title: Case T-98/19: Action brought on 13 February 2019 — Cinkciarz.pl v EUIPO — MasterCard International (CNTX)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/81

      Action brought on 13 February 2019 — Cinkciarz.pl v EUIPO — MasterCard International (CNTX)
      (Case T-98/19)
      (2019/C 139/82)
      Language of the case: English

         Parties

         Applicant: Cinkciarz.pl sp. z o.o. (Zielona Góra, Poland) (represented by: E. Skrzydło-Tefelska and K. Gajek, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: MasterCard International, Inc. (New York, New York, United States)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union figurative mark CNTX — Application for registration No 15 368 954

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 December 2018 in Case R 1064/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and MasterCard International Incorporated to bear their own costs and to pay those incurred by the applicant, including those incurred in the proceedings before the EUIPO.

         Pleas in law

                  —

                  Infringement of Article 71(1) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430, in conjunction with Article 41(2) of the Charter of Fundamental Rights of the European Union;

                  —

                  Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, in conjunction with Article 41(2) of the Charter of Fundamental Rights of the European Union;

                  —

                  Infringement of the principles of equal treatment and sound administration;

                  —

                  Infringement of Article 8(1)(b) and Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-100/19: Action brought on 19 February 2019 — L. Oliva Torras v EUIPO — Mecánica del Frío (Vehicle couplings)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/82

      Action brought on 19 February 2019 — L. Oliva Torras v EUIPO — Mecánica del Frío (Vehicle couplings)
      (Case T-100/19)
      (2019/C 139/83)
      Language in which the application was lodged: Spanish

         Parties

         Applicant: L. Oliva Torras, SA (Manresa, Spain) (represented by: E. Sugrañes Coca, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Mecánica del Frío, SL (Cornellá de Llobregat, Spain)

         Details of the proceedings before EUIPO

         Proprietor of the design at issue: Other party to the proceedings before the Board of Appeal

         Design at issue: European Union design (Vehicle couplings) — European Union design No 2217 588-0001

         Contested decision: Decision of the Third Board of Appeal of EUIPO of 19 November 2018 in Case R 1397/2017-3

         Form of order sought

      The applicant claims that the Court should:

                  —

                  With regard to the ground of invalidity: uphold the findings of the Board of Appeal on this point and allow the proceedings seeking invalidity of a European Union design in respect of each of Articles 4 to 9 of the Regulation on Community designs, under ‘Requirements for protection’.

                  —

                  With regard to the precedence on which the claims of lack of novelty and individual character are based: the applicant submits that the comparison conducted by the Cancellation Division and the Board of Appeal, based solely on image A (render of the catalogue), is incorrect, and requests that the comparison be conducted taking into account all of the evidence submitted and the specific circumstances of the present case.

                  —

                  The substance: lack of novelty of the European Union design sought. The applicant requests that the contested design be declared invalid since it is almost identical and therefore consists in an unauthorised, practically identical imitation of the designed marketed by the applicant. Consequently, the contested design lacks the novelty required to acquire protection by means of the registration of a European Union design.

                  —

                  The substance: lack of individual character of the European Union design sought. The applicant requests that the contested design be declared invalid on the ground of lack of individual character with respect to the designs released earlier by L. Oliva Torras, S.A., bearing in mind the little degree of creative freedom allowed by the technical functionality of the part which must be mounted on a specific vehicle motor, the characteristics of an informed user and the similarities between the parts compared.

                  —

                  The substance: existence of exclusions to the protection of a European Union design within the meaning of Article 8 of the Regulation on Community designs. The applicant requests that the contested design be declared invalid on the ground that it is subject to the prohibition laid down in Article 8(1) and (2), as the appearance of the design is dictated solely by its technical function, and that it be declared invalid on the ground that it is subject to the absolute prohibition under Article 4 of the Regulation on Community designs since it constitutes a component of a complex product.

                  —

                  The substance: conflict of the European Union design with Article 9 of the Regulation on Community designs. The applicant requests that the decision of the Board of Appeal be upheld on that point.

                  —

                  In accordance with Article 134(1) of the Rules of Procedure of the General Court, under ‘General rules as to the allocation of costs’, the applicant requests that the unsuccessful party be ordered to play the costs if they have been applied for in the successful party’s pleadings.

         Plea in law

                  —

                  Infringement of Articles 5, 6, 8 and 9 of Council Regulation (EC) No 6/2002.


title: Case T-102/19: Action brought on 19 February 2019 — Garriga Polledo and Others v Parliament

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/83

      Action brought on 19 February 2019 — Garriga Polledo and Others v Parliament
      (Case T-102/19)
      (2019/C 139/84)
      Language of the case: French

         Parties

         Applicants: Salvador Garriga Polledo (Madrid, Spain) and 45 other applicants (represented by: A. Schmitt and A. Waisse, lawyers)

         Defendant: European Parliament

         Form of order sought

      The applicants claim that the Court should:

                  —

                  where necessary, by way of measures of organisation of procedure or measures of inquiry in the case, order the European Parliament to disclose the opinions given by the European Parliament Legal Service on 16 July 2018 and 3 December 2018, although perhaps not on those exact dates, but in any event before the adoption of the decision taken by the Bureau of the Parliament on 10 December 2018 amending the Implementing Measures for the Statute for Members of the European Parliament (OJ 2018 C 466, p.8);

                  —

                  annul the abovementioned decision taken by the Bureau of the Parliament on 10 December 2018 amending the Implementing Measures for the Statute for Members of the European Parliament, in so far as it amends Article 76 of the IMS (recitals 5 and 6, Article 1(7)) and Article 2 in so far as it concerns Article 76 of the IMS of the abovementioned decision), or, alternatively, if those sections were not considered to be severable from the remainder of the contested measure, to annul the abovementioned measure in its entirety;

                  —

                  order the Parliament to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging the Bureau’s lack of competence ratione materiae

                              —

                              first, the contested measure infringed the Statute for Members of the European Parliament adopted by decision of the European Parliament of 28 September 2005, 2005/684/EC, Euratom, (OJ 2005 L 262, p.1) (‘the Statute’). The contested measure is in particular contrary to Article 27 of the Statute which requires that ‘acquired rights’ and ‘future entitlements’ must be maintained.

                              —

                              secondly, the contested measure introduces a tax by imposing a special levy amounting to 5 % of the nominal amount of the pension, whereas the introduction of a tax does not fall within the competence of the Bureau under Article 223(2) TFEU.

                  2.

                  Second plea in law, alleging infringement of essential procedural requirements.

                              —

                              first, the Bureau is criticised for having adopted the contested measure without complying with the rules imposed by Article 223 TFEU.

                              —

                              secondly, the contested measure is insufficiently reasoned and thus infringes the duty to state reasons laid down in the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

                  3.

                  Third plea in law, alleging infringement of acquired rights and future entitlements and of the principle of legitimate expectations.

