title: Case C-618/18: Request for a preliminary ruling from the Giudice di pace di L’Aquila (Italy) lodged on 1 October 2018 — Gabriele Di Girolamo v Ministero della Giustizia

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/16

      Request for a preliminary ruling from the Giudice di pace di L’Aquila (Italy) lodged on 1 October 2018 — Gabriele Di Girolamo v Ministero della Giustizia
      (Case C-618/18)
      (2019/C 25/19)
      Language of the case: Italian

         Referring court

      Giudice di pace di L’Aquila

         Parties to the main proceedings

         Applicant: Gabriele Di Girolamo

         Defendant: Ministero della Giustizia

         Questions referred

                  1.

                  In the light of the case-law of the Court of Justice of the European Union concerning the liability of the Italian State for manifest infringement of Community law by courts adjudicating at last instance in the judgments [of 30 September 2003, Köbler, C-224/01, EU:C:2003:513; of 13 June 2006, Traghetti del Mediterraneo, C-173/03, EU:C:2006:391 and of 24 November 2011, Commission v Italy, C-379/10, EU:C:2011:775], must the general principles of European Union law presently in force concerning legal certainty, the protection of legitimate expectations, procedural equality, effective judicial protection, the right to an independent court or tribunal and, more generally, the right to due process laid down in Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that those provisions and the cited case-law of the Court of Justice preclude a Member State from adopting, to benefit itself or its public authorities, as in the present case, legislation such as that introduced by Law No 18/2015, with the declared intention of implementing the cited decisions of the Court of Justice, but with the essential objective of frustrating the effects thereof and affecting domestic jurisdiction, which, in the new version of Article 2(3) and (3bis) of Law No 117 of 13 April 1988 on the civil liability of judges, introduces a notion of liability for intentional fault or serious misconduct ‘in the event of manifest infringement of this law or the law of the European Union? That national legislation gives the national magistrate a choice — and the fact that it is made in any event gives rise to civil liability and liability to disciplinary action in relation to the State in cases in which the public authority itself is a substantive party —, as in the present case, of either infringing national legislation by disapplying it and applying European Union law, as interpreted by the Court of Justice, or infringing European Union law by applying the provisions of national law precluding effective protection and incompatible with Articles 1(3) and 7 of Directive 2003/88, Clauses 2 and 4 of the framework agreement on fixed-term work implemented by Directive 1999/70 and Article 31(2) of the Charter of Fundamental Rights of the European Union, as interpreted by the case-law of the Court of Justice in the judgments [of 1 March 2012, O’Brien, C-393/10, EU:C:2012:110; and of 29 November 2017, King, C-214/16, EU:C:2017:914];

                  2.

                  If Question 1 is answered in the affirmative and having regard to the position adopted by the Italian Constitutional Court [in judgment] No 269/2017 of 14 December 2017 following the judgment [of the Court of Justice of 5 December 2010, M.A.S. and M.B., C-42/17, EU:C:2017:936], in the light of Articles 31(2) and 47 of the Charter of Fundamental Rights of the European Union, Article 267 TFEU and Article 4 of the EU Treaty, can the decision which the Court of Justice has to adopt in the present case, finding that Article 2(3) and (3bis) of Law No 117 of 13 April 1988 is incompatible with EU law, in the main proceedings in which the defendant is a public authority of the State, be treated by the national court as a provision of European Union law of direct effect and application, thus allowing the national precluding provision to be disapplied?’

                  3.

                  If Question 1 is answered in the affirmative, may an ordinary or ‘togato’ judge [a career judge engaged on a permanent basis and salaried] be regarded as a permanent worker indistinguishable from a ‘Giudice di Pace’ fixed-term worker for the purposes of the application of Clause 4 of the framework agreement on fixed-term work implemented by Directive 1999/70, (1) where the judicial functions performed are the same but the selection procedure for performing the functions differ between ordinary judges (based on qualifications and tests with permanent employment and substantial permanent protection from dismissal, other than in rare cases of grave breaches of duty) and Giudici di pace (based on qualifications with fixed-term employment, renewable on a discretionary basis after a favourable periodic review by the by the Consiglio superiore della magistratura (the Supreme Council of the Judiciary) and immediately revocable in the event of an unfavourable review by the Giudice onorario (honorary judge)?

