title: Joined Cases T-131/16 and T-263/16: Judgment of the General Court of 14 February 2019 — Belgium and Magnetrol International v Commission (State aid — Aid scheme implemented by Belgium — Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted — Tax ruling — Excess profit exemption — Fiscal autonomy of the Member States — Concept of an aid scheme — Further implementing measures)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/39

      Judgment of the General Court of 14 February 2019 — Belgium and Magnetrol International v Commission
      (Joined Cases T-131/16 and T-263/16) (1)

      (State aid - Aid scheme implemented by Belgium - Decision declaring the aid scheme incompatible with the internal market and unlawful and ordering recovery of the aid granted - Tax ruling - Excess profit exemption - Fiscal autonomy of the Member States - Concept of an aid scheme - Further implementing measures)
      (2019/C 131/43)
      Language of the case: English

         Parties

         Applicant in Case T-131/16: Kingdom of Belgium (represented initially by: C. Pochet, M. Jacobs and J.-C. Halleux, and subsequently by C. Pochet and J.-C. Halleux, acting as Agents, and by M. Segura Catalán and M. Clayton, lawyers)

         Applicant in Case T-263/16: Magnetrol International (Zele, Belgium) (represented by: H. Gilliams and J. Bocken, lawyers)

         Defendant: European Commission (represented initially by: P.-J. Loewenthal and B. Stromsky, and subsequently by P.-J. Loewenthal and F. Tomat, acting as Agents)

         Intervener in Case T-131/16: Ireland (represented initially by: E. Creedon, G. Hodge and A. Joyce, subsequently by K. Duggan, M. Browne and A. Joyce and lastly by A. Joyce and J. Quaney, acting as Agents, and by P. Gallagher, M. Collins, Senior Counsel, B. Doherty and S. Kingston, Barristers)

         Re:

      Application pursuant to Article 263 TFEU for annulment of Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium (OJ 2016 L 260, p. 61).

         Operative part of the judgment

      The Court:

                  1.

                     Joins Cases T-131/16 and T-263/16 for the purposes of the present judgment;

                  2.

                     Annuls Commission Decision (EU) 2016/1699 of 11 January 2016 on the excess profit exemption State aid scheme SA.37667 (2015/C) (ex 2015/NN) implemented by Belgium;

                  3.

                     Orders the European Commission to pay, in addition to its own costs, those incurred by the Kingdom of Belgium, including those relating to the proceedings for interim measures, and by Magnetrol International;

                  4.

                     Orders Ireland to bear its own costs.

         (1)  OJ C 191, 30.5.2016.


title: Case T-162/18: Judgment of the General Court of 14 February 2019 — Beko v EUIPO — Acer (ALTUS) (EU trade mark — Opposition proceedings — Application for EU figurative mark ALTUS — Earlier national word marks ALTOS — Revocation proceedings in respect of earlier marks initiated before national authorities — Likelihood of confusion — Suspension of the administrative proceedings — Rule 20(7)(c) of Regulation (EC) No 2868/95 (now Article 71(1) of Delegated Regulation (EU) 2018/625))

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/45

      Judgment of the General Court of 14 February 2019 — Beko v EUIPO — Acer (ALTUS)
      (Case T-162/18) (1)

      (EU trade mark - Opposition proceedings - Application for EU figurative mark ALTUS - Earlier national word marks ALTOS - Revocation proceedings in respect of earlier marks initiated before national authorities - Likelihood of confusion - Suspension of the administrative proceedings - Rule 20(7)(c) of Regulation (EC) No 2868/95 (now Article 71(1) of Delegated Regulation (EU) 2018/625))
      (2019/C 131/51)
      Language of the case: English

         Parties

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

         Defendant: European Union Intellectual Property Office (represented by: J. Ivanauskas and H. O’Neill, acting as Agents)

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

         Re:

      Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 December 2017 (Case R 1991/2016-5) relating to opposition proceedings between Acer and Beko.

         Operative part of the judgment

      The Court:

                  1.

                     Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 December 2017 (Case R 1991/2016-5);

                  2.

                     Orders EUIPO to bear its own costs and to pay those incurred by Beko plc.

         (1)  OJ C 152, 30.4.2018.


title: Case T-224/18 RII: Order of the President of the General Court of 14 February 2019 — PV v Commission (Interim measures — Civil Service — Disciplinary proceedings — Setting the salary at ‘zero’ — Change of circumstances — Inadmissibility — No new facts)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/49

      Order of the President of the General Court of 14 February 2019 — PV v Commission
      (Case T-224/18 RII)
      (Interim measures - Civil Service - Disciplinary proceedings - Setting the salary at ‘zero’ - Change of circumstances - Inadmissibility - No new facts)
      (2019/C 131/57)
      Language of the case: French

         Parties

         Applicants: PV (represented by: M. Casado García-Hirschfeld, lawyer)

         Defendant: European Commission (represented by: G. Berscheid, B. Mongin and R. Striani, acting as Agents)

         Re:

      Application based on Articles 278 and 279 TFEU seeking suspension of operation, first, of the disciplinary proceedings CMS 17/025 and, secondly, of the decision to set the applicant’s salary at zero.

         Operative part of the order

                  1.

                     The application for interim measures is dismissed.

                  2.

                     The costs are reserved.


title: Case T-106/19: Action brought on 20 February 2019 — Abarca v EUIPO — Abanca Corporación Bancaria (ABARCA SEGUROS)

text:
               8.4.2019

               EN

               Official Journal of the European Union

               C 131/57

      Action brought on 20 February 2019 — Abarca v EUIPO — Abanca Corporación Bancaria (ABARCA SEGUROS)
      (Case T-106/19)
      (2019/C 131/66)
      Language of the case: English

         Parties

         Applicant: Abarca — Companhia de Seguros SA (Lisbon, Portugal) (represented by: J. Pimenta and Á. Pinho, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Abanca Corporación Bancaria, SA (Betanzos, Spain)

         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 ABARCA SEGUROS in colours pink, light blue, light green and black — Application for registration No 16 041 519

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 November 2018 in Case R 1370/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  totally alter the contested decision;

                  —

                  as a consequence, grant EUTM registration No 16 041 519 in its entirety;

                  —

                  order the other parties to bear the costs of the present proceedings, as well as those of the opposition and appeal proceedings before EUIPO.

         Plea in law

                  —

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


title: Case C-54/18: Order of the Court (Fourth Chamber) of 14 February 2019 (request for a preliminary ruling from theTribunale amministrativo regionale per il Piemonte — Italy) — Cooperativa Animazione Valdocco S.C.S. Impresa Sociale Onlus v Consorzio Intercomunale Servizi Sociali di Pinerolo, Azienda Sanitaria Locale To3 di Collegno e Pinerolo (Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Articles 1 and 2c — Action brought against decisions to allow tenderers to participate in, or to exclude them from, a tendering procedure — Time limit for applying for review — 30-day time limit — National legislation excluding the possibility to plead the illegality of an admission decision in an action brought against subsequent decisions — Charter of Fundamental Rights of the European Union — Article 47 — Right to effective judicial protection)

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/3

      Order of the Court (Fourth Chamber) of 14 February 2019 (request for a preliminary ruling from the Tribunale amministrativo regionale per il Piemonte — Italy) — Cooperativa Animazione Valdocco S.C.S. Impresa Sociale Onlus v Consorzio Intercomunale Servizi Sociali di Pinerolo, Azienda Sanitaria Locale To3 di Collegno e Pinerolo
      (Case C-54/18) (1)

      (Reference for a preliminary ruling - Public procurement - Review procedures - Directive 89/665/EEC - Articles 1 and 2c - Action brought against decisions to allow tenderers to participate in, or to exclude them from, a tendering procedure - Time limit for applying for review - 30-day time limit - National legislation excluding the possibility to plead the illegality of an admission decision in an action brought against subsequent decisions - Charter of Fundamental Rights of the European Union - Article 47 - Right to effective judicial protection)
      (2019/C 172/03)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per il Piemonte

         Parties to the main proceedings

         Applicant: Cooperativa Animazione Valdocco S.C:S. Impresa Sociale Onlus

         Defendants: Consorzio Intercomunale Servizi Sociali di Pinerolo, Azienda Sanitaria Locale To3 di Collegno e Pinerolo

         intervening parties: Ati Cilte Soc. coop. soc., Coesa Pinerolo Soc. coop. soc. arl, La Dua Valadda Soc. coop. soc., Consorzio di Cooperative Sociali il Deltaplano Soc. coop. soc., La Fonte Soc. coop. soc. Onlus, Società Italiana degli Avvocati Amministrativisti (SIAA), Associazione Amministrativisti.it, Camera degli Avvocati Amministrativisti

         Operative part of the order

                  1.

