compensation for the non-material harm that she has suffered as a result of the unfounded accusations made before the enquiry was finalised, the harm to her reputation, and the very significant disruption to her personal and political life occasioned by the contested decision;

               —

               make an appropriate order as to the sum to be awarded to the appellant in respect of the costs of the proceedings;

               —

               order the European Parliament to pay all costs.

      Grounds of appeal and main arguments

               1.

               The first ground alleges lack of competence of the author of the act:

                           —

                           it is the Bureau of the European Parliament, and not the Secretary-General, that is responsible for financial decisions;

                           —

                           there was no delegation of powers by the Secretary-General;

                           —

                           objection of illegality on the basis of infringement of the independence of members of the European Parliament and of the right to an impartial process.

               2.

               The second ground alleges infringement of the principle of ‘electa una via’:

                           —

                           the President of the Parliament referred the case to OLAF and also initiated legal proceedings in France.

               3.

               The third ground alleges infringement of the rights of defence:

                           —

                           the President of the Parliament breached the presumption of innocence;

                           —

                           the Parliament’s administration was both judge and party;

                           —

                           the Parliament varied the claims invoked throughout the course of the procedure;

                           —

                           the Secretary-General refused the appellant a hearing.

               4.

               The fourth ground alleges reversal of the burden of proof:

                           —

                           the Parliament required the appellant to prove that she had not engaged in any wrongdoing even though it had no evidence to substantiate any serious suggestion that such wrongdoing had occurred.

               5.

               The fifth ground alleges failure to state adequate reasons:

                           —

                           the sole ground relied on was the publication of an organisational chart which lacked any probative value.

               6.

               The sixth ground alleges infringement of the principles of legal certainty and protection of legitimate expectations:

                           —

                           there was no rule laying down a list of documents to be submitted; thus the appellant was subject to the arbitrary actions of the Parliament.

               7.

               The seventh ground alleges prejudice to the civil rights of parliamentary assistants:

                           —

                           the Parliament prohibits assistants from engaging in political activities.

               8.

               The eighth ground alleges discriminatory treatment, ‘Fumus persecutionis’, and misuse of power:

                           —

                           the appellant has been subjected to this procedure by reason of the political hostility of the President of the European Parliament.

               9.

               The ninth ground alleges prejudice to the independence of members of the European Parliament:

                           —

                           the work of parliamentary assistants is not limited to legislative work.

               10.

               The tenth ground alleges a lack of factual basis:

                           —

                           the Parliament merely stated that the documents supplied by the appellant had no probative value even though those documents provided evidence of the work carried out by the assistant;

                           —

                           the Parliament is unable to substantiate its claims.

               11.

               The eleventh ground alleges infringement of the principle of proportionality:

                           —

                           the organisational chart (the starting point of the proceedings instituted by the President of the Parliament) was published in February 2015, although the recovery of sums unduly paid dates back to August 2014.


title: Case C-117/18 P: Appeal brought on 14 February 2018 by PGNiG Supply & Trading GmbH against the order of the General Court (First Chamber) made on 14 December 2017 in Case T-849/16, PGNiG Supply & Trading GmbH v European Commission

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/33

         Appeal brought on 14 February 2018 by PGNiG Supply & Trading GmbH against the order of the General Court (First Chamber) made on 14 December 2017 in Case T-849/16, PGNiG Supply & Trading GmbH v European Commission
   (Case C-117/18 P)
   (2018/C 161/37)
   Language of the case: Polish

      Parties

      Appellant: PGNiG Supply & Trading GmbH (represented by: M. Jeżewski, adwokat)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the contested order of the General Court of the European Union of 14 December 2017 in Case T-849/16 dismissing PGNiG Supply & Trading’s action as inadmissible;

               —

               rule on the admissibility of PGNiG Supply & Trading’s action in Case T-849/16 concerning an application under Article 263 TFEU for annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL gas pipeline from the requirements on third-party access and tariff regulation granted under Directive 2003/55/EC, and declare that action admissible.

      Grounds of appeal and main arguments

   The General Court infringed the fourth paragraph of Article 263 TFEU by incorrectly assuming that the European Commission’s 2016 decision does not concern the appellant either directly or individually and does not constitute a regulatory act, an assumption resulting from the misinterpretation by the General Court of the nature and effects of the new regulatory exemption of 2016, including through its infringement of Article 36(1)(a) to (e) of the Gas Directive (Directive 2009/73/EC) by failing to apply the exemption criteria for ‘new gas infrastructure’, and failing to carry out an assessment as to whether those criteria had been fulfilled in a manner that would make it sufficiently possible for a decision to be reached regarding the nature and status of the exemption introduced by the European Commission’s decision and the new regulatory exemption of 2016 by failing to apply paragraph 1 of Article 36 of the Gas Directive to the European Commission’s decision to alter the scope of the regulatory exemption of 2009. In this ground of appeal, the appellant submits that the General Court did not assess whether the regulatory exemption was new, which led it to carry out an incorrect assessment as to the effect of the European Commission’s decision on the appellant.
   The General Court misinterpreted Article 263 TFEU by finding that the appellant is not directly concerned by the European Commission’s decision. In the present ground of appeal, the appellant submits that the assessment by which the General Court found that the appellant is not directly concerned by the European Commission’s decision is incorrect. The approach taken by the General Court is not in line with the existing case-law indicating that decisions of the European Commission are of direct concern in relation to persons who are not national regulatory authorities or addressees of those decisions.
   The General Court misinterpreted Article 263 TFEU by finding that the appellant is not individually concerned by the European Commission’s decision. In this ground of appeal, the appellant submits that its position on the market allows for objective individualisation within the meaning of the case-law concerning the admissibility of actions.
   The General Court misinterpreted the final limb of the fourth paragraph of Article 263 TFEU by finding that the European Commission’s decision is not a regulatory act. In the present ground of appeal, the appellant submits that that decision is a regulatory act.


title: Case C-86/18: Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/19

         Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg
   (Case C-86/18)
   (2018/C 161/21)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: P. Ondrůšek, F. Thiran, G. von Rintelen, acting as Agents)

      Defendant: Grand Duchy of Luxembourg

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, by failing to bring into force by 18 April 2016 at the latest the laws, regulations and administrative provisions necessary to comply with Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) or, in any event, by failing to communicate to the Commission those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 51 of that directive;

               —

               Impose on the Grand Duchy of Luxembourg, in accordance with Article 260(3) TFEU, a penalty payment of EUR 12 920 per day as of the date of delivery of the judgment in the present case for failure to fulfil its obligation to communicate to the Commission the measures transposing Directive 2014/23/EU;

               —

               Order the Grand Duchy of Luxembourg to pay the costs.

      Pleas in law and main arguments

               1.

