title: Case C-407/16: Judgment of the Court (Sixth Chamber) of 26 October 2017 (request for a preliminary ruling from the Augstākās tiesas Administratīvo lietu departaments) — ‘Aqua Pro’ SIA v Valsts ieņēmumu dienests (Reference for a preliminary ruling — Customs union — Community Customs Code — Article 220(1) and (2)(b) — Post-clearance recovery of import or export duties — Definition of ‘entry in the accounts of the import duties’ — Decision of the competent customs authority — Time limit for submitting an application for repayment or remission — Obligation to transmit the case to the European Commission — Evidence in the event of an appeal against a decision of the competent authority of the importing Member State)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/11

         Judgment of the Court (Sixth Chamber) of 26 October 2017 (request for a preliminary ruling from the Augstākās tiesas Administratīvo lietu departaments) — ‘Aqua Pro’ SIA v Valsts ieņēmumu dienests
   (Case C-407/16) (1)

   ((Reference for a preliminary ruling - Customs union - Community Customs Code - Article 220(1) and (2)(b) - Post-clearance recovery of import or export duties - Definition of ‘entry in the accounts of the import duties’ - Decision of the competent customs authority - Time limit for submitting an application for repayment or remission - Obligation to transmit the case to the European Commission - Evidence in the event of an appeal against a decision of the competent authority of the importing Member State))
   (2017/C 437/14)
   Language of the case: Latvian

      Referring court

   Augstākās tiesas Administratīvo lietu departaments

      Parties to the main proceedings

      Applicant:‘Aqua Pro’ SIA

      Defendant: Valsts ieņēmumu dienests

      Operative part of the judgment

               1.

               Article 217(1) and Article 220(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that, in the case of post-clearance recovery, the amount of duty found to be owed by the authorities is to be regarded as entered in the accounts when the customs authorities enter that amount in the accounting records or on any other equivalent medium, regardless of the fact that the decision of the authority to enter that amount in the accounts or establish the obligation to pay the duty is subject to an administrative appeal or judicial review.

               2.

               Article 220(2)(b) and Articles 236, 239 and 243 of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that, in the case of an administrative appeal or judicial review, within the meaning of Article 243 of that regulation, as amended by Regulation No 2700/2000, brought against a decision of the competent tax authority subsequently to enter in the accounts an amount of import duty and to require the importer to pay it, that importer may rely on a legitimate expectation under Article 220(2)(b) of that regulation, as amended by Regulation No 2700/2000, in order to challenge that entry in the accounts, regardless of whether the importer has submitted an application for remission or repayment of such duty in accordance with the procedure laid down in Articles 236 and 239 of the regulation, as amended by Regulation No 2700/2000.

               3.

               Article 869(b) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003, must be interpreted as meaning that, where there is no Commission decision or procedure within the meaning of Article 871(2) of the regulation, as amended by Regulation No 1335/2003, in a situation such as that at issue in the case in the main proceedings, the customs authorities may not themselves decide not to enter uncollected duties subsequently in the accounts by taking the view that the conditions for pleading a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied, and that those authorities are required to transmit the dossier to the European Commission, either where they consider that the Commission has committed an error within the meaning of that provision of Regulation No 2913/92, as amended by Regulation No 2700/2000, or where the circumstances of the case in the main proceedings are related to the findings of an EU investigation within the meaning of the second indent of Article 871(1) of Regulation No 2454/93, as amended by Regulation No 1335/2003, or where the amount of the duties at issue in the main proceedings is EUR 500 000 or more.

               4.

               Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that information contained in a European Anti-Fraud Office (OLAF) report relating to the conduct of the customs authorities of the exporting State and that of the exporter may be admitted as evidence in ascertaining whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. To the extent, however, that such a report proves insufficient, in the light of the information that it contains, for the purposes of establishing to the requisite legal standard whether those conditions are actually satisfied in all respects, which is for the referring court to ascertain, the customs authorities may be required to provide further evidence for that purpose, inter alia by carrying out subsequent checks.

               5.

               Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that it is for the referring court to ascertain, in the light of all the specific evidence in the case in the main proceedings, and in particular of the evidence adduced by the parties in those proceedings for that purpose, whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. For the purpose of that assessment, priority is not to be given to information obtained in a subsequent check over that contained in a European Anti-Fraud Office (OLAF) report.

               6.

               Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that a Member State is bound, under the conditions specified by the European Commission pursuant to that article, by the findings of a European Commission decision adopted under Article 873 of that regulation, as amended by Regulation No 1335/2003, in respect of another Member State in cases involving comparable issues of fact and of law, which it is for its authorities and courts to ascertain by taking into account, inter alia, the information on the conduct of the exporter or that of the customs authorities of the exporting State as stated in the European Anti-Fraud Office (OLAF) report on which the decision is based.

               7.

               Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, and Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that the customs authorities may, in principle, carry out as many post-clearance checks as they deem necessary, and use the information obtained from those checks, both in ascertaining whether the conditions for an importer to rely on a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied and in determining whether a case before those authorities involves issues of fact and of law that are comparable, within the meaning of Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, to a case on the basis of which a decision not to enter a duty in the accounts was adopted by the European Commission in accordance with Article 873 of Regulation No 2454/93, as amended by Regulation No 1335/2003.

               8.

               Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that the fact that an importer imported goods under a distribution agreement has no incidence on his ability to plead a legitimate expectation on the same conditions as an importer who has imported goods by buying them directly from the exporter, that is to say, if three cumulative conditions are satisfied. It is necessary, first, that the failure to levy the duties was due to an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards his customs declaration. To that end, it is for such an importer to guard against the risks of an action for post-clearance recovery, inter alia by seeking to obtain from the other contracting party to that distribution agreement, at the time when the agreement is concluded or thereafter, all the necessary evidence confirming that the ‘Form A’ certificate of origin in respect of those goods was correctly issued. There can thus be no legitimate expectation within the meaning of the provision, in particular where, although he has clear reasons for doubting the accuracy of a ‘Form A’ certificate of origin, that importer failed to obtain from that contracting party information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well founded.

      (1)  OJ C 343, 19.9.2016.


title: Case T-627/15: Judgment of the General Court of 7 November 2017 — Frame v EUIPO — Bianca-Moden (BIANCALUNA) (EU trade mark — Opposition proceedings — Application for the EU word mark BIANCALUNA — Earlier national figurative mark bianca — Procedural economy — Relative ground for refusal — Likelihood of confusion — Identity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/26

         Judgment of the General Court of 7 November 2017 — Frame v EUIPO — Bianca-Moden (BIANCALUNA)
   (Case T-627/15) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU word mark BIANCALUNA - Earlier national figurative mark bianca - Procedural economy - Relative ground for refusal - Likelihood of confusion - Identity of the goods - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2017/C 437/30)
   Language of the case: English

      Parties

      Applicant: Frame Srl (San Giuseppe Vesuviano, Italy) (represented by: E. Montelione, M. Borghese and R. Giordano, lawyers)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Bianca-Moden GmbH & Co. KG (Ochtrup, Germany) (represented by: P. Lange, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 7 August 2015 (Case R 2952/2014-5), relating to opposition proceedings between Bianca-Moden and Frame.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Frame Srl to pay the costs.

      (1)  OJ C 68, 22.2.2016.


title: Case T-776/16: Judgment of the General Court of 8 November 2017 — Isocell v EUIPO — iCell (iCell.) (EU trade mark — Opposition proceedings — Application for EU figurative mark iCell. — Earlier EU word mark Isocell, earlier international word mark Isocell and earlier international and national word marks ISOCELL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/30

         Judgment of the General Court of 8 November 2017 — Isocell v EUIPO — iCell (iCell.)
   (Case T-776/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark iCell. - Earlier EU word mark Isocell, earlier international word mark Isocell and earlier international and national word marks ISOCELL - 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 437/36)
   Language of the case: German

      Parties

      Applicant: Isocell GmbH (Neumarkt am Wallersee, Austria) (represented by: C. Thiele, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: iCell AB (Älvdalen, Sweden) (represented by: J. Kroher, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 15 September 2016 (Case R 2496/2015-1), relating to opposition proceedings between Isocell and iCell.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Isocell GmbH to pay the costs.