                              —

                              first, the contested measure infringes acquired rights and future entitlements resulting from general legal principles and the Statute, which expressly requires that those rights and entitlements be maintained ‘in full’ (Article 27).

                              —

                              secondly, the contested measure infringes the principle of legitimate expectations.

                  4.

                  Fourth plea in law, alleging infringement of the principle of proportionality and of the principles of equal treatment and non-discrimination.

                              —

                              first, the infringements of the applicants’ rights are disproportionate to the objectives pursued by the contested measure.

                              —

                              secondly, the contested measure must be annulled on the basis that it infringes the principles of equal treatment and non-discrimination.

                  5.

                  Fifth plea in law, alleging infringement of the principle of legal certainty and the absence of transitional measures.

                              —

                              first, the contested measure infringes the principle of legal certainty in that it is unlawfully coupled with retroactive effect.

                              —

                              secondly, the contested measure infringes the principle of legal certainty in that it failed to lay down transitional measures.


title: Case T-103/19: Action brought on 20 February 2019 — Mende Omalanga v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/84

      Action brought on 20 February 2019 — Mende Omalanga v Council
      (Case T-103/19)
      (2019/C 139/85)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 11 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 11 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(a) of Decision 2010/788/CFSP and Article 2b(1)(a) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of the rights of the defence, including breach of the obligation to state reasons justifying the measures and ensuring effective judicial protection and breach of the right to be heard.

                  2.

                  Second plea in law, alleging a manifest error of assessment as regards the involvement of the applicant in acts impeding a consensual and peaceful solution with a view to holding elections in the Democratic Republic of the Congo.

                  3.

                  Third plea in law, alleging infringement of the right to privacy and the principle of proportionality.

                  4.

                  Fourth plea in law, alleging that the provisions of Article 3(2)(a) of Council Decision 2010/788/CFSP of 20 December 2010 concerning restrictive measures against the Democratic Republic of the Congo and repealing Common Position 2008/369/CFSP (OJ 2010 L 336, p. 30) and Article 2b(1)(a) of Council Regulation (EC) No 1183/2005 of 18 July 2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (OJ 2005 L 193, p. 1) are inapplicable. In that regard, the applicant submits that the legal criterion, as defined in those articles, on which the inclusion of the applicant’s name on the lists at issue is based, infringes the principle of the foreseeability of Union acts and the principle of proportionality in so far as it confers arbitrary and discretionary power on the Council.


title: Case T-104/19: Action brought on 19 February 2019 — Dermavita v EUIPO — Allergan Holdings France (JUVÉDERM)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/85

      Action brought on 19 February 2019 — Dermavita v EUIPO — Allergan Holdings France (JUVÉDERM)
      (Case T-104/19)
      (2019/C 139/86)
      Language of the case: English

         Parties

         Applicant: Dermavita Co. Ltd (Beirut, Lebanon) (represented by: G. Paricheva, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Allergan Holdings France SAS (Courbevoie, France)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union word mark JUVÉDERM — European Union trade mark No 5 807 169

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 19 December 2018 in Case R 2630/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the other party to the proceedings before the Board of Appeal to bear their own costs and pay those of the applicant for annulment at every stage of the action for revocation and appeal proceedings, including the cost of these proceedings.

         Plea in law

                  —

                  Infringement of Article 18 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-105/19: Action brought on 20 February 2019 — Louis Vuitton Malletier/EUIPO — Wisniewski (Representation of a chequerboard pattern)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/86

      Action brought on 20 February 2019 — Louis Vuitton Malletier/EUIPO — Wisniewski (Representation of a chequerboard pattern)
      (Case T-105/19)
      (2019/C 139/87)
      Language of the case: English

         Parties

         Applicant: Louis Vuitton Malletier (Paris, France) (represented by: P. Roncaglia, G. Lazzeretti, N. Parrotta and F. Rossi, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Norbert Wisniewski (Warsaw, Poland)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: International registration designating the European Union in respect of the figurative mark representing a chequerboard pattern — International registration designating the European Union No 2 829 851

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 November 2018 in Case R 274/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs incurred by the applicant during these proceedings;

                  —

                  order Norbert Wisniewski to pay the costs incurred by the applicant in these proceedings.

         Pleas in law

                  —

                  Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 7(3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 59(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 59(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-107/19: Action brought on 20 February 2019 — ACRE v Parliament

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/87

      Action brought on 20 February 2019 — ACRE v Parliament
      (Case T-107/19)
      (2019/C 139/88)
      Language of the case: English

         Parties

         Applicant: Alliance of Conservatives and Reformists in Europe (ACRE) (Brussels, Belgium) (represented by: E. Plasschaert and E. Montens, lawyers)

         Defendant: European Parliament

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the European Parliament’s decision of 10 December 2018, contained in the letter of 12 December 2018 bearing the reference D202862 on the applicant’s final grant for 2017, in as much as it:

                              —

                              reclassified the amount related to the ‘Survey on attitude on UK minority groups in the EU’, namely EUR 108 985.58, as a non-eligible expenditure to be reimbursed based on the alleged non-compliance with Article 7 of Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003; (1)

                              —

                              reclassified the amount related to the ‘UK Trade Partnership Conference’, namely EUR 122 295.10, as a non-eligible expenditure to be reimbursed based on an alleged non-compliance with Article 7 of Regulation No 2004/2003;

                              —

                              reclassified the amount related to the ‘Conservative International — Miami Conference of 26-27 May 2017’, namely EUR 249 589.17, as a non-eligible expenditure to be reimbursed based of an alleged non-compliance with Article 8 of Regulation No 2004/2003;

                              —

                              reclassified the amount related to the ‘Conservative International — Kampala Conference of 13-15 July 2017’, namely EUR 91 546.58, as non-eligible expenditure to be reimbursed based of an alleged non-compliance with Article 8 of Regulation No 2004/2003;

                              —

                              hold that the payment of the membership fee of EUR 133 043.80 by the Prosperous Armenian Party is subject to the limit of EUR 12 000 imposed on donations; and forced the applicant to return the excess over EUR 12 000 to the said member, i.e. the amount of EUR 121 043.80;

                  —

                  annul the contribution decision with number FINS-2019-5, in as much as it renders the payment by the European Parliament of 100 % of the pre-financing amount of EUR 4422 345.48, dependent on the reimbursement prior to 15 January 2019 of (i) the amount of EUR 535 609.48 to the European Parliament of (ii) any payment unduly received by any third party to such third party and, as a consequence, annul Article 1.5.1 of the special terms and conditions attached to said contribution decision;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

      In support of the first action, the applicant relies on thirteen pleas in law.
      Pleas related to all disputed aspects of the decision:

                  1.

                  First plea in law, alleging a breach of the principle of good administration, of Articles 7 and 8 of the decision of the Bureau of the European Parliament of 29 March 2004 laying down the procedures for implementing Regulation No 2004/2003, Article II.14.1 of the 2017 grant award decision and a violation of the applicant’s right of the defence.

                  2.