               Under Article 51(1) of Directive 2014/24/EU, the Member States were required to bring into force the provisions necessary to comply with that directive by 18 April 2016 at the latest. Given that Luxembourg has not communicated the measures transposing the directive, the Commission has decided to refer the matter to the Court of Justice

               2.

               The Commission in its action proposes that a daily penalty payment of EUR 12 920 be imposed on Luxembourg. The amount of the penalty payment has been calculated to take into account the seriousness and the duration of the infringement and the penalty payment’s dissuasive effect, in the light of that Member State’s capacity to pay it.


title: Case T-272/17: Judgment of the General Court of 20 March 2018 — Webgarden v EUIPO (Dating Bracelet) (EU trade mark — Application for EU figurative mark Dating Bracelet — Absolute ground for refusal — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001) — Previous EUIPO practice — Equal treatment — Legal certainty)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/50

         Judgment of the General Court of 20 March 2018 — Webgarden v EUIPO (Dating Bracelet)
   (Case T-272/17) (1)

   ((EU trade mark - Application for EU figurative mark Dating Bracelet - Absolute ground for refusal - Descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001) - Previous EUIPO practice - Equal treatment - Legal certainty))
   (2018/C 161/56)
   Language of the case: Hungarian

      Parties

      Applicant: Webgarden Szolgáltató és Kereskedelmi Kft. (Budapest, Hungary) (represented by: G. Jambrik, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 1 March 2017 (Case R 658/2016-5), concerning an application for registration of the figurative sign Dating Bracelet as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Webgarden Szolgáltató és Kereskedelmi Kft. to pay the costs.

      (1)  OJ C 231, 17.7.2017.


title: Case T-165/18: Action brought on 8 March 2018 — Kahimbi Kasagwe v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/61

         Action brought on 8 March 2018 — Kahimbi Kasagwe v Council
   (Case T-165/18)
   (2018/C 161/73)
   Language of the case: French

      Parties

      Applicant: Delphin Kahimbi Kasagwe (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 7 in Annex II to Decision 2010/788/CFSP and No 7 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case T-246/16: Order of the General Court of 9 March 2018 — Aurora Group Danmark v EUIPO — Retail Distribution (PANZER) (EU trade mark — Invalidity proceedings — Withdrawal of the application for a declaration of invalidity — No need to adjudicate)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/51

         Order of the General Court of 9 March 2018 — Aurora Group Danmark v EUIPO — Retail Distribution (PANZER)
   (Case T-246/16) (1)

   ((EU trade mark - Invalidity proceedings - Withdrawal of the application for a declaration of invalidity - No need to adjudicate))
   (2018/C 161/57)
   Language of the case: Danish

      Parties

      Applicant: Aurora Group Danmark A/S (Ballerup, Denmark) (represented by: L. Elmgaard Sørensen, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: initially, D. Gaja and, subsequently, T. Frydendahl and D. Walicka, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Retail Distribution ApS (Hinnerup, Denmark) (represented by: E.A. Skovbo, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 3 March 2016 (Case R 447/2015-1), relating to invalidity proceedings between Retail Distribution and Aurora Group Danmark.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               Aurora Group Danmark A/S and Retail Distribution ApS shall bear their own respective costs and shall each pay half of the costs incurred by the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 279, 1.8.2016.


title: Case C-119/18: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 13 February 2018 — Telefónica Móviles España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/34

         Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 13 February 2018 — Telefónica Móviles España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)
   (Case C-119/18)
   (2018/C 161/38)
   Language of the case: Spanish

      Referring court

   Audiencia Nacional, Sala de lo Contencioso-Administrativo

      Parties to the main proceedings

      Applicant: Telefónica Móviles España, S.A.U.

      Defendant: Tribunal Económico-Administrativo Central (TEAC)

      Questions referred

               1.

               May Article 6(1) of 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 (1) be interpreted as meaning that a Member State may levy on telecommunications operators an annual financial contribution such as that provided for in Article 5 of Ley 8/2009, de 28 de agosto, de financiación de la Corporación de Radio y Televisión Española (Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española), for the purpose of contributing to the funding of Corporación de Radio y Televisión Española, in view of the positive impact on the telecommunications sector resulting from the new rules governing the television and audiovisual sector and, in particular, from the increase in fixed and mobile broadband services and from the fact that Corporación de Radio y Televisión Española no longer broadcasts advertisements or paid or conditional-access content, taking the following circumstances into account:

                           —

                           that new legislation did not provide justification, nor was it confirmed in the relevant tax year, that such a positive, direct or indirect, impact existed for those undertakings;

                           —

                           that contribution is set at 0,9 % of the gross operating revenue invoiced in the relevant tax year and is not calculated on the basis of the revenue obtained from the provision of audiovisual services and advertising, the increase in that revenue or the profits generated by the activity. Furthermore, that contribution constitutes a levy provided for in Article 5 of Law 8/2009, as originally worded, and may not be justified in relation to the audiovisual service concerned, that article being the basis for the refusal, in the decision contested in the present administrative action, to grant the applicant’s requests for a refund of the payments made but not due and the rectification of the self-assessments?

               2.

               Is the contribution levied on telecommunications undertakings operating in Spain in more than one Autonomous Community proportionate, as is required by Article 6(1) of Directive 2002/20/EC, in the light of the method of calculation laid down in Article 5 of Law 8/2009, to which reference has been made?

               3.

               Is the contribution levied under Article 5 of Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española transparent, as is required by Article 6(1) and the Annex of Directive 2002/20/EC, if it is not known what specific activity Corporación de Radio y Televisión Española provides by way of universal service or public service?

      (1)  OJ 2002 L 108, p. 21.


title: Case C-87/18: Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/20

         Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg
   (Case C-87/18)
   (2018/C 161/22)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: P. Ondrůšek, F. Thiran, G. von Rintelen, acting as Agents, acting as Agent(s))

      Defendant: Grand Duchy of Luxembourg

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, by failing to bring into force by 18 April 2016 at the latest the laws, regulations and administrative provisions necessary to comply with Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65) or, in any event, by failing to communicate to the Commission those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 90(1) of that directive;

               —

               Impose on the Grand Duchy of Luxembourg, in accordance with Article 260(3) TFEU, a penalty payment of EUR 11 628 per day as of the date of delivery of the judgment in the present case for failure to fulfil its obligation to communicate to the Commission the measures transposing Directive 2014/24/EU;

               —

               Order the Grand Duchy of Luxembourg to pay the costs.

      Pleas in law and main arguments

               1.

               Under Article 90(1) of Directive 2014/24/EU, the Member States were required to bring into force the provisions necessary to comply with that directive by 18 April 2016 at the latest. Given that Luxembourg has not communicated the measures transposing the directive, the Commission has decided to refer the matter to the Court of Justice.

               2.

