201711170051555542017/C 412/142622016CJC41220171204EN01ENINFO_JUDICIAL201710128922Case C-262/16: Judgment of the Court (Third Chamber) of 12 October 2017 (request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) — United Kingdom) — Shields & Sons Partnership v Commissioners for Her Majesty’s Revenue and Customs (Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 296(2) — Article 299 — Common flat-rate scheme for farmers — Exclusion from the common scheme — Conditions — Concept of ‘category of farmers’)
 ---documentbreak--- C4122017EN820120171012EN00148292Judgment of the Court (Third Chamber) of 12 October 2017 (request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) — United Kingdom) — Shields & Sons Partnership v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-262/16) (
         1
      )
   ‛(Reference for a preliminary ruling — Taxation — Value added tax — Directive 2006/112/EC — Article 296(2) — Article 299 — Common flat-rate scheme for farmers — Exclusion from the common scheme — Conditions — Concept of ‘category of farmers’)’2017/C 412/14Language of the case: English
      Referring court

   Upper Tribunal (Tax and Chancery Chamber)

      Parties to the main proceedings

      Appellant: Shields & Sons Partnership

      Respondent: Commissioners for Her Majesty’s Revenue and Customs

      Operative part of the judgment

            1.

            Article 296(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as laying down exhaustively all the cases in which a Member State may exclude a farmer from the common flat-rate scheme for farmers.

            2.

            Article 296(2) of Directive 2006/112 must be interpreted as meaning that farmers who are found to be recovering substantially more as members of the common flat-rate scheme for farmers than they would if they were subject to the normal value added tax arrangements or the simplified value added tax arrangements cannot constitute a category of farmers within the meaning of that provision.

      (
         1
      )	OJ C 260, 18.7.2016.


201711170201555732017/C 412/295802017CJC41220171204EN01ENINFO_JUDICIAL20171004192021Case C-580/17: Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 4 October 2017 — Mittetulundusühing Järvelaev v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)
 ---documentbreak--- C4122017EN1910120171004EN0029191202Request for a preliminary ruling from the Riigikohus (Estonia) lodged on 4 October 2017 — Mittetulundusühing Järvelaev v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)
   (Case C-580/17)2017/C 412/29Language of the case: Estonian
      Referring court

   Riigikohus

      Parties to the main proceedings

      Applicant: Mittetulundusühing Järvelaev

      Defendant: Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

      Questions referred

            1.

            In the event of the recovery of project funding awarded as part of a Leader measure, if the funding was approved on 6 September 2011, the final instalment was paid on 19 November 2013, the infringement was established on 4 December 2014 and the recovery decision was issued on 27 January 2015, must Article 72 of Council Regulation (EC) No 1698/2005 (
                  1
               ) or Article 71(1) of Regulation (EU) No 1303/2013 (
                  2
               ) of the European Parliament and of the Council be applied in relation to the requirement concerning the durability of the project? In those circumstances, does Article 33(1) of Council Regulation (EC) No 1290/2005 (
                  3
               ) or Article 56 of Regulation (EU) No 1306/2013 (
                  4
               ) of the European Parliament and of the Council form the basis for the recovery?

            2.

            If the answer to Question 1 is that Regulation No 1698/2005 is applicable, must the leasing of an asset (a sailing boat) acquired by means of project funding granted as part of a Leader measure by the not-for-profit association which received the funding to another not-for-profit association which uses the sailing boat for the same operation for which the funding was granted to the beneficiary be regarded as a substantial modification within the meaning of Article 72(1)(a) of Regulation No 1698/2005, which affects the nature or implementation conditions of the operation or gives undue advantage to a firm? Must the payment body of a Member State determine what the advantage specifically is in order for the condition relating to undue advantage to be satisfied? If the answer is in the affirmative, can the undue advantage lie in the fact that the actual user of the asset would not have obtained the project funding if it had itself submitted an application with the same content?

            2a.

            If the answer to Question 1 is that Regulation No 1303/2013 is applicable, must the leasing of an asset (a sailing boat) acquired by means of project funding granted as part of a Leader measure by the not-for-profit association which received the funding to another not-for-profit association which uses the sailing boat in the same manner for which the funding was granted to the beneficiary be regarded as a substantial change within the meaning of Article 71(1)(c) of Regulation No 1303/2013, which affects its nature, objectives or implementation conditions in a manner which would result in undermining its original objectives?

            3.

            If the answer to Question 1 is that Regulation No 1698/2005 is applicable, must the leasing of an asset (a sailing boat) acquired by means of project funding granted as part of a Leader measure by the beneficiary to another not-for-profit association which uses the sailing boat for the same operation for which the funding was granted to the beneficiary be regarded as a substantial modification within the meaning of Article 72(1)(b) of Regulation No 1698/2005, which results either from a change in the nature of ownership of an item of infrastructure, or the cessation or relocation of a productive activity, having regard to the fact that the ownership of the sailing boat has remained unchanged but the beneficiary is now the indirect, rather than the direct, possessor of that sailing boat and obtains rental income rather than income derived from the provision of the service described in the application?

            3a.

            If the answer to Question 1 is that Regulation No 1303/2013 is applicable, must the leasing of an asset (a sailing boat) acquired by means of project funding granted as part of a Leader measure by the not-for-profit association which received the funding to another not-for-profit association which uses the sailing boat for the same operation for which the funding was granted to the beneficiary be regarded as a change in ownership of an item of infrastructure which gives to a firm an undue advantage within the meaning of Article 71(1)(b) of Regulation No 1303/2013, having regard to the fact that the ownership of the sailing boat has remained unchanged but the beneficiary is now the indirect, rather than the direct, possessor of that sailing boat and obtains rental income rather than income derived from the provision of the service described in the application? Must the payment body of a Member State determine what the advantage specifically is in order for the requirement relating to undue advantage to be satisfied? If the answer is in the affirmative, can the undue advantage lie in the fact that the actual user of the asset would not have obtained the project funding if it had itself submitted an application with the same content?

            4.

            May a national decree governing a Leader measure impose on the beneficiary the obligation to retain the asset for five years with stricter requirements than those laid down in Article 72(1) of Regulation No 1698/2005 or in Article 71(1) of Regulation No 1303/2013?

            5.

            If the answer to Question 4 is in the negative, are the provision of a national decree under which the beneficiary of project funding is obliged to retain and use for its intended purpose the asset acquired by means of the project funding for at least five years following the payment of the last instalment of the funding, and the interpretation of that provision as meaning that the beneficiary must use that asset personally, consistent with Article 72(1) of Regulation No 1698/2005 and/or Article 71(1) of Regulation No 1303/2013?

            6.

            Must it be regarded as an irregularity within the meaning of Article 33(1) of Regulation No 1290/2005 and/or Article 56 of Regulation No 1306/2013 if the beneficiary has not carried out an operation which, under a national decree governing a Leader measure, was not obligatory but to which the beneficiary had referred in the ‘Summary of the objectives and activities of the operation and the investment’ set out in its funding application and which was one of the criteria on the basis of which the applications were assessed for the purpose of ranking them?

            7.

            If the answer to Question 6 is in the affirmative, is the recovery rendered unlawful by the fact that it is sought before the expiry of the period of five years from the time of the final payment and the beneficiary remedies the infringement in the course of the judicial proceedings concerning recovery?

      (
         1
      )	Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1).
   (
         2
      )	Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006 (OJ 2013 L 347, p. 320).
   (
         3
      )	Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).
   (
         4
      )	Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549).


201711170221555752017/C 412/152782016CJC41220171204EN01ENINFO_JUDICIAL201710129911Case C-278/16: Judgment of the Court (Fifth Chamber) of 12 October 2017 (request for a preliminary ruling from the Landgericht Aachen — Germany) — Criminal proceedings against Frank Sleutjes (Reference for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2010/64/EU — Article 3(1) — Right to interpretation and translation in criminal proceedings — Translation of ‘essential documents’ — Definition of essential documents — Penalty order issued following a simplified unilateral procedure and imposing on the addressee a fine for a minor offence)
 ---documentbreak--- C4122017EN910120171012EN00159191Judgment of the Court (Fifth Chamber) of 12 October 2017 (request for a preliminary ruling from the Landgericht Aachen — Germany) — Criminal proceedings against Frank Sleutjes
   (Case C-278/16) (
         1
      )
   ‛(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2010/64/EU — Article 3(1) — Right to interpretation and translation in criminal proceedings — Translation of ‘essential documents’ — Definition of essential documents — Penalty order issued following a simplified unilateral procedure and imposing on the addressee a fine for a minor offence)’2017/C 412/15Language of the case: German
      Referring court

   Landgericht Aachen

      Party in the main proceedings

   Frank Sleutjes

      Intervening party: Staatsanwaltschaft Aachen

      Operative part of the judgment

   Article 3 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as meaning that a measure, such as an order provided for in national law for imposing sanctions in relation to minor offences and delivered by a judge following a simplified unilateral procedure, constitutes a ‘document which is essential’, within the meaning of Article 3(1) of that directive, of which a written translation must, in accordance with the formal requirements laid down in that provision, be provided to suspected or accused persons who do not understand the language of the proceedings in question, for the purposes of enabling them to exercise their rights of defence and thus of safeguarding the fairness of the proceedings.
   (
         1
      )	OJ C 335, 12.9.2016.