                  Second plea in law, alleging a breach of Article 9(3) of Regulation 2004/2003.
                  Pleas in respect of the reclassification of the amount of EUR 108 985.58 as non-eligible and to be reimbursed:

                  3.

                  Third plea in law, alleging a breach of Article 7 of Regulation 2004/2003, at the least a manifest error of assessment.

                  4.

                  Fourth plea in law, alleging a breach of the EU general principle of legal certainty.

                  5.

                  Fifth plea in law, alleging a breach of the EU general principle of equal treatment.
                  Pleas in respect of the reclassification of the amount of EUR 122 295.10 as non-eligible and to be reimbursed:

                  6.

                  Sixth plea in law, alleging a breach of Article 7 of Regulation 2004/2003, at the least a manifest error of assessment.

                  7.

                  Seventh plea in law, alleging a breach of the EU general principle of equal treatment.
                  Pleas in respect of the reclassification of the amounts of EUR 249 589.17 and of EUR 91 546.58 as non-eligible and to be reimbursed:

                  8.

                  Eighth plea in law, alleging a breach of Article 8 of Regulation 2004/2003, Article 10(4) TEU, Article 204a of the financial regulation as well as of Articles 11 and 12 of the Charter of Fundamental Rights of the European Union, at the least a manifest error of assessment.

                  9.

                  Ninth plea in law, alleging a breach of the EU principle of legal certainty.

                  10.

                  Tenth plea in law, alleging a breach of the EU general principle of equal treatment and non-discrimination.
                  Pleas in respect of the reclassification of the amount of EUR 133 043 and the order to reimburse EUR 121 043.80:

                  11.

                  Eleventh plea in law, alleging a breach of Articles 2 and 6 of Regulation 2004/2003, at the least a manifest error of assessment.

                  12.

                  Twelfth plea in law, alleging a breach of the EU principle of legal certainty.

                  13.

                  Thirteenth plea in law, alleging a breach of the EU principle of equal treatment and non-discrimination.

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

                  1.

                  First plea in law, alleging a breach of the principle of good administration, of Article 19 of Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 (2) and a violation of the applicant’s right of the defence.

                  2.

                  Second plea in law, alleging a breach of Article 6(1) of the decision of the Bureau of the European Parliament of 28 May 2018 laying down the procedures for implementing Regulation No 1141/2014.

         (1)  Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (OJ L 297, 15.11.2003, p. 1).

         (2)  Regulation (EU, Euratom) No 1141/2014 of the European Parliament and of the Council of 22 October 2014 on the statute and funding of European political parties and European political foundations (OJ L 317, 4.11.2014, p. 1).


title: Case T-108/19: Action brought on 20 February 2019 — Kerry Luxembourg/EUIPO — Döhler (TasteSense By Kerry)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/90

      Action brought on 20 February 2019 — Kerry Luxembourg/EUIPO — Döhler (TasteSense By Kerry)
      (Case T-108/19)
      (2019/C 139/89)
      Language of the case: English

         Parties

         Applicant: Kerry Luxembourg Sàrl (Luxembourg, Luxembourg) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Döhler GmbH (Darmstadt, Germany)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union figurative mark TasteSense By Kerry — Application for registration No 15 820 509

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 27 November 2018 in Case R 1179/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  dismiss the opposition brought by Döhler GmbH against the registration of the mark TasteSense By Kerry No. 15 820 509;

                  —

                  order EUIPO and Döhler, if it should intervene in these proceedings, to pay the costs.

         Plea in law

                  —

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


title: Case T-109/19: Action brought on 20 February 2019 — Kerry Luxembourg/EUIPO — Döhler (TasteSense)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/91

      Action brought on 20 February 2019 — Kerry Luxembourg/EUIPO — Döhler (TasteSense)
      (Case T-109/19)
      (2019/C 139/90)
      Language of the case: English

         Parties

         Applicant: Kerry Luxembourg Sàrl (Luxembourg, Luxembourg) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Döhler GmbH (Darmstadt, Germany)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union figurative mark TasteSense –Application for registration No 15 820 525

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 27 November 2018 in Case R 1178/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  dismiss the opposition brought by Döhler GmbH against the registration of the mark TasteSense By Kerry No. 15 820 525;

                  —

                  order EUIPO and Döhler, if it should intervene in these proceedings, to pay the costs.

         Plea in law

                  —

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


title: Case T-110/19: Action brought on 20 February 2019 — Kazembe Musonda v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/92

      Action brought on 20 February 2019 — Kazembe Musonda v Council
      (Case T-110/19)
      (2019/C 139/91)
      Language of the case: French

         Parties

         Applicant: Jean-Claude Kazembe Musonda (Lubumbashi, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois, and A. Guillerme, lawyers)

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 10 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 10 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-111/19: Action brought on 20 February 2019 — Boshab v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/92

      Action brought on 20 February 2019 — Boshab v Council
      (Case T-111/19)
      (2019/C 139/92)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 8 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 8 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-112/19: Action brought on 20 February 2019 — Kibelisa Ngambasai v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/93

      Action brought on 20 February 2019 — Kibelisa Ngambasai v Council
      (Case T-112/19)
      (2019/C 139/93)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 6 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 6 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(a) of Decision 2010/788/CFSP and Article 2b(1)(a) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-113/19: Action brought on 20 February 2019 — Kampete v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/94

      Action brought on 20 February 2019 — Kampete v Council
      (Case T-113/19)
      (2019/C 139/94)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 1 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 1 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-115/19: Action brought on 19 February 2019 — Bacardi v EUIPO — La Fée (ANGEL’S ENVY)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/95

      Action brought on 19 February 2019 — Bacardi v EUIPO — La Fée (ANGEL’S ENVY)
      (Case T-115/19)
      (2019/C 139/95)
      Language of the case: English

         Parties

         Applicant: Bacardi Co. Ltd (Vaduz, Liechtenstein) (represented by: A. Parassina, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: La Fée LLP (Hertfordahire, United Kingdom)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant before the General Court

         Trade mark at issue: Application for European Union figurative mark ANGEL’S ENVY — Application for registration No 13 896 551

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 December 2018 in Case R 338/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  reject the opposition against the registration of the word-device mark No. 13 896 551 for goods in class 33;

                  —

                  transmit the judgment of the General Court of the CJEU to EUIPO;

                  —

                  order La Feè LLP to pay all costs and expenses.