               The Commission in its action proposes that a daily penalty payment of EUR 11 628 be imposed on Luxembourg. The amount of the penalty payment has been calculated to take into account the seriousness and the duration of the infringement and the penalty payment’s dissuasive effect, in the light of that Member State’s capacity to pay it.


title: Case T-567/17: Order of the General Court of 13 March 2018 — Disney Enterprises v EUIPO — Di Molfetta (DiSNEY FROZEN) (EU trade mark — Opposition proceedings — Withdrawal of the application for registration — No need to adjudicate)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/51

         Order of the General Court of 13 March 2018 — Disney Enterprises v EUIPO — Di Molfetta (DiSNEY FROZEN)
   (Case T-567/17) (1)

   ((EU trade mark - Opposition proceedings - Withdrawal of the application for registration - No need to adjudicate))
   (2018/C 161/58)
   Language of the case: English

      Parties

      Applicant: Disney Enterprises, Inc. (Burbank, California, United States) (represented by: M. Graf, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO: Fabio Di Molfetta (Bisceglie, Italy)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 12 May 2017 (Case R 2342/2016-5), relating to opposition proceedings between Fabio Di Molfetta and Disney Enterprises, Inc.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               Disney Enterprises, Inc., shall bear its own costs and pay those incurred by the European Union Intellectual Property Office (EUIPO).

      (1)  OJ C 347, 16.10.2017.


title: Case T-166/18: Action brought on 8 March 2018 — Ilunga Luyoyo v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/62

         Action brought on 8 March 2018 — Ilunga Luyoyo v Council
   (Case T-166/18)
   (2018/C 161/74)
   Language of the case: French

      Parties

      Applicant: Ferdinand Ilunga Kampete (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 3 in Annex II to Decision 2010/788/CFSP and No 3 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case T-46/18: Order of the General Court of 8 March 2018 — Comune di Milano v Council (Declining of jurisdiction)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/52

         Order of the General Court of 8 March 2018 — Comune di Milano v Council
   (Case T-46/18) (1)

   ((Declining of jurisdiction))
   (2018/C 161/59)
   Language of the case: Italian

      Parties

      Applicant: Comune di Milano (Italy) (represented by: F. Sciaudone and M. Condinanzi, lawyers)

      Defendant: Council of the European Union (represented by: E. Rebasti, M. Bauer and F. Florindo Gijón, acting as Agents)

      Re:

   Action under Article 263 TFEU seeking annulment of Council decision of 20 November 2017 adopted in the margins of its 3579th meeting in its General Affairs formation, regarding the selection of the new seat of the European Medicines Agency (‘EMA’) in so far as it established that Amsterdam would be the new seat of the EMA.

      Operative part of the order

               1.

               The General Court declines jurisdiction in Case T 46/18 in order to enable the Court of Justice to rule on the action.

               2.

               The decision on the applications to intervene submitted by the Kingdom of the Netherlands and by the Regione Lombardia (Lombardia Region, Italy) is reserved.

               3.

               The costs are reserved.

      (1)  OJ C 94, 12.3.2018.


title: Case C-120/18: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 13 February 2018 — Orange España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/35

         Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 13 February 2018 — Orange España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)
   (Case C-120/18)
   (2018/C 161/39)
   Language of the case: Spanish

      Referring court

   Audiencia Nacional, Sala de lo Contencioso-Administrativo

      Parties to the main proceedings

      Applicant: Orange España, S.A.U.

      Defendant: Tribunal Económico-Administrativo Central (TEAC)

      Questions referred

               1.

               May Article 6(1) of 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 (1) be interpreted as meaning that a Member State may levy on telecommunications operators an annual financial contribution such as that provided for in Article 5 of Ley 8/2009, de 28 de agosto, de financiación de la Corporación de Radio y Televisión Española (Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española), for the purpose of contributing to the funding of Corporación de Radio y Televisión Española, in view of the positive impact on the telecommunications sector resulting from the new rules governing the television and audiovisual sector and, in particular, from the increase in fixed and mobile broadband services and from the fact that Corporación de Radio y Televisión Española no longer broadcasts advertisements or paid or conditional-access content, taking the following circumstances into account:

                           —

                           that new legislation did not provide justification, nor was it confirmed in the relevant tax year, that such a positive, direct or indirect, impact existed for those undertakings;

                           —

                           that contribution is set at 0,9 % of the gross operating revenue invoiced in the relevant tax year and is not calculated on the basis of the revenue obtained from the provision of audiovisual services and advertising, the increase in that revenue or the profits generated by the activity. Furthermore, that contribution constitutes a levy provided for in Article 5 of Law 8/2009, as originally worded, and may not be justified in relation to the audiovisual service concerned, that article being the basis for the refusal, in the decision contested in the present administrative action, to grant the applicant’s requests for a refund of the payments made but not due and the rectification of the self-assessments?

               2.

               Is the contribution levied on telecommunications undertakings operating in Spain in more than one Autonomous Community proportionate, as is required by Article 6(1) of Directive 2002/20/EC, in the light of the method of calculation laid down in Article 5 of Law 8/2009, to which reference has been made?

               3.

               Is the contribution levied under Article 5 of Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española transparent, as is required by Article 6(1) and the Annex of Directive 2002/20/EC, if it is not known what specific activity Corporación de Radio y Televisión Española provides by way of universal service or public service?

      (1)  OJ 2002 L 108, p. 21.


title: Joined Cases C-52/16 and C-113/16: Judgment of the Court (Grand Chamber) of 6 March 2018 (requests for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság — Hungary) — ‘SEGRO’ Kft. v Vas Megyei Kormányhivatal Sárvári Járási Földhivatala (C-52/16), Günther Horváth v Vas Megyei Kormányhivatal (C-113/16) (References for a preliminary ruling — Article 63 TFEU — Free movement of capital — Rights of usufruct over agricultural land — National legislation permitting such rights to be acquired in the future only by close family members of the owner of the land and cancelling, without providing for compensation, the rights previously acquired by legal persons or by natural persons who cannot demonstrate a close family tie with the owner of the land)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/5

         Judgment of the Court (Grand Chamber) of 6 March 2018 (requests for a preliminary ruling from the Szombathelyi Közigazgatási és Munkaügyi Bíróság — Hungary) — ‘SEGRO’ Kft. v Vas Megyei Kormányhivatal Sárvári Járási Földhivatala (C-52/16), Günther Horváth v Vas Megyei Kormányhivatal (C-113/16)
   (Joined Cases C-52/16 and C-113/16) (1)

   ((References for a preliminary ruling - Article 63 TFEU - Free movement of capital - Rights of usufruct over agricultural land - National legislation permitting such rights to be acquired in the future only by close family members of the owner of the land and cancelling, without providing for compensation, the rights previously acquired by legal persons or by natural persons who cannot demonstrate a close family tie with the owner of the land))
   (2018/C 161/04)
   Language of the case: Hungarian

      Referring court

   Szombathelyi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicants:‘SEGRO’ Kft. (C-52/16), Günther Horváth (C-113/16)

      Defendants: Vas Megyei Kormányhivatal Sárvári Járási Földhivatala (C-52/16), Vas Megyei Kormányhivatal (C-113/16)

      Operative part of the judgment

   Article 63 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which rights of usufruct which have previously been created over agricultural land and the holders of which do not have the status of close relation of the owner of that land are extinguished by operation of law and are, consequently, deleted from the property registers.