      (1)  OJ C 14, 16.1.2017.


title: Case T-713/17: Action brought on 14 October 2017 — Motex v Commission

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/40

         Action brought on 14 October 2017 — Motex v Commission
   (Case T-713/17)
   (2017/C 437/48)
   Language of the case: Hungarian

      Parties

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

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that Commission Decision SA.29432 — CP 290/2009 — Hungary — ‘Aid for the employment of disabled workers alleged to be unlawful due to the discriminatory nature of the legislation’, of 20 July 2011, and Commission Decision SA.45498 (FC/2016) — ‘Complaint made by OPS Újpest-lift Kft. concerning the State aid granted between 2006 and 2012 to companies employing disabled workers’, of 25 January 2017, (‘the contested decisions’) do not find that the State aid is compatible on the basis of Article 107(1) TFEU;

               —

               in the alternative, declare that the contested decisions do not constitute legally binding acts as regards the applicant in its action for damages brought against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) in Case No 18. G. 40.399/2017 before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that, for that reason, the applicant is not directly and individually concerned, since it bases its claim for damages on the infringement of Article 107(1) TFEU, and not on the infringement of Article 107(3) TFEU;

               —

               in the event that the contested decisions should be characterised as legally binding acts as regards the applicant in its action for damages based on the infringement of Article 107(1) TFEU, declare the contested decisions invalid, since the State aid granted by the Hungarian authorities infringes Article 107(1) TFEU.

      Pleas in law and main arguments

   In support of its action, the applicant invokes a legal basis in relation to each of its claims.

               1.

               Legal basis for the first claim

                           —

                           The contested decisions do not find that the State aid is compatible on the basis of Article 107(1) TFEU; for that reason, those decisions do not constitute legally binding acts in the context of the action for damages brought by the applicant against the Emberi Erőforrások Minisztériuma (Ministry of Human Resources, Hungary) before the Fővárosi Törvényszék (Budapest High Court, Hungary).

               2.

               Legal basis for the second claim

                           —

                           In the contested decisions, the Commission found that the State aid was compatible, not on the basis of Article 107(1) TFEU, invoked by the applicant, but rather on the basis of Article 107(3) TFEU. Consequently, those decisions are irrelevant in relation to the legal basis of the claim made in the action for damages brought before the Fővárosi Törvényszék (Budapest High Court, Hungary) and do not constitute legally binding acts as regards the applicant.

               3.

               Legal basis for the third claim

                           —

                           According to the applicant, the contested decisions are invalid because the Hungarian authorities granted unlawful State aid that infringed Article 107(1) TFEU and, pursuant to Article 108(3) TFEU, the Commission should have been informed. In order to support its allegation that the aid is unlawful, the applicant relies on the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU] (1) and on Commission Regulation (EC) No 800/2008 of 6 August 2008, declaring certain categories of aid compatible with the common market in application of Articles [107] and [108 TFEU] (General block exemption). (2)

      (1)  OJ 2016, C 262, p. 1.

      (2)  OJ 2008, L 214, p. 3.


title: Joined Cases C-454/16 P to C-456/16 P to C-458/16 P: Judgment of the Court (Sixth Chamber) of 26 October 2017 — Global Steel Wire, SA (C-454/16 P), Moreda-Riviere Trefilerías SA (C-455/16 P), Trefilerías Quijano SA (C-456/16 P), Trenzas y Cables de Acero PSC SL (C-458/16 P) v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Infringement of Article 101 TFEU — Fines — 2006 Guidelines on the method of setting fines — Paragraph 35 — Ability to pay — New request for a reduction in the amount of the fine on the ground of inability to pay — Letter of rejection — Action brought against that letter — Admissibility)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/13

         Judgment of the Court (Sixth Chamber) of 26 October 2017 — Global Steel Wire, SA (C-454/16 P), Moreda-Riviere Trefilerías SA (C-455/16 P), Trefilerías Quijano SA (C-456/16 P), Trenzas y Cables de Acero PSC SL (C-458/16 P) v European Commission
   (Joined Cases C-454/16 P to C-456/16 P to C-458/16 P) (1)

   ((Appeal - Regulation (EC) No 1/2003 - Competition - Agreements, decisions and concerted practices - European prestressing steel market - Infringement of Article 101 TFEU - Fines - 2006 Guidelines on the method of setting fines - Paragraph 35 - Ability to pay - New request for a reduction in the amount of the fine on the ground of inability to pay - Letter of rejection - Action brought against that letter - Admissibility))
   (2017/C 437/15)
   Language of the cases: Spanish

      Parties

      Appellants: Global Steel Wire, SA (C-454/16 P), Moreda-Riviere Trefilerías SA (C-455/16 P), Trefilerías Quijano SA (C-456/16 P), Trenzas y Cables de Acero PSC SL (C-458/16 P) (represented by: F. González Díaz, A. Tresandi Blanco and V. Romero Algarra, abogados)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders Global Steel Wire SA, Moreda-Riviere Trefilerías SA, Trefilerías Quijano SA and Trenzas y Cables de Acero PSC SL to pay the costs.

      (1)  OJ C 392, 24.10.2016.


title: Case C-687/15: Judgment of the Court (Grand Chamber) of 25 October 2017 — European Commission v Council of the European Union (Action for annulment — Conclusions of the Council of the European Union concerning the World Radiocommunication Conference 2015 of the International Telecommunication Union — Article 218(9) TFEU — Derogation from the prescribed legal form — No indication of the legal basis)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/5

         Judgment of the Court (Grand Chamber) of 25 October 2017 — European Commission v Council of the European Union
   (Case C-687/15) (1)

   ((Action for annulment - Conclusions of the Council of the European Union concerning the World Radiocommunication Conference 2015 of the International Telecommunication Union - Article 218(9) TFEU - Derogation from the prescribed legal form - No indication of the legal basis))
   (2017/C 437/07)
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: L. Nicolae and F. Erlbacher, acting as Agents)

      Defendant: Council of the European Union (represented by: I. Šulce, J.-P. Hix and O. Segnana, acting as Agents)

      Interveners in support of the defendant: Czech Republic (represented by: M. Smolek, J. Vláčil and M. Hedvábná, acting as Agents), Federal Republic of Germany (represented by: T. Henze and K. Stranz, acting as Agents), French Republic (represented by: F. Fize, G. de Bergues, B. Fodda and D. Colas, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by: C. Brodie, M. Holt and D. Robertson, acting as Agents, and by J. Holmes, Barrister)

      Operative part of the judgment

   The Court:

               1.

               Annuls the conclusions of the Council of the European Union, adopted on 26 October 2015, at its 3419th meeting in Luxembourg, on the World Radiocommunication Conference 2015 (WRC-15) of the International Telecommunication Union (ITU);

               2.

               Orders the Council of the European Union to pay the costs;

               3.

               Orders the Czech Republic, the Federal Republic of Germany, the French Republic and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

      (1)  OJ C 68, 22.2.2016.


title: Case T-714/17: Action brought on 10 October 2017 — Aeris Invest v SRB

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/42

         Action brought on 10 October 2017 — Aeris Invest v SRB
   (Case T-714/17)
   (2017/C 437/49)
   Language of the case: Spanish

      Parties

      Applicant: Aeris Invest Sàrl (Luxembourg, Luxembourg) (represented by: M. Roca Junyent, J. Calvo Costa, R. Vallina Hoset and A. Sellés Marco, lawyers)

      Defendant: Single Resolution Board

      Form of order sought

   The applicant claims that the General Court should:

               —

               Declare that the Single Resolution Board has incurred non-contractual liability and order it to repair the harm suffered by the applicant as a result of both its actions and its omissions which deprived the applicant of the BANCO POPULAR ESPAÑOL, S.A. bonds and securities it owned;

               —

               Order the Board to pay to the applicant by way of compensation for the harm suffered (‘the amount due’);

                           —

                           Principally, the reimbursement of EUR 113 022 558,44 for investments made in Banco Popular shares

                           —

                           In the alternative, the sum of EUR 93,74 million or

                           —

                           In the further alternative, the sum of EUR 54,29 million.

               —

               Increase the amount due with compensatory interest as of 7 June 2017 until delivery of the judgment disposing of the present case;

               —

               Increase the amount due with corresponding default interest as of the date of delivery of judgment until its payment in full, at the rate set by the European Central Bank (ECB) for main refinancing operations, increased by two percentage points.