201711170461556072017/C 412/536962017TC41220171204EN01ENINFO_JUDICIAL20171009373821Case T-696/17: Action brought on 9 October 2017 — Havenbedrijf Antwerpen and Maatschappij van de Brugse Zeehaven v Commission
 ---documentbreak--- C4122017EN3710120171009EN0053371382Action brought on 9 October 2017 — Havenbedrijf Antwerpen and Maatschappij van de Brugse Zeehaven v Commission
   (Case T-696/17)2017/C 412/53Language of the case: Dutch
      Parties

      Applicants: Havenbedrijf Antwerpen NV (Antwerp, Belgium) and Maatschappij van de Brugse Zeehaven NV (Zeebrugge, Belgium) (represented by: P. Wytinck, W. Panis and I. Letten, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

            —

            declare the application for annulment admissible;

            —

            annul Decision C(2017) 5174 final of the European Commission of 27 July 2017 concerning state aid scheme No SA.38393 (2016/C, ex 2015/E) — Ports taxation in Belgium, implemented by Belgium;

            —

            in the alternative, grant a transitional period until such time that the Commission has completed its investigation into the tax regime of the various ports in the EU, amounting, in any event, to one full year;

            —

            order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on four pleas in law.

            1.

            First plea in law, alleging infringement of Article 107 TFEU and Article 296 TFEU.

                     —

                     The Commission infringes Article 107 TFEU in so far as it incorrectly considers there to be a ‘market’ on which the port authorities provide their services.

                     —

                     The port authorities’ main activities, namely providing access to ports and making lands available by means of domain concessions, involve activities that are non-economic in nature. At the very least, the Commission did not justify the opposite conclusion in an adequate manner, thereby infringing Article 296 TFEU.

            2.

            Second plea in law, alleging infringement of Article 107 TFEU in so far as the Commission wrongly qualifies the measure as selective.
            Making the port authorities subject to the regime of tax on legal persons is not a derogation from the ‘reference system’ since the tax on legal persons is a reference system in itself. The liability of the port authorities to the tax on legal persons is explained by the fact that the management of the ports as a public domain is a public task which is not subject to corporation tax. The port authorities still perform, in essence, a public service, on a non-profit basis, in accordance with the conditions of the legislature and under administrative supervision.

            3.

            Third plea in law, alleging infringement of Article 107 TFEU in so far as the derogation from the reference system is, in any event, justified.
            Even if corporation tax were to be regarded as the Belgian reference system — which it is not — not subjecting the port authorities to it is justifiable. This follows from the overall coherence of the tax system and from the fact that the applicants are not in a factual and legal situation comparable to that of undertakings subject to corporation tax. Liability to corporation tax would, moreover, have a punitive effect.

            4.

            Fourth plea in law, in the further alternative, concerning a request for a transitional period until such time that the Commission has completed its investigation into the tax regime of the various ports in the EU, amounting, in any event, to one full year.

                     —

                     In the case against the Netherlands, the Commission gave the Netherlands legislature one full year in order for it to amend its legislation; the ports thus also had a year to prepare for the new situation. There is no justification for why the applicants should be granted a shorter period to adapt to the new situation.

                     —

                     Prohibiting the measure in one Member State, when ports in other Member States can still enjoy its effects, in no way benefits the level playing field between the ports (not the port authorities). On the contrary, instead of eliminating inequality, it actually creates an unequal situation between the ports in the various Member States.


201711170471556112017/C 412/546992017TC41220171204EN01ENINFO_JUDICIAL20171011383921Case T-699/17: Action brought on 11 October 2017 — Poland v Commission
 ---documentbreak--- C4122017EN3810120171011EN0054381392Action brought on 11 October 2017 — Poland v Commission
   (Case T-699/17)2017/C 412/54Language of the case: Polish
      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

            —

            annul Commission Implementing Decision (EU) 2017/1442 of 31 July 2017 establishing best available techniques (BAT) conclusions, under Directive 2010/75/EU of the European Parliament and of the Council, for large combustion plants (notified under document C(2017) 5225);

            —

            order the European Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

            1.

            First plea in law, alleging that the Commission infringed Article 16(4) and (5) TEU, read in conjunction with Article 3(2) and (3) of Protocol No 36 on transitional provisions, annexed to the TEU and the TFEU, by using an unsuitable method of calculating the qualified majority when adopting the contested decision.

            2.

            Second plea in law, alleging that the Commission infringed Article 3(10) and (13) of Directive 2010/75/EU, read in conjunction with Annex III to that directive, as well as Implementing Decision 2012/119/EU, by establishing the BAT-AELs (associated emission levels) on the basis of inaccurate and unrepresentative data.

            3.

            Third plea in law, alleging that the Commission infringed the principle of proportionality (Article 5(4) TEU, read in conjunction with Article 191(2) TFEU), by establishing excessively high BAT-AELs which are not suitable for or commensurate with achieving the intended benefits and aims, and also that it failed to carry out an impact assessment in relation to the contested decision.

            4.

            Fourth plea in law, alleging that the Commission infringed Article 13(4) and (5) of Directive 2010/75/EU, read in conjunction with Article 3(12) of that directive and Article 291(2) TFEU, by exceeding the entitlements which it is acknowledged as having in Article 13(5) of Directive 2010/75/EU, as a result of introducing derogations from the application of the BAT conclusions by means of the contested decision rather than by means of an amendment to Directive 2010/75/EU.

            5.

            Fifth plea in law, alleging that the Commission infringed Article 3(3) and (4) of Regulation No 182/2011, misused its powers, and infringed the principles of sound administration by introducing, without allowing for prior discussion, significant amendments to the draft of the contested decision on the day of the vote by the Committee referred to in Article 75 of Directive 2010/75/EU as to its opinion on that draft.


201711170501555842017/C 412/394412016TC41220171204EN01ENINFO_JUDICIAL20171023272822Case T-441/16: Judgment of the General Court of 23 October 2017 — Tetra Pharm (1997) v EUIPO — Sebapharma (SeboCalm) (EU trade mark — Opposition proceedings — Application for the EU word mark SeboCalm — Earlier EU word mark — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
 ---documentbreak--- C4122017EN2720120171023EN0039272282Judgment of the General Court of 23 October 2017 — Tetra Pharm (1997) v EUIPO — Sebapharma (SeboCalm)
   (Case T-441/16) (
         1
      )
   ‛(EU trade mark — Opposition proceedings — Application for the EU word mark SeboCalm — Earlier EU word mark — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))’2017/C 412/39Language of the case: English
      Parties

      Applicant: Tetra Pharm (1997) Ltd (Tel Aviv, Israel) (represented by: A. Gorzkiewicz, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: H. O’Neill and D. Stoyanova-Valchanova, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Sebapharma GmbH & Co. KG (Boppard, Germany) (represented by: J. Wald and D. Koal, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO dated 19 May 2016 (Case R 852/2015-1), relating to opposition proceedings between Sebapharma and Tetra Pharm (1997).

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action.

            2.

            Orders Tetra Pharm (1997) Ltd to pay the costs.

      (
         1
      )	OJ C 364, 3.10.2016.


201711170531556132017/C 412/557152017TC41220171204EN01ENINFO_JUDICIAL20171011393911Case T-715/17: Action brought on 11 October 2017 — Hermann Biederlack v EUIPO (Feeling home)
 ---documentbreak--- C4122017EN3910120171011EN0055391391Action brought on 11 October 2017 — Hermann Biederlack v EUIPO (Feeling home)
   (Case T-715/17)2017/C 412/55Language of the case: German
      Parties

      Applicant: Hermann Biederlack GmbH & Co. KG (Greven, Germany) (represented by: T. Seifried, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘Feeling home’ — Application for registration No 15 452 931

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 14 June 2017 in Case R 252/2017-5

      Form of order sought

   The applicant claims that the Court should:

            —

            annul the contested decision;

            —

            order EUIPO to pay the costs.

      Plea in law

            —

            Infringement of Article 7(1)(b) of Regulation No 207/2009.