                  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014, and in particular Articles 1 and 2c thereof, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a national law, such as that at issue in the main proceedings, which provides that actions against the decisions of contracting authorities to allow or exclude tenderers from participation in public procurement award procedures must be brought within 30 days from their communication to the parties concerned, failing which they will be time-barred, provided that decisions communicated contain a summary of the relevant reasons, ensuring that the persons concerned knew or ought to have known of the infringement of EU law alleged.

                  2.

                  Directive 89/665, as amended by Directive 2014/23, and in particular Articles 1 and 2c thereof, read in the light of Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, in the absence of an action against the decisions of contracting authorities allowing tenderers to participate in public procurement procedures within 30 days from the communication of those decisions, it is no longer possible for the persons concerned to plead the illegality of the decisions in an action against subsequent decisions and, in particular, against award decisions, subject to the proviso that such a time limit may be relied on only if the persons concerned knew or ought to have known from that notification of the illegality they allege.

         (1)  OJ C 142, 23.4.2018.


title: Case C-373/18: Order of the Court (First Chamber) of 31 January 2019 (request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Penafiel — Portugal) — Prosa — Produtos e Serviços Agrícolas v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Indirect taxes on the raising of capital — Directive 69/335/EEC — Articles 4 and 7 — Incorporation of a capital company — Stamp duty in force on 1 July 1984 — Subsequent abolition of that stamp duty, followed by its reintroduction)

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/4

      Order of the Court (First Chamber) of 31 January 2019 (request for a preliminary ruling from the Tribunal Administrativo e Fiscal de Penafiel — Portugal) — Prosa — Produtos e Serviços Agrícolas v Autoridade Tributária e Aduaneira
      (Case C-373/18) (1)

      (Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Indirect taxes on the raising of capital - Directive 69/335/EEC - Articles 4 and 7 - Incorporation of a capital company - Stamp duty in force on 1 July 1984 - Subsequent abolition of that stamp duty, followed by its reintroduction)
      (2019/C 172/04)
      Language of the case: Portuguese

         Referring court

      Tribunal Administrativo e Fiscal de Penafiel

         Parties to the main proceedings

         Applicant: Prosa — Produtos e Serviços Agrícolas

         Defendant: Autoridade Tributária e Aduaneira

         Operative part of the order

      Article 4(1)(a) and Article 7(1) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as precluding national legislation by which a Member State has reintroduced capital duty on the incorporation of a capital company falling within the first of those provisions, which were subject to such duty on 1 July 1984, but which were subsequently exempted from it.

         (1)  OJ C 294, 20.8.2018.


title: Case C-489/18: Order of the Court (Seventh Chamber) of 15 January 2019 (request for a preliminary ruling from theBudapest Környéki Közigazgatási és Munkaügyi Bíróság — Hungary) — Farmland Kft. v Földművelésügyi Miniszter (Reference for a preliminary ruling — Article 53(2) of the Rules of Procedure of the Court — Direct support schemes — Single payment scheme — Single area payment application — Criteria — Lawful user of agricultural land)

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/5

      Order of the Court (Seventh Chamber) of 15 January 2019 (request for a preliminary ruling from the Budapest Környéki Közigazgatási és Munkaügyi Bíróság — Hungary) — Farmland Kft. v Földművelésügyi Miniszter
      (Case C-489/18) (1)

      (Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court - Direct support schemes - Single payment scheme - Single area payment application - Criteria - Lawful user of agricultural land)
      (2019/C 172/05)
      Language of the case: Hungarian

         Referring court

      Budapest Környéki Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: Farmland Kft.

         Defendant: Földművelésügyi Miniszter

         Operative part of the order

      The request for a preliminary ruling made by the Budapest Környéki Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary), by decision of 17 July 2018, is manifestly inadmissible.

         (1)  OJ C 381, 22.10.2018.


title: Case C-689/18: Order of the Court (Sixth Chamber) of 7 March 2019 (request for a preliminary ruling from the Dioikitiko Protodikeio Patron — Greece) — XT v Elliniko Dimosio (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Internal taxation — Prohibition of discriminatory taxation — Luxury tax — Motor vehicles — Exemption from tax depending on the date on which the goods first entered into service in the taxing Member State — No account taken of the date on which the goods first entered into service in another Member State)

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/5

      Order of the Court (Sixth Chamber) of 7 March 2019 (request for a preliminary ruling from the Dioikitiko Protodikeio Patron — Greece) — XT v Elliniko Dimosio
      (Case C-689/18) (1)

      (Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Internal taxation - Prohibition of discriminatory taxation - Luxury tax - Motor vehicles - Exemption from tax depending on the date on which the goods first entered into service in the taxing Member State - No account taken of the date on which the goods first entered into service in another Member State)
      (2019/C 172/06)
      Language of the case: Greek

         Referring court

      Dioikitiko Protodikeio Patron

         Parties to the main proceedings

         Applicant: XT

         Defendant: Elliniko Dimosio

         Operative part of the order

      Article 110 TFEU must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which any owner or keeper of a private car with a large cylinder capacity, the age of which, calculated as from the date on which it first entered into service in that Member State and irrespective of any possible prior entry into service in another Member State, is more than ten years, is exempt from luxury tax.

         (1)  OJ C 25, 21.1.2019.


title: Case C-8/19 PPU: Order of the Court (First Chamber) of 12 February 2019 — (request for a preliminary ruling from theSpetsializiran nakazatelen sad — Bulgaria) — Criminal proceedings against RH (Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in criminal matters — Directive (EU) 2016/343 — Article 4 — Public references to guilt — Pre-trial detention decision — Remedies — Procedure for reviewing the lawfulness of that decision — Observance of the presumption of innocence — Article 267 TFEU — Article 47, second paragraph, of the Charter of Fundamental Rights of theEuropean Union — Right to have a case heard within a reasonable time. — National legislation restricting the powers of the national courts to make a request to the Court of Justice for a preliminary ruling or obliging them to adjudicate without waiting for the answer to that request — Disciplinary sanctions for failure to comply with that legislation)

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/6

      Order of the Court (First Chamber) of 12 February 2019 — (request for a preliminary ruling from the Spetsializiran nakazatelen sad — Bulgaria) — Criminal proceedings against RH
      (Case C-8/19 PPU) (1)

      (Reference for a preliminary ruling - Urgent preliminary ruling procedure - Judicial cooperation in criminal matters - Directive (EU) 2016/343 - Article 4 - Public references to guilt - Pre-trial detention decision - Remedies - Procedure for reviewing the lawfulness of that decision - Observance of the presumption of innocence - Article 267 TFEU - Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union - Right to have a case heard within a reasonable time. - National legislation restricting the powers of the national courts to make a request to the Court of Justice for a preliminary ruling or obliging them to adjudicate without waiting for the answer to that request - Disciplinary sanctions for failure to comply with that legislation)
      (2019/C 172/07)
      Language of the case: Bulgarian

         Referring court

      Spetsializiran nakazatelen sad

         Criminal proceedings against

      RH

         Operative part of the order

                  1.

                  Article 267 TFEU and Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation, such as that at issue in the main proceedings which has the result that the national court is obliged to adjudicate on the legality of a pre-trial detention decision without the opportunity to make a request for a preliminary ruling to the Court of Justice or to wait for its reply.

                  2.

                  Articles 4 and 6 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, read together with recital 16 thereof, must be interpreted as meaning that the requirements deriving from the presumption of innocence do not preclude, where the competent court examines the reasonable grounds for believing that the suspect or the accused person has committed the offence with which he is charged, in order to give a ruling on the legality of a pre-trial detention decision, that court from comparing the elements of incriminating and exculpatory evidence presented to it and giving reasons for its decision, not only stating the evidence relied on, but also ruling on the objections of the defence counsel of the person concerned, provided that that decision does not present the person detained as being guilty.