               —

               Order the SRB to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are similar to those relied on in Case T-659/17 Vallina Fonseca v SRB.


title: Case T-777/16: Judgment of the General Court of 8 November 2017 — Isocell v EUIPO — iCell (iCell. Insulation Technology Made in Sweden) (EU trade mark — Opposition proceedings — Application for EU figurative mark iCell. Insulation Technology Made in Sweden — Earlier EU word mark Isocell, earlier international word mark Isocell and earlier international and national word marks ISOCELL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/31

         Judgment of the General Court of 8 November 2017 — Isocell v EUIPO — iCell (iCell. Insulation Technology Made in Sweden)
   (Case T-777/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark iCell. Insulation Technology Made in Sweden - Earlier EU word mark Isocell, earlier international word mark Isocell and earlier international and national word marks ISOCELL - 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 437/37)
   Language of the case: German

      Parties

      Applicant: Isocell GmbH (Neumarkt am Wallersee, Austria) (represented by: C. Thiele, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Schifko, acting as Agent)
   Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: iCell AB (Älvdalen, Sweden) (represented by: J. Kroher, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of EUIPO of 28 July 2016 (Case R 181/2016-1), relating to opposition proceedings between Isocell and iCell.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Isocell GmbH to pay the costs.

      (1)  OJ C 14, 16.1.2017.


title: Joined Cases C-457/16 P and C-459/16 P to C-461/16 P: Judgment of the Court (Sixth Chamber) of 26 October 2017 — Global Steel Wire, SA (C-457/16 P), Trenzas y Cables de Acero PSC SL (C-459/16 P), Trefilerías Quijano SA (C-460/16 P), Moreda-Riviere Trefilerías SA (C-461/16 P) v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Infringement of Article 101 TFEU — Attributability of unlawful conduct of subsidiaries to their parent company — Definition of ‘undertaking’ — Evidence for the finding of an economic unit — Presumption of actual exercise of decisive influence — Successive undertakings — Amount of the fine — Ability to pay — Conditions — Observance of the rights of the defence)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/13

         Judgment of the Court (Sixth Chamber) of 26 October 2017 — Global Steel Wire, SA (C-457/16 P), Trenzas y Cables de Acero PSC SL (C-459/16 P), Trefilerías Quijano SA (C-460/16 P), Moreda-Riviere Trefilerías SA (C-461/16 P) v European Commission
   (Joined Cases C-457/16 P and C-459/16 P to C-461/16 P) (1)

   ((Appeal - Regulation (EC) No 1/2003 - Competition - Agreements, decisions and concerted practices - European prestressing steel market - Infringement of Article 101 TFEU - Attributability of unlawful conduct of subsidiaries to their parent company - Definition of ‘undertaking’ - Evidence for the finding of an economic unit - Presumption of actual exercise of decisive influence - Successive undertakings - Amount of the fine - Ability to pay - Conditions - Observance of the rights of the defence))
   (2017/C 437/16)
   Language of the cases: Spanish

      Parties

      Appellants: Global Steel Wire, SA (C-457/16 P), Trenzas y Cables de Acero PSC SL (C-459/16 P), Trefilerías Quijano SA (C-460/16 P), Moreda-Riviere Trefilerías SA (C-461/16 P) (represented by: F. González Díaz, A. Tresandi Blanco and V. Romero Algarra, abogados)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents, assisted by L. Ortiz Blanco and A. Lamadrid de Pablo, abogados)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeals;

               2.

               Orders Global Steel Wire SA, Trenzas y Cables de Acero PSC SL, Trefilerías Quijano SA and Moreda-Riviere Trefilerías SA to pay the costs.

      (1)  OJ C 392, 24.10.2016.


title: Case C-39/16: Judgment of the Court (Fifth Chamber) of 26 October 2017 (request for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen — Belgium) — Argenta Spaarbank NV v Belgische Staat (Reference for a preliminary ruling — Corporation tax — Directive 90/435/EEC — Articles 1(2) and 4(2) — Parent companies and subsidiaries of different Member States — Common system of taxation — Deductibility from the taxable profits of the parent company — Domestic provisions seeking to abolish the double taxation of profits distributed by subsidiaries — No account taken of the existence of a link between the interest on loans and the financing of the holding that gave rise to the payment of dividends)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/6

         Judgment of the Court (Fifth Chamber) of 26 October 2017 (request for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen — Belgium) — Argenta Spaarbank NV v Belgische Staat
   (Case C-39/16) (1)

   ((Reference for a preliminary ruling - Corporation tax - Directive 90/435/EEC - Articles 1(2) and 4(2) - Parent companies and subsidiaries of different Member States - Common system of taxation - Deductibility from the taxable profits of the parent company - Domestic provisions seeking to abolish the double taxation of profits distributed by subsidiaries - No account taken of the existence of a link between the interest on loans and the financing of the holding that gave rise to the payment of dividends))
   (2017/C 437/08)
   Language of the case: Dutch

      Referring court

   Rechtbank van eerste aanleg te Antwerpen

      Parties to the main proceedings

      Applicant: Argenta Spaarbank NV

      Defendant: Belgische Staat

      Operative part of the judgment

               1.

               Article 4(2) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States must be interpreted as precluding a provision of domestic law, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, pursuant to which interest paid by a parent company under a loan is not deductible from the taxable profits of that parent company up to an amount equal to that of the dividends, which already benefit from tax deductibility, that are received from the holdings of that parent company in the capital of its subsidiary companies that have been held for a period of less than one year, even if such interest does not relate to the financing of such holdings;

               2.

               Article 1(2) of Directive 90/435 must be interpreted as not authorising Member States to apply a domestic provision, such as Article 198(10) of the 1992 Income Tax Code, coordinated by the Royal Decree of 10 April 1992 and confirmed by the Law of 12 June 1992, to the extent that that provision goes beyond what is necessary for the prevention of fraud and abuse.

      (1)  OJ C 136, 18.4.2016.


title: Case T-97/17: Order of the General Court of 25 October 2017 — Franmax v EUIPO — R. Seelig & Hille (her-bea)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/42

         Order of the General Court of 25 October 2017 — Franmax v EUIPO — R. Seelig & Hille (her-bea)
   (Case T-97/17) (1)

   (2017/C 437/50)
   Language of the case: English
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 112, 10.4.2017.


title: Case T-80/17: Judgment of the General Court of 8 November 2017 — Steiniger v EUIPO — ista Deutschland (IST) (European Union trade mark — Opposition proceedings — Application for EU figurative mark IST — Prior EU figurative mark ISTA — Relative ground for refusal — Relevant public — Similarity of the goods and services — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/31

         Judgment of the General Court of 8 November 2017 — Steiniger v EUIPO — ista Deutschland (IST)
   (Case T-80/17) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU figurative mark IST - Prior EU figurative mark ISTA - Relative ground for refusal - Relevant public - Similarity of the goods and services - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2017/C 437/38)
   Language of the case: German

      Parties

      Applicant: Ingo Steiniger (Nümbrecht, Germany) (represented by: K. Schulze Horn, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: V. Mensing and A. Schifko, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: ista Deutschland GmbH (Essen, Germany) (represented by: F. Lindenberg, lawyer)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 1 December 2016 (Case R 2242/2015-5) concerning opposition proceedings between ista Deutschland and Mr Steiniger.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Ingo Steiniger to pay the costs.

      (1)  OJ C 112, 10.4.2017.


title: Case C-90/16: Judgment of the Court (Fourth Chamber) of 26 October 2017 (request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) — United Kingdom) — The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Exemption for supplies of services closely linked to sport — Concept of ‘sport’ — Activity characterised by a physical element — Duplicate bridge)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/7

         Judgment of the Court (Fourth Chamber) of 26 October 2017 (request for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) — United Kingdom) — The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs
   (Case C-90/16) (1)

   ((Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Exemption for supplies of services closely linked to sport - Concept of ‘sport’ - Activity characterised by a physical element - Duplicate bridge))
   (2017/C 437/09)
   Language of the case: English

      Referring court

   Upper Tribunal (Tax and Chancery Chamber)

      Parties to the main proceedings

      Applicant: The English Bridge Union Limited

      Defendant: Commissioners for Her Majesty’s Revenue & Customs

      Operative part of the judgment

   Article 132(1)(m) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that an activity such as duplicate bridge, which is characterised by a physical element that appears to be negligible, is not covered by the concept of ‘sport’ within the meaning of that provision.