      (1)  OJ C 136, 18.4.2016.

      OJ C 211, 13.6.2016.


title: Case C-121/18: Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 14 February 2018 — Vodafone España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/36

         Request for a preliminary ruling from the Audiencia Nacional (Spain) lodged on 14 February 2018 — Vodafone España, S.A.U. v Tribunal Económico-Administrativo Central (TEAC)
   (Case C-121/18)
   (2018/C 161/40)
   Language of the case: Spanish

      Referring court

   Audiencia Nacional, Sala de lo Contencioso-Administrativo

      Parties to the main proceedings

      Applicant: Vodafone España, S.A.U.

      Defendant: Tribunal Económico-Administrativo Central (TEAC)

      Questions referred

               1.

               May Article 6(1) of 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 (1) be interpreted as meaning that a Member State may levy on telecommunications operators an annual financial contribution such as that provided for in Article 5 of Ley 8/2009, de 28 de agosto, de financiación de la Corporación de Radio y Televisión Española (Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española), for the purpose of contributing to the funding of Corporación de Radio y Televisión Española, in view of the positive impact on the telecommunications sector resulting from the new rules governing the television and audiovisual sector and, in particular, from the increase in fixed and mobile broadband services and from the fact that Corporación de Radio y Televisión Española no longer broadcasts advertisements or paid or conditional-access content, taking the following circumstances into account:

                           —

                           that new legislation did not provide justification, nor was it confirmed in the relevant tax year, that such a positive, direct or indirect, impact existed for those undertakings;

                           —

                           that contribution is set at 0,9 % of the gross operating revenue invoiced in the relevant tax year and is not calculated on the basis of the revenue obtained from the provision of audiovisual services and advertising, the increase in that revenue or the profits generated by the activity. Furthermore, that contribution constitutes a levy provided for in Article 5 of Law 8/2009, as originally worded, and may not be justified in relation to the audiovisual service concerned, that article being the basis for the refusal, in the decision contested in the present administrative action, to grant the applicant’s requests for a refund of the payments made but not due and the rectification of the self-assessments?

               2.

               Is the contribution levied on telecommunications undertakings operating in Spain in more than one Autonomous Community proportionate, as is required by Article 6(1) of Directive 2002/20/EC, in the light of the method of calculation laid down in Article 5 of Law 8/2009, to which reference has been made?

               3.

               Is the contribution levied under Article 5 of Law 8/2009 of 28 August on the funding of Corporación de Radio y Televisión Española transparent, as is required by Article 6(1) and the Annex of Directive 2002/20/EC, if it is not known what specific activity Corporación de Radio y Televisión Española provides by way of universal service or public service?

      (1)  OJ 2002 L 108, p. 21.


title: Case T-167/18: Action brought on 8 March 2018 — Kanyama v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/63

         Action brought on 8 March 2018 — Kanyama v Council
   (Case T-167/18)
   (2018/C 161/75)
   Language of the case: French

      Parties

      Applicant: Célestin Kanyama (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 4 in Annex II to Decision 2010/788/CFSP and No 4 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case C-127/16 P: Judgment of the Court (First Chamber) of 7 March 2018 — SNCF Mobilités, formerly Société nationale des chemins de fer français (SNCF) v European Commission, French Republic, Mory SA, in liquidation, Mory Team, in liquidation (Appeal — State aid — Aid implemented by the French Republic in favour of Sernam — Restructuring and recapitalisation aid, guarantees and waiving of Sernam's financial debts by SNCF — Decision declaring that aid incompatible with the internal market and ordering its recovery — Sale of assets en bloc — Concept of ‘sale’ — Confusion between object and price of the sale of assets en bloc — Open and transparent procedure — Private investor test — Application of that principle to an assignment of assets en bloc — Compensatory measures)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/6

         Judgment of the Court (First Chamber) of 7 March 2018 — SNCF Mobilités, formerly Société nationale des chemins de fer français (SNCF) v European Commission, French Republic, Mory SA, in liquidation, Mory Team, in liquidation
   (Case C-127/16 P) (1)

   ((Appeal - State aid - Aid implemented by the French Republic in favour of Sernam - Restructuring and recapitalisation aid, guarantees and waiving of Sernam's financial debts by SNCF - Decision declaring that aid incompatible with the internal market and ordering its recovery - Sale of assets en bloc - Concept of ‘sale’ - Confusion between object and price of the sale of assets en bloc - Open and transparent procedure - Private investor test - Application of that principle to an assignment of assets en bloc - Compensatory measures))
   (2018/C 161/05)
   Language of the case: French

      Parties

      Appellant: SNCF Mobilités, formerly Société nationale des chemins de fer français (SNCF) (represented by: P. Beurier, O. Billard, G. Fabre and V. Landes, avocats)

      Other parties to the proceedings: European Commission (represented by: B. Stromsky and T. Maxian Rusche, acting as Agents), French Republic, Mory SA, in liquidation, Mory Team, in liquidation (represented by: B. Vatier and F. Loubières, avocats)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders SNCF Mobilités to bear its own costs and to pay those incurred by the European Commission and by Mory SA and Mory Team.

      (1)  OJ C 145, 25.4.2016.


title: Case C-88/18: Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/20

         Action brought on 7 February 2018 — European Commission v Grand Duchy of Luxembourg
   (Case C-88/18)
   (2018/C 161/23)
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: P. Ondrůšek, F. Thiran, G. von Rintelen, acting as Agents)

      Defendant: Grand Duchy of Luxembourg

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare that, by failing to bring into force by 18 April 2016 at the latest the laws, regulations and administrative provisions necessary to comply with Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243) or, in any event, by failing to communicate to the Commission those provisions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 106(1) of that directive;

               —

               Impose on the Grand Duchy of Luxembourg, in accordance with Article 260(3) TFEU, a penalty payment of EUR 11 628 per day as of the date of delivery of the judgment in the present case for failure to fulfil its obligation to communicate to the Commission the measures transposing Directive 2014/25/EU;

               —

               Order the Grand Duchy of Luxembourg to pay the costs.

      Pleas in law and main arguments

               1.