         (1)  OJ C 93, 11.3.2019.


title: Case C-755/18 P: Appeal brought on 30/11/2018 by Harry Shindler and Others against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 26 November 2018 in Case T-458/17 Shindler andOthers v Council

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/7

      Appeal brought on 30/11/2018 by Harry Shindler and Others against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 26 November 2018 in Case T-458/17 Shindler and Others v Council
      (Case C-755/18 P)
      (2019/C 172/08)
      Language of the case: French

         Parties

         Appellants: Harry Shindler and Others (represented by J. Fouchet, avocat)

         Other party to the proceedings: Council of the European Union
      By order of 19 March 2019, the Court of Justice (Fourth Chamber) dismissed the appeal.


title: Case C-88/19: Request for a preliminary ruling from the Judecătoria Zărnești (Romania) lodged on 7 February 2019 —Asociația ‘Alianța pentru combaterea abuzurilor’ v TM, UN and Asociația DMPA

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/7

      Request for a preliminary ruling from the Judecătoria Zărnești (Romania) lodged on 7 February 2019 — Asociația ‘Alianța pentru combaterea abuzurilor’ v TM, UN and Asociația DMPA
      (Case C-88/19)
      (2019/C 172/09)
      Language of the case: Romanian

         Referring court

      Judecătoria Zărnești

         Parties to the main proceedings

         Applicant: Asociația ‘Alianța pentru combaterea abuzurilor’

         Defendants: TM, UN and Asociația DMPA

         Question referred

      Must Article 16 of Directive 92/43/EEC (1) be interpreted as requiring the Member States to lay down derogations from Articles 12, 13, 14 and 15(a) and (b) thereof in cases where animals belonging to threatened species leave their natural habit and are either in its immediate vicinity or completely outside it?

         (1)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).


title: Case C-96/19: Request for a preliminary ruling from the Landesverwaltungsgericht Niederösterreich (Austria) lodged on 8 February 2019 — VO v Bezirkshauptmannschaft Tulln

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/8

      Request for a preliminary ruling from the Landesverwaltungsgericht Niederösterreich (Austria) lodged on 8 February 2019 — VO v Bezirkshauptmannschaft Tulln
      (Case C-96/19)
      (2019/C 172/10)
      Language of the case: German

         Referring court

      Landesverwaltungsgericht Niederösterreich

         Parties to the main proceedings

         Appellant: VO

         Respondent authority: Bezirkshauptmannschaft Tulln

         Questions referred

                  1.

                  Should Regulation (EU) No 165/2014 (1), in particular the last sentence of Article 34(3) and Article 36(2) thereof, be interpreted as precluding national rules which require drivers of vehicles fitted with a digital tachograph within the meaning of Article 2(2)(h) of Regulation (EU) No 165/2014 to keep on board and produce, during controls, confirmations by the employer, which must fulfil the minimum requirements of the form drawn up by the Commission in accordance with Article 11(3) of Directive 2006/22/EC (2),for individual working days which are missing from the driver card (Article 2(2)(f) of Regulation (EU) No 165/2014), but for which no record sheets need be kept on board?

                  2.

                  If the answer to Question 1 is in the negative:
                  Is the form laid down by the Commission in its Decision 2009/959/EU (3) wholly or partially invalid?

         (1)  Regulation (EU) No 165/2014 of the European Parliament and of the Council of 4 February 2014 on tachographs in road transport, repealing Council Regulation (EEC) No 3821/85 on recording equipment in road transport and amending Regulation (EC) No 561/2006 of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport (OJ 2014 L 60, p. 1).

         (2)  Directive 2006/22/EC of the European Parliament and of the Council of 15 March 2006 on minimum conditions for the implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85 concerning social legislation relating to road transport activities and repealing Council Directive 88/599/EEC (OJ 2006 L 102, p. 35).

         (3)  Commission Decision of 14 December 2009 amending Decision 2007/230/EC on a form concerning social legislation relating to road transport activities (notified under document C(2009) 9895) (OJ 2009 L 330, p. 80).


title: Case C-101/19: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 11 February 2019 — Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG v Bundesrepublik Deutschland

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/9

      Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 11 February 2019 — Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG v Bundesrepublik Deutschland
      (Case C-101/19)
      (2019/C 172/11)
      Language of the case: German

         Referring court

      Bundesverwaltungsgericht

         Parties to the main proceedings

         Applicant: Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG

         Defendant: Bundesrepublik Deutschland

         Questions referred

                  1.

                  Does Article 69 of Directive 2001/83/EC (1) make exhaustive provision with respect to the permissible content of package leaflets for the medicinal products referred to in Article 14(1) or may other information within the meaning of Article 62 of Directive 2001/83/EC be included?

                  2.

                  May dosage schedules for the medicinal products referred to in Article 14(1) of Directive 2001/83/EC constitute information which is useful to the patient within the meaning of Article 62 of Directive 2001/83/EC?

         (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012 (OJ 2012 L 299, p. 1).


title: Case C-102/19: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 11 February 2019 — Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG v Bundesrepublik Deutschland

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/10

      Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 11 February 2019 — Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG v Bundesrepublik Deutschland
      (Case C-102/19)
      (2019/C 172/12)
      Language of the case: German

         Referring court

      Bundesverwaltungsgericht

         Parties to the main proceedings

         Applicant: Deutsche Homöopathie-Union (DHU) Arzneimittel GmbH & Co. KG

         Defendant: Bundesrepublik Deutschland

         Questions referred

                  1.

                  Does Article 69 of Directive 2001/83/EC (1) make exhaustive provision with respect to the permissible content of package leaflets for the medicinal products referred to in Article 14(1) or may other information within the meaning of Article 62 of Directive 2001/83/EC be included?

                  2.

                  May dosage schedules for the medicinal products referred to in Article 14(1) of Directive 2001/83/EC constitute information which is useful to the patient within the meaning of Article 62 of Directive 2001/83/EC?

         (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012 (OJ 2012 L 299, p. 1).


title: Case C-118/19: Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 15 February 2019 — ZS v PVA Landesstelle Salzburg

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/12

      Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 15 February 2019 — ZS v PVA Landesstelle Salzburg
      (Case C-118/19)
      (2019/C 172/15)
      Language of the case: German

         Referring court

      Landesgericht Salzburg

         Parties to the main proceedings

         Applicant: ZS

         Defendant: PVA Landesstelle Salzburg
      The case was removed from the register of the Court of Justice by order of the President of the Court of 22 March 2019.


title: Case C-134/19 P: Appeal brought on 18 February 2019 by Bank Refah Kargaran against the judgment delivered on 10 December 2018 in Case T-552/15, Bank Refah Kargaran v Council

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/12

      Appeal brought on 18 February 2019 by Bank Refah Kargaran against the judgment delivered on 10 December 2018 in Case T-552/15, Bank Refah Kargaran v Council
      (Case C-134/19 P)
      (2019/C 172/16)
      Language of the case: French

         Parties

         Appellant: Bank Refah Kargaran (represented by: J.-M. Thouvenin, avocat)

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

         Form of order sought

      The appellant claims that the Court should:

                  —

                  partially annul the judgment of 10 December 2018 of the Second Chamber of the General Court of the European Union in Case T-552/15;

                  —

                  principally, grant the form of order sought by the appellant in the proceedings before the General Court of the European Union, namely, award damages for compensation in respect of material damage in the sum of EUR 68 651 319 and non-material damage in the sum of EUR 52 547 415;

                  —

                  in the alternative, refer the case back to the General Court;

                  —

                  in both cases, order the Council of the European Union to pay the costs of both instances.

         Pleas in law and main arguments

      In support of the appeal, the appellant relies on seven grounds of appeal.

                  1.

                  First ground of appeal alleging an error of law
                  The General Court erred in law by stating that the inadequate reasoning in the contested decision is not a sufficiently serious breach of a rule of EU law.

                  2.

                  Second ground of appeal alleging an error of law
                  The General Court erred in law by holding that the fact that an applicant who has been the victim of an unlawful sanction adopted by the Council of the European Union has brought an action and has secured the annulment of that sanction renders nugatory the possibility of invoking a sufficiently serious breach of the right to effective judicial protection.

                  3.

                  Third ground of appeal alleging an error of law
                  The General Court erred in law by dismissing a plea, set out by the appellant in its reply, without determining, as required by the case-law, whether the plea set out in the reply is a result of the normal development of arguments stemming from the application in the legal proceedings.

                  4.

                  Fourth and Fifth grounds of appeal alleging an error of law
                  The General Court erred in law by misinterpreting the judgment in Case T-24/11 (1), and by holding that the finding that the Council breached its obligation to disclose to the appellant the evidence adduced against it as regards the grounds for the measures relating to the freezing of funds does not amount to a sufficiently serious breach of EU law giving rise to the liability of the European Union.