      (1)  OJ C 145, 25.4.2016.


title: Case C-534/16: Judgment of the Court (Ninth Chamber) of 26 October 2017 (request for a preliminary ruling from the Najvyšší súd Slovenskej republiky, Slovakia) — Finančné riaditeľstvo Slovenskej republiky v BB construct s. r. o. (Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Inclusion in the register of taxable persons for VAT — National law requiring provision of a guarantee — Combating fraud — Charter of Fundamental Rights of the European Union — Freedom to conduct a business — Principle of non-discrimination — Principle of ne bis in idem — Principle of non-retroactivity)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/14

         Judgment of the Court (Ninth Chamber) of 26 October 2017 (request for a preliminary ruling from the Najvyšší súd Slovenskej republiky, Slovakia) — Finančné riaditeľstvo Slovenskej republiky v BB construct s. r. o.
   (Case C-534/16) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Inclusion in the register of taxable persons for VAT - National law requiring provision of a guarantee - Combating fraud - Charter of Fundamental Rights of the European Union - Freedom to conduct a business - Principle of non-discrimination - Principle of ne bis in idem - Principle of non-retroactivity))
   (2017/C 437/17)
   Language of the case: Slovak

      Referring court

   Najvyšší súd Slovenskej republiky

      Parties to the main proceedings

      Applicant: Finančné riaditeľstvo Slovenskej republiky

      Defendant: BB construct s. r. o.

      Operative part of the judgment

               1.

               Article 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and Article 16 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding, at the time of the registration for the purposes of value added tax of a taxable person, of which the director was formerly the director or associate member of another legal person which had not complied with its tax obligations, the tax authority from requiring that taxable person to provide a guarantee, the amount of which could reach EUR 500 000, provided that the guarantee required from that taxable person does not go further than is necessary in order to attain the objectives of Article 273, which it is for the referring court to determine.

               2.

               The principle of equal treatment must be interpreted as not precluding a tax authority from requiring a new taxable person, at the time of his registration for the purposes of value added tax, to provide, owing to his links with another legal person that has tax debts, such a guarantee

      (1)  OJ C 22, 23.1.2017.


title: Case C-106/16: Judgment of the Court (Grand Chamber) of 25 October 2017 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Proceedings brought by POLBUD — WYKONAWSTWO sp. z o.o., in liquidation (Reference for a preliminary ruling — Freedom of establishment — Cross-border conversion of a company — Transfer of its registered office without transfer of its real head office — Refusal to remove it from the commercial register — National legislation whereby removal from commercial register is dependent on the winding up of a company after a liquidation procedure — Scope of freedom of establishment — Restriction on freedom of establishment — Protection of the interests of creditors, minority shareholders and employees — Prevention of abusive practices)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/7

         Judgment of the Court (Grand Chamber) of 25 October 2017 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Proceedings brought by POLBUD — WYKONAWSTWO sp. z o.o., in liquidation
   (Case C-106/16) (1)

   ((Reference for a preliminary ruling - Freedom of establishment - Cross-border conversion of a company - Transfer of its registered office without transfer of its real head office - Refusal to remove it from the commercial register - National legislation whereby removal from commercial register is dependent on the winding up of a company after a liquidation procedure - Scope of freedom of establishment - Restriction on freedom of establishment - Protection of the interests of creditors, minority shareholders and employees - Prevention of abusive practices))
   (2017/C 437/10)
   Language of the case: Polish

      Referring court

   Sąd Najwyższy

      Parties to the main proceedings

   POLBUD — WYKONAWSTWO sp. z o.o., in liquidation

      Operative part of the judgment

               1.

               Articles 49 and 54 TFEU must be interpreted as meaning that freedom of establishment is applicable to the transfer of the registered office of a company formed in accordance with the law of one Member State to the territory of another Member State, for the purposes of its conversion, in accordance with the conditions imposed by the legislation of the other Member State, into a company incorporated under the law of the latter Member State, when there is no change in the location of the real head office of that company.

               2.

               Articles 49 and 54 TFEU must be interpreted as precluding legislation of a Member State which provides that the transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State, for the purposes of its conversion into a company incorporated under the law of the latter Member State, in accordance with the conditions imposed by the legislation of that Member State, is subject to the liquidation of the first company.

      (1)  OJ C 211, 13.6.2016.


title: Case C-505/17 P: Appeal brought on 18 August 2017 by Groupe Léa Nature against the judgment of the General Court (Sixth Chamber) delivered on 8 June 2017 in Case T-341/13 RENV: Groupe Léa Nature v European Union Intellectual Property Office

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/15

         Appeal brought on 18 August 2017 by Groupe Léa Nature against the judgment of the General Court (Sixth Chamber) delivered on 8 June 2017 in Case T-341/13 RENV: Groupe Léa Nature v European Union Intellectual Property Office
   (Case C-505/17 P)
   (2017/C 437/18)
   Language of the case: English

      Parties

      Appellant: Groupe Léa Nature (represented by: E. Baud, avocat)

      Other parties to the proceedings: European Union Intellectual Property Office, Debonair Trading Internacional Lda

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment rendered by the General Court on June 8, 2017;

               —

               refer the case back to the General Court; and

               —

               order Debonair to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on two pleas in law.
   First plea in law, alleging infringement of Article 8(1)(b) EUMTR, based on a violation of the settled case-law pertaining to the assessment of the likelihood of confusion between the marks.
   In support of this plea the appellant claims that the General Court did not:

               —

               apply the relevant criteria required to determine the relevant public;

               —

               assess correctly the similarities between the signs;

               —

               properly apply the relevant requirements susceptible to assess the acquisition of a distinctive character through use; and

               —

               validly proceed with an analysis of the global assessment of the likelihood of confusion.

         Second plea in law, alleging infringement of Article 8(5) EUMTR, based on a violation of the settled case-law rendered in relation to uses detrimental to the repute of an earlier mark.
   In support of this plea, the appellant claims that the General Court did not:

               —

               apply all the criteria required to establish the reputation of an earlier mark;

               —

               assess correctly the similarities between the signs;

               —

               proceed with a valid analysis of the existence of a link that the relevant public may make between the marks; and

               —

               properly assess the detrimental effect that the use of a trademark application is susceptible to have on the repute of an earlier mark.


title: Case T-623/17: Action brought on 11 September 2017 — Previsión Sanitaria Nacional, PSN, Mutua de Seguros y Reaseguros a Prima Fija v SRB

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/32

         Action brought on 11 September 2017 — Previsión Sanitaria Nacional, PSN, Mutua de Seguros y Reaseguros a Prima Fija v SRB
   (Case T-623/17)
   (2017/C 437/39)
   Language of the case: Spanish

      Parties

      Applicant: Previsión Sanitaria Nacional, PSN, Mutua de Seguros y Reaseguros a Prima Fija (Madrid, Spain) (represented by: R. Ariño Sánchez, lawyer)

      Defendant: Single Resolution Board

      Form of order sought

   The applicant claims that the General Court should:

               —

               Annul the contested act;

               —

               In any event, order that the contract for the provision of services relating to the definitive valuation and the valuation referred to in Article 20(16) to (19) of Regulation No 806/2014 be awarded by means of a competitive selection procedure, in which the expert who carried out the provisional valuation of the Banco cannot participate, recognise the right to be heard of the parties adversely affected by the original act in the context of the ex post valuation, granting access to all the documents of the administrative procedure, and order that the applicant be awarded the maximum countervalue resulting from the ex post valuation and its payment by the Banco’s [Banco de Santander] contractor or, in the alternative, by SRB;

               —

               Irrespective of the second head of claim, and incidentally to the first, order SRB to make a payment to PSN in the sum of EUR 276 201,42 together with statutory interest as of the date of this application.

      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.


title: Case C-548/17: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 September 2017 — Finanzamt Goslar v baumgarten sports & more GmbH

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/16

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 September 2017 — Finanzamt Goslar v baumgarten sports & more GmbH
   (Case C-548/17)
   (2017/C 437/19)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Appellant on a point of law: Finanzamt Goslar

      Respondent in the appeal on a point of law: baumgarten sports & more GmbH

      Questions referred

               1.

               Account being taken of the task of tax collector for the tax authority that falls to the taxable person, must Article 63 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) be interpreted restrictively as meaning that the amount receivable in respect of the supply of goods or services

                           (a)

                           is due or

                           (b)

                           is at least unconditionally owed?

               2.

               If the answer to the first question is in the negative: is the taxable person obliged to pre-finance the VAT owed in respect of the supply of goods or services for a period of two years if he is not able to receive (part of) the remuneration for the goods or services supplied by him until two years after the taxable event has occurred?

               3.

               If the answer to the second question is in the affirmative: account being taken of the powers conferred on them under Article 90(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, are the Member States entitled to assume, for the purposes of the tax period in which VAT first becomes chargeable, that there has been an adjustment as provided for in Article 90(1) of that directive in the case where the taxable person is not able to obtain the amount receivable, because it is not due, until two years after the taxable event has occurred?