         Pleas in law

                  —

                  Infringement of Article 95 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 27(2) to (4) of Commission Delegated Regulation (EU) 2018/625;

                  —

                  Infringement of Article 11 of the Charter of Fundamental Rights of the European Union;

                  —

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


title: Case T-116/19: Action brought on 20 February 2019 — Kande Mupompa v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/96

      Action brought on 20 February 2019 — Kande Mupompa v Council
      (Case T-116/19)
      (2019/C 139/96)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 9 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 9 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-117/19: Action brought on 20 February 2019 — Kahimbi Kasagwe v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/96

      Action brought on 20 February 2019 — Kahimbi Kasagwe v Council
      (Case T-117/19)
      (2019/C 139/97)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 7 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 7 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(a) of Decision 2010/788/CFSP and Article 2b(1)(a) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-118/19: Action brought on 20 February 2019 — Amisi Kumba v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/97

      Action brought on 20 February 2019 — Amisi Kumba v Council
      (Case T-118/19)
      (2019/C 139/98)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 2 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 2 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-119/19: Action brought on 20 February 2019 — Mutondo v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/98

      Action brought on 20 February 2019 — Mutondo v Council
      (Case T-119/19)
      (2019/C 139/99)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 14 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 14 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(a) and (b) of Decision 2010/788/CFSP and Article 2b(1)(a) and (b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-120/19: Action brought on 20 February 2019 — Numbi v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/99

      Action brought on 20 February 2019 — Numbi v Council
      (Case T-120/19)
      (2019/C 139/100)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 5 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 5 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(a) of Decision 2010/788/CFSP and Article 2b(1)(a) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-121/19: Action brought on 20 February 2019 — Ruhorimbere v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/99

      Action brought on 20 February 2019 — Ruhorimbere v Council
      (Case T-121/19)
      (2019/C 139/101)
      Language of the case: French

         Parties

         Applicant: Éric Ruhorimbere (Mbuji-Mayi, Democratic Republic of the Congo) (represented by: T. Bontinck, P. De Wolf, M. Forgeois, and A. Guillerme, lawyers)

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 12 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 12 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-122/19: Action brought on 20 February 2019 — Ramazani Shadary v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/100

      Action brought on 20 February 2019 — Ramazani Shadary v Council
      (Case T-122/19)
      (2019/C 139/102)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 13 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 13 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-123/19: Action brought on 20 February 2019 — Kanyama v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/101

      Action brought on 20 February 2019 — Kanyama v Council
      (Case T-123/19)
      (2019/C 139/103)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 4 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 4 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-124/19: Action brought on 20 February 2019 — Ilunga Luyoyo v Council

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/102

      Action brought on 20 February 2019 — Ilunga Luyoyo v Council
      (Case T-124/19)
      (2019/C 139/104)
      Language of the case: French

         Parties

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

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul Council Decision (CFSP) 2018/1940 of 10 December 2018, in so far as the applicant remains at No 3 in Annex II to Decision 2010/788/CFSP;

                  —

                  annul Council Implementing Regulation (EU) 2018/1931 of 10 December 2018, in so far as the applicant remains at No 3 in Annex Ia to Regulation (EC) No 1183/2005;

                  —

                  rule that the provisions of Article 3(2)(b) of Decision 2010/788/CFSP and Article 2b(1)(b) of Regulation (EC) 1183/2005/EC are unlawful;

                  —

                  order the Council to pay the costs.

         Pleas in law and main arguments

      In support of the action, the applicant relies on four pleas in law which are in essence identical or similar to those raised in Case T-103/19, Mende Omalanga v Council.


title: Case T-127/19: Action brought on 21 February 2019 — Dyson and Others v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/102

      Action brought on 21 February 2019 — Dyson and Others v Commission
      (Case T-127/19)
      (2019/C 139/105)
      Language of the case: English

         Parties

         Applicants: Dyson Ltd (Malmesbury, United Kingdom) and 14 other applicants (represented by: E. Batchelor, T. Selwyn Sharpe and M. Healy, Solicitors)

         Defendant: European Commission

         Form of order sought

      The applicants claim that the Court should:

                  —

                  hold the defendant liable for the damage sustained by the applicants as a consequence of the adoption of Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013, (1) in the sum of approximately:

                              —

                              EUR 176 100 000, including compensatory interest, for the no-label counterfactual, starting from the entry into force of Delegated Regulation No 665/2013 until 19 January 2019 when labelling regulation was annulled; and/or alternatively

                              —

                              EUR 127 100 000, including compensatory interest, for the dust-loaded counterfactual, starting from the entry into force of Delegated Regulation No 665/2013 until 19 January 2019 when labelling regulation was annulled; and

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging that the defendant breached Article 10(1) of Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 (2) and exceeded its legal competence as permitted by Article 290 TFEU by adopting an empty receptacle testing method in the Delegated Regulation No 665/2013.
                  The defendant would have disregarded an essential element of Article 10(1) of Directive 2010/30/EU and would have exceeded its competence contrary to Article 290 TFEU.

                  2.

                  Second plea in law, alleging that the defendant breached the fundamental principle of equal treatment by adopting Delegated Regulation No 665/2013 that would have unlawfully discriminated between traditional bagged vacuum cleaners and bagless, cyclonic technology such as applicants’, without objective justification.

                  3.

                  Third plea in law, alleging that the defendant breached the fundamental principle of sound administration and/or its duty to act diligently by adopting an empty receptacle testing method which: (i) would have disregarded an essential element of Directive 2010/30/EU; (ii) would have discriminated against fundamentally different technologies; and (iii) would have failed to carefully and impartially assess the available alternative dust-loaded testing methods at the time.

                  4.

                  Fourth plea in law, alleging that the defendant breached the applicants’ fundamental right to pursue a trade or business.
                  The defendant adopted a regulation that would have biased in favour of traditional bagged vacuum cleaners which would lose performance as the receptacle filled with dust, rather than those like applicants’ cyclonic technology-based machines which would maintain their performance throughout use. This restricted applicants’ ability to do business and compete fairly with competitors whose inferior performance when filling with dust would have been masked by the defendant’s label which would have provided for testing in pristine conditions.

                  5.

                  Fifth plea in law, alleging that these serious breaches of the European Union law caused the applicants significant material and non-material damage for which the defendant should be held liable to pay compensation to the applicants.

         (1)  1Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ L 192, 13.7.2013, p. 1).

         (2)  Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication by labelling and standard product information of the consumption of energy and other resources by energy-related products (OJ L 153, 18.6.2010, p. 1).


title: Case T-130/19: Action brought on 26 February 2019 — Spadafora v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/104

      Action brought on 26 February 2019 — Spadafora v Commission
      (Case T-130/19)
      (2019/C 139/106)
      Language of the case: Italian

         Parties

         Applicant: Sergio Spadafora (Brussels, Belgium) (represented by: G. Belotti, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  Annul the decision, adopted on 26 November 2018 by the Director-General of OLAF, by which the complaint lodged by the applicant on 24 July 2018 was rejected;

                  —

                  Annul the decision, adopted by the acting Director-General of OLAF in his capacity as appointing authority, concerning the appointment of the Head of the Unit OLAF.C4 (‘Legal Advice’) as from 1 June 2018;

                  —

                  Order the European Commission to pay compensation to the applicant for material and non-material damage;

                  —

                  Order the European Commission to pay the costs.

         Pleas in law and main arguments

      The present action is brought principally against the decision appointing the Head of the Legal Advice Unit of the Investigation Support Directorate of OLAF as of 1 June 2018, and the decision rejecting the complaint lodged by the applicant under Article 90(2) of the Staff Regulations against the appointment decision.
      In support of the action, the applicant relies on three pleas in law.