201711170451555682017/C 412/406492016TC41220171204EN01ENINFO_JUDICIAL20171019282811Case T-649/16: Judgment of the General Court of 19 October 2017 — Bernaldo de Quirós v Commission (Civil service — Officials — Assignment — Transfer from a head of unit post to an advisor post — Interests of the service — Misuse of powers — Right to be heard and duty of care — Principle of equivalence of posts)
 ---documentbreak--- C4122017EN2810120171019EN0040281281Judgment of the General Court of 19 October 2017 — Bernaldo de Quirós v Commission
   (Case T-649/16) (
         1
      )
   ‛(Civil service — Officials — Assignment — Transfer from a head of unit post to an advisor post — Interests of the service — Misuse of powers — Right to be heard and duty of care — Principle of equivalence of posts)’2017/C 412/40Language of the case: French
      Parties

      Applicant: Belén Bernaldo de Quirós (Brussels, Belgium) (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: European Commission (represented by: G. Berscheid, C. Berardis-Kayser and C. Ehrbar, acting as Agents)

      Re:

   Application based on Article 270 TFEU seeking annulment of the Commission decision of 30 November 2015 changing the applicant’s assignment, from 1 December 2015, from the post of Head of the Traineeships Office Unit of the Youth and Sport Directorate within the Education and Culture Directorate General (DG) to the post of Advisor at the Modernisation of Education II: Education policy and programme, Innovation, EIT and MSCA Directorate within that same DG.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action;

            2.

            Orders Ms Belén Bernaldo de Quirós to pay the costs.

      (
         1
      )	OJ C 402, 31.10.2016.


201711170151555512017/C 412/162892016CJC41220171204EN01ENINFO_JUDICIAL20171012101011Case C-289/16: Judgment of the Court (Ninth Chamber) of 12 October 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Kamin und Grill Shop GmbH v Zentrale zur Bekämpfung unlauteren Wettbewerbs eV (Reference for a preliminary ruling — Agriculture — Organic products — Control system established by Regulation (EC) No 834/2007 — Concept of ‘direct sale to the final consumer or user’)
 ---documentbreak--- C4122017EN1010120171012EN0016101101Judgment of the Court (Ninth Chamber) of 12 October 2017 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Kamin und Grill Shop GmbH v Zentrale zur Bekämpfung unlauteren Wettbewerbs eV
   (Case C-289/16) (
         1
      )
   ‛(Reference for a preliminary ruling — Agriculture — Organic products — Control system established by Regulation (EC) No 834/2007 — Concept of ‘direct sale to the final consumer or user’)’2017/C 412/16Language of the case: German
      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Kamin und Grill Shop GmbH

      Defendant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

      Operative part of the judgment

   Article 28(2) of Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 must be interpreted as meaning that, in order for products to be regarded as being sold ‘directly’, within the meaning of that provision, to the final consumer or user, it is necessary for the sale to occur in the presence of both the operator or his sales personnel and the final consumer.
   (
         1
      )	OJ C 350, 26.9.2016.


201711170031555412017/C 412/305872017CJC41220171204EN01ENINFO_JUDICIAL20171005212111Case C-587/17 P: Appeal brought on 5 October 2017 by the Kingdom of Belgium against the judgment of the General Court (Second Chamber) delivered on 20 July 2017 in Case T-287/16, Belgium v Commission
 ---documentbreak--- C4122017EN2110120171005EN0030211211Appeal brought on 5 October 2017 by the Kingdom of Belgium against the judgment of the General Court (Second Chamber) delivered on 20 July 2017 in Case T-287/16, Belgium v Commission
   (Case C-587/17 P)2017/C 412/30Language of the case: French
      Parties

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

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

            —

            set aside the judgment of the General Court (Second Chamber) of 20 July 2017 in Case T-287/16, Belgium v Commission (EU:T:2017:531);

            —

            annul Commission Implementing Decision (EU) 2016/417 of 17 March 2016 (
                  1
               ) in so far as it excludes from European Union financing the sum of EUR 9601619,00 (budget item 6701);

            —

            order the Commission to pay the costs.

      Grounds of appeal and main arguments

   In support of its appeal, the appellant relies on a single ground of appeal, alleging an error of law resulting from a misinterpretation by the General Court of Article 32(8)(a) of Regulation No 1290/2005, (
         2
      ) now, essentially, Article 54(5)(c) of Regulation No 1306/2013, (
         3
      ) both with regard to the prior exhaustion of national rights of action and with regard to the due care required by that provision.
   (
         1
      )	Commission Implementing Decision (EU) 2016/417 of 17 March 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2016 L 75, p. 16).
   (
         2
      )	Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).
   (
         3
      )	Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549; corrigendum OJ 2016 L 130, p. 6).


201711170371555812017/C 412/416832016TC41220171204EN01ENINFO_JUDICIAL20171019292911Case T-683/16: Judgment of the General Court of 19 October 2017 — Kuka Systems v EUIPO (MATRIX BODY SHOP) (EU trade mark — Application for EU word mark MATRIX BODY SHOP — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))
 ---documentbreak--- C4122017EN2910120171019EN0041291291Judgment of the General Court of 19 October 2017 — Kuka Systems v EUIPO (MATRIX BODY SHOP)
   (Case T-683/16) (
         1
      )
   ‛(EU trade mark — Application for EU word mark MATRIX BODY SHOP — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))’2017/C 412/41Language of the case: German
      Parties

      Applicant: Kuka Systems GmbH (Augsburg, Germany) (represented by: B. Maneth and C. Huch-Hallwachs, lawyers)

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

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 19 July 2016 (Case R 2503/2015-4), relating to an application for registration of the word sign MATRIX BODY SHOP as an EU trade mark.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action;

            2.

            Orders Kuka Systems GmbH to pay the costs.

      (
         1
      )	OJ C 410, 7.11.2016.


201711170321555902017/C 412/567162017TC41220171204EN01ENINFO_JUDICIAL20171018394022Case T-716/17: Action brought on 18 October 2017 — Germanwings v Commission
 ---documentbreak--- C4122017EN3920120171018EN0056392402Action brought on 18 October 2017 — Germanwings v Commission
   (Case T-716/17)2017/C 412/56Language of the case: German
      Parties

      Applicant: Germanwings GmbH (Cologne, Germany) (represented by: A. Martin-Ehlers, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

            —

            annul the decision of the European Commission of 29 July 2016 (
                  1
               ) in Case SA.33983 (ex 2012/NN) (ex 201l/NN) — Compensation to Sardinian airports for public service obligations (services of a general economic interest — SGEI) and, specifically:

                     —

                     Article 1(2), in so far as it refers to Germanwings GmbH; and

                     —

                     Article 2(1), in so far as the repayment claimed therein relates to Germanwings GmbH; and

            —

            order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

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

            1.

            First plea in law, alleging that there is no aid element
            The defendant has neither shown nor proved that the payment made to the applicant contained aid. Consequently, the defendant departs significantly from the case-law and from its own decision-making practice.

            2.

            Second plea in law, alleging that, if it is established that aid is involved, that aid would neither interfere with trade between Member States nor distort competition.
            The defendant has provided an inadequate statement of reasons for its claim that the alleged aid affects trade between Member States and competition. In the alternative, the applicant argues that it would be de minimis aid within the meaning of Article 2(1) of Regulation (EC) No 1998/2006. (
                  2
               )

      (
         1
      )	Commission Decision (EU) 2017/1861 of 29 July 2016 on State aid SA33983 (2013/C) (ex 2012/NN) (ex 2011/N) — Italy — Compensation to Sardinian airports for public service obligations (SGEI) (notified under document C(2016) 4862) (OJ 2017 L 268, p. 1).
   (
         2
      )	Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ 2006 L 379, p. 5).


201711170511556002017/C 412/426862016TC41220171204EN01ENINFO_JUDICIAL20171019293022Case T-686/16 P: Judgment of the General Court of 19 October 2017 — Possanzini v Frontex (Appeal — Civil service — Temporary staff — 2009 appraisal procedure — Powers of the countersigning officer — Amendment of the reporting officer’s primary assessment by the countersigning officer — Preliminary consultation meeting between the countersigning officer and the reporting officer — Infringement of substantial procedural requirements — Examination of the Court’s own motion)
 ---documentbreak--- C4122017EN2920120171019EN0042292302Judgment of the General Court of 19 October 2017 — Possanzini v Frontex

   (Case T-686/16 P) (
         1
      )
   ‛(Appeal — Civil service — Temporary staff — 2009 appraisal procedure — Powers of the countersigning officer — Amendment of the reporting officer’s primary assessment by the countersigning officer — Preliminary consultation meeting between the countersigning officer and the reporting officer — Infringement of substantial procedural requirements — Examination of the Court’s own motion)’2017/C 412/42Language of the case: French
      Parties

      Appellant: Daniele Possanzini (Pisa, Italy) (represented by: S. Pappas, lawyer)

      Other party to the proceedings: European Border and Coast Guard Agency (Frontex) (represented by: H. Caniard and S. Drew, acting as Agents, and D. Waelbrock and A. Duron, lawyers)

      Re:

   Appeal brought against the order of the Civil Service Tribunal of the European Union (First Chamber) of 18 July 2016, Possanzini v Commission (F-68/15, EU:F:2016:150), seeking to have that order set aside.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the appeal;

            2.

            Orders Mr Daniele Possanzini to bear his own costs and to pay those of the European Border and Coast Guard Agency (Frontex) in the present proceedings.

      (
         1
      )	OJ C 428, 21.11.2016.