                  5.

                  Sixth ground of appeal alleging distortion of the application
                  The General Court, in order to find the appellant’s argument inadmissible, distorted the application by considering that the appellant did not, at the stage of its application, allege the unlawfulness of the fact that the grounds for the inclusion of its name on the list of persons targeted by the restrictive measures failed to comply with the criteria applied by the Council.

                  6.

                  Seventh ground of appeal alleging distortion of the application
                  The General Court distorted the application by restricting the grounds of illegality relied on by the appellant solely to a breach of the obligation to state reasons.

         (1)  Judgment of 6 September 2013, Bank Refah Kargaran v Conseil (T-24/11, EU:T:2013:403).


title: Case C-135/19: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 20 February 2019 —Pensionsversicherungsanstalt v CW

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/14

      Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 20 February 2019 — Pensionsversicherungsanstalt v CW
      (Case C-135/19)
      (2019/C 172/17)
      Language of the case: German

         Referring court

      Oberster Gerichtshof

         Parties to the main proceedings

         Appellant on a point of law: Pensionsversicherungsanstalt

         Respondent in the appeal on a point of law: CW

         Questions referred

                  1.

                  Pursuant to the provisions of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, (1) is the Austrian rehabilitation allowance to be regarded

                              —

                              as a sickness benefit pursuant to Article 3(1)(a) of the regulation, or

                              —

                              as an invalidity benefit pursuant to Article 3(1)(c) of the regulation, or

                              —

                              as an unemployment benefit pursuant to Article 3(1)(h) of the regulation?

                  2.

                  In the light of primary law, is Regulation (EC) No 883/2004 to be interpreted as meaning that, as the former State of residence and State of employment, a Member State is obliged to pay benefits such as the Austrian rehabilitation allowance to a person who is resident in another Member State if that person completed the majority of the periods of insurance from the sickness and pension branches as an employee in that other Member State (after the transfer of residence to that country years previously) and has not since then received benefits from the health and pension insurance scheme of the former State of residence and employment?

         (1)  OJ 2004 L 166, p. 1.


title: Case C-157/19 P: Appeal brought on 21 February 2019 by Ehab Makhlouf against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-409/16 Makhlouf v Council

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/15

      Appeal brought on 21 February 2019 by Ehab Makhlouf against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-409/16 Makhlouf v Council
      (Case C-157/19 P)
      (2019/C 172/18)
      Language of the case: French

         Parties

         Appellant: Ehab Makhlouf (represented by: E. Ruchat, avocat)

         Other party to the proceedings: Council of the European Union

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Declare the appellant’s action admissible and well founded;

                  —

                  Accordingly, set aside the judgment of 12 December 2018 given by the General Court of the European Union in Case T-409/16, Ehab Makhlouf v Council of the European Union;

            And, giving judgment itself,

                  —

                  Annul Decision (CFSP) 2016/850 of 27 May 2016 (1) and its subsequent implementing acts, in so far as they concern the appellant;

                  —

                  Order the Council of the European Union to pay the costs of the proceedings.

         Grounds of appeal and main arguments

      In support of his appeal, the appellant relies on three grounds:
      The first ground of appeal, alleging an error of law in that the General Court disregarded the applicant’s right to be heard prior to the adoption of new restrictive measures, as enshrined in Article 41 of the Charter of Fundamental Rights;
      The second ground of appeal, alleging an error of law and distortion of the facts in so far as the General Court disregarded the items submitted by the applicant in support of his action for annulment to demonstrate that he did not support the Syrian regime;
      The third ground of appeal, alleging an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, (2) according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

         (1)  Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ L 141, p. 125).

         (2)  Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ L 147, p. 14).


title: Case C-158/19 P: Appeal brought on 21 February 2019 by Razan Othman against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-416/16 Othman v Council

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/16

      Appeal brought on 21 February 2019 by Razan Othman against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-416/16 Othman v Council
      (Case C-158/19 P)
      (2019/C 172/19)
      Language of the case: French

         Parties

         Appellant: Razan Othman (represented by: E. Ruchat, avocat)

         Other party to the proceedings: Council of the European Union

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Declare the appellant’s action admissible and well founded;

                  —

                  Accordingly, set aside the judgment of 12 December 2018 given by the General Court of the European Union in Case T-416/16, Othman v Council of the European Union;

            And, giving judgment itself,

                  —

                  Annul Decision (CFSP) 2016/850 of 27 May 2016 (1) and its subsequent implementing acts, in so far as they concern the appellant;

                  —

                  Order the Council of the European Union to pay the costs of the proceedings.

         Grounds of appeal and main arguments

      In support of his appeal, the appellant relies on three grounds:
      The first ground of appeal, alleging an error of law in that the General Court disregarded the applicant’s right to be heard prior to the adoption of new restrictive measures, as enshrined in Article 41 of the Charter of Fundamental Rights;
      The second ground of appeal, alleging an error of law and distortion of the facts in so far as the General Court disregarded the items submitted by the applicant in support of his action for annulment to demonstrate that he did not support the Syrian regime;
      The third ground of appeal, alleging an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, (2) according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

         (1)  Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ L 141, p. 125).

         (2)  Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ L 147, p. 14).


title: Case C-159/19 P: Appeal brought on 21 February 2019 by Syriatel Mobile Telecom (Joint Stock Company) against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-411/16 Syriatel MobileTelecom v Council

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/17

      Appeal brought on 21 February 2019 by Syriatel Mobile Telecom (Joint Stock Company) against the judgment of the General Court (Fifth Chamber) delivered on 12 December 2018 in Case T-411/16 Syriatel Mobile Telecom v Council
      (Case C-159/19 P)
      (2019/C 172/20)
      Language of the case: French

         Parties

         Appellant: Syriatel Mobile Telecom (Joint Stock Company) (represented by: E. Ruchat, avocat)

         Other party to the proceedings: Council of the European Union

         Form of order sought

      The appellant submits that the Court should:

                  —

                  Declare the appellant’s action admissible and well founded;

                  —

                  Accordingly, set aside the judgment of 12 December 2018 given by the General Court of the European Union in Case T-411/16, Syriatel Mobile Telecom v Council of the European Union;

            And, giving judgment itself,

                  —

                  Annul Decision (CFSP) 2016/850 of 27 May 2016 (1) and its subsequent implementing acts, in so far as they concern the appellant;

                  —

                  Order the Council of the European Union to pay the costs of the proceedings.

         Grounds of appeal and main arguments

      In support of its appeal, the appellant relies on three grounds:
      The first ground of appeal, alleging an error of law in that the General Court disregarded the applicant’s right to be heard prior to the adoption of new restrictive measures, as enshrined in Article 41 of the Charter of Fundamental Rights;
      The second ground of appeal, alleging an error of law and distortion of the facts in so far as the General Court disregarded the items submitted by the applicant in support of its action for annulment to demonstrate that it did not support the Syrian regime;
      The third ground of appeal, alleging an error of law in so far as the General Court did not hold that Articles 27 and 28 of Decision 2013/255/CFSP, (2) according to which membership of the Al-Assad or Makhlouf families constitutes an autonomous criterion justifying the imposition of sanctions, were illegal and in so far as it, on the same occasion, reversed the burden of proof.

         (1)  Council Decision (CFSP) 2016/850 of 27 May 2016 amending Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ L 141, p. 125).

         (2)  Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ L 147, p. 14).


title: Case C-182/19: Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 26 February 2019 — Pfizer Consumer Healthcare Ltd v Commissioners for Her Majesty's Revenue andCustoms

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/18

      Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 26 February 2019 — Pfizer Consumer Healthcare Ltd v Commissioners for Her Majesty's Revenue and Customs
      (Case C-182/19)
      (2019/C 172/21)
      Language of the case: English

         Referring court

      First-tier Tribunal (Tax Chamber)

         Parties to the main proceedings

         Applicant: Pfizer Consumer Healthcare Ltd

         Defendant: Commissioners for Her Majesty's Revenue and Customs

         Question referred

      Is Commission Implementing Regulation (EU) 2016/1140 (1) of 8 July 2016, concerning the classification of certain goods in the Combined Nomenclature invalid in so far as it classifies under CN code 3824,specifically 38249096, products which:

                  i.

                  are composed of a bandage-like material, containing ‘heat cells’ including chemicals;

                  ii.

                  operate in similar fashion to a poultice, though providing additional benefits;

                  iii.

                  through an exothermic chemical reaction relieve pain, decrease stiffness and promote tissue healing (as verified in multiple clinical trials);

                  iv.

                  are put in forms or packings for retail sale, and

                  v.

                  are explicitly presented and marketed as being for medical purposes and as producing the effects identified in (iii) above,
                  on the basis of the chemicals being the material or component which gives them their essential character and not under heading 3005 (on the basis of the wording of the relevant headings, section or chapter notes, and explanatory notes under General Rule of Interpretation 1, the operation of General Rule of Interpretation 3(a) requiring classification in accordance with the most specific description, or otherwise)?