      (1)  OJ 2006 L 347, p. 1.


title: Case T-657/17: Action brought on 27 September 2017 — Anabi Blanga v EUIPO — Polo/Lauren (HPC POLO)

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/33

         Action brought on 27 September 2017 — Anabi Blanga v EUIPO — Polo/Lauren (HPC POLO)
   (Case T-657/17)
   (2017/C 437/40)
   Language in which the application was lodged: English

      Parties

      Applicant: Gidon Anabi Blanga (Mexico, Mexico) (represented by: M. Sanmartín Sanmartín, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: The Polo/Lauren Company LP (New York, New York, United States)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘HPC POLO’ — Application for registration No 13 531 462

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the First Board of Appeal of EUIPO of 14 June 2017 in Case R 2368/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

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

      Plea in law

               —

               Infringement of Article 8(1)(b) Regulation No 207/2009.


title: Case C-552/17: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 September 2017 — Alpenchalets Resorts GmbH v Finanzamt München Abteilung Körperschaften

text:
               18.12.2017

               EN

               Official Journal of the European Union

               C 437/16

         Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 21 September 2017 — Alpenchalets Resorts GmbH v Finanzamt München Abteilung Körperschaften
   (Case C-552/17)
   (2017/C 437/20)
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Alpenchalets Resorts GmbH

      Defendant: Finanzamt München Abteilung Körperschaften

      Questions referred

               1.

               Is the supply of a service which consists essentially in the provision of holiday accommodation and in which additional service components are to be regarded merely as ancillary to the principal supply, in accordance with the judgment of the Court of Justice of the European Union of 12 November 1992, Van Ginkel (C-163/91, EU:C:1992:435), subject to the special scheme for travel agents under Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

               2.

               If the first question is answered in the affirmative, can that supply of service also be subject, in addition to the special scheme for travel agents under Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, to the tax rate reduction for the provision of holiday accommodation, as referred to in Article 98(2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax in conjunction with Annex III, point (12)?

      (1)  OJ 2006 L 347, p. 1.


title: Case T-194/13 OST: Order of the General Court of 18 October 2017 — United Parcel Service v Commission (Article 165 of the Rules of Procedure — Failure to adjudicate — Intervention in support of the unsuccessful party — Costs associated with the intervention — Amendment of the form of order sought in the course of proceeding)

text:
               8.1.2018

               EN

               Official Journal of the European Union

               C 5/41

         Order of the General Court of 18 October 2017 — United Parcel Service v Commission
   (Case T-194/13 OST) (1)

   ((Article 165 of the Rules of Procedure - Failure to adjudicate - Intervention in support of the unsuccessful party - Costs associated with the intervention - Amendment of the form of order sought in the course of proceeding))
   (2018/C 005/55)
   Language of the case: English

      Parties

      Applicant: United Parcel Service Inc. (Atlanta, Georgia, United States) (represented initially by A. Ryan, B. Graham, Solicitors, W. Knibbeler and P. Stamou, lawyers, and subsequently by A. Ryan, W. Knibbeler, P. Stamou, A. Pliego Selie, F. Hoseinian and P. van den Berg, lawyers)

      Defendant: European Commission (represented initially by T. Christoforou, N. Khan, A. Biolan, N. von Lingen and H. Leupold, and subsequently by T. Christoforou, N. Khan, A. Biolan, and H. Leupold, acting as Agents)

      Intervener in support of the defendant: FedEx Corp. (Memphis, Tennessee, United States) (represented initially by F. Carlin, Barrister, G. Bushell, Solicitor, and Q. Azau, lawyer, and subsequently by F. Carlin, G. Bushell and N. Niejahr, lawyers)

      Re:

   APPLICATION pursuant to Article 165 of the Rules of Procedure of the General Court.

      Operative part of the order

               1.

               Paragraph 223 of the judgment of 7 March 2017, United Parcel Service v Commission, T-194/13, EU:T:2017:144 is amended as follows: ‘Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared. Since the Commission and the intervener have been unsuccessful, first, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant, except the costs in connection with the intervention. Secondly, the intervener must be ordered to bear, in addition to its own costs, the applicant’s costs in connection with its intervention’.

               2.

               Paragraph 2 of the operative part of the judgment of 7 March 2017, United Parcel Service v Commission, T-194/13, EU:T:2017:144 is amended as follows: ‘The European Commission shall pay, in addition to its own costs, those of United Parcel Service, Inc., except the costs in connection with the intervention’.

               3.

               Paragraph 3 of the operative part of the judgment of 7 March 2017, United Parcel Service v Commission, T-194/13, EU:T:2017:144 is amended as follows: ‘FedEx Corp. shall pay, in addition to its own costs, the costs of United Parcel Service, Inc., in connection with its intervention’.

               4.

               United Parcel Service, Inc., the Commission and FedEx shall bear their own costs in connection with the present case.

      (1)  OJ C 147, 25.5.213.


title: Case C-600/14: Judgment of the Court (Grand Chamber) of 5 December 2017 — Federal Republic of Germany v Council of the European Union (Action for annulment — External action of the European Union — Article 216(1) TFEU — Article 218(9) TFEU — Establishment of the position to be adopted on behalf of the European Union in a body set up by an international agreement — Revision Committee of the Intergovernmental Organisation for International Carriage by Rail (OTIF) — Amendment of the Convention concerning International Carriage by Rail (COTIF) and the Appendices thereto — Competence shared between the European Union and its Member States — External competence of the European Union in an area where the Union has not yet adopted common rules — Validity of Decision 2014/699/EU — Obligation to state reasons — Principle of sincere cooperation)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/2

         Judgment of the Court (Grand Chamber) of 5 December 2017 — Federal Republic of Germany v Council of the European Union
   (Case C-600/14) (1)

   ((Action for annulment - External action of the European Union - Article 216(1) TFEU - Article 218(9) TFEU - Establishment of the position to be adopted on behalf of the European Union in a body set up by an international agreement - Revision Committee of the Intergovernmental Organisation for International Carriage by Rail (OTIF) - Amendment of the Convention concerning International Carriage by Rail (COTIF) and the Appendices thereto - Competence shared between the European Union and its Member States - External competence of the European Union in an area where the Union has not yet adopted common rules - Validity of Decision 2014/699/EU - Obligation to state reasons - Principle of sincere cooperation))
   (2018/C 052/02)
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

      Interveners in support of the applicant: French Republic (represented initially by D. Colas, G. de Bergues and M. Hours, acting as Agents, and subsequently by D. Colas and M.-L. Kitamura, acting as Agents), United Kingdom of Great Britain and Northern Ireland (represented by C. Brodie, M. Holt and D. Robertson, acting as Agents, and by J. Holmes QC)

      Defendant: Council of the European Union (represented by: E. Finnegan, Z. Kupčová and J.-P. Hix, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by F. Erlbacher, W. Mölls and J. Hottiaux, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Federal Republic of Germany to pay the costs;

               3.

               Orders the French Republic, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own costs.

      (1)  OJ C 73, 2.3.2015.


title: Case C-598/15: Judgment of the Court (Fifth Chamber) of 7 December 2017 (request for a preliminary ruling from the Juzgado de Primera Instancia de Jerez de la Frontera) — Banco Santander SA v Cristobalina Sánchez López (Reference for a preliminary ruling — Directive 93/13/EEC — Consumer contracts — Unfair terms — Powers of the national court — Effectiveness of the protection afforded to consumers — Mortgage loan agreement — Extrajudicial enforcement procedure — Simplified declaratory court procedure for recognition of the real rights of the successful bidder)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/3

         Judgment of the Court (Fifth Chamber) of 7 December 2017 (request for a preliminary ruling from the Juzgado de Primera Instancia de Jerez de la Frontera) — Banco Santander SA v Cristobalina Sánchez López
   (Case C-598/15) (1)

   ((Reference for a preliminary ruling - Directive 93/13/EEC - Consumer contracts - Unfair terms - Powers of the national court - Effectiveness of the protection afforded to consumers - Mortgage loan agreement - Extrajudicial enforcement procedure - Simplified declaratory court procedure for recognition of the real rights of the successful bidder))
   (2018/C 052/03)
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia de Jerez de la Frontera

      Parties to the main proceedings

      Applicant: Banco Santander SA

      Defendant: Cristobalina Sánchez López

      Operative part of the judgment

   Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer do not apply to proceedings such as those at issue in the main proceedings, brought by the successful bidder in an auction of immovable property, following extrajudicial enforcement of a mortgage granted over that property by a consumer to a creditor acting in the course of trade, such proceedings having been brought for the purpose of protecting real rights lawfully acquired by the successful bidder, provided that, first, the proceedings are independent of the legal relationship between that creditor and the consumer and, second, the mortgage has been enforced, the immovable property sold, the real rights over that property transferred, and the consumer has not availed himself of the legal remedies provided in that context