                  1.

                  First plea in law, alleging infringement of Article 8(1) and (2) of Commission Decision C (2016) 3288 final.

                              —

                              The applicant claims in this regard that the assessments contained in the reports of the external consultancy firm were not taken into account by the appointing authority, as required by Article 8(1) of the abovementioned Commission Decision in order for there to have been a lawful procedure for the selection of a Head of Unit.

                  2.

                  Second plea in law, alleging infringement of the requirement of impartiality.

                              —

                              The applicant claims in this regard that Article 41 of the Charter of Fundamental Rights of the European Union was not complied with in the present case, since the decision appointing the Head of Unit in question, rather than being the lawful result of a fair selection process, was the objective pursued from the outset by the defendant’s unlawful plan. In the defendant’s unlawful plan, it is possible to identify two principal elements: (i) favouritism towards one of the applicant’s competitors; (ii) debasement of the judgment of the General Court of the European Union (Appeal Chamber) of 5 December 2017, in Case T-250/16 P.

                  3.

                  Third plea in law, alleging that, although, under Article 8(2)(a) of Commission Decision C (2016) 3288 final, ‘before deciding on the appointment, the Director-General concerned [is to] consult the Member of the Commission responsible for the department’, the appointing authority did not follow this consultation procedure in the present case, agreeing, instead, with one or more individuals on the candidate to appoint as Head of Unit.


title: Case T-133/19: Action brought on 28 February 2019 — Off-White v EUIPO (OFF-WHITE)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/105

      Action brought on 28 February 2019 — Off-White v EUIPO (OFF-WHITE)
      (Case T-133/19)
      (2019/C 139/107)
      Language of the case: English

         Parties

         Applicant: Off-White LLC (Springfield, Illinois, United States) (represented by: M. Decker, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for European Union figurative mark OFF-WHITE — Application for registration No 17 360 009

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 14 December 2018 in Case R 580/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  in any event, order EUIPO to pay the costs of the proceedings, including those incurred OFF-WHITE LLC before the present Court and the Board of Appeal of the EUIPO.

         Pleas in law

                  —

                  The contested decision did not take into account previous practice and violates the legal principles of sound administration, legal certainty and equal treatment.

                  —

                  Infringement of Article 41(2) of the Charter of Fundamental Rights of the European Union.

                  —

                  Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-139/19: Action brought on 4 March 2019 — Pilatus Bank v ECB

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/106

      Action brought on 4 March 2019 — Pilatus Bank v ECB
      (Case T-139/19)
      (2019/C 139/108)
      Language of the case: English

         Parties

         Applicant: Pilatus Bank plc (Ta’Xbiex, Malta) (represented by: O. Behrends, M. Kirchner and L. Feddern, lawyers)

         Defendant: European Central Bank

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare the contested decision void pursuant to Article 264 TFEU, by which the ECB refused to take over direct supervision of the applicant pursuant to Article 6(5)(b) SSMR. (1)

                  —

                  order the defendant to bear the costs of the applicant pursuant to Articles 134 and 135 of the Rules of Procedure of the General Court.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging an erroneous assumption of the ECB that it no longer has competence for supervision of the applicant following the withdrawal of its licence agreement.

                  2.

                  Second plea in law, alleging that the ECB is obliged to take over supervision as it has to maintain high supervisory standards.

                  3.

                  Third plea in law, alleging a violation of the right to an effective remedy and of the principle of equality of arms.

                  4.

                  Fourth plea in law, alleging a violation of the principle of legitimate expectations and legal certainty.

                  5.

                  Fifth plea in law, alleging a violation of the principle of proportionality.

                  6.

                  Sixth plea in law, alleging a misuse of power.

                  7.

                  Seventh plea in law, alleging a lack of appropriate reasoning.

                  8.

                  Eighth plea in law, alleging a violation of the right to be heard.

                  9.

                  Ninth plea in law, alleging a violation of the nemo auditor principle.

         (1)  Council Regulation (EU) No 1024/2013 of 15 October 2013 concerning specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions OJ L 287, 29.10.2013, p. 63.


title: Case T-144/19: Action brought on 7 March 2019 — Kludi v EUIPO — Adlon Brand (ADLON)

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/107

      Action brought on 7 March 2019 — Kludi v EUIPO — Adlon Brand (ADLON)
      (Case T-144/19)
      (2019/C 139/109)
      Language in which the application was lodged: German

         Parties

         Applicant: Kludi GmbH & Co. KG (Menden, Germany) (represented by: A. Zafar, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Adlon Brand GmbH & Co. KG (Düren, Germany)

         Details of the proceedings before EUIPO

         Applicant of the trade mark at issue: Applicant

         Trade mark at issue: Application for EU word mark ADLON — Application for registration No 11 115 961

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 26 November 2018 in Case R 1500/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 7 of Commission Delegated Regulation (EU) 2018/625;

                  —

                  Infringement of Article 27(4) of Commission Delegated Regulation (EU) 2018/625;

                  —

                  Infringement of the principle that the subject matter of an action is defined by the parties.


title: Case T-674/16: Order of the General Court of 27 February 2019 — Seigneur v ECB

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/108

      Order of the General Court of 27 February 2019 — Seigneur v ECB
      (Case T-674/16) (1)

      (2019/C 139/110)
      Language of the case: French
      The President of the Eighth Chamber has ordered that the case be removed from the register.

         (1)  OJ C 419, 14.11.2016.


title: Case T-677/16: Order of the General Court of 27 February 2019 — Bowles v BCE

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/108

      Order of the General Court of 27 February 2019 — Bowles v BCE
      (Case T-677/16) (1)

      (2019/C 139/111)
      Language of the case: French
      The President of the Eighth Chamber has ordered that the case be removed from the register.

         (1)  OJ C 419, 14.11.2016.


title: Case T-783/16: Order of the General Court of 27 February 2019 — Government of Gibraltar v Commission

text:
               15.4.2019

               EN

               Official Journal of the European Union

               C 139/109

      Order of the General Court of 27 February 2019 — Government of Gibraltar v Commission
      (Case T-783/16) (1)

      (2019/C 139/112)
      Language of the case: English
      The President of the Seventh Chamber has ordered that the case be removed from the register.

         (1)  OJ C 22, 23.1.2017.


title: Case C-128/19: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 18 February 2019 — Azienda Sanitaria Provinciale di Catania v Assessorato della Salute della Regione Siciliana

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/14

      Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 18 February 2019 — Azienda Sanitaria Provinciale di Catania v Assessorato della Salute della Regione Siciliana
      (Case C-128/19)
      (2019/C 182/18)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main proceedings

         Appellant: Azienda Sanitaria Provinciale di Catania

         Respondent: Assessorato della Salute della Regione Siciliana

         Questions referred

                  1.