         (1)  OJ 2016, L 189, p. 1.


title: Case C-208/19: Request for a preliminary ruling from the Landesgericht für Zivilrechtssachen Graz (Austria) lodged on 4 March 2019 — NK v Ms and AS

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/19

      Request for a preliminary ruling from the Landesgericht für Zivilrechtssachen Graz (Austria) lodged on 4 March 2019 — NK v Ms and AS
      (Case C-208/19)
      (2019/C 172/22)
      Language of the case: German

         Referring court

      Landesgericht für Zivilrechtssachen Graz

         Parties to the main proceedings

         Applicant: NK

         Defendants: Ms and AS

         Questions referred

                  1.

                  Is a contract between an architect and a consumer, according to which the architect is required (only) to carry out the planning for the construction of a new single-family house, including the preparation of plans, a contract ‘for the construction of new buildings’ within the meaning of Article 3(3)(f) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council? (1)

                  2.

                  If Question 1 is answered in the negative:
                  Is a contract between an architect and a consumer, according to which the architect is required to carry out the planning for the construction of a new single-family house in accordance with the specifications and wishes of his clients and, in this context, is required to draw up plans, a contract for the supply of ‘goods made to the consumer’s specifications or clearly personalised’ within the meaning of Article 16(c) and Article 2(3) and (4) of Directive 2011/83?

         (1)  OJ 2011 L 304, p. 64.


title: Case C-217/19: Action brought on 8 March 2019 — European Commission v Republic of Finland

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/20

      Action brought on 8 March 2019 — European Commission v Republic of Finland
      (Case C-217/19)
      (2019/C 172/23)
      Language of the case: English

         Parties

         Applicant: European Commission (represented by: C. Hermes, E. Ljung Rasmussen, Agents)

         Defendant: Republic of Finland

         The applicant claims that the Court should:

                  —

                  declare that by recurrently granting authorizations for spring hunting of male Common Eiders (Somateria mollissima) in the province of Åland since 2011, the Republic of Finland has failed to fulfil its obligations under Article 7(4) and 9(l)(c) of Directive 2009/147/EC (1) of the European parliament and of the Council of 30 November 2009 on the conservation of wild birds;

                  —

                  order Republic of Finland to pay the costs.

         Pleas in law and main arguments

      Since 2011, the regional government of the Åland Islands, an autonomous region in Finland, has recurrently each year authorized ‘derogation spring hunting’ of male Common Eider ducks with a total quota of 2000 to 3800 birds during two to three weeks in May. This time period coincides with the period of reproduction of Common Eiders.
      Article 7(4) of Directive 2009/147/EC prohibits hunting during the period of reproduction.
      Finland claims that the spring hunting of Common Eiders in the Åland Islands is justified by the derogation provision of Article 9(1)(c) of Directive 2009/147/EC. According to the case-law of the Court, Member States bear the burden of proof for establishing that the conditions of this provision are met.
      The Commission considers that Finland, first, has not established that the derogation regime constitutes ‘judicious use’ within the meaning of Article 9(1)(c) of Directive 2009/147/EC. Finland has, in particular, not substantiated with sound scientific evidence that it is ensured that the relevant population of Common Eider ducks is maintained at a satisfactory level.
      Secondly, Finland has not demonstrated that the authorized spring hunting only concerns the use of birds ‘in small numbers’ pursuant to Article 9(1)(c) of Directive 2009/147/EC.

         (1)  Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010, L 20, p-7)


title: Case C-231/19: Reference for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 15 March 2019 — Blackrock Investment Management (UK) Limited v Commissioners for HerMajesty's Revenue and Customs

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/21

      Reference for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 15 March 2019 — Blackrock Investment Management (UK) Limited v Commissioners for Her Majesty's Revenue and Customs
      (Case C-231/19)
      (2019/C 172/24)
      Language of the case: English

         Referring court

      Upper Tribunal (Tax and Chancery Chamber)

         Parties to the main proceedings

         Applicant: Blackrock Investment Management (UK) Limited

         Defendant: Commissioners for Her Majesty's Revenue and Customs

         Question referred

      On the proper interpretation of Article 135.1(g) of Council Directive 2006/112/EC (1), where a single supply of management services within the meaning of that Article is made by a third-party provider to a fund manager and is used by that fund manager both in the management of special investment funds (‘SIFs’) and in the management of other funds that are not special investment funds (‘non-SIFs’):

                  (a)

                  Is that single supply to be subject to a single rate of tax? If so, how is that single rate to be determined? or

                  (b)

                  Is the consideration for that single supply to be apportioned in accordance with the use of the management services (for example, by reference to the amounts of the funds under management in the SIFs and non-SIPs respectively) so as to treat part of the single supply as exempt and part as taxable?

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


title: Case C-235/19: Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 18 March 2019 — United Biscuits (Pensions Trustees) Limited, United Biscuits Pension Investments Limited v Commissioners for Her Majesty's Revenue and Customs

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/22

      Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 18 March 2019 — United Biscuits (Pensions Trustees) Limited, United Biscuits Pension Investments Limited v Commissioners for Her Majesty's Revenue and Customs
      (Case C-235/19)
      (2019/C 172/25)
      Language of the case: English

         Referring court

      Court of Appeal

         Parties to the main proceedings

         Applicants: United Biscuits (Pensions Trustees) Limited, United Biscuits Pension Investments Limited

         Defendant: Commissioners for Her Majesty's Revenue and Customs

         Question referred

      Are supplies of such pension fund management services (PFM Services) as are provided to the Trustees by (a) Insurers and/or (b) Non-Insurers ‘insurance transactions’ within the meaning of Article 135(1)(a) of the VAT Directive (1) (formerly Article 13B(a) of the Sixth Directive)?

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


title: Case C-239/19: Reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) made on 20 March 2019 — Eli Lilly and Company v Genentech Inc.

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/22

      Reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom) made on 20 March 2019 — Eli Lilly and Company v Genentech Inc.
      (Case C-239/19)
      (2019/C 172/26)
      Language of the case: English

         Referring court

      High Court of Justice (Chancery Division)

         Parties to the main proceedings

         Applicant: Eli Lilly and Company

         Defendant: Genentech Inc.

         Question referred

      Does the SPC Regulation (1) preclude the grant of an SPC to the proprietor of a basic patent in respect of a product which is the subject of a marketing authorisation held by a third party without that party's consent?

         (1)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products (OJ 2009, L 152, p. 1).


title: Case C-564/17: Order of the President of the Court of 4 February 2019 — European Commission v Kingdom of Belgium,supported by: Federal Republic of Germany, Republic of Estonia, Ireland, Kingdom of Spain, FrenchRepublic, Italian Republic, Republic of Latvia, Republic of Lithuania, Hungary

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/23

      Order of the President of the Court of 4 February 2019 — European Commission v Kingdom of Belgium, supported by: Federal Republic of Germany, Republic of Estonia, Ireland, Kingdom of Spain, French Republic, Italian Republic, Republic of Latvia, Republic of Lithuania, Hungary
      (Case C-564/17) (1)

      (2019/C 172/28)
      Language of the case: French
      The President of the Court has ordered that the case be removed from the register.

         (1)  OJ C 328, 13.11.2017.


title: Case C-399/18: Order of the President of the Court of 18 January 2019 (request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — Vereniging Gasopslag Nederland, TAQA Onshore BV, TAQA Piek Gas BV v Autoriteit Consument en Markt, other party: Gas Transport Services BV

text:
               20.5.2019

               EN

               Official Journal of the European Union

               C 172/25

      Order of the President of the Court of 18 January 2019 (request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven — Netherlands) — Vereniging Gasopslag Nederland, TAQA Onshore BV, TAQA Piek Gas BV v Autoriteit Consument en Markt, other party: Gas Transport Services BV
      (Case C-399/18) (1)

      (2019/C 172/33)
      Language of the case: Dutch
      The President of the Court has ordered that the case be removed from the register.