      (1)  OJ C 38, 1.2.2016.


title: Case C-61/16 P: Judgment of the Court (Fourth Chamber) of 14 December 2017 — European Bicycle Manufacturers Association (EBMA) v Giant (China) Co. Ltd, Council of the European Union, European Commission (Appeal — Dumping — Regulation (EU) No 502/2013 — Imports of bicycles originating in China — Regulation (EC) No 1225/2009 — Article 18(1) — Cooperation — Definition of ‘necessary information’ — Article 9(5) — Request for individual treatment — Risk of circumvention)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/3

         Judgment of the Court (Fourth Chamber) of 14 December 2017 — European Bicycle Manufacturers Association (EBMA) v Giant (China) Co. Ltd, Council of the European Union, European Commission
   (Case C-61/16 P) (1)

   ((Appeal - Dumping - Regulation (EU) No 502/2013 - Imports of bicycles originating in China - Regulation (EC) No 1225/2009 - Article 18(1) - Cooperation - Definition of ‘necessary information’ - Article 9(5) - Request for individual treatment - Risk of circumvention))
   (2018/C 052/04)
   Language of the case: English

      Parties

      Appellant: European Bicycle Manufacturers Association (EBMA) (represented by: L. Ruessmann, avocat, and J. Beck, Solicitor)

      Other parties to the proceedings: Giant (China) Co. Ltd (represented by: P. De Baere, avocat), Council of the European Union, (represented by: H. Marcos Fraile, Agent, B. O’Connor, Solicitor, and S. Gubel, avocat), European Commission, (represented by J.-F. Brakeland, M. França, and A. Demeneix, Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the European Bicycle Manufacturers Association (EBMA) to bear its own costs and to pay the costs incurred by Giant (China) Co. Ltd;

               3.

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

      (1)  OJ C 106, 21.3.2016.


title: Case C-189/16: Judgment of the Court (Fifth Chamber) of 7 December 2017 (request for a preliminary ruling from the Högsta förvaltningsdomstolen -- Sweden) — Boguslawa Zaniewicz-Dybeck v Pensionsmyndigheten (Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Article 46(2) — Article 47(1)(d) — Article 50 — Guaranteed pension — Minimum benefit — Calculation of pension entitlement)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/4

         Judgment of the Court (Fifth Chamber) of 7 December 2017 (request for a preliminary ruling from the Högsta förvaltningsdomstolen -- Sweden) — Boguslawa Zaniewicz-Dybeck v Pensionsmyndigheten
   (Case C-189/16) (1)

   ((Reference for a preliminary ruling - Social security for migrant workers - Regulation (EEC) No 1408/71 - Article 46(2) - Article 47(1)(d) - Article 50 - Guaranteed pension - Minimum benefit - Calculation of pension entitlement))
   (2018/C 052/05)
   Language of the case: Swedish

      Referring court

   Högsta förvaltningsdomstolen

      Parties to the main proceedings

      Applicant: Boguslawa Zaniewicz-Dybeck

      Defendant: Pensionsmyndigheten

      Operative part of the judgment

               1.

               Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, is to be interpreted as meaning that, when the competent institution of a Member State calculates a minimum benefit, such as the guaranteed pension at issue in the main proceedings, it is not inappropriate to apply Article 46(2) or Article 47(1)(d) of the regulation. Such a benefit must be calculated in accordance with Article 50 of the regulation, in conjunction with the provisions of national law, without, however, applying national provisions, such as those in the main proceedings, providing for a pro rata calculation;

               2.

               Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, and in particular Article 50 of that regulation, is to be interpreted as not precluding the legislation of a Member State under which, when calculating a minimum benefit such as the guaranteed pension at issue in the main proceedings, the competent institution must take account of all the retirement pensions which the person concerned actually receives from one or more other Member States.

      (1)  OJ C 211, 13.6.2016.


title: Case C-230/16: Judgment of the Court (First Chamber) of 6 December 2017 (request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main — Germany) — Coty Germany GmbH v Parfümerie Akzente GmbH (Reference for a preliminary ruling — Competition — Agreements, decisions and concerted practices — Article 101(1) TFEU — Selective distribution of luxury cosmetics products — Clause prohibiting distributors from making use of a non-authorised third party in the context of internet sales — Regulation (EU) No 330/2010 — Article 4(b) and (c))

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/5

         Judgment of the Court (First Chamber) of 6 December 2017 (request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main — Germany) — Coty Germany GmbH v Parfümerie Akzente GmbH
   (Case C-230/16) (1)

   ((Reference for a preliminary ruling - Competition - Agreements, decisions and concerted practices - Article 101(1) TFEU - Selective distribution of luxury cosmetics products - Clause prohibiting distributors from making use of a non-authorised third party in the context of internet sales - Regulation (EU) No 330/2010 - Article 4(b) and (c)))
   (2018/C 052/06)
   Language of the case: German

      Referring court

   Oberlandesgericht Frankfurt am Main

      Parties to the main proceedings

      Applicant: Coty Germany GmbH

      Defendant: Parfümerie Akzente GmbH

      Operative part of the judgment

               1.

               Article 101(1) TFEU must be interpreted as meaning that a selective distribution system for luxury goods designed, primarily, to preserve the luxury image of those goods complies with that provision to the extent that resellers are chosen on the basis of objective criteria of a qualitative nature that are laid down uniformly for all potential resellers and applied in a non-discriminatory fashion and that the criteria laid down do not go beyond what is necessary.

               2.

               Article 101(1) TFEU must be interpreted as not precluding a contractual clause, such as that at issue in the main proceedings, which prohibits authorised distributors in a selective distribution system for luxury goods designed, primarily, to preserve the luxury image of those goods from using, in a discernible manner, third-party platforms for the internet sale of the contract goods, on condition that that clause has the objective of preserving the luxury image of those goods, that it is laid down uniformly and not applied in a discriminatory fashion, and that it is proportionate in the light of the objective pursued, these being matters to be determined by the referring court.

               3.

               Article 4 of Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, the prohibition imposed on the members of a selective distribution system for luxury goods, which operate as distributors at the retail level of trade, of making use, in a discernible manner, of third-party undertakings for internet sales does not constitute a restriction of customers, within the meaning of Article 4(b) of that regulation, or a restriction of passive sales to end users, within the meaning of Article 4(c) of that regulation.

      (1)  OJ C 260, 18.7.2016.


title: Case C-243/16: Judgment of the Court (Fourth Chamber) of 14 December 2017 (request for a preliminary ruling from the Juzgado de lo Social n.° 30 de Barcelona — Spain) — Antonio Miravitlles Ciurana and Others v Contimark SA, Jordi Socías Gispert (Reference for a preliminary ruling — Company law — Directive 2009/101/EC — Articles 2 and 6 to 8 — Directive 2012/30/EU — Articles 19 and 36 — Charter of Fundamental Rights of the European Union — Articles 20, 21 and 51 — Recovery of claims arising under an employment contract — Right to bring, before the same court, an action against the company and its director, as a person having joint and several liability for the company’s debts)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/6

         Judgment of the Court (Fourth Chamber) of 14 December 2017 (request for a preliminary ruling from the Juzgado de lo Social n.o 30 de Barcelona — Spain) — Antonio Miravitlles Ciurana and Others v Contimark SA, Jordi Socías Gispert
   (Case C-243/16) (1)

   ((Reference for a preliminary ruling - Company law - Directive 2009/101/EC - Articles 2 and 6 to 8 - Directive 2012/30/EU - Articles 19 and 36 - Charter of Fundamental Rights of the European Union - Articles 20, 21 and 51 - Recovery of claims arising under an employment contract - Right to bring, before the same court, an action against the company and its director, as a person having joint and several liability for the company’s debts))
   (2018/C 052/07)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social n.o 30 de Barcelona

      Parties to the main proceedings

      Applicants: Antonio Miravitlles Ciurana, Alberto Marina Lorente, Jorge Benito García, Juan Gregorio Benito García

      Defendants: Contimark SA, Jordi Socías Gispert

      Operative part of the judgment

   Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 [EC], with a view to making such safeguards equivalent, in particular Articles 2 and 6 to 8 thereof, and Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 [TFEU], in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, in particular Articles 19 and 36 thereof, must be interpreted as not conferring on employees, who are creditors of a public limited liability company as a result of the termination of their employment contract, a right to bring, before the same social court as that having jurisdiction over their action for recognition of their wage claims, an action to establish the liability of the director of that company, on the ground that he has failed to convene a general meeting of the company despite the heavy losses sustained by it, with a view to obtaining a declaration that he is jointly and severally liable for those wage claims.