                  On the basis of Articles 87 and 88 of the EC Treaty — and now Articles 107 and 108 TFEU — and the ‘Community Guidelines for State aid in the agriculture sector’ contained in Information from the Commission 2000/C 28/02, published in the Official Journal of the European Communities (OJ C 28, p. 2) of 1 February 2000, does the measure set out in Article 25(16) of Sicilian Regional Law No [19] of 22 December 2005, under which, ‘in pursuit of the objectives laid down in Article 1 of Sicilian Regional Law No 12 of 5 June 1989, pursuant to and in accordance with the provisions of Article 134 of Regional Law No 32 of 23 December 2000, expenditure of EUR 20 000 000 is authorised for the payment of amounts due from local health authorities in Sicily to owners of animals slaughtered as a result of being affected by infectious and widespread diseases in the period between 2000 and 2006, and for payment of the fee to veterinary professionals involved in the remediation activities during that period. For the purposes of this paragraph, the expenditure of EUR 10 000 000 (base provision 10.3.1.3.2, chapter 417702) is authorised for the 2005 financial year. For subsequent financial years, arrangements shall be made pursuant to Article 3(2)(i) of Regional Law No 10 of 27 April 1999, as amended’, constitute State aid which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods?

                  2.

                  Although the provision laid down in Article 25(16) of Sicilian Regional Law No 19 of 22 December 2005, under which, ‘in pursuit of the objectives laid down in Article 1 of Sicilian Regional Law No 12 of 5 June 1989, pursuant to and in accordance with the provisions of Article 134 of Regional Law No 32 of 23 December 2000, expenditure of EUR 20 000 000 is authorised for the payment of amounts due from local health authorities in Sicily to owners of animals slaughtered as a result of being affected by infectious and widespread diseases in the period between 2000 and 2006, and for payment of the fee to veterinary professionals involved in the remediation activities during that period. For the purposes of this paragraph, the expenditure of EUR 10 000 000 (base provision 10.3.1.3.2, chapter 417702) is authorised for the 2005 financial year. For subsequent financial years, arrangements shall be made pursuant to Article 3(2)(i) of Regional Law No 10 of 27 April 1999, as amended’, might in principle constitute State aid which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, can this nonetheless be recognised as being compatible with Articles 87 and 88 of the EC Treaty (and now with Articles 107 and 108 TFEU) in view of the reasons that led the European Commission, by means of its Decision C(2002)4786 of 6 December 2002, to take the view, where the criteria provided for in the Community Guidelines for State aid in the agriculture sector contained in Information from the Commission 2000/C 28/02, published in the Official Journal of the European Communities (OJ C 28, p. 2) of 1 February 2000, are met, that similar provisions contained in Articles 11 of Sicilian Regional Law No 40/1997 and Article 7 of Regional Law No 22/1999 were compatible with Articles 87 and 88 EC?


title: Case C-483/17: Judgment of the Court (Third Chamber) of 11 April 2019 (request for a preliminary ruling from the Court of Appeal — Ireland) — Neculai Tarola v Minister for Social Protection (Reference for a preliminary ruling — Citizenship of the Union — Freedom of movement for persons — Directive 2004/38/EC — Right of free movement and residence within the territory of the Member States — Article 7(1)(a) — Employees and self-employed persons — Article 7(3)(c) — Right of residence for more than three months — National of a Member State who has worked in an employed capacity in another Member State for a period of two weeks — Involuntary unemployment — Retention of the status of worker for no less than six months — Entitlement to jobseeker’s allowance)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/3

      Judgment of the Court (Third Chamber) of 11 April 2019 (request for a preliminary ruling from the Court of Appeal — Ireland) — Neculai Tarola v Minister for Social Protection
      (Case C-483/17) (1)

      (Reference for a preliminary ruling - Citizenship of the Union - Freedom of movement for persons - Directive 2004/38/EC - Right of free movement and residence within the territory of the Member States - Article 7(1)(a) - Employees and self-employed persons - Article 7(3)(c) - Right of residence for more than three months - National of a Member State who has worked in an employed capacity in another Member State for a period of two weeks - Involuntary unemployment - Retention of the status of worker for no less than six months - Entitlement to jobseeker’s allowance)
      (2019/C 206/03)
      Language of the case: English

         Referring court

      Court of Appeal

         Parties to the main proceedings

         Applicant: Neculai Tarola

         Defendant: Minister for Social Protection

         Operative part of the judgment

      Article 7(1)(a) and (3)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a national of a Member State who, having exercised his right to free movement, acquired, in another Member State, the status of worker within the meaning of Article 7(1)(a) of that directive, on account of the activity he pursued there for a period of two weeks, otherwise than under a fixed-term employment contract, before becoming involuntarily unemployed, retains the status of worker for a further period of no less than six months under those provisions, provided that he has registered as a jobseeker with the relevant employment office.
      It is for the referring court to determine whether, in accordance with the principle of equal treatment guaranteed in Article 24(1) of Directive 2004/38, that national is, as a result, entitled to receive social assistance payments or, as the case may be, social security benefits on the same basis as if he were a national of the host Member State.

         (1)  OJ C 347, 16.10.2017.


title: Case C-501/17: Judgment of the Court (Third Chamber) of 4 April 2019 (request for a preliminary ruling from the Landgericht Köln — Germany) — Germanwings GmbH v Wolfgang Pauels (Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Scope — Exemption from the obligation to pay compensation — Notion of ‘extraordinary circumstances’ — Damage to an aircraft tyre caused by a foreign object lying on an airport runway)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/4

      Judgment of the Court (Third Chamber) of 4 April 2019 (request for a preliminary ruling from the Landgericht Köln — Germany) — Germanwings GmbH v Wolfgang Pauels
      (Case C-501/17) (1)

      (Reference for a preliminary ruling - Air transport - Regulation (EC) No 261/2004 - Article 5(3) - Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights - Scope - Exemption from the obligation to pay compensation - Notion of ‘extraordinary circumstances’ - Damage to an aircraft tyre caused by a foreign object lying on an airport runway)
      (2019/C 206/04)
      Language of the case: German

         Referring court

      Landgericht Köln

         Parties to the main proceedings

         Appellant: Germanwings GmbH

         Respondent: Wolfgang Pauels

         Operative part of the judgment

      Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recital 14 thereof, must be interpreted as meaning that damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision.
      However, in order to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004, an air carrier whose flight has been subject to long delay due to such ‘extraordinary circumstances’ must prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of a tyre damaged by a foreign object, such as loose debris, lying on the airport runway from leading to long delay of the flight in question.