201711170401556052017/C 412/572272017TC41220171204EN01ENINFO_JUDICIAL20171016404011Case T-227/17: Order of the General Court of 16 October 2017 — Falmouth University v Commission
 ---documentbreak--- C4122017EN4010120171016EN0057401401Order of the General Court of 16 October 2017 — Falmouth University v Commission
   (Case T-227/17) (
         1
      )2017/C 412/57Language of the case: EnglishThe President of the Eighth Chamber has ordered that the case be removed from the register.
   (
         1
      )	OJ C 221, 10.7.2017.


title: Case T-705/16: Judgment of the General Court of 19 October 2017 — WQ (*) v Parliament (Appeal — Civil service — Officials — Certification procedure — 2014 — Not included in the list of officials selected to participate in the training programme — Equal treatment — Article 165 TFEU — Plea of illegality)

text:
201711170441556062017/C 412/437052016TC41220171204EN01ENINFO_JUDICIAL20171019303011Case T-705/16: Judgment of the General Court of 19 October 2017 —  (
         *1
      ) v Parliament (Appeal — Civil service — Officials — Certification procedure — 2014 — Not included in the list of officials selected to participate in the training programme — Equal treatment — Article 165 TFEU — Plea of illegality)
   (
         *1
      )	Information erased within the framework of the protection of individuals with regard to the processing of personal data.
 ---documentbreak--- C4122017EN3010120171019EN0043301301Judgment of the General Court of 19 October 2017 —  (
         *1
      ) v Parliament
   (Case T-705/16) (
         1
      )
   ‛(Appeal — Civil service — Officials — Certification procedure — 2014 — Not included in the list of officials selected to participate in the training programme — Equal treatment — Article 165 TFEU — Plea of illegality)’2017/C 412/43Language of the case: French
      Parties

      Appellant: (
         *1
      ) (represented by: S. Orlandi and T. Martin, lawyers)

      Other party to the proceedings: European Parliament (represented by: D. Nessaf and M. Ecker, acting as Agents)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 July 2016,  (
            *1
         ) v Parliament (F-1/16, EU:F:2016:171), seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the appeal;

            2.

            Orders  (
                  *1
               ) to bear his own costs and to pay those incurred by the European Parliament on appeal.

      (
         *1
      )	Information erased within the framework of the protection of individuals with regard to the processing of personal data.
   (
         1
      )	OJ C 454, 5.12.2016.


201711170111555602017/C 412/315942017CJC41220171204EN01ENINFO_JUDICIAL20171013212222Case C-594/17: Action brought on 13 October 2017 — European Commission v Republic of Slovenia
 ---documentbreak--- C4122017EN2120120171013EN0031212222Action brought on 13 October 2017 — European Commission v Republic of Slovenia
   (Case C-594/17)2017/C 412/31Language of the case: Slovenian
      Parties

      Applicant: European Commission (represented by: L. Flynn, G. von Rintelen and M. Žebre)

      Defendant: Republic of Slovenia

      Form of order sought

   The applicant claims that the Court should:

            —

            declare that the Republic of Slovenia has failed to fulfil its obligations under Article 15(1) of Council Directive 2001/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States (OJ 2011 L 306, p. 41), by failing to adopt, by 31 December 2013, all the laws, regulations and administrative provisions necessary to comply with that directive, or in any event by failing to communicate those provisions to the Commission;

            —

            order the Republic of Slovenia to pay, on the basis of Article 260(3) TFEU, a penalty of EUR 7099,20 per day from the date of delivery of judgment in the present case;

            —

            order the Republic of Slovenia to pay the costs.

      Pleas in law and main arguments

   In accordance with Article 15(1) of Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States, the Republic of Slovenia should have adopted and made public, by 31 December 2013, all the laws, regulations and administrative provisions necessary to comply with that directive. Since the Republic of Slovenia did not confirm to the Commission, before expiry of that time limit, that all the provisions of the directive cited above had been transposed, the Commission decided to bring an action before the Court.
   By its action, the Commission claims that the Court should order the Republic of Slovenia to pay a penalty of EUR 7099,20 per day. In calculating that amount, the Commission took into consideration the seriousness and the duration of the breach of EU law as well as the deterrent effect in relation to the ability of the Member State concerned, namely the Republic of Slovenia, to pay.


201711170411555962017/C 412/448102016TC41220171204EN01ENINFO_JUDICIAL20171023313111Case T-810/16: Judgment of the General Court of 23 October 2017 — Barmenia Krankenversicherung v EUIPO (Mediline) (EU trade mark — Application for registration of the EU word mark Mediline — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Article 7(2) of Regulation No 207/2009 (now Article 7(2) of Regulation 2017/1001))
 ---documentbreak--- C4122017EN3110120171023EN0044311311Judgment of the General Court of 23 October 2017 — Barmenia Krankenversicherung v EUIPO (Mediline)
   (Case T-810/16) (
         1
      )
   ‛(EU trade mark — Application for registration of the EU word mark Mediline — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001) — Article 7(2) of Regulation No 207/2009 (now Article 7(2) of Regulation 2017/1001))’2017/C 412/44Language of the case: German
      Parties

      Applicant: Barmenia Krankenversicherung AG (Wuppertal, Germany) (represented by: M. Graf, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 8 September 2016 (Case R 2437/2015-1), concerning an application for registration of the word sign Mediline as an EU trade mark.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action;

            2.

            Orders Barmenia Krankenversicherung AG to pay the costs.

      (
         1
      )	OJ C 22, 23.1.2017.


201711170231555532017/C 412/174042016CJC41220171204EN01ENINFO_JUDICIAL20171012101122Case C-404/16: Judgment of the Court (Sixth Chamber) of 12 October 2017 (request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság — Hungary) — Lombard Ingatlan Lízing Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság (Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Article 90(1) — Direct effect — Taxable amount — Reduction in the case of cancellation or refusal — Reduction in the case of total or partial non-payment — Distinction — Financial leasing agreement terminated for non-payment of public charges)
 ---documentbreak--- C4122017EN1020120171012EN0017102112Judgment of the Court (Sixth Chamber) of 12 October 2017 (request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság — Hungary) — Lombard Ingatlan Lízing Zrt. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság
   (Case C-404/16) (
         1
      )
   ‛(Reference for a preliminary ruling — VAT — Directive 2006/112/EC — Article 90(1) — Direct effect — Taxable amount — Reduction in the case of cancellation or refusal — Reduction in the case of total or partial non-payment — Distinction — Financial leasing agreement terminated for non-payment of public charges)’2017/C 412/17Language of the case: Hungarian
      Referring court

   Szegedi Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Lombard Ingatlan Lízing Zrt.

      Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatóság

      Operative part of the judgment

            1.

            The concepts of ‘cancellation’ and ‘refusal’ in Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as including a situation in which, under a financial leasing agreement with definite transfer of ownership, the lessor may no longer claim payment of the leasing instalment from the lessee because the lessor has terminated the agreement owing to breach of contract by the lessee.

            2.

            Where a financial leasing agreement has been definitively terminated because of non-payment of the lease instalments payable by the lessee, the lessor may rely on Article 90(1) of Directive 2006/112 against a Member State with a view to obtaining a reduction of the taxable amount for value added tax, even if the applicable national law considers that situation to be a case of ‘non-payment’ within the meaning of Article 90(2) of the directive and does not allow the taxable amount to be reduced in the case of non-payment.

      (
         1
      )	OJ C 364, 3.10.2016.


201711170311555892017/C 412/327122014TC41220171204EN01ENINFO_JUDICIAL20171023232311Case T-712/14: Judgment of the General Court of 23 October 2017 — CEAHR v Commission (Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Selective repair system — Refusal of Swiss watch manufacturers to supply spare parts to independent watch repairers — Primary market and aftermarket — Elimination of all effective competition — Decision rejecting a complaint)
 ---documentbreak--- C4122017EN2310120171023EN0032231231Judgment of the General Court of 23 October 2017 — CEAHR v Commission
   (Case T-712/14) (
         1
      )
   ‛(Competition — Agreements, decisions and concerted practices — Abuse of a dominant position — Selective repair system — Refusal of Swiss watch manufacturers to supply spare parts to independent watch repairers — Primary market and aftermarket — Elimination of all effective competition — Decision rejecting a complaint)’2017/C 412/32Language of the case: English
      Parties

      Applicant: Confédération européenne des associations d’horlogers-réparateurs (CEAHR) (Brussels, Belgium) (represented: initially by P. Mathijsen and P. Dyrberg, subsequently by M. Sánchez Rydelski and lastly by P. Benczek, lawyers)

      Defendant: European Commission (represented: initially by F. Ronkes Agerbeek, M. Farley and C. Urraca Caviedes, and subsequently by A. Dawes, F. Ronkes Agerbeek and J. Norris-Usher, acting as Agents)

      Interveners in support of the defendant: LVMH Moët Hennessy-Louis Vuitton SA (Paris, France) (represented by: C. Froitzheim, lawyer, and R. Subiotto QC), Rolex, SA (Geneva, Switzerland) (represented by: M. Araujo Boyd, lawyer) and The Swatch Group SA (Neuchâtel, Switzerland) (represented: initially by A. Israel and M. Jakobs, and subsequently by A. Israel and J. Lang, lawyers)

      Re:

   Application pursuant to Article 263 TFEU for the annulment of Commission Decision C(2014) 5462 final of 29 July 2014, by which the Commission rejected the complaint lodged by the applicant concerning alleged infringements of Articles 101 and 102 TFEU (Case AT.39097 — Watch Repair).