      (1)  OJ C 279, 1.8.2016.


title: Case C-305/16: Judgment of the Court (Third Chamber) of 14 December 2017 (request for a preliminary ruling from the First-tier Tribunal (Tax Chamber) — United Kingdom) — Avon Cosmetics Ltd v Commissioners for Her Majesty’s Revenue and Customs (Reference for a preliminary ruling — Value added tax (VAT) — Sixth Directive 77/388/EEC — Article 11A(1)(a) — Taxable amount — Article 17 — Right to deduct — Article 27 — Special derogating measures — Decision 89/534/EEC — Marketing structure based on the supply of goods through non-taxable persons — Taxation on the open market value of the goods as determined at the final stage of the marketing chain — Inclusion of the costs incurred by those persons)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/6

         Judgment of the Court (Third Chamber) of 14 December 2017 (request for a preliminary ruling from the First-tier Tribunal (Tax Chamber) — United Kingdom) — Avon Cosmetics Ltd v Commissioners for Her Majesty’s Revenue and Customs
   (Case C-305/16) (1)

   ((Reference for a preliminary ruling - Value added tax (VAT) - Sixth Directive 77/388/EEC - Article 11A(1)(a) - Taxable amount - Article 17 - Right to deduct - Article 27 - Special derogating measures - Decision 89/534/EEC - Marketing structure based on the supply of goods through non-taxable persons - Taxation on the open market value of the goods as determined at the final stage of the marketing chain - Inclusion of the costs incurred by those persons))
   (2018/C 052/08)
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Avon Cosmetics Ltd

      Defendant: Commissioners for Her Majesty’s Revenue and Customs

      Operative part of the judgment

               1.

               Articles 17 and 27 of 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, as amended by Council Directive 2004/7/EC of 20 January 2004, must be interpreted as not precluding a measure, such as that at issue in the main proceedings, authorised by Council Decision 89/534/EEC of 24 May 1989 authorising the United Kingdom to apply, in respect of certain supplies to unregistered resellers, a measure derogating from Article 11A(1)(a) of the Sixth Directive, pursuant to Article 27 of that directive, which derogates from Article 11A(1)(a) of that directive and under which the taxable amount for valued added tax (VAT) purposes of a direct sales company is the open market value of the goods sold at the stage of final consumption, where those goods are marketed through resellers not subject to VAT, even if that derogating measure does not take account, in one way or another, of the input VAT relating to demonstration items purchased by those resellers from that company;

               2.

               Examination of the first question has disclosed no factor of such a kind as to affect the validity of Decision 89/534;

               3.

               Article 27 of Sixth Directive 77/388, as amended by Directive 2004/7, must be interpreted as not requiring the Member State which seeks authorisation to derogate from Article 11A(1)(a) of that directive to inform the European Commission that non-taxable resellers incur VAT on purchases of demonstration items from a direct sales company that are used for the purposes of their economic activity, in order that account be taken, in one way or another, of that input tax in the detailed rules of the derogating measure.

      (1)  OJ C 270, 25.7.2016.


title: Case C-329/16: Judgment of the Court (Fourth Chamber) of 7 December 2017 (request for a preliminary ruling from the Conseil d’État — France) — Syndicat national de l’industrie des technologies médicales (Snitem), Philips France v Premier ministre, Ministre des Affaires sociales et de la Santé (Reference for a preliminary ruling — Medical devices — Directive 93/42/EEC — Scope — ‘Medical device’ — CE marking — National legislation making drug prescription assistance software subject to a certification procedure laid down by a national authority)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/7

         Judgment of the Court (Fourth Chamber) of 7 December 2017 (request for a preliminary ruling from the Conseil d’État — France) — Syndicat national de l’industrie des technologies médicales (Snitem), Philips France v Premier ministre, Ministre des Affaires sociales et de la Santé
   (Case C-329/16) (1)

   ((Reference for a preliminary ruling - Medical devices - Directive 93/42/EEC - Scope - ‘Medical device’ - CE marking - National legislation making drug prescription assistance software subject to a certification procedure laid down by a national authority))
   (2018/C 052/09)
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Syndicat national de l’industrie des technologies médicales (Snitem), Philips France

      Defendants: Premier ministre, Ministre des Affaires sociales et de la Santé

      Operative part of the judgment

   Article 1(1) and Article 1(2)(a) of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, as amended by Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that software, of which at least one of the functions makes it possible to use patient-specific data for the purposes, inter alia, of detecting contraindications, drug interactions and excessive doses, is, in respect of that function, a medical device within the meaning of those provisions, even if that software does not act directly in or on the human body.

      (1)  OJ C 296, 16.8.2016.


title: Case C-403/16: Judgment of the Court (First Chamber) of 13 December 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Soufiane El Hassani v Minister Spraw Zagranicznych (Reference for a preliminary ruling — Area of freedom, security and justice — Regulation (EC) No 810/2009 — Article 32(3) — Community Visa Code — Decision to refuse a visa — Right of the applicant to bring an appeal against that decision — Obligation of a Member State to guarantee the right to a judicial appeal)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/8

         Judgment of the Court (First Chamber) of 13 December 2017 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Soufiane El Hassani v Minister Spraw Zagranicznych
   (Case C-403/16) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Regulation (EC) No 810/2009 - Article 32(3) - Community Visa Code - Decision to refuse a visa - Right of the applicant to bring an appeal against that decision - Obligation of a Member State to guarantee the right to a judicial appeal))
   (2018/C 052/10)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Soufiane El Hassani

      Defendant: Minister Spraw Zagranicznych

      Operative part of the judgment

   Article 32(3) of Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas, as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it requires Member States to provide for an appeal procedure against decisions refusing visas, the procedural rules for which are a matter for the legal order of each Member State in accordance with the principles of equivalence and effectiveness. Those proceedings must, at a certain stage of the proceedings, guarantee a judicial appeal.

      (1)  OJ C 383,17.10.2016.


title: Case C-408/16: Judgment of the Court (Eighth Chamber) of 6 December 2017 (request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Compania Naţională de Administrare a Infrastructurii Rutiere SA, formerly Compania Naţională de Autostrăzi şi Drumuri Naţionale din România SA v Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe (Reference for a preliminary ruling — Public procurement — Directive 2004/18/EC — Scope — Regulation (EC) No 1083/2006 — European Regional Development Fund, European Social Fund and Cohesion Fund — Finance agreement for the construction of a motorway concluded with the European Investment Bank before the accession of the Member State to the European Union — Concept of ‘irregularity’ within the meaning of Regulation No 1083/2006)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/9

         Judgment of the Court (Eighth Chamber) of 6 December 2017 (request for a preliminary ruling from the Curtea de Apel Bucureşti — Romania) — Compania Naţională de Administrare a Infrastructurii Rutiere SA, formerly Compania Naţională de Autostrăzi şi Drumuri Naţionale din România SA v Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe
   (Case C-408/16) (1)

   ((Reference for a preliminary ruling - Public procurement - Directive 2004/18/EC - Scope - Regulation (EC) No 1083/2006 - European Regional Development Fund, European Social Fund and Cohesion Fund - Finance agreement for the construction of a motorway concluded with the European Investment Bank before the accession of the Member State to the European Union - Concept of ‘irregularity’ within the meaning of Regulation No 1083/2006))
   (2018/C 052/11)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Bucureşti

      Parties to the main proceedings

      Applicant: Compania Naţională de Administrare a Infrastructurii Rutiere SA, formerly Compania Naţională de Autostrăzi şi Drumuri Naţionale din România SA

      Defendant: Ministerul Fondurilor Europene — Direcția Generală Managementul Fondurilor Externe

      Operative part of the judgment

               1.

               Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, and in particular Article 15(c) thereof, must be interpreted as meaning that it precludes a Member State’s legislation that provides, for the purposes of a public procurement procedure initiated after the date of its accession to the European Union in order to complete a project started on the basis of a finance agreement concluded with the European Investment Bank prior to that accession, the application of the specific criteria laid down by the provisions of the European Investment Bank’s public procurement guide which do not comply with the provisions of that directive;

               2.