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


title: Case C-639/18: Request for a preliminary ruling from the Landgericht Kiel (Germany) lodged on 12 October 2018 — KH v Sparkasse Südholstein

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/17

      Request for a preliminary ruling from the Landgericht Kiel (Germany) lodged on 12 October 2018 — KH v Sparkasse Südholstein
      (Case C-639/18)
      (2019/C 25/20)
      Language of the case: German

         Referring court

      Landgericht Kiel

         Parties to the main proceedings

         Applicant: KH

         Defendant: Sparkasse Südholstein

         Questions referred

                  1.

                  Within the meaning of Article 2(a) of Directive 2002/65/EC (1), is a contract concluded ‘under an organised distance sales or service-provision scheme run by the supplier’, by means of which an existing loan agreement is amended solely with regard to the interest rate agreed (follow-up interest agreement), if a branch bank concludes loan agreements for the purpose of financing an immovable property secured by mortgage only at its commercial premises, but in ongoing business dealings concludes contracts to amend loan agreements that have already been agreed in some cases also by making exclusive use of means of distance communication?

                  2.

                  Does a ‘contract concerning financial services’ within the meaning of Article 2(a) of Directive 2002/65/EC exist if an existing loan agreement is amended solely with regard to the agreed interest rate (follow-up interest agreement), without extending the term of the loan or altering the amount of the loan?

         (1)  Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ 2002 L 271, p. 16).


title: Case C-641/18: Request for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 12 October 2018 — LG and Others v Rina S.p.A. and Ente Registro Italiano Navale

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/18

      Request for a preliminary ruling from the Tribunale di Genova (Italy) lodged on 12 October 2018 — LG and Others v Rina S.p.A. and Ente Registro Italiano Navale
      (Case C-641/18)
      (2019/C 25/21)
      Language of the case: Italian

         Referring court

      Tribunale di Genova

         Parties to the main proceedings

         Applicants: LG and Others

         Defendants: Rina S.p.A. and Ente Registro Italiano Navale

         Question referred

      Should Articles 1(1) and 2(1) of Regulation (EC) No 44/2001 (1) of 22 December 2000 be interpreted — particularly in the light of Article 47 of the Charter of Fundamental Rights of the European Union, Article 6(1) of the European Convention on Human Rights and recital 16 of Directive 2009/15/EC (2) — as preventing a court of a Member State from waiving its jurisdiction by granting jurisdictional immunity to private entities and legal persons carrying out classification and/or certification activities, established in that Member State, in respect of the performance of those classification and/or certification activities on behalf of a non-EU State, in a dispute concerning compensation for death and personal injury caused by the sinking of a passenger ferry and liability for negligent conduct?

         (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

         (2)  Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ 2009 L 131, p. 47).


title: Case T-546/17: Judgment of the General Court of 15 November 2018 — Haufe-Lexware v EUIPO — Le Shi Holdings (Beijing) (Leshare) (EU trade mark — Opposition proceedings — Application for the EU word mark Leshare — Earlier international word mark LEXWARE — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Similarity of the signs)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/39

      Judgment of the General Court of 15 November 2018 — Haufe-Lexware v EUIPO — Le Shi Holdings (Beijing) (Leshare)
      (Case T-546/17) (1)

      ((EU trade mark - Opposition proceedings - Application for the EU word mark Leshare - Earlier international word mark LEXWARE - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Similarity of the signs))
      (2019/C 25/50)
      Language of the case: English

         Parties

         Applicant: Haufe-Lexware GmbH & Co. Kg (Freiburg im Breisgau, Germany) (represented by: N. Hebeis, lawyer)

         Defendant: European Union Intellectual Property Office (represented by: M. Fischer and D. Walicka, acting as Agents)

         Other party to the proceedings before the Board of Appeal of EUIPO: Le Shi Holdings (Beijing) Ltd (Beijing, China)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of EUIPO of 15 June 2017 (Case R 1691/2016-4) relating to opposition proceedings between Haufe-Lexware and Le Shi Holdings (Beijing).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Haufe-Lexware GmbH & Co. KG to pay the costs.

         (1)  OJ C 338, 9.10.2017.


title: Case C-29/17: Judgment of the Court (First Chamber) of 21