               Under Article 106(1) of Directive 2014/25/EU, the Member States were required to bring into force the provisions necessary to comply with that directive by 18 April 2016 at the latest. Given that Luxembourg has not communicated the measures transposing the directive, the Commission has decided to refer the matter to the Court of Justice.

               2.

               The Commission in its action proposes that a daily penalty payment of EUR 11 628 be imposed on Luxembourg. The amount of the penalty payment has been calculated to take into account the seriousness and the duration of the infringement and the penalty payment’s dissuasive effect, in the light of that Member State’s capacity to pay it.


title: Case T-109/18: Action brought on 22 February 2018 — VI v Commission

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/53

         Action brought on 22 February 2018 — VI v Commission
   (Case T-109/18)
   (2018/C 161/60)
   Language of the case: English

      Parties

      Applicant: VI (represented by: G. Pandey and V. Villante, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               as a preliminary matter, where appropriate, declare Article 90 of the Staff Regulation invalid and inapplicable in the present proceedings under Article 270 of the Treaty on the Functioning of the European Union;

               —

               annul, first, the decision of 14 November 2017 of the European Personnel Selection Office (EPSO), rejecting the applicant’s complaint lodged on 13 July 2017, including the rejection of the applicant’s request for 50 000 euros in compensation;

               —

               annul, second, the decision of 19 April 2017 of EPSO rejecting her request for review of the decision of the Selection Board not to admit her to the next phase of the competition;

               —

               annul, third, the decision of 6 February 2017 at the online EPSO account not to include the applicant in the draft list of officials selected for the purposes of the competition under the EPSO/AD/323/16;

               —

               annul, fourth, the open notice of competition EPSO/AD/323/16, published on 26 May 2016, and in its entirety the resulting draft list of officials selected to take part in the aforesaid competition;

               —

               award 50 000 euros in compensation to the applicant for the damaged incurred because of the above unlawful contested decisions; and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging manifest error of assessment by EPSO/Selection Board concerning the evaluation of the working experience of the applicant, including the breach of Annex III to the Notice of Competition at issue detailing the required working experience.

               2.

               Second plea in law, alleging breach of Article 41 of the Charter of Fundamental Rights of the European Union and of the applicant’s right to be heard, and, further, breach of the duty to state reasons and of Article 296 of the Treaty on the Functioning of the European Union.

               3.

               Third plea in law, alleging breach of Articles 1, 2, 3 and 4 of Regulation No 1/58, (1) breach of Articles 1d and 28 of the Staff Regulations and of Article 1(1)(f) of Annex III to those Regulations and, further, breach of the principles of equal treatment and non-discrimination.

      (1)  Regulation No. 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958 (I), p. 59).


title: Joint cases C-274/16, C-447/16 and C-448/16: Judgment of the Court (Third Chamber) of 7 March 2018 (requests for a preliminary ruling from the Amtsgericht Düsseldorf and Bundesgerichtshof — Germany) — flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-274/16), Roland Becker v Hainan Airlines Co. Ltd (C-447/16), Mohamed Barkan and Others v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-448/16) (Reference for a preliminary ruling — Area of Freedom, Security and Justice — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Regulation (EU) No 1215/2012 — Article 7(1) — Concept of ‘matters relating to a contract’ — Contract for the provision of services — Connecting flight operated by different air carriers — Concept of ‘place of performance’ — Regulation (EC) No 261/2004 — Right of air passengers to compensation for denied boarding and for the long delay of a flight — Action for compensation brought against an operating air carrier not domiciled in the territory of a Member State or with which the passengers do not have contractual relations)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/6

         Judgment of the Court (Third Chamber) of 7 March 2018 (requests for a preliminary ruling from the Amtsgericht Düsseldorf and Bundesgerichtshof — Germany) — flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-274/16), Roland Becker v Hainan Airlines Co. Ltd (C-447/16), Mohamed Barkan and Others v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-448/16)
   (Joint cases C-274/16, C-447/16 and C-448/16) (1)

   ((Reference for a preliminary ruling - Area of Freedom, Security and Justice - Jurisdiction in civil and commercial matters - Regulation (EC) No 44/2001 - Article 5(1) - Regulation (EU) No 1215/2012 - Article 7(1) - Concept of ‘matters relating to a contract’ - Contract for the provision of services - Connecting flight operated by different air carriers - Concept of ‘place of performance’ - Regulation (EC) No 261/2004 - Right of air passengers to compensation for denied boarding and for the long delay of a flight - Action for compensation brought against an operating air carrier not domiciled in the territory of a Member State or with which the passengers do not have contractual relations))
   (2018/C 161/06)
   Language of the case: German

      Referring court

   Amtsgericht Düsseldorf, Bundesgerichtshof

      Parties to the main proceedings

      Applicants: flightright GmbH (C-274/16), Roland Becker (C-447/16), Mohamed Barkan, Souad Asbai, Assia Barkan, Zakaria Barkan, Nousaiba Barkan (C-488/16)

      Defendants: Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-274/16), Hainan Airlines Co. Ltd (C-447/16), Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-448/16)

      Operative part of the judgment

               1)

               The second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not applying to a defendant domiciled in a third State, such as the defendant in the main proceedings.

               2)

               Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that the concept of ‘matters relating to a contract’, for the purposes of that provision, covers a claim brought by air passengers for compensation for the long delay of a connecting flight, made under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, against an operating air carrier with which the passenger concerned does not have contractual relations.

               3)

               The second indent of Article 5(1)(b) of Regulation No 44/2001 and the second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight, for the purposes of those provisions, is the place of arrival of the second leg, where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation No 261/2004 is based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned do not have contractual relations.

      (1)  OJ C 343, 19.9.2016.

      OJ C 428, 21.11.2016.


title: Case T-168/18: Action brought on 8 March 2018 — Numbi v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/63

         Action brought on 8 March 2018 — Numbi v Council
   (Case T-168/18)
   (2018/C 161/76)
   Language of the case: French

      Parties

      Applicant: John Numbi (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 5 in Annex II to Decision 2010/788/CFSP and No 5 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case C-123/18 P: Appeal brought on 15 February 2018 against the judgment of the General Court (Third Chamber) delivered on 13 December 2017 in Case T-692/15, HTTS Hanseatic Trade Trust & Shipping GmbH v Council of the European Union

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/37

         Appeal brought on 15 February 2018 against the judgment of the General Court (Third Chamber) delivered on 13 December 2017 in Case T-692/15, HTTS Hanseatic Trade Trust & Shipping GmbH v Council of the European Union
   (Case C-123/18 P)
   (2018/C 161/41)
   Language of the case: German

      Parties

      Appellant: HTTS Hanseatic Trade Trust & Shipping GmbH (represented by: M. Schlingmann, Rechtsanwalt)

      Other parties to the proceedings: Council of the European Union, European Commission

      Form of order sought

   The appellant claims that the Court should:
   set aside in its entirety the judgment of the General Court (Third Chamber) of 13 December 2017 in Case T-692/15, HTTS Hanseatic Trade Trust & Shipping GmbH v Council of the European Union, supported by the European Commission; and
   order the Council:

               1.

               to pay to the appellant compensation in the amount of EUR 2 516 221,50 for material and non-material damage arising from the appellant’s inclusion in the list of persons, entities and bodies in Annex V to Regulation (EC) No 423/2007 (1) and in Annex VIII to Regulation (EU) No 961/2010; (2)

               2.

               to pay to the appellant default interest at the rate set by the European Central Bank for its main refinancing operations, increased by two percentage points, from 17 October 2015 until the abovementioned sum has been paid in full;

               3.

               to pay the costs of the proceedings, in particular the appellant’s expenses.