         (1)  OJ C 392, 20.11.2017.


title: Case C-558/17 P: Judgment of the Court (Third Chamber) of 4 April 2019 — OZ v European Investment Bank (EIB) (Appeal — Civil service — Staff of the European Investment Bank (EIB) — Sexual harassment — Investigation carried out in the context of the ‘Dignity at work’ programme — Rejection of a complaint alleging harassment — Application for annulment of the decision of the President of the EIB rejecting the complaint — Compensation for damage)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/4

      Judgment of the Court (Third Chamber) of 4 April 2019 — OZ v European Investment Bank (EIB)
      (Case C-558/17 P) (1)

      (Appeal - Civil service - Staff of the European Investment Bank (EIB) - Sexual harassment - Investigation carried out in the context of the ‘Dignity at work’ programme - Rejection of a complaint alleging harassment - Application for annulment of the decision of the President of the EIB rejecting the complaint - Compensation for damage)
      (2019/C 206/05)
      Language of the case: English

         Parties

         Appellant: OZ (represented by: B. Maréchal, avocat)

         Other party to the proceedings: European Investment Bank (EIB) (represented by: K. Carr and G. Faedo, acting as Agents, and A. Dal Ferro, avvocato)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 13 July 2017, OZ v EIB (T-607/16, not published, EU:T:2017:495), in so far as it rejected, first, the heads of claim seeking damages set out by OZ in her application based on the liability of the European Investment Bank (EIB) for alleged unlawful acts committed during the investigation procedure, including the failure to respect the appellant’s right to a fair hearing, and, second, the head of claim seeking annulment set out in the application;

                  2.

                  Dismisses the appeal as to the remainder;

                  3.

                  Annuls the decision of the President of the European Investment Bank of 16 October 2015 to take no further action on the complaint alleging sexual harassment made by OZ;

                  4.

                  Dismisses the action as to the remainder;

                  5.

                  Orders the European Investment Bank to bear its own costs and to pay those incurred by OZ relating to the proceedings at first instance and the appeal proceedings.

         (1)  OJ C 437, 18.12.2017.


title: Case C-603/17: Judgment of the Court (First Chamber) of 11 April 2019 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Peter Bosworth, Colin Hurley v Arcadia Petroleum Limited and Others (Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in civil matters — Lugano II Convention — Jurisdiction and recognition and enforcement of judgments in civil and commercial matters — Title II, Section 5 (Articles 18 to 21) — Jurisdiction over individual contracts of employment)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/6

      Judgment of the Court (First Chamber) of 11 April 2019 (request for a preliminary ruling from the Supreme Court of the United Kingdom — United Kingdom) — Peter Bosworth, Colin Hurley v Arcadia Petroleum Limited and Others
      (Case C-603/17) (1)

      (Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in civil matters - Lugano II Convention - Jurisdiction and recognition and enforcement of judgments in civil and commercial matters - Title II, Section 5 (Articles 18 to 21) - Jurisdiction over individual contracts of employment)
      (2019/C 206/07)
      Language of the case: English

         Referring court

      Supreme Court of the United Kingdom

         Parties to the main proceedings

         Applicants: Peter Bosworth, Colin Hurley

         Defendants: Arcadia Petroleum Limited and Others

         Operative part of the judgment

      The provisions of Section 5 of Title II (Articles 18 to 21) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, the conclusion of which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that a contract between a company and a natural person performing the duties of director of that company does not create a relationship of subordination between them and cannot, therefore, be treated as an ‘individual contract of employment’, within the meaning of those provisions, where, even if the shareholder(s) of that company have the power to procure the termination of that contract, that person is able to determine or does determine the terms of that contract and has control and autonomy over the day-to-day operation of that company’s business and the performance of his own duties.

         (1)  OJ C 437, 18.12.2017.


title: Case C-638/17: Judgment of the Court (Fifth Chamber) of 11 April 2019 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — proceedings brought by Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos (Reference for a preliminary ruling — Structure and rates of excise duty applied to manufactured tobacco — Directive 2011/64/EU — Article 4(1)(a) — Concept of ‘cigars or cigarillos’ — Rolls of tobacco with an outer wrapper of natural tobacco which is partially covered by an additional paper layer)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/8

      Judgment of the Court (Fifth Chamber) of 11 April 2019 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — proceedings brought by Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos
      (Case C-638/17) (1)

      (Reference for a preliminary ruling - Structure and rates of excise duty applied to manufactured tobacco - Directive 2011/64/EU - Article 4(1)(a) - Concept of ‘cigars or cigarillos’ - Rolls of tobacco with an outer wrapper of natural tobacco which is partially covered by an additional paper layer)
      (2019/C 206/09)
      Language of the case: Lithuanian

         Referring court

      Lietuvos vyriausiasis administracinis teismas

         Parties to the main proceedings

         Appellant: Valstybinė mokesčių inspekcija prie Lietuvos Respublikos finansų ministerijos

         Other party:‘Skonis ir kvapas’ UAB

         Operative part of the judgment

      Article 4(1)(a) of Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco must be interpreted as meaning that tobacco products, such as those at issue in the main proceedings, part of whose outer wrapper of natural tobacco is covered, at the filter, by an additional paper layer, liable to make those products visually similar to cigarettes, fall within the category of cigars or cigarillos, within the meaning of that provision.

         (1)  OJ C 52, 12.2.2018.


title: Case C-690/17: Judgment of the Court (Fifth Chamber) of 11 April 2019 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — ÖKO-Test Verlag GmbH v Dr. Rudolf Liebe Nachf. GmbH & Co. KG (Reference for a preliminary ruling — Intellectual property — Trade marks — Regulation (EC) No 207/2009 — Article 9(1) — Directive 2008/95/EC — Article 5(1) and (2) — Rights afforded by a trade mark — Individual trade mark consisting of a quality label)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/9

      Judgment of the Court (Fifth Chamber) of 11 April 2019 (request for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — ÖKO-Test Verlag GmbH v Dr. Rudolf Liebe Nachf. GmbH & Co. KG
      (Case C-690/17) (1)

      (Reference for a preliminary ruling - Intellectual property - Trade marks - Regulation (EC) No 207/2009 - Article 9(1) - Directive 2008/95/EC - Article 5(1) and (2) - Rights afforded by a trade mark - Individual trade mark consisting of a quality label)
      (2019/C 206/10)
      Language of the case: German

         Referring court

      Oberlandesgericht Düsseldorf

         Parties to the main proceedings

         Applicant: ÖKO-Test Verlag GmbH

         Defendant: Dr. Rudolf Liebe Nachf. GmbH & Co. KG

         Operative part of the judgment

                  1.

                  Article 9(1)(a) and (b) of Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark, and Article 5(1)(a) and (b) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that they do not entitle the proprietor of an individual trade mark consisting of a quality label to oppose the affixing, by a third party, of a sign identical with, or similar to, that mark to products that are neither identical with, nor similar to, the goods or services for which that mark is registered.

                  2.

                  Article 9(1)(c) of Regulation No 207/2009 and Article 5(2) of Directive 2008/95 must be interpreted as meaning that they entitle the proprietor of an individual trade mark with a reputation, consisting of a quality label, to oppose the affixing, by a third party, of a sign identical with, or similar to, that mark to products that are neither identical with, nor similar to, the goods or services for which that mark is registered, provided that it is established that, by that affixing, the third party takes unfair advantage of the distinctive character or the reputation of the mark concerned or causes detriment to that distinctive character or reputation and provided that, in that case, the third party has not established the existence of a ‘due cause’, within the meaning of those provisions, in support of such affixing.