         (1)  OJ C 294, 20.8.2018.


title: Case C-48/19: Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 January 2019 — X-GmbH v Z Tax Office

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/14

      Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 25 January 2019 — X-GmbH v Z Tax Office
      (Case C-48/19)
      (2019/C 148/14)
      Language of the case: German

         Referring court

      Bundesfinanzhof

         Parties to the main proceedings

         Applicant: X-GmbH

         Defendant: Z Tax Office

         Questions referred

                  1.

                  In circumstances such as those in the main proceedings, in which a taxable person advises insured persons on various topics relating to healthcare and medical conditions by telephone on behalf of health insurance funds, does this constitute an activity that falls within the scope of Article 132(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

                  2.

                  In circumstances such as those in the main proceedings, is it sufficient, in relation to the services referred to in question 1 and in respect of turnover in the context of ‘patient support programmes’, for the required evidence of professional qualifications if the consultations over the telephone are conducted by ‘health coaches’ (medical assistants, nurses) and a doctor is consulted in approximately one third of the cases?

         (1)  OJ 2006 L 347, p. 1.


title: Case C-56/19 P: Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/15

      Appeal brought on 25 January 2019 by RFA International, LP against the judgment of the General Court (Ninth Chamber) delivered on 15 November 2018 in Case T-113/15: RFA International v Commission
      (Case C-56/19 P)
      (2019/C 148/15)
      Language of the case: English

         Parties

         Appellant: RFA International, LP (represented by: B. Evtimov, адвокат, M. Krestiyanova, avocate, D. O'Keeffe, Solicitor, N. Tuominen, E. Borovikov, avocats)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the contested judgment;

                  —

                  give final judgment in the matter, where the state of the proceedings so permits;

                  —

                  in the alternative refer the case for reconsideration to the General Court;

                  —

                  order the Commission to pay the costs of the proceedings before the Court of Justice, as well as the costs of the proceedings before the General Court.

         Pleas in law and main arguments

      The present appeal is limited to challenging the General Court’s findings on the appellant’s second plea at first instance.
      In its findings, the General Court erred in the legal interpretation of Article 11(9) and (10) of the Basic Regulation (1) and in defining overly broadly the permissible scope for the Commission’s discretionary choices in the assessment of complex situations under those provisions. The appellant respectfully requests that the Court of Justice should set aside the contested judgment on the following grounds.
      The General Court committed two errors in law as far as the interpretation of the Basic Regulation is concerned.

                  a)

                  First, the General Court wrongly interpreted Article 11(9) of the Basic Regulation. Under Article 11(9) of the Basic Regulation, in all review investigations, the Commission, provided that circumstances have not changed, is to apply the same methodology as in the investigation which led to the duty being imposed, with due account being taken of Article 2 of that regulation. However, when assessing whether the anti-dumping duties had been reflected in the resale prices, the Commission did not do so on the basis of the resale prices identified in the investigation leading to the initial regulation, but on the basis of current production costs in Russia. This constitutes a change in methodology within the meaning of Article 11(9) of the Basic Regulation. The Commission observed that the circumstances had significantly changed since the initial investigation and in particular, the Russian exporters’ production costs had increased by around 100 %. However, costs increases existed and were already known during the 2008-2010 refund investigation periods.

                  b)

                  Second, the General Court wrongly interpreted Article 11(10) of the Basic Regulation by applying an erroneous legal test. The legal test designed by the General Court requires that evidence of incorporation of the anti-dumping duties in the export prices could only be made through DDP (2) pricing data and by showing that not only the anti-dumping duties were captured in the new prices but also the entirety of any production costs incurred. Neither Article 11(10) of the Basic Regulation, nor the Commission Notice concerning the reimbursement of antidumping duties (3) contain such a requirement.

            Finally, the General Court made substantially incorrect findings of fact when it concluded that:

                  a)

                  The production cost increases only surfaced during the first and second refund investigation periods and thus constituted a change of circumstances justifying a change in methodology. In fact, the Commission had known about the cost increases already during the original investigation period and the 2008-2010 refunds investigations.

                  b)

                  The change in methodology was justified to create a level playing field and avoid discriminatory treatment between operators that would be subject to the same measures. In fact, all Russian producers would have been subject to the same cost increases.

         (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009, L 343, p. 51).

         (2)  ‘Delivery duty paid’.

         (3)  OJ 2014, C 164, p. 9.


title: Case C-57/19 P: Appeal brought on 25 January 2019 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-793/14: Tempus Energy and Tempus Energy Technology v Commission

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/16

      Appeal brought on 25 January 2019 by the European Commission against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 15 November 2018 in Case T-793/14: Tempus Energy and Tempus Energy Technology v Commission
      (Case C-57/19 P)
      (2019/C 148/16)
      Language of the case: English

         Parties

         Appellant: European Commission (represented by: É. Gippini Fournier, P. Němečková, Agents)

         Other parties to the proceedings: Tempus Energy Ltd, Tempus Energy Technology Ltd, United Kingdom of Great Britain and Northern Ireland

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission;
                  and

                  —

                  dismiss the application to annul Commission Decision C(2014)5083 final (1) of 23 July 2014 not to raise objections to the aid scheme for the capacity market in the United Kingdom;

            alternatively,

                  —

                  set aside the judgment of the General Court (Third Chamber, Extended Composition) of 15 November 2018, notified to the Commission the next day, in Case T-793/14, Tempus Energy Ltd and Tempus Energy Technology Ltd v European Commission;

                  —

                  refer the case back to the General Court for consideration of the second plea at first instance;

            and in any event, order the applicants at first instance to pay the costs of the proceedings at first instance and on appeal.

         Pleas in law and main arguments

      The appeal is based on a single ground: the General Court misinterpreted Article 108, paragraph 3 of the Treaty on the Functioning of the European Union and Article 4, paragraphs 2 and 3 of Council Regulation (EU) 2015/1589 (2) of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union, by finding that the notified aid measure gave rise to serious doubts as regards its compatibility with the internal market.
      Given that the General Court based itself on a series of indicia on serious difficulties, the single ground is divided in the following two prongs on the two series of indicia examined in the contested judgment:

                  —

                  First prong: The General Court erred in taking into account, as a main indicator of doubts, the length and circumstances of the pre-notification contacts and the complexity and novelty of the measure.

                  —

                  Second prong: The General Court erred in faulting the Commission for lack of appropriate investigation on certain aspects of the UK capacity market.

         (1)  Authorisation for State aid pursuant to Articles 107 and 108 of the Treaty on the Functioning of the European Union — Cases where the Commission raises no objections (OJ 2014, C 348, p. 5).

         (2)  OJ 2015, L 248, p. 9


title: Case C-74/19: Request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18 (Portugal) lodged on 31 January 2019 — LE v Transport Aéreos Portugueses S.A.

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/18

      Request for a preliminary ruling from the Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18 (Portugal) lodged on 31 January 2019 — LE v Transport Aéreos Portugueses S.A.
      (Case C-74/19)
      (2019/C 148/17)
      Language of the case: Portuguese

         Referring court

      Tribunal Judicial da Comarca de Lisboa — Juízo Local Cível de Lisboa — Juiz 18

         Parties to the main proceedings

         Applicant: LE

         Defendant: Transport Aéreos Portugueses S.A.

         Questions referred

                  1.

                  Does the fact that a passenger, in the course of a flight, bites other passengers and assaults crew members who attempt to calm him to such an extent as to justify, according to the flight commander, a diversion to the nearest airport to disembark that passenger and unload his luggage, which results in the delayed arrival of the flight at its destination, fall within the concept of ‘extraordinary circumstances’, referred to in recital 14 of Regulation (EC) No 261/2004? (1)

                  2.

                  Is an ‘extraordinary circumstance’ which occurs on an outward flight immediately preceding the return flight made by the same aircraft, relevant to exempt the air carrier from liability for the delay in the take-off of that latter flight onto which the complainant passenger (the applicant in this case) has boarded?

                  3.

                  For the purposes of Article 5(3) of Regulation No 261/2004, does the analysis carried out by the airline (the defendant in this case), which concluded that sending another aircraft would not avoid the situation of delay and therefore the transfer of the transit passenger (the applicant in this case) to a flight scheduled for the following day, since the airline operates only one daily flight to the passenger’s final destination, correspond to conduct by the airline in which it took all reasonable measures, even if it was not possible to remedy the delay?