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action;

            2.

            Orders the Confédération européenne des associations d’horlogers-réparateurs (CEAHR) to pay the costs.

      (
         1
      )	OJ C 7, 12.1.2015.


201711170131555462017/C 412/094132015CJC41220171204EN01ENINFO_JUDICIAL201710105511Case C-413/15: Judgment of the Court (Grand Chamber) of 10 October 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — Elaine Farrell v Alan Whitty, The Minister for the Environment, Ireland, Attorney General, Motor Insurers Bureau of Ireland (MIBI), (Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect — Directive 84/5/EEC — Article 1(4) — Organisation responsible for paying compensation for damage to property or personal injury caused by an unidentified or uninsured vehicle space — Whether a directive can be relied on against a State — Conditions governing whether a private law body can be deemed to be an emanation of the State and whether provisions of a directive capable of having direct effect can be relied upon against it)
 ---documentbreak--- C4122017EN510120171010EN00095151Judgment of the Court (Grand Chamber) of 10 October 2017 (request for a preliminary ruling from the Supreme Court — Ireland) — Elaine Farrell v Alan Whitty, The Minister for the Environment, Ireland, Attorney General, Motor Insurers Bureau of Ireland (MIBI),
   (Case C-413/15) (
         1
      )
   ‛(Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect — Directive 84/5/EEC — Article 1(4) — Organisation responsible for paying compensation for damage to property or personal injury caused by an unidentified or uninsured vehicle space — Whether a directive can be relied on against a State — Conditions governing whether a private law body can be deemed to be an emanation of the State and whether provisions of a directive capable of having direct effect can be relied upon against it)’2017/C 412/09Language of the case: English
      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicant: Elaine Farrell

      Defendants: Alan Whitty, The Minister for the Environment, Ireland, Attorney General, Motor Insurers Bureau of Ireland (MIBI),

      Operative part of the judgment

            1.

            Article 288 TFEU must be interpreted as meaning that it does not, in itself, preclude the possibility that provisions of a directive that are capable of having direct effect may be relied on against a body that does not display all the characteristics listed in paragraph 20 of the judgment of 12 July 1990, Foster and Others (C-188/89, EU:C:1990:313), read together with those mentioned in paragraph 18 of that judgment.;

            2.

            Provisions of a directive that are capable of having direct effect may be relied on against a private law body on which a Member State has conferred a task in the public interest, such as that inherent in the obligation imposed on the Member States by Article 1(4) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, as amended by the Third Council Directive 90/232/EEC of 14 May 1990, and which, for that purpose, possesses, by statute, special powers, such as the power to oblige insurers carrying on motor vehicle insurance in the territory of the Member State concerned to be members of it and to fund it.

      (
         1
      )	OJ C 320, 28.9.2015.


201711170171555522017/C 412/182242017CJC41220171204EN01ENINFO_JUDICIAL20170427111111Case C-224/17 P: Appeal brought on 27 April 2017 by Hernández Zamora, SA against the judgment of the General Court (Ninth Chamber) delivered on 17 February 2017 in Case T-369/15: Hernández Zamora, SA v European Union Intellectual Property Office
 ---documentbreak--- C4122017EN1110120170427EN0018111111Appeal brought on 27 April 2017 by Hernández Zamora, SA against the judgment of the General Court (Ninth Chamber) delivered on 17 February 2017 in Case T-369/15: Hernández Zamora, SA v European Union Intellectual Property Office
   (Case C-224/17 P)2017/C 412/18Language of the case: English
      Parties

      Appellant: Hernández Zamora, SA (represented by: J.L. Rivas Zurdo, abogado)

      Other parties to the proceedings: European Union Intellectual Property Office, Rosen Tantau KG
   By order of 19 October 2017 the Court of Justice (Seventh Chamber) held that the appeal was inadmissible.


201711170561555852017/C 412/3372015TC41220171204EN01ENINFO_JUDICIAL20171019232422Case T-7/15: Judgment of the General Court of 19 October 2017 — Leopard v EUIPO — Smart Market (LEOPARD true racing) (EU trade mark — Opposition proceedings — Application for figurative EU trade mark LEOPARD true racing — Prior figurative EU trade mark leopard CASA Y JARDIN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
 ---documentbreak--- C4122017EN2320120171019EN0033232242Judgment of the General Court of 19 October 2017 — Leopard v EUIPO — Smart Market (LEOPARD true racing)
   (Case T-7/15) (
         1
      )
   ‛(EU trade mark — Opposition proceedings — Application for figurative EU trade mark LEOPARD true racing — Prior figurative EU trade mark leopard CASA Y JARDIN — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))’2017/C 412/33Language of the case: French
      Parties

      Applicant: Leopard SA (Howald, Luxembourg) (represented by: P. Lê Dai, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO: Smart Market, SLU (Alcantarilla, Spain)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 2 October 2014 (Case R 1866/2013-1) concerning opposition proceedings between Smart Market and Leopard.

      Operative part of the judgment

   The Court:

            1.

            Dismisses the action;

            2.

            Orders Leopard SA to pay the costs.

      (
         1
      )	OJ C 81, 9.3.2015.


201711170061555552017/C 412/105012015CJC41220171204EN01ENINFO_JUDICIAL201710116611Case C-501/15 P: Judgment of the Court (Fourth Chamber) of 11 October 2017 — European Union Intellectual Property Office (EUIPO) v Cactus SA, Isabel Del Rio Rodríguez (Appeal — EU trade mark — Regulation (EC) No 207/2009 — Figurative mark containing the word elements ‘CACTUS OF PEACE CACTUS DE LA PAZ’ — Opposition by the proprietor of word and figurative EU trade marks containing the word element ‘Cactus’ — Nice Classification — Article 28 — Point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 — Genuine use of the mark in an abbreviated form)
 ---documentbreak--- C4122017EN610120171011EN00106161Judgment of the Court (Fourth Chamber) of 11 October 2017 — European Union Intellectual Property Office (EUIPO) v Cactus SA, Isabel Del Rio Rodríguez
   (Case C-501/15 P) (
         1
      )
   ‛(Appeal — EU trade mark — Regulation (EC) No 207/2009 — Figurative mark containing the word elements ‘CACTUS OF PEACE CACTUS DE LA PAZ’ — Opposition by the proprietor of word and figurative EU trade marks containing the word element ‘Cactus’ — Nice Classification — Article 28 — Point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 — Genuine use of the mark in an abbreviated form)’2017/C 412/10Language of the case: English
      Parties

      Appellant: European Union Intellectual Property Office (EUIPO) (represented by: A. Folliard-Monguiral, Agent)

      Other parties to the proceedings: Cactus SA (represented by: K. Manhaeve, avocate), Isabel Del Rio Rodríguez

      Operative part of the judgment

   The Court:

            1.

            Dismisses the appeal;

            2.

            Orders the European Union Intellectual Property Office (EUIPO) to pay the costs.

      (
         1
      )	OJ C 414, 14.12.2015.


201711170101555452017/C 412/192352017CJC41220171204EN01ENINFO_JUDICIAL20170505111222Case C-235/17: Action brought on 5 May 2017 — European Commission v Hungary
 ---documentbreak--- C4122017EN1120120170505EN0019112122Action brought on 5 May 2017 — European Commission v Hungary
   (Case C-235/17)2017/C 412/19Language of the case: Hungarian
      Parties

      Applicant: European Commission (represented by: L. Malferrari and L. Havas, acting as Agents)

      Defendant: Hungary

      Form of order sought

   The Commission claims that the Court should:

            —

            declare that, by adopting legislation which restricts the usufruct of arable land, Hungary has failed to fulfil its obligations under Articles 49 and 63 of the Treaty on the Functioning of the European Union and under Article 17 of the Charter of Fundamental Rights of the European Union;

            —

            order Hungary to pay the costs.