      Grounds of appeal and main arguments

   The appellant founds its appeal on infringement of EU law by the General Court.
   It asserts, in particular, that the following infringements of EU law took place:

               —

               In taking into account, in the Council’s favour, circumstances and information which the Council did not submit until after the unlawful measures had been adopted, and in some cases only during the appeal proceedings, the General Court erred in law as regards the time relevant for the assessment.

               —

               The General Court erred in law in concluding that there was circumstantial evidence that it was at least probable that the appellant ‘is owned or controlled by another entity [in this case: IRISL]’. In particular, the General Court applied an incorrect assessment criterion, incorrectly factored in information from the Council which the Council did not even possess at the time of the assessment, failed to establish the level of the (alleged) ownership or the intensity of the control and assessed the circumstantial evidence incorrectly.

               —

               The General Court erred in law in assuming that Regulation No 668/2010 (3) was lawful in so far as it concerned the appellant.

               —

               The General Court erred in law in assuming that in principle the inadequate justification for the measures adopted against the appellant could not render the EU liable and improperly failed to examine whether there had been an infringement of the right to effective judicial protection.

      (1)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

      (2)  Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ 2010 L 281, p. 1).

      (3)  Council Implementing Regulation (EU) No 668/2010 of 26 July 2010 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2010 L 195, p. 25).


title: Case T-169/18: Action brought on 8 March 2018 — Kibelisa Ngambasai v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/64

         Action brought on 8 March 2018 — Kibelisa Ngambasai v Council
   (Case T-169/18)
   (2018/C 161/77)
   Language of the case: French

      Parties

      Applicant: Roger Kibelisa Ngambasai (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 6 in Annex II to Decision 2010/788/CFSP and No 6 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case C-132/18 P: Appeal brought on 15 February 2018 by the European Commission against the judgment of the General Court (First Chamber) delivered on 5 December 2017 in Case T-728/16, Tuerck v Commission

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/38

         Appeal brought on 15 February 2018 by the European Commission against the judgment of the General Court (First Chamber) delivered on 5 December 2017 in Case T-728/16, Tuerck v Commission
   (Case C-132/18 P)
   (2018/C 161/42)
   Language of the case: French

      Parties

      Appellant: European Commission (represented by: G. Gattinara, B. Mongin and L. Radu Bouyon, acting as Agents)

      Other party to the proceedings: Sabine Tuerck

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (First Chamber) of 5 December 2017 in Case T-728/16, Tuerck v Commission;

               —

               dismiss the action at first instance;

               —

               order the respondent to pay the costs of the proceedings at first instance;

               —

               order Ms Tuerck to pay the costs of the present proceedings.

      Grounds of appeal and main arguments

   With regard to the procedures for the transfer of pension rights accrued in a national scheme to the pension scheme of EU officials, as provided for by Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Union, the first ground of appeal alleges failure on the part of the General Court to have regard for the case-law of the Court of Justice in Radek Časta (judgment of 5 December 2013, C-166/12, paragraphs 24, 28 and 31), according to which the operation of converting the capital value of pension rights acquired in the national system into pensionable years of service to be credited under the EU pension scheme is governed by EU law. That operation takes into account capital appreciation between the date of application and the effective date of transfer provided for by the Staff Regulations. The General Court erred in law in holding that the Commission did not have the power to deduct capital appreciation between the date on which the transfer application was registered and the date of the actual transfer of the capital. In finding that the Commission was not competent to carry out those deductions, the General Court failed to have regard for the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations, failed to recognise the competence conferred on the Commission by that article and erred in law.
   The second ground of appeal alleges an error in law in holding that the deduction of capital appreciation could be carried out at a rate different to that provided for by the Staff Regulations and only on the basis of transferable capital. The deduction of capital appreciation must, however, be carried out in accordance with the Staff Regulations, which require maintenance of the actuarial balance and provide for the application of a rate of 3,1 % in order to achieve that. In addition, with reference to the ‘transferable’ amount, while Article 11(2) of Annex VIII to the Staff Regulations states that the transformation of the amounts representing the pension rights of the person concerned into pensionable years of service is to be carried out on the basis of the actual transfer, the General Court infringed that provision and failed to comply with its own appeal judgment of 13 October 2015 in Commission v Verile and Gjergji (T-104/14 P).
   The third ground of appeal alleges an error in law in giving precedence to the general implementing provisions adopted by the Commission for implementing the Staff Regulations over the latter themselves, which are hierarchically superior to the former, and infringement of the obligation to state reasons. By the first part of the third ground of appeal, the Commission claims that the General Court interpreted the general implementing provisions in a manner that is contrary to the wording of the statutory provision that those GIPs are supposed to implement and contravened the principle that the Staff Regulations, as interpreted by the Court’s judgment in Radek Časta, do not allow amounts that do not actually represent pension rights to be converted into pensionable years of service. By the second part of the third ground of appeal, the Commission claims that the General Court infringed the obligation to state reasons by finding, on the basis of contradictory reasoning, that the national pension fund had shown capital appreciation between the date of application and that of the actual transfer.
   The fourth ground of appeal alleges a manifest error of assessment and infringement of the obligation to state reasons on the part of the General Court in identifying unjust enrichment that does not exist. First, the General Court takes the view that there would be unjust enrichment if only one part of the transferred capital were converted into pensionable years, although the transfer is assessed at the date of the application to transfer and then follows the ‘notional’ fund system based on a capitalisation system. By the second part of the fourth ground of appeal, the Commission alleges infringement of the obligation to state reasons: the General Court found unjust enrichment without explaining how that conclusion could be justified in the light of the Commission’s argument that the amount exceeding the application of the 3,1 % rate had been reimbursed to the official concerned.


title: Case T-170/18: Action brought on 8 March 2018 — Kande Mupompa v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/64

         Action brought on 8 March 2018 — Kande Mupompa v Council
   (Case T-170/18)
   (2018/C 161/78)
   Language of the case: French