         (1)  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 (OJ 2004 L 46, p. 1).


title: Case C-105/19: Request for a preliminary ruling from the Monomeles Protodikeio Serron (Greece) lodged on 8 February 2019 — WP v Trapeza Peiraios AE

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/20

      Request for a preliminary ruling from the Monomeles Protodikeio Serron (Greece) lodged on 8 February 2019 — WP v Trapeza Peiraios AE
      (Case C-105/19)
      (2019/C 148/19)
      Language of the case: Greek

         Referring court

      Monomeles Protodikeio Serron (Greece)

         Parties to the main proceedings

         Applicant: WP

         Defendant: Trapeza Peiraios AE

         Questions referred

                  1.

                  Is Article 6(1) of Directive 93/13 (1) to be interpreted as establishing a procedural rule of public policy requiring national courts to take into account, of their own motion, including at the stage of the application for the issue of an order for payment, the unfairness of a term stipulated between a supplier and a consumer, taking into account in particular (i) that in the Greek legal system, in accordance with Articles 623, 624, 628 and 629 of the Code of Civil Procedure (kodikas politikis dikonomias), not only does such a requirement not exist but, in addition, the order for payment is issued in ex parte proceedings, after a formal check of documents including the credit agreement, (ii) that the competence to issue an order for payment lies with a court of the Greek State and (iii) that the order for payment constitutes an immediately enforceable order, under which the supplier may, after three (3) days, initiate enforcement proceedings which are not subject to any suspension?

                  2.

                  Is Article 6(1) of Directive 93/13 to be interpreted as establishing a procedural rule of public policy requiring national courts to refrain from issuing an order for payment where it is demonstrated by documentary evidence, before the court issuing the order for payment, that the claim arises from general contractual terms and conditions (GTC) which have already been held to be void, because they are unfair, by final judgments in injunction proceedings brought by consumer organisations against suppliers and which are listed in the ministerial decision Z1-798/25-06-2008 (FEK B 1353/11-07-2008), which contains a national register of unfair terms [as amended and supplemented by Ministerial Decision Z1-21/17-01-2011, which was deemed lawful by Decision No 1210/2010 of the Greek Council of State (Simvoulio tis Epikratias), after taking into account, first, Decisions No 1219/2001 and No 430/2005 of the Greek Court of Cassation (Areios Pagos), judgments No 5253/2003 and No 6291/2000 of the Athens Court of Appeal (Efeteio Athinon), judgments No 1119/2002 and No 1208/1998 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which has the force of res judicata and judgment No 961/2007 of the Polymeles Protodikeio Athinon (Athens Regional Court, sitting as a panel of several judges) which, in turn, has the force of res judicata and, secondly, the fact that the res judicata effects of those court decisions are of major public interest for the proper functioning of the market and for the protection of consumers (Article 10(2) of Law 2251/1994); it is by that ministerial decision that ‘the prohibition on the inclusion, in contracts concluded between credit institutions and consumers, of general contractual conditions which have been held to be unfair by judicial decisions rendered in legal proceedings brought by consumer organisations’ was decreed and that decision lists the GTCs that have been held to be void, because they are unfair, following collective legal proceedings brought by consumer organisations against banks considered as suppliers], taking into account in particular the fact that in Greece, the competence to issue an order for payment lies with courts — more precisely with the Eirinodikeia (justices of the peace) and Protodikeia (courts of first instance) — and the fact that the order for payment constitutes an immediately enforceable order, according to which the supplier may, after three days, initiate a enforcement proceedings which are not subject to any suspension?

                  3.

                  Are Articles 6(1), 7(1) and 8 of Directive 93/13 to be interpreted as meaning that the res judicata resulting from the success of injunction proceedings brought by consumer organisations against suppliers requires, as an additional condition for its effects to be extended erga omnes (pursuant to Article 10(20) of Law 2251/1994), the same parties and the same facts and law — as required by Article 324 of the Code of Civil Procedure (kodikas politikis dikonomias) — so that the res judicata resulting from the success of injunction proceedings may not be extended or applied to any case in which a national court is seised of an action brought by a consumer against a supplier ?

         (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29)


title: Case C-113/19: Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 12 February 2019 — Luxaviation SA v Ministre de l’Environnement

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/21

      Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 12 February 2019 — Luxaviation SA v Ministre de l’Environnement
      (Case C-113/19)
      (2019/C 148/20)
      Language of the case: French

         Referring court

      Cour administrative

         Parties to the main proceedings

         Applicant: Luxaviation SA

         Defendant: Ministre de l’Environnement

         Questions referred

                  1.

                  Is Article 12(3) of Directive 2003/87/EC, (1) which provides that Member States must ensure the surrender by their operators of the allowances issued, to be interpreted, in conjunction with Article 41 of the Charter, which enshrines the principle of sound administration, as requiring the competent national authority to carry out individual monitoring of surrender obligations, before the deadline of 30 April of the year concerned, where that same administration is responsible for monitoring a small number of operators, in this case 25 operators at national level?

                  2.

                              a.

                              Should it be considered that an incomplete allowance surrender operation, like the one in the present case in which the operator relied on the receipt of electronic confirmation that the transfer procedure had been finalised, could reasonably have generated in the mind of the operator acting in good faith a legitimate expectation that it had completed the surrender operation provided for in Article 6(2)(e) of Directive 2003/87/EEC?

                              b.

                              Bearing in mind the answer given to the second question, can the legitimacy of that expectation be presumed to be more firmly established in the mind of an operator acting in good faith if, during the previous surrender, it was voluntarily contacted by the national administration in order to remind it, a few days before expiry of the time limits laid down in Article 6(2)(e) of Directive 2003/87/EC, that the allowance surrender procedure had not yet been completed, thereby allowing that operator reasonably to assume that it had met its surrender obligations for the current year in the absence of any direct contact by that same administration the following year?

                              c.

                              In the light of the answers given to the two previous questions, whether analysed individually or together, can the principle of protection of legitimate expectations be interpreted as constituting a case of force majeure partially or wholly exempting the operator acting in good faith from the penalty provided for in Article 16(3) of Directive 2003/87/EEC?

                  3.

                              a.

                              Does Article 49(3) of the Charter, which enshrines the principle of proportionality, preclude the fixing of a flat rate fine to penalise non-surrender of emissions allowances, as provided for in Article 16(3) of Directive 2003/87/EEC, where that provision does not allow the imposition of a penalty proportionate to the infringement committed by the operator?

                              b.

                              If the answer to the previous question is in the negative, must the principle of equal treatment enshrined in Article 20 of the Charter, the general principle of good faith and the principle ‘fraus omnia corrumpit’ be interpreted as precluding — as regards the penalty to be imposed pursuant to Article 16(3) of Directive 2003/87/EC, to which the publication provided for in Article 20(7) [of the Law of 23 December 2004] is automatically added — an operator acting in good faith, which is simply negligent and which furthermore believed that it had fulfilled its obligations to surrender emissions allowances by the relevant deadline of 30 April, from being treated in the same way as an operator which behaved fraudulently?

                              c.

                              If the answer to the previous question is in the negative, is the application of the flat rate penalty, without any possibility of a variation by the national court, other than in cases of force majeure, [and] the automatic penalty of publication consistent with Article 47 of the Charter which guarantees the existence of an effective remedy?

                              d.

                              If the answer to the previous question is in the negative, is it the case that the ratification of a financial penalty fixed on the basis of the EU legislature’s intention thus expressed [and] the automatic penalty of publication, without the involvement of the principle of proportionality, except in the case of force majeure as strictly interpreted, amounts to an abdication by the national court before the supposed intention of the EU legislature and to an improper lack of judicial review in the light of Articles 47 and 49(3) of the Charter?

                              e.

                              Bearing in mind the answer given to the previous question, is it the case that the lack of judicial review by the national court in the context of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] amounts to shutting off essentially fruitful channels of communication between the CJEU and the national Supreme Courts under the influence of a pre-determined solution endorsed by the CJEU, except in the case of force majeure as strictly viewed, which means that the national Supreme Court, which can only ratify the penalty once it is deemed that force majeure has not been established, is unable to enter into an effective dialogue?

                  4.

                  Bearing in mind the answers given to the previous questions, can the concept of force majeure be interpreted as taking into account the individual hardship of an operator acting in good faith where payment of the flat rate penalty provided for in Article 16(3) of Directive 2003/87/EC [and] the automatic penalty of publication provided for in Article 20(7) [of the Law of 23 December 2004] constitutes a considerable financial risk and loss of credit which could lead to its staff being made redundant or even bankruptcy?