      Pleas in law and main arguments

   The Commission takes the view that, by disproportionately restricting the usufruct of arable and forest land, the Hungarian legislation at issue is incompatible with Hungary’s obligations under Articles 49 and 63 of the Treaty on the Functioning of the European Union and under Article 17 of the Charter of Fundamental Rights of the European Union.
   The withdrawal of rights of usufruct by way of legislation amounts to a restriction of the freedom of establishment guaranteed by Article 49 of the Treaty on the Functioning of the European Union, in particular because such removal of the right of usufruct makes it impossible or excessively difficult, for those who have hitherto held such rights, to set up a secondary establishment in Hungary (or to obtain title there enabling them to exploit arable land) for the purpose of carrying out their activities there and so contribute, through economic activity on a self-employed basis, to economic and social interpenetration within the European Union. The Commission considers that the withdrawal of rights of usufruct by way of legislation is liable to hinder or make less attractive the exercise of the freedom of establishment.
   The Hungarian legislation also infringes the free movement of capital since it has the effect of preventing or limiting investment in immovable property situated in Hungary by those who do not have Hungarian nationality. Such legislation has the effect of reducing the value of existing rights of usufruct, which also constitutes a restriction on the free movement of capital.
   The Hungarian legislation gives rise to indirect discrimination by placing at a disadvantage EU citizens who do not have Hungarian nationality.
   That restriction of the abovementioned freedoms is unjustifiable. It cannot be justified by any of the grounds laid down in the Treaty or by the other grounds that the Hungarian Government put forward in the course of the proceedings.
   In particular, the Commission cannot accept the Hungarian Government’s submission that the restriction is necessary in order to end an unlawful situation. According to the Commission, it cannot be accepted that there is a general presumption — which is not established in any event — that all usufruct contracts concluded by foreign citizens in respect of arable land in Hungary are, from the time at which they are made, illegal or invalid. Nor can the submission be accepted that the unlawfulness of each and every usufruct contract may be inferred from the absence of authorisation for the currency exchange required by the legislation in force prior to 2002.
   The restriction introduced by the Hungarian legislation does not satisfy the requirement of proportionality since it is not appropriate for attaining the objectives pursued and, in addition, goes significantly beyond what is necessary to attain those objectives.
   The Hungarian legislation does not meet the requirements arising from the principles of legal certainty and the protection of legitimate expectations and does not guarantee adequate compensation for those who have suffered loss and damage because of the withdrawal or restriction of rights of usufruct.
   In the Commission’s view, the Hungarian legislation at issue is contrary to the right to property guaranteed by Article 17 of the Charter. In certain cases, there is interference with the right to property even when the infringement does not extend to the three constituent elements of ‘property’ (use and enjoyment, possession and disposal).


201711170211555742017/C 412/116612015CJC41220171204EN01ENINFO_JUDICIAL201710126722Case C-661/15: Judgment of the Court (Fifth Chamber) of 12 October 2017 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X BV v Staatssecretaris van Financiën (Reference for a preliminary ruling — Customs union — Community Customs Code — Article 29 — Import of vehicles — Determination of the customs value — Article 78 — Revision of the declaration — Article 236(2) — Repayment of import duties — Period of three years — Regulation (EEC) No 2454/93 — Article 145(2) and (3) — Risk of defects — Period of 12 months — Validity)
 ---documentbreak--- C4122017EN620120171012EN00116272Judgment of the Court (Fifth Chamber) of 12 October 2017 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — X BV v Staatssecretaris van Financiën
   (Case C-661/15) (
         1
      )
   ‛(Reference for a preliminary ruling — Customs union — Community Customs Code — Article 29 — Import of vehicles — Determination of the customs value — Article 78 — Revision of the declaration — Article 236(2) — Repayment of import duties — Period of three years — Regulation (EEC) No 2454/93 — Article 145(2) and (3) — Risk of defects — Period of 12 months — Validity)’2017/C 412/11Language of the case: Dutch
      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: X BV

      Defendant: Staatssecretaris van Financiën

      Operative part of the judgment

            1.

            Article 145(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 of 11 March 2002, read in conjunction with Article 29(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, must be interpreted as meaning that it applies in a case, such as that at issue in the main proceedings, where it is established that, at the time of acceptance of the declaration for entry to free circulation for specific goods, there was a manufacture-related risk that the goods might become defective in use, and in view of this the seller, pursuant to a contractual warranty towards the buyer, grants the latter a price reduction in the form of reimbursement of the costs incurred by the buyer in modifying the goods in order to exclude that risk.

            2.

            Article 145(3) of Regulation No 2454/93, as amended by Regulation No 444/2002, in so far as it provides for a time limit of 12 months from acceptance of the declaration for entry to free circulation of the goods, within which an adjustment of the price actually paid or payable must be made, is invalid.

      (
         1
      )	OJ C 98, 14.3.2016.


201711170251555882017/C 412/203902017CJC41220171204EN01ENINFO_JUDICIAL20170628121321Case C-390/17 P: Appeal brought on 28 June 2017 by Irit Azoulay, Andrew Boreham, Mirja Bouchard and Darren Neville against the judgment of the General Court (Eighth Chamber) delivered on 28 April 2017 in Case T-580/16, Azoulay and Others v European Parliament
 ---documentbreak--- C4122017EN1210120170628EN0020121132Appeal brought on 28 June 2017 by Irit Azoulay, Andrew Boreham, Mirja Bouchard and Darren Neville against the judgment of the General Court (Eighth Chamber) delivered on 28 April 2017 in Case T-580/16, Azoulay and Others v European Parliament
   (Case C-390/17 P)2017/C 412/20Language of the case: French
      Parties

      Appellants: Irit Azoulay, Andrew Boreham, Mirja Bouchard and Darren Neville (represented by: M. Casado García-Hirschfeld, avocat)

      Other party to the proceedings: European Parliament

      Form of order sought

   The appellants claim that the Court should:

            —

            set aside the judgment under appeal;

            —

            grant the form of order sought at first instance by the present appellants in the action brought in Case T-580/16;

            —

            order the respondent to pay all of the costs.

      Grounds of appeal and main arguments

   The appellants are of the opinion that the judgment under appeal is vitiated by several errors of law and a distortion of the facts.
   The General Court erred in law and distorted the facts by rejecting an autonomous and uniform interpretation of the concept of education costs within the EU legal order and by making that concept dependent on the meaning attributed to it in the various education systems of the countries of residence of an official, irrespective of the nature of the costs and the interests of the children.
   According to the case-law of the Court of Justice, it follows, both from the uniform application of EU law and from the principle of equality, that the terms of a provision of EU law that makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of the provision and the objective pursued by the legislation in question (judgment of 15 October 2015, Axa Belgium, C–494/14, EU:C:2015:692).
   In addition, the General Court’s finding in paragraph 47 of the judgment under appeal is incoherent and misconstrues the case-law concerning the rule of correspondence between the prior administrative complaint and the action.
   The appellants also submit that the General Court did not comply with its obligation to state reasons by failing to rule on the infringement of the principle of equal treatment and of Article 22 of the Charter of Fundamental Rights of the European Union, which had nonetheless been put forward before it.
   Consequently, according to the appellants, by examining their three separate heads of claims in a manner that was overly perfunctory, the General Court arrived at findings that are substantiated neither in law nor in fact.


201711170121555612017/C 412/214332017CJC41220171204EN01ENINFO_JUDICIAL20170717131421Case C-433/17 P: Appeal brought on 17 July 2017 by Enercon GmbH against the judgment of the General Court (Eighth Chamber) delivered on 3 May 2017 in Case T-36/16: Enercon v EUIPO
 ---documentbreak--- C4122017EN1310120170717EN0021131142Appeal brought on 17 July 2017 by Enercon GmbH against the judgment of the General Court (Eighth Chamber) delivered on 3 May 2017 in Case T-36/16: Enercon v EUIPO
   (Case C-433/17 P)2017/C 412/21Language of the case: English
      Parties

      Appellant: Enercon GmbH (represented by: R. Böhm, Rechtsanwalt, M. Silverleaf QC)

      Other parties to the proceedings: European Union Intellectual Property Office, Gamesa Eólica, SL

      Form of order sought

   The appellant claims that the Court should:

            —

            annul the judgment of the General Court in case T-36/16;

            —

            annul the judgment of the General Court in case T-245/12;

            —

            remit the case to the EUIPO with a direction to adopt the decision of the First Board of Appeal in Case R 260/2011-1 and reject Gamesa’s application for cancellation of the registration in suit;

            —

            award the costs of the proceedings against the respondent at first instance.

      Pleas in law and main arguments

   The appellant submits that the judgment under appeal in Case T-36/16 infringes Article 7(1)(b) and/or 52(1)(a) of Council regulation (EC) No 207/2009 (
         1
      ) and that there was a breach of procedure before the General Court on the following grounds:

            1.

            The General Court wrongly held that the registration of the mark in suit lacks the requisite inherent distinctive character to entitle it to registration contrary to Article 7(1)(b) of regulation 207/2009. In so doing the General Court erred in law.

            2.

            The first error of law was to treat the designation of the mark as a colour mark on the application form as determining the nature of the mark in law and consequently affecting the assessment of its inherent distinctive character. The court ought to have held that the designation of the mark as a colour mark on the application form is one made principally for the administrative convenience of the EUIPO and not a matter of law. Consequently it ought to have had regard not only to the designation of the mark on the form but to the whole content of the application form, in particular the representation of the mark filed with the application form, in determining the nature of mark sought to be registered. The representation of the mark on the application shows a figurative mark having the particular characteristics shown therein.

            3.