               Articles 9(5) and 60(a) of Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 must be interpreted as meaning that a public procurement procedure such as that at issue in the case in the main proceedings, in which criteria more restrictive than those laid down in Directive 2004/18 have been applied, cannot be considered as having been conducted in complete conformity with EU law and is not eligible for non-reimbursable European funding, granted retrospectively.
               Article 2(7) of Regulation No 1083/2006 must be interpreted as meaning that the use of pre-selection criteria for tenderers that are more restrictive than those provided for by Directive 2004/18 constitutes an ‘irregularity’, within the meaning of that article, justifying the application of a financial correction pursuant to Article 98 of that regulation, provided that it cannot be ruled out that such use had an impact on the budget of the Funds at issue, which it is for the national court to determine.

      (1)  OJ C 383, 17.10.2016.


title: Case C-487/16 P: Judgment of the Court (Sixth Chamber) of 13 December 2017 — Telefónica SA v European Commission (Appeal — Agreements, decisions and concerted practices — Portuguese and Spanish telecommunications markets — Non-competition clause contained in an agreement entered into between two companies — Restriction by object — Rights of defence — Refusal to hear witnesses — Fines — Gravity of the infringement — Mitigating circumstances)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/10

         Judgment of the Court (Sixth Chamber) of 13 December 2017 — Telefónica SA v European Commission
   (Case C-487/16 P) (1)

   ((Appeal - Agreements, decisions and concerted practices - Portuguese and Spanish telecommunications markets - Non-competition clause contained in an agreement entered into between two companies - Restriction by object - Rights of defence - Refusal to hear witnesses - Fines - Gravity of the infringement - Mitigating circumstances))
   (2018/C 052/12)
   Language of the case: Spanish

      Parties

      Appellant: Telefónica SA (represented by: J. Folguera Crespo and P. Vidal Martínez, abogados)

      Other party to the proceedings: European Commission (represented by: C. Giolito and C. Urraca Caviedes, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Telefónica SA to pay the costs.

      (1)  OJ C 427, 21.11.2016.


title: Case T-812/17: Action brought on 15 December 2017 — Seco Belgium and Vinçotte v Parliament

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/39

         Action brought on 15 December 2017 — Seco Belgium and Vinçotte v Parliament
   (Case T-812/17)
   (2018/C 052/51)
   Language of the case: French

      Parties

      Applicants: Seco Belgium (Brussels, Belgium) and Vinçotte (Vilvoorde, Belgium) (represented by: A. Delvaux and R. Simar, lawyers)

      Defendant: European Parliament

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the action for annulment admissible;

               —

               annul the decision, the date of which is unknown, whereby the European Parliament decided to award Contract [06D20/2017/M005 — Assignments to perform inspections and provide technical opinions in the context of construction works, projects and purchases at the European Parliament in Brussels (OJ 2017/S 118-236114)] to [another tenderer];

               —

               order the Parliament to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on a single plea in law, alleging infringement of Articles 1.1, 1.2 and 1.3 of the ‘Technical specifications’ annex to the Tender Specification relating to Contract Notice 06D20/2017/M005 — Assignments to perform inspections and provide technical opinions in the context of construction works, projects and purchases at the European Parliament in Brussels (OJ 2017/S 118-236114), a manifest error of assessment, infringement of general principles of EU law, breach of the duties of care and scrutiny, infringement of the principles of equal treatment and transparency, failure to fulfil the duty to state reasons deriving from, inter alia, Article 113 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) and Article 161 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1), infringement of the right to an effective remedy, and infringement of some of the provisions governing the award of the contract in question.


title: Case C-567/16: Judgment of the Court (Seventh Chamber) of 7 December 2017 (request for a preliminary ruling from the High Court of Justice (Chancery Division) -- United Kingdom) — Merck Sharp & Dohme Corporation v Comptroller General of Patents, Designs and Trade Marks (Reference for a preliminary ruling — Industrial and commercial property — Patent law — Medicinal products for human use — Regulation (EC) No 469/2009 — Article (3)(b) — Supplementary protection certificate — Conditions for obtaining — Article 10(3) — Granting of the certificate or rejection of the application for a certificate — Directive 2001/83/EC — Article 28(4) — Decentralised procedure)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/10

         Judgment of the Court (Seventh Chamber) of 7 December 2017 (request for a preliminary ruling from the High Court of Justice (Chancery Division) -- United Kingdom) — Merck Sharp & Dohme Corporation v Comptroller General of Patents, Designs and Trade Marks
   (Case C-567/16) (1)

   ((Reference for a preliminary ruling - Industrial and commercial property - Patent law - Medicinal products for human use - Regulation (EC) No 469/2009 - Article (3)(b) - Supplementary protection certificate - Conditions for obtaining - Article 10(3) - Granting of the certificate or rejection of the application for a certificate - Directive 2001/83/EC - Article 28(4) - Decentralised procedure))
   (2018/C 052/13)
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicant: Merck Sharp & Dohme Corporation

      Defendant: Comptroller General of Patents, Designs and Trade Marks

      Operative part of the judgment

               1.

               Article 3(b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products is to be interpreted as meaning that an end of procedure notice issued by the reference Member State in accordance with Article 28(4) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended, as regards pharmacovigilance, by Directive 2010/84/EU of the European Parliament and the Council of 15 December 2010, before the expiry of the basic patent, as defined in Article 1(c) of Regulation No 469/2009, may not be treated as equivalent to a marketing authorisation within the meaning of Article 3(b) of that regulation, with the result that a supplementary protection certificate may not be obtained on the basis of such a notice.

               2.

               Article 10(3) of Regulation No 469/2009 is to be interpreted as meaning that the fact that no marketing authorisation has been granted by the Member State concerned at the time the supplementary protection certificate application is lodged in that Member State does not constitute an irregularity that can be cured under that provision.

      (1)  OJ C 22, 23.1.2017.


title: Case T-813/17: Action brought on 14 December 2017 — Nerantzaki v Commission

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/39

         Action brought on 14 December 2017 — Nerantzaki v Commission
   (Case T-813/17)
   (2018/C 052/52)
   Language of the case: English

      Parties

      Applicant: Eleni Nerantzaki (Brussels, Belgium) (represented by: N. Korogiannakis, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the EPSO selection board of 7 March 2017 not to admit the applicant to the next stage of open competition EPSO/AD/331/16;

               —

               annul the decision of the appointing authority Ares(2017)s. 4916702 of 14 September 2017, rejecting the applicant’s complaint against the decision not to admit the applicant to open competition EPSO/AD/331/16;

               —

               order the defendant to pay the applicant’s legal and other costs and expenses incurred in connection with the present application.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment by the defendant in the assessment of the applicant’s professional qualifications.

               2.

               Second plea in law, alleging infringement of the notice of competition EPSO/AD/331/16.

               3.

               Third plea in law, alleging inadequate and contradictory reasoning such as to constitute a breach both of Article 25 and of Article 90(2) of the Staff Regulations.


title: Case C-630/16: Judgment of the Court (Eighth Chamber) of 14 December 2017 (request for a preliminary ruling from the Helsingin hallinto-oikeus — Finland) — Proceedings brought by Anstar Oy (Reference for a preliminary ruling — Harmonised conditions for the marketing of construction products — Harmonised standard EN 1090-1:2009+A1:2011 — Criteria for determining the scope of a standard adopted by the European Committee for Standardisation (CEN) in accordance with a mandate of the European Commission — Anchors to be fixed into concrete before it sets and used for fastening facade elements and masonry supports to the building frame)

text:
               12.2.2018

               EN

               Official Journal of the European Union

               C 52/11

         Judgment of the Court (Eighth Chamber) of 14 December 2017 (request for a preliminary ruling from the Helsingin hallinto-oikeus — Finland) — Proceedings brought by Anstar Oy
   (Case C-630/16) (1)

   ((Reference for a preliminary ruling - Harmonised conditions for the marketing of construction products - Harmonised standard EN 1090-1:2009+A1:2011 - Criteria for determining the scope of a standard adopted by the European Committee for Standardisation (CEN) in accordance with a mandate of the European Commission - Anchors to be fixed into concrete before it sets and used for fastening facade elements and masonry supports to the building frame))
   (2018/C 052/14)
   Language of the case: Finnish

      Referring court

   Helsingin hallinto-oikeus

      Parties to the main proceedings

   Anstar Oy

      Other party: Turvallisuus- ja kemikaalivirasto (Tukes)

      Operative part of the judgment

   Harmonised standard EN 1090-1:2009+A1:2011, ‘Execution of steel structures and aluminium structures — Part 1: Requirements for conformity assessment of structural components’, must be interpreted as meaning that products, such as those at issue in the main proceedings, intended to be fixed into concrete before it sets fall within its scope if they have a structural function, in the sense that their removal from a structure would immediately reduce its resistance.

      (1)  OJ C 63, 27.2.2017.