      Parties

      Applicant: Alex Kande Mupompa (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 10 in Annex II to Decision 2010/788/CFSP and No 10 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case C-284/16: Judgment of the Court (Grand Chamber) of 6 March 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Slowakische Republik v Achmea BV (Reference for a preliminary ruling — Bilateral investment treaty concluded in 1991 between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic and still applicable between the Kingdom of the Netherlands and the Slovak Republic — Provision enabling an investor from one Contracting Party to bring proceedings before an arbitral tribunal in the event of a dispute with the other Contracting Party — Compatibility with Articles 18, 267 and 344 TFEU — Concept of ‘court or tribunal’ — Autonomy of EU law)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/7

         Judgment of the Court (Grand Chamber) of 6 March 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Slowakische Republik v Achmea BV
   (Case C-284/16) (1)

   ((Reference for a preliminary ruling - Bilateral investment treaty concluded in 1991 between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic and still applicable between the Kingdom of the Netherlands and the Slovak Republic - Provision enabling an investor from one Contracting Party to bring proceedings before an arbitral tribunal in the event of a dispute with the other Contracting Party - Compatibility with Articles 18, 267 and 344 TFEU - Concept of ‘court or tribunal’ - Autonomy of EU law))
   (2018/C 161/07)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Slowakische Republik

      Defendant: Achmea BV

      Operative part of the judgment

   Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.

      (1)  OJ C 296, 16.8.2016.


title: Case C-142/18: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 23 February 2018 — Skype Communications Sàrl v Institut belge des services postaux et des télécommunications (IBPT)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/39

         Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 23 February 2018 — Skype Communications Sàrl v Institut belge des services postaux et des télécommunications (IBPT)
   (Case C-142/18)
   (2018/C 161/43)
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Applicant: Skype Communications Sàrl

      Defendant: Institut belge des services postaux et des télécommunications (IBPT)

      Questions referred

               1.

               Must the definition of an electronic communications service laid down in Article 2(c) of Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services, (1) as amended, be understood to mean that a voice-over IP service, made available via software, terminated on a public switched telephone network, to a fixed or mobile number covered by an (E.164) national numbering plan must be regarded as an electronic communications service, notwithstanding the fact that the internet service by means of which a user accesses that voice-over IP service already itself constitutes an electronic communications service, but where the provider of the software makes available that service for remuneration and enters into agreements with telecommunications service providers duly authorised to send and terminate calls to the public switched telephone network which allow the termination of calls to a fixed or mobile number covered by a national numbering plan?

               2.

               If the answer to Question 1 is yes, does the answer remain the same if account is taken of the fact that the software functionality which makes it possible to make voice calls is merely a feature of the software, which software can be used without that feature?

               3.

               If the answer to Questions 1 and 2 is yes, does the answer to Question 1 remain the same if account is taken of the fact that the service provider provides in its general terms that it does not accept any responsibility to the end-user for the conveyance of signals?

               4.

               If the answer to Questions 1, 2 and 3 is yes, does the answer to Question 1 remain the same if account is taken of the fact that the service provided also satisfies the definition of ‘information society service’?

      (1)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).


title: Case T-171/18: Action brought on 8 March 2018 — Boshab v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/65

         Action brought on 8 March 2018 — Boshab v Council
   (Case T-171/18)
   (2018/C 161/79)
   Language of the case: French

      Parties

      Applicant: Évariste Boshab (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 8 in Annex II to Decision 2010/788/CFSP and No 8 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case T-115/18: Action brought on 26 February 2018 — Tomasz Kawałko Trofeum v EUIPO — Ferrero (KINDERPRAMS)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/54

         Action brought on 26 February 2018 — Tomasz Kawałko Trofeum v EUIPO — Ferrero (KINDERPRAMS)
   (Case T-115/18)
   (2018/C 161/61)
   Language in which the application was lodged: Polish

      Parties

      Applicant: Tomasz Kawałko Trofeum (Gdynia, Poland) (represented by: P. Moksa, legal counsel)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Ferrero SpA (Alba, Italy)

      Details of the proceedings before EUIPO

      Applicant: Applicant

      Trade mark at issue: European Union word mark ‘KINDERPRAMS’ — Application for registration No 12 916 961

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 14 December 2017 in Case R 1112/2017-4

      Form of order sought

   The applicant claims that the Court should:

               —

               amend the contested decision by registering KINDERPRAMS as an EU trade mark;

               —

               order EUIPO to pay the costs.

      Plea in law

   Infringement of Article 8(1)(b) of Regulation 2017/1001.


title: Case T-172/18: Action brought on 8 March 2018 — Akili Mundos v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/65

         Action brought on 8 March 2018 — Akili Mundos v Council
   (Case T-172/18)
   (2018/C 161/80)
   Language of the case: French

      Parties

      Applicant: Muhindo Akili Mundos (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 13 in Annex II to Decision 2010/788/CFSP and No 13 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.


title: Case C-395/16: Judgment of the Court (Second Chamber) of 8 March 2018 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — DOCERAM GmbH v CeramTec GmbH (Reference for a preliminary ruling — Intellectual and industrial property — Regulation (EC) No 6/2002 — Community design — Article 8(1) — Features of appearance of a product solely dictated by its technical function — Criteria for assessment — Existence of alternative designs — Consideration of the point of view of an ‘objective observer’)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/8

         Judgment of the Court (Second Chamber) of 8 March 2018 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — DOCERAM GmbH v CeramTec GmbH
   (Case C-395/16) (1)

   ((Reference for a preliminary ruling - Intellectual and industrial property - Regulation (EC) No 6/2002 - Community design - Article 8(1) - Features of appearance of a product solely dictated by its technical function - Criteria for assessment - Existence of alternative designs - Consideration of the point of view of an ‘objective observer’))
   (2018/C 161/08)
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: DOCERAM GmbH

      Defendant: CeramTec GmbH

      Operative part of the judgment

               (1)

               Article 8(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs must be interpreted as meaning that in order to determine whether the features of appearance of a product are exclusively dictated by its technical function, it must be established that the technical function is the only factor which determined those features, the existence of alternative designs not being decisive in that regard.

               (2)

               Article 8(1) of Regulation No 6/2002 must be interpreted as meaning that, in order to determine whether the relevant features of appearance of a product are solely dictated by its technical function, within the meaning of that provision, the national court must take account of all the objective circumstances relevant to each individual case. In that regard, there is no need to base those findings on the perception of an ‘objective observer’.

      (1)  OJ C 419, 14.11.2016.


title: Case C-95/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 9 February 2018 — Sociale Verzekeringsbank; other parties: F. van den Berg and H.D. Giesen

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/21

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 9 February 2018 — Sociale Verzekeringsbank; other parties: F. van den Berg and H.D. Giesen
   (Case C-95/18)
   (2018/C 161/24)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: Sociale Verzekeringsbank (Svb)

      Other parties: F. van den Berg and H.D. Giesen

      Questions referred

               1.