            The General Court ought also to have had regard to the form of the mark as registered, and in particular as denoted in the registration certificate issued by the EUIPO on registration of the mark. The registration certificate is the document of record which denotes the form of the mark as registered and should have been treated by the court as determinative in establishing the nature of the registered mark. The content of the registration certificate, properly understood, makes clear that the mark is registered as a figurative mark taking the form appearing in the representation filed with the application form. In failing to do so, the court erred in law.

            4.

            The second error of law and breach of procedure was to refuse to receive information necessary to understand the content of the registration certificate for the mark in suit. That document is publication ST.60 of the World Intellectual Property Office which sets out the meaning of the INID codes used universally in registration certificates issued by intellectual property offices including the EUIPO to identify the nature and meaning of the entries therein. The meaning of the INID codes can only be determined by reference to publication ST.60 or an equivalent reference source and the content of registration certificates can only be determined by reference to the meaning of the INID codes therein. The court wrongly treated the source of such information as evidence and consequently wrongly refused to receive the document or the information it contains when it is in fact a legal text equivalent to a dictionary. Had the court had regard to the interpretive tools presented to it, it would have appreciated that the registration certificate is for a figurative mark comprising the representation shown in the application form for registration. Such a mark had previously been correctly held by the First Board of Appeal of the EUIPO to have the requisite distinctive character to entitle it to registration and the General Court should accordingly have so determined.

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


201711170141555622017/C 412/225122017CJC41220171204EN01ENINFO_JUDICIAL20170822141521Case C-512/17: Request for a preliminary ruling from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (Poland) lodged on 22 August 2017 — HR
 ---documentbreak--- C4122017EN1410120170822EN0022141152Request for a preliminary ruling from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (Poland) lodged on 22 August 2017 — HR
   (Case C-512/17)2017/C 412/22Language of the case: Polish
      Referring court

   Sąd Rejonowy Poznań-Stare Miasto w Poznaniu

      Parties to the main proceedings

      Applicant: HR

      Questions referred

            1.

            In the circumstances of the present case, should Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (
                  1
               ) as amended (‘Regulation No 2201/2003’), be interpreted as meaning that:
            the place of habitual residence of a child aged 18 months is the Member State in which the child demonstrates some degree of integration into the social and family environment through the nationality of the parent who has custody of the child on a daily basis, the use by the child of the official language of that Member State, the christening of the child in that country, visits, lasting up to three months, to that country by the child during holidays and that parent’s parental leave, and contact with that parent’s family,
            in a situation where the child resides with that same parent in another Member State for all remaining periods and that parent is employed in that State on the basis of an employment contract of indefinite duration and the child maintains in that State regular but temporally limited contact with its second parent and his family?

            2.

            When determining, on the basis of Article 8(1) of Regulation No 2201/2003, by assessing the integration of the child into the social and family environment, the place of habitual residence of a child aged 18 months which, given its age, remains in the custody of only one of its parents on a daily basis and maintains regular but temporally limited contact with the second parent, where there is a lack of agreement between the parents as to the exercise of parental responsibility for and contact with the child, should equal account be taken of the ties between the child and each of its parents, or should greater consideration be given to the child’s ties with the parent who looks after the child on a daily basis?

      (
         1
      )	OJ 2003 L 338, p. 1.


title: Case C-573/16: Judgment of the Court (Seventh Chamber) of 19 October 2017 (request for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division) — United Kingdom) — Air Berlin plc v Commissioners for Her Majesty’s Revenue and Customs (Reference for a preliminary ruling — Indirect taxes — Raising of capital — Imposition of a duty of 1,5 % on the transfer into a clearance service of newly issued shares or shares intended to be listed on a stock exchange of a Member State)

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/13

         Judgment of the Court (Seventh Chamber) of 19 October 2017 (request for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division) — United Kingdom) — Air Berlin plc v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-573/16) (1)

   ((Reference for a preliminary ruling - Indirect taxes - Raising of capital - Imposition of a duty of 1,5 % on the transfer into a clearance service of newly issued shares or shares intended to be listed on a stock exchange of a Member State))
   (2017/C 424/17)
   Language of the case: English

      Referring court

   High Court of Justice of England and Wales (Chancery Division)

      Parties to the main proceedings

      Applicant: Air Berlin plc

      Defendant: Commissioners for Her Majesty’s Revenue and Customs

      Operative part of the judgment

               1.

               Articles 10 and 11 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital must be interpreted as precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to all the shares of a company has been transferred to a clearance service for the sole purpose of listing those shares on a stock exchange, without there being any change in the beneficial ownership of those shares.

               2.

               Article 5(1)(c) of Council Directive 2008/7/EC of 12 February 2008 concerning indirect taxes on the raising of capital must be interpreted as precluding the taxation of a transfer of shares such as that at issue in the main proceedings, whereby the legal title to shares that have been newly issued on an increase in capital has been transferred to a clearance service for the sole purpose of offering those new shares for purchase.

               3.

               The answer to the first and second questions does not differ where legislation of a Member State, such as that at issue in the main proceedings, enables an operator of a clearance service, when it receives approval from the taxation authority, to elect that no stamp duty is payable on the initial transfer of shares into the clearance service but that a stamp duty reserve tax is instead charged on each subsequent sale of shares.

      (1)  OJ C 22, 23.1.2017.


title: Case C-568/17: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 September 2017 — Staatssecretaris van Financiën, L.W. Geelen

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/23

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 27 September 2017 — Staatssecretaris van Financiën, L.W. Geelen
   (Case C-568/17)
   (2017/C 424/33)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Defendant: L.W. Geelen

      Questions referred

               1

                           (a)

                           Should the first indent of Article 9(2)(c) of the Sixth Directive, (1) or Article 52(a) of the VAT Directive of 2006 (2) (version to 1 January 2010), respectively, be interpreted as also covering the provision, in return for payment, of live interactive erotic webcam sessions?

                           (b)

                           If question 1(a) is answered in the affirmative, should the phrase ‘the place where those services are physically carried out’ in Article 9(2)(c) of the Sixth Directive or ‘the place where the services are physically carried out’ in the introductory sentence of Article 52 of the VAT Directive of 2006, respectively, then be interpreted as meaning that the decisive factor is the place where the models perform in front of the webcamera or the place where the visitors view the images, or could even some other place be envisaged?

               2.

               Should the twelfth indent of Article 9(2)(e) of the Sixth Directive or Article 56(1)(k) of the VAT Directive of 2006 (version to 1 January 2010), read in conjunction with Article 11 of the VAT Regulation of 2005, (3) be interpreted as meaning that the provision, in return for payment, of live interactive erotic webcam sessions can be deemed to be an ‘electronically supplied service’?

               3.

               If both question 1(a) and question 2 are answered in the affirmative, and the designation of the place of the service according to the relevant provisions of the directives concerned results in a different outcome, how should the place of the service then be determined?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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

      (3)  Council Regulation (EC) No 1777/2005 of 17 October 2005 laying down implementing measures for Directive 77/388/EEC on the common system of value added tax (OJ 2005 L 288, p. 1).


title: Case C-598/16 P: Judgment of the Court (Eighth Chamber) of 19 October 2017 — Viktor Fedorovych Yanukovych v Council of the European Union, European Commission, Republic of Poland (Appeal — Restrictive measures taken in view of the situation in Ukraine — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the appellant’s name)

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/13

         Judgment of the Court (Eighth Chamber) of 19 October 2017 — Viktor Fedorovych Yanukovych v Council of the European Union, European Commission, Republic of Poland
   (Case C-598/16 P) (1)

   ((Appeal - Restrictive measures taken in view of the situation in Ukraine - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the appellant’s name))
   (2017/C 424/18)
   Language of the case: English

      Parties

      Appellant: Viktor Fedorovych Yanukovych (represented by T. Beazley QC)

      Other parties to the proceedings: Council of the European Union (represented by P. Mahnič Bruni and J.-P. Hix, Agents), European Commission (represented initially by S. Bartelt and J. Norris-Usher, and subsequently by E. Paasivirta and J. Norris-Usher, acting as Agents), Republic of Poland

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Viktor Fedorovych Yanukovych to bear his own costs and to pay those incurred by the Council of the European Union.

               3.

               Orders the European Commission to bear its own costs

      (1)  OJ C 30, 30.1.2017.


title: Case C-579/17: Request for a preliminary ruling from the Arbeits- und Sozialgericht Wien (Austria) lodged on 3 October 2017 — BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/23

         Request for a preliminary ruling from the Arbeits- und Sozialgericht Wien (Austria) lodged on 3 October 2017 — BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.
   (Case C-579/17)
   (2017/C 424/34)
   Language of the case: German

      Referring court

   Arbeits- und Sozialgericht Wien

      Parties to the main proceedings

      Applicant: BUAK Bauarbeiter-Urlaubs- u. Abfertigungskasse

      Defendant: Gradbeništvo Korana d.o.o.