         (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).


title: Case C-117/19: Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 15 February 2019 — AB ‘Linas Agro’ v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/22

      Request for a preliminary ruling from the Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės (Lithuania) lodged on 15 February 2019 — AB ‘Linas Agro’ v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos
      (Case C-117/19)
      (2019/C 148/21)
      Language of the case: Lithuanian

         Referring court

      Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės

         Parties to the main proceedings

         Applicant: AB ‘Linas Agro’

         Defendant: Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

         Questions referred

                  1.

                  Are the statements set out in the preamble to Regulation No 945/2005, (1) in particular in recitals 20 to 23, that, ‘if the nitrogen content of the product concerned exceeds 28 % by weight, it consequently always contains more than 80 % by weight of ammonium nitrate’ to be regarded as a settled presumption enabling it to be concluded that, if the product concerned (ammonium nitrate fertiliser) contains 28 % or more of nitrogen (N), its ammonium nitrate (AN) content is always more than 80 %?

                  2.

                  Is that presumption applicable to the new types of product concerned that are specified in Regulation No 945/2005, that is to say, to NPK fertilisers with a nitrogen (N) content equal to or exceeding 28 % by weight, a ratio between ammoniacal and nitric nitrogen of approximately 1:1, and a phosphorus (P) and/or potassium (K) content not exceeding 12 % by weight, for example, the NPK 30-4-4 fertiliser discussed in the present dispute?

                  3.

                  If the answer to the above questions is in the affirmative, does the aforementioned presumption in Regulation No 945/2005 have binding legal force, that is to say, can it be relied on in classifying the NPK fertilisers specified in paragraph 17 of the decision of the Tax Disputes Commission under the TARIC codes, and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force, although Article 1(1) and Article 1(3) of Regulation No 945/2005 (and, correspondingly, Article 1(1) and Article 1(2)(c) of Regulation No 999/2014 (2) which was in force at the time of completion of the import procedures at issue) relate the imposition of definitive anti-dumping duty not to the content of the chemical element nitrogen (N) in a product but to the content of the chemical compound ammonium nitrate (AN) and the content of phosphorus and potassium in a product?

                  4.

                  For the purposes of the classification under TARIC codes of the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission and, accordingly, for the purposes of the application of the measures (anti-dumping duty) in force — having regard to the objectives set out in recitals 35 and 36 of Regulation No 945/2005 of applying the measures in force to the new product types on the basis of the principle of proportionality, and of simplifying the customs procedure and the application of the appropriate duty rates corresponding to the amount of product concerned incorporated in the compound — can the presumption specified in paragraph 16 of the decision of the Tax Disputes Commission be relied upon when calculating (determining) the ammonium nitrate content of such fertilisers? In other words, after the content of nitrogen (N) in the NPK fertilisers referred to in paragraph 17 of the decision of the Tax Disputes Commission has been determined (on the basis of the documents provided by the importer at the time of customs clearance, or during laboratory tests), is the ammonium nitrate content calculated (determined) having regard to the ratio between the ammonium nitrate (AN) content and nitrogen (N) content defined in recital 20 of Regulation No 945/2005, which depends on the atomic weight of the elements and is 2.86, without any additional laboratory tests being conducted to determine the exact ammonium nitrate content?

         (1)  Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2005 L 160, p. 1).

         (2)  Commission Implementing Regulation (EU) No 999/2014 of 23 September 2014 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2014 L 280, p. 19).


title: Case C-130/19: Action brought on 15 February 2019 — European Court of Auditors v Karel Pinxten

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/24

      Action brought on 15 February 2019 — European Court of Auditors v Karel Pinxten
      (Case C-130/19)
      (2019/C 148/22)
      Language of the case: French

         Parties

         Applicant: European Court of Auditors (represented by: C. Lesauvage, E. von Bardeleben, J. Vermer, acting as Agents)

         Defendant: Karel Pinxten

         Form of order sought

                  —

                  Declare that Mr Pinxten no longer meets the obligations arising from his office under Articles 285 and 286 TFEU and the rules adopted in application thereof;

                  —

                  Impose, consequently, the penalty laid down in Article 286(6) TFEU, the Court of Auditors leaving it to the discretion of the Court to determine the scope;

                  —

                  Order Mr Pinxten to pay the costs.

         Pleas in law and main arguments

      The Court of Auditors complains that Mr Pinxten:

                  —

                  firstly, made improper use of the resources of the Court of Auditors in order to finance activities with no connection or incompatible with his duties as a Member;

                  —

                  secondly, made improper and unlawful use of tax privileges;

                  —

                  thirdly, made false insurance claims in the context of alleged accidents involving the service vehicle made available to him;

                  —

                  fourthly, exercised managed activities for a commercial company and intense political activity within a political party although he was in the service of the Court of Auditors;

                  —

                  fifthly, created a situation of conflict of interests by making a service offer to an official of an audited entity.


title: Case C-144/19 P: Appeal brought on 20 February 2019 by Lupin Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-680/14: Lupin v Commission

text:
               29.4.2019

               EN

               Official Journal of the European Union

               C 148/24

      Appeal brought on 20 February 2019 by Lupin Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-680/14: Lupin v Commission
      (Case C-144/19 P)
      (2019/C 148/23)
      Language of the case: English

         Parties

         Appellant: Lupin Ltd (represented by: S. Smith, A. White, Solicitors, M. Hoskins QC, V. Wakefield, Barrister)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court should:

                  —

                  quash the General Court finding in relation to the difference in treatment between Lupin and Krka and,

                  —

                  pursuant to Article 61 of the Statute, give final judgment in the matter quashing or reducing the fine imposed by the Commission.

         Pleas in law and main arguments

                  1.

                  The first plea in law is that the General Court erred in law by holding that the patent settlement agreement concluded by Lupin and Servier on 30 January 2007 was a restriction by object under Article 101(1) TFEU. In particular:

                              a.

                              The General Court misdirected itself as to the applicable legal test for a finding of infringement by object, particularly in light of the legal principles upheld in Case C-67/13 P, Cartes Bancaire.

                              b.

                              The General Court failed to recognise that the effect on competition of non-compete and non-challenge clauses in settlement agreements is the same regardless of the existence of any inducement.

                              c.

                              The General Court failed to analyse or explain the distinction between justified and unjustified reverse payments, contrary to the principle of legal certainty.

                              d.

                              The General Court erred in finding that the existence of an ‘inducement’ to a generic company justifies a finding of a restriction by object. Nor can the receipt of a ‘benefit’ by the generic company justify such a finding.

                              e.

                              The General Court erred in law by holding that the ambiguous drafting of the restrictions under the agreement should be construed as extending to products beyond the scope of the patent being litigated by the parties.
                              No restriction by effect

                  2.

                  The General Court held that Lupin’s challenge to the Commission’s finding of a restriction by effect was ineffective, since it had upheld the Commission’s finding of restriction by object. Lupin’s second plea in law is that, if the Court overturns that finding on object, the Court should give final judgment on Lupin’s appeal by quashing the Commission’s finding on restriction by effect. In particular:

                              a.

                              The Commission erred in law in its reliance on reverse payment and/or significant inducement.

                              b.

                              The Commission should have analysed the question of restriction by effect by reference to the ancillary restraints doctrine and/or by reference to the principles recognised in Case C-309/99, Wouters, and/or Article 102 TFEU.

                              c.

                              The Commission’s assessment of Servier's market position for the purposes of Article 101(1) TFEU directly transposed its findings in respect of dominance under Article 102 TFEU, which have been annulled (Case T-691/14, Servier v Commission).
                              Penalty

                  3.

                  The third plea in law is that the General Court erred, in respect of the fine, in its assessment of the novel nature of the alleged infringement.

                  4.

                  The fourth plea in law is that the General Court erred in respect of the obligation to have regard to both the gravity and duration of the alleged infringement when setting a fine.

                  5.

                  The fifth plea in law is that the General Court erred in failing to take into account the value of the patent applications transferred from Servier to Lupin when setting the fine.

                  6.

                  The sixth plea in law, which is contingent upon the Commission's successful appeal of the General Court's judgment in Case T-684/14, Krka, is that the General Court erred by holding that the Commission's treatment of Lupin compared to Krka did not breach the principle of equal treatment.