                           (a)

                           Must Articles 45 TFEU and 48 TFEU be interpreted as meaning that, in cases such as those at issue here, those provisions preclude a national rule such as Article 6a, introductory sentence and (b), of the AOW? (1) That rule means that a resident of the Netherlands is not insured for purposes of the social security scheme of that State of residence if that resident works in another Member State and is subject to the social security legislation of the State of employment on the basis of Article 13 of Regulation No 1408/71. (2) The present cases are characterised by the fact that, on the basis of the legislation of the State of employment, the persons concerned do not qualify for an old-age pension because of the limited scope of their work there.

                           (b)

                           For the purpose of the answer to Question 1(a), is it significant that, for a resident of a State of residence which, under Article 13 of Regulation No 1408/71, is not the competent State, there is no obligation to pay contributions under the social security schemes of that State of residence? For the periods during which that resident works in another Member State, he comes exclusively under the social security system of the State of employment by virtue of Article 13 of Regulation No 1408/71, and in such a case Netherlands national legislation does not provide for an obligation to pay contributions either.

               2.

               For the purpose of the answer to Question 1, is it significant that the possibility existed for the parties concerned to take out voluntary insurance under the AOW, or that the possibility existed for them to request the Svb to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?

               3.

               Does Article 13 of Regulation No 1408/71 preclude someone such as Mr Giesen’s wife, who, prior to 1 January 1989, on the basis solely of the national legislation in her country of residence, the Netherlands, was insured under the AOW, from building an entitlement to old-age benefits on the basis of that insurance, in relation to periods during which, pursuant to that provision of the regulation, she was subject, by reason of work carried out in another Member State, to the legislation of that State of employment? Or must entitlement to a benefit under the AOW be regarded as an entitlement to a benefit which, under national legislation, is not subject to conditions relating to paid employment or to insurance within the meaning of the Bosmann
                   (3) judgment, with the result that the line of reasoning followed in that judgment can be applied in her case?

      (1)  General Law on Old-Age Pensions.

      (2)  Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ English Special Edition 1971(II), p. 416).

      (3)  C-352/06, EU:C:2008:290.


title: Case C-494/16: Judgment of the Court (First Chamber) of 7 March 2018 (request for a preliminary ruling from the Tribunale civile di Trapani — Italy) — Giuseppa Santoro v Comune di Valderice, Presidenza del Consiglio dei Ministri (Reference for a preliminary ruling — Social policy — Fixed-term work — Contracts concluded with a public sector employer — Measures to penalise the misuse of fixed-term contracts — Principles of equivalence and effectiveness)

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/9

         Judgment of the Court (First Chamber) of 7 March 2018 (request for a preliminary ruling from the Tribunale civile di Trapani — Italy) — Giuseppa Santoro v Comune di Valderice, Presidenza del Consiglio dei Ministri
   (Case C-494/16) (1)

   ((Reference for a preliminary ruling - Social policy - Fixed-term work - Contracts concluded with a public sector employer - Measures to penalise the misuse of fixed-term contracts - Principles of equivalence and effectiveness))
   (2018/C 161/09)
   Language of the case: Italian

      Referring court

   Tribunale civile di Trapani

      Parties to the main proceedings

      Applicant: Giuseppa Santoro

      Defendants: Comune di Valderice, Presidenza del Consiglio dei Ministri

      Operative part of the judgment

   Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999, which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation which, on the one hand, does not punish the misuse of successive fixed-term contracts by a public sector employer through the payment of compensation to the worker concerned for the lack of conversion of the fixed-term employment relationship into an employment relationship of indefinite duration, but, on the other hand, provides for the grant of compensation of between 2,5 and 12 times the last monthly salary of that worker together with the possibility for him to obtain full compensation for the harm by demonstrating, by way of presumption, the loss of opportunities to find employment or that, if a recruitment competition had been duly organised, he would have been successful, provided that such legislation is accompanied by an effective and dissuasive penalty mechanism, a matter which is for the referring court to verify.

      (1)  OJ C 454, 5.12.2016.


title: Case C-145/18: Request for a preliminary ruling from the Conseil d'Etat (France) lodged on 23 February 2018 — Regards Photographiques SARL v Ministre de l’Action et des Comptes publics

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/40

         Request for a preliminary ruling from the Conseil d'Etat (France) lodged on 23 February 2018 — Regards Photographiques SARL v Ministre de l’Action et des Comptes publics
   (Case C-145/18)
   (2018/C 161/44)
   Language of the case: French

      Referring court

   Conseil d'Etat

      Parties to the main proceedings

      Applicant: Regards Photographiques SARL

      Defendant: Ministre de l’Action et des Comptes publics (Minister for the Public Sector and Public Accounts)

      Questions referred

               ‘—

               Must the provisions of Articles 103 and 311 of Directive 2006/112/EC of 28 November 2006 (1) and paragraph 7 of part A in Annex IX thereto, be interpreted as meaning that they require only that the photographs are taken by their photographer, printed by him or under his supervision, signed and numbered up to a maximum of 30 copies, all sizes and mounts included, in order to be able to benefit from the reduced rate of VAT?

               —

               If the answer to the first question is yes, are Member States nevertheless permitted to exclude from the benefit of the reduced rate of VAT photographs that are not, in addition, artistic in character?

               —

               If the answer to the first question is no, what other conditions must the photographs satisfy in order to benefit from the reduced rate of VAT? In particular, must they show an artistic character?

               —

               Must those conditions be interpreted uniformly within the European Union, or do they refer to the law or each Member state, in particular in the field of intellectual property?’

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


title: Case T-173/18: Action brought on 8 March 2018 — Ramazani Shadary v Council

text:
               7.5.2018

               EN

               Official Journal of the European Union

               C 161/66

         Action brought on 8 March 2018 — Ramazani Shadary v Council
   (Case T-173/18)
   (2018/C 161/81)
   Language of the case: French

      Parties

      Applicant: Emmanuel Ramazani Shadary (Kinshasa, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois and A. Guillerme, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               Annul Council Decision (CFSP) 2017/2282 of 11 December 2017 amending Decision 2010/788/CFSP concerning restrictive measures against the Democratic Republic of the Congo, in so far as the applicant remains at No 15 in Annex II to Decision 2010/788/CFSP and No 15 in Annex Ia to Regulation (EC) No 1183/2005;

               —

               Rule that the provisions of Articles 3(2)(b) of Decision 2010/788/CFSP, as amended by Decision 2016/2231/CFSP, and 2b(1)(b) of Regulation [No] 1183/2005/EC are unlawful;

               —

               Order the Council to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law, which are in essence identical or similar to those raised in Case T-163/18, Amisi Kumba v Council.