      Question referred

   Is Article 1 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 (1) to be interpreted as meaning that proceedings involving the assertion of claims by the Bauarbeiter-Urlaubs- und Abfertigungskasse (Construction Workers’ Leave and Severance Pay Fund, Austria) (‘BUAK’) for wage supplements against employers as a result of the posting to Austria of workers without a habitual place of work in Austria for the purposes of performing work or in connection with the hiring-out of workers, or against employers established outside Austria as a result of the employment of workers with a habitual place of work in Austria, constitute ‘civil and commercial matters’ to which the aforementioned regulation applies, even where such claims by BUAK for wage supplements concern employment relationships governed by private law and serve to cover workers’ claims to annual leave and payment in respect of annual leave (‘annual leave pay’), governed by private law and arising from employment relationships with employers, but nevertheless

               —

               both the amount of the workers’ claims against BUAK for annual leave pay and that of BUAK’s claims against employers for wage supplements are determined not by contract or collective bargaining agreement but, instead, by decree of a Federal Minister,

               —

               the wage supplements owed by employers to BUAK serve to cover not only the expenses for the payment in respect of annual leave payable to workers but also BUAK’s expenses for administrative costs and

               —

               in connection with the pursuit and enforcement of its claims for such wage supplements, BUAK has more extensive powers by law than a private person, in that

                           —

                           employers are required to submit reports to BUAK on specific occasions as well as at monthly intervals, using communication channels set up by BUAK, to take part in and allow BUAK’s inspection measures, grant BUAK access to wage and business records and other documents, and provide information to BUAK, failing which a fine may be imposed, and

                           —

                           in the event that an employer breaches its reporting obligations, BUAK is entitled to calculate the wage supplements owed by the employer on the basis of BUAK’s own investigations, whereby, in that case, BUAK has a claim for wage supplements in the amount calculated by BUAK, irrespective of the actual circumstances of the posting or employment?

      (1)  OJ 2012 L 351, p. 1.


title: Case T-844/16: Judgment of the General Court of 26 October 2017 — Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff) (European Union trade mark — Application for EU word mark Klosterstoff — Absolute grounds for refusal — Descriptiveness — Mark of such a nature as to deceive the public — 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) — Prior practice of EUIPO)

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/34

         Judgment of the General Court of 26 October 2017 — Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff)
   (Case T-844/16) (1)

   ((European Union trade mark - Application for EU word mark Klosterstoff - Absolute grounds for refusal - Descriptiveness - Mark of such a nature as to deceive the public - 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) - Prior practice of EUIPO))
   (2017/C 424/49)
   Language of the case: German

      Parties

      Applicant: Alpirsbacher Klosterbräu Glauner GmbH & Co. KG (Alpirsbach, Germany) (represented by: W. Göpfert and S. Hofmann, lawyers)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 6 October 2016 (Case R 2064/2015-5) concerning an application for registration of the word sign Klosterstoff as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Alpirsbacher Klosterbräu Glauner GmbH & Co. KG to pay the costs.

      (1)  OJ C 38,6.2.2017.


title: Case C-582/17: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 October 2017 — Staatssecretaris van Veiligheid en Justitie v H.

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/24

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 October 2017 — Staatssecretaris van Veiligheid en Justitie v H.
   (Case C-582/17)
   (2017/C 424/35)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Staatssecretaris van Veiligheid en Justitie

      Defendant: H.

      Question referred

   Must Regulation (EU) No 604/2013 (1) of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person … be interpreted as meaning that only the Member State in which the application for international protection was first lodged can determine the Member State responsible, with the result that a foreign national has a legal remedy only in that Member State, under Article 27 of the Dublin Regulation, against the incorrect application of one of the criteria for determining responsibility set out in Chapter III of that Regulation, including Article 9?

      (1)  OJ 2013 L 180, p. 31; ‘the Dublin Regulation’.


title: Case C-599/16 P: Judgment of the Court (Eighth Chamber) of 19 October 2017 — Oleksandr Viktorovych Yanukovych v Council of the European Union, European Commission (Appeal — Restrictive measures taken in view of the situation in Ukraine — List of persons, entities and bodies subject to the freezing of funds and economic resources — Inclusion of the appellant’s name)

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/14

         Judgment of the Court (Eighth Chamber) of 19 October 2017 — Oleksandr Viktorovych Yanukovych v Council of the European Union, European Commission
   (Case C-599/16 P) (1)

   ((Appeal - Restrictive measures taken in view of the situation in Ukraine - List of persons, entities and bodies subject to the freezing of funds and economic resources - Inclusion of the appellant’s name))
   (2017/C 424/19)
   Language of the case: English

      Parties

      Appellant: Oleksandr Viktorovych Yanukovych (represented by T. Beazley QC)

      Other parties to the proceedings: Council of the European Union (represented by P. Mahnič Bruni and J.-P. Hix, Agents), European Commission (represented initially by S. Bartelt and J. Norris-Usher, and subsequently by E. Paasivirta and J. Norris-Usher, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Oleksandr Viktorovych Yanukovych to bear his own costs and to pay those incurred by the Council of the European Union;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 30, 30.1.2017.


title: Case T-857/16: Judgment of the General Court of 26 October 2017 — Erdinger Weißbräu Werner Brombach v EUIPO (Shape of a large glass) (European Union trade mark — International registration designating the European Union — Three-dimensional mark — Shape of a large glass — Absolute ground for refusal — Lack of distinctive nature — Article 7(1)(b) of Regulation (EC) No 2017/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/35

         Judgment of the General Court of 26 October 2017 — Erdinger Weißbräu Werner Brombach v EUIPO (Shape of a large glass)
   (Case T-857/16) (1)

   ((European Union trade mark - International registration designating the European Union - Three-dimensional mark - Shape of a large glass - Absolute ground for refusal - Lack of distinctive nature - Article 7(1)(b) of Regulation (EC) No 2017/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001)))
   (2017/C 424/50)
   Language of the case: German

      Parties

      Applicant: Erdinger Weißbräu Werner Brombach GmbH & Co. KG (Erding, Germany) (represented by: A. Hayn, lawyer)

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

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 20 September 2016 (Case R 659/2016-2) concerning the international registration designating the European Union of the three-dimensional mark constituted by the shape of a large glass.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Erdinger Weißbräu Werner Brombach GmbH & Co. KG to pay the costs.

      (1)  OJ C 38, 6.2.2017.


title: Case C-583/17: Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 October 2017 — Staatssecretaris van Veiligheid en Justitie v R.

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/25

         Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 October 2017 — Staatssecretaris van Veiligheid en Justitie v R.
   (Case C-583/17)
   (2017/C 424/36)
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Staatssecretaris van Veiligheid en Justitie

      Defendant: R.

      Questions referred

               1.

               Must Regulation (EU) No 604/2013 (1) of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person … be interpreted as meaning that only the Member State in which the application for international protection was first lodged can determine the Member State responsible, with the result that a foreign national has a legal remedy only in that Member State, under Article 27 of the Dublin Regulation, against the incorrect application of one of the criteria for determining responsibility set out in Chapter III of that Regulation, including Article 9?

               2.

               In answering Question 1, to what extent is it significant that, in the Member State in which the application for international protection was first lodged, a decision on that application had already been made or, alternatively, that the foreign national had withdrawn that application prematurely?

      (1)  OJ 2013 L 180, p. 31; ‘the Dublin Regulation’.


title: Case T-663/17: Action brought on 27 September 2017 — Sahece and Others v SRB

text:
               11.12.2017

               EN

               Official Journal of the European Union

               C 424/44

         Action brought on 27 September 2017 — Sahece and Others v SRB
   (Case T-663/17)
   (2017/C 424/65)
   Language of the case: Spanish

      Parties

      Applicants: Sahece, SA (Carrión de los Céspedes, Spain) and 20 other applicants (represented by: M. Romero Rey and I. Salama Salama, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicants claim that the General Court should:

               —

               On the basis of Article 263 TFEU, annul Decision SRB/EES/2017/08 of the Single Resolution Board (SRB) of 7 June 2017 adopting a resolution scheme in respect of the Banco Popular Español, S.A.;

               —

               In accordance with Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union, order the Single Resolution Board to pay compensation to the applicants for the harm suffered, in a precise amount which will be determined once the information required by the applicants’ representatives is provided in full and, in particular Deloitte’s provisional report and those prepared by independent experts in accordance with Regulation (EU) No 806/2014, access to which is hereby requested;

               —

               In accordance with Articles 133 and 134 of the Rules of Procedure of the General Court, order the Single Resolution Board to pay the costs of these proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those put forward in Cases T-478/17, Mutualidad de la Abogacía and Hermandad Nacional de Arquitectos Superiores y Químicos v Single Resolution Board, T-481/17, Fundación Tatiana Pérez de Guzmán el Bueno and SFL v Single Resolution Board, T-482/17, Comercial Vascongada Recalde v Commission and Single Resolution Board, T-483/17, García Suárez and Others v Commission and Single Resolution Board, T-484/17, Fidesban and Others v Single Resolution Board, T-497/17, Sáchez del Valle and Calatrava Real State 2015 v Commission and Single Resolution Board, and T-498/17, Pablo Álvarez de Linera Granda v Commission and Single Resolution Board.