         (1)  OJ C 112, 26.3.2018.


title: Case C-691/17: Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság — Hungary) — PORR Építési Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Reference for a preliminary ruling — Taxation — Common system of value added tax — Directive 2006/112/EC — Right to deduct value added tax (VAT) paid as input tax — Article 199(1)(a) — Reverse charge procedure — Undue payment of the tax by the recipient of services to the suppliers on the basis of an invoice drawn up incorrectly according to the rules on ordinary taxation — Tax authority’s decision holding that the recipient of services has an outstanding tax liability and refusing a claim for deduction — No examination by the tax authority of the possibility of reimbursement of the tax)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/10

      Judgment of the Court (Tenth Chamber) of 11 April 2019 (request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság — Hungary) — PORR Építési Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága
      (Case C-691/17) (1)

      (Reference for a preliminary ruling - Taxation - Common system of value added tax - Directive 2006/112/EC - Right to deduct value added tax (VAT) paid as input tax - Article 199(1)(a) - Reverse charge procedure - Undue payment of the tax by the recipient of services to the suppliers on the basis of an invoice drawn up incorrectly according to the rules on ordinary taxation - Tax authority’s decision holding that the recipient of services has an outstanding tax liability and refusing a claim for deduction - No examination by the tax authority of the possibility of reimbursement of the tax)
      (2019/C 206/11)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: PORR Építési Kft.

         Defendant: Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága

         Operative part of the judgment

      Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and the principles of fiscal neutrality and effectiveness must be interpreted as not precluding a practice of the tax authority whereby, in the absence of any suspicion of tax evasion, that authority refuses an undertaking the right to deduct the value added tax which that undertaking, as the recipient of services, unduly paid to the supplier of those services on the basis of an invoice drawn up by that supplier in accordance with the rules on the ordinary value added tax (VAT) regime, whereas the relevant transaction fell under the reverse charge mechanism, and where the tax authority did not,

                  —

                  examine, prior to refusing the right to deduct, whether the issuer of that incorrect invoice could reimburse the recipient of the invoice the amount of VAT unduly paid and could correct that invoice under a self-correction procedure, in accordance with the applicable national rules, in order to recover the tax which it unduly paid to the Treasury, or

                  —

                  itself decide to reimburse the recipient of that invoice the tax which the recipient unduly paid to the issuer of the invoice and that the latter, subsequently, unduly paid to the Treasury.

            Those principles require, however, in the situation where the reimbursement by the supplier of services to the recipient of those services of the VAT unduly invoiced would be impossible or excessively difficult, in particular in the case of the insolvency of the supplier, that the recipient of the services must be able to address its application for reimbursement to the tax authorities directly.

         (1)  OJ C 112, 26.3.2018.


title: Case C-699/17: Judgment of the Court (Ninth Chamber) of 4 April 2019 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — proceedings brought by Allianz Vorsorgekasse AG (Reference for a preliminary ruling — Public Procurement — Conclusion of accession agreements with an occupational provident fund responsible for managing contributions of occupational solidarity — Conclusion requiring the agreement of employees or their representatives — Directive 2014/24/EU — Articles 49 and 56 TFEU — Principles of equal treatment and of non-discrimination — Obligation of transparency)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/11

      Judgment of the Court (Ninth Chamber) of 4 April 2019 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — proceedings brought by Allianz Vorsorgekasse AG
      (Case C-699/17) (1)

      (Reference for a preliminary ruling - Public Procurement - Conclusion of accession agreements with an occupational provident fund responsible for managing contributions of occupational solidarity - Conclusion requiring the agreement of employees or their representatives - Directive 2014/24/EU - Articles 49 and 56 TFEU - Principles of equal treatment and of non-discrimination - Obligation of transparency)
      (2019/C 206/12)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

         Appellant: Allianz Vorsorgekasse AG

         Other parties: Bundestheater-Holding GmbH, Burgtheater GmbH, Wiener Staatsoper GmbH, Volksoper Wien GmbH, ART for ART Theaterservice GmbH, fair-finance Vorsorgekasse AG

         Operative part of the judgment

      Articles 49 and 56 TFEU, the principles of equal treatment and non-discrimination and the obligation of transparency must be interpreted as meaning that they are applicable to the conclusion of an accession agreement between an employer, a body governed by public law, and a company provident fund, with regard to the management and investment of contributions intended to finance severance payments paid to the employees of that employer, even though the conclusion of such an agreement is not the sole province of the employer, but requires the consent of either the staff or the works council.

         (1)  OJ C 104, 19.3.2018.


title: Joined Cases C-29/18, C-30/18 and C-44/18: Judgment of the Court (Second Chamber) of 11 April 2019 (requests for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Cobra Servicios Auxiliares SA v José David Sánchez Iglesias (C-29/18), José Ramón Fiuza Asorey (C-30/18), Jesús Valiño Lopez (C-44/18), FOGASA (C-29/18 and C-44/18), Incatema SL, (Reference for a preliminary ruling — Social policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Concept of ‘employment conditions’ — Comparability of the situations — Justification — Concept of ‘objective grounds’ — Compensation in the event of the termination of a permanent employment contract on an objective ground — Lower amount of compensation paid on expiry of a contract for ‘a specific task’)

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/12

      Judgment of the Court (Second Chamber) of 11 April 2019 (requests for a preliminary ruling from the Tribunal Superior de Justicia de Galicia — Spain) — Cobra Servicios Auxiliares SA v José David Sánchez Iglesias (C-29/18), José Ramón Fiuza Asorey (C-30/18), Jesús Valiño Lopez (C-44/18), FOGASA (C-29/18 and C-44/18), Incatema SL,
      (Joined Cases C-29/18, C-30/18 and C-44/18) (1)

      (Reference for a preliminary ruling - Social policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Principle of non-discrimination - Concept of ‘employment conditions’ - Comparability of the situations - Justification - Concept of ‘objective grounds’ - Compensation in the event of the termination of a permanent employment contract on an objective ground - Lower amount of compensation paid on expiry of a contract for ‘a specific task’)
      (2019/C 206/13)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de Galicia

         Parties to the main proceedings

         Appellant: Cobra Servicios Auxiliares SA

         Respondents: José David Sánchez Iglesias (C-29/18), José Ramón Fiuza Asorey (C-30/18), Jesús Valiño Lopez (C-44/18), FOGASA (C-29/18 and C-44/18), Incatema SL

         Operative part

      Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding a national law in accordance with which, in a situation, such as that at issue in the main proceedings, in which the termination of a contract for services between the employer and one of his clients has resulted, first, in the termination of contracts for a specific task made between that employer and some workers and, second, in the collective redundancy, on an objective ground, of permanent workers employed by that employer, the compensation paid for termination of the employment contract to the first of those groups of workers is less than that given to the permanent workers.

         (1)  OJ C 142 of 23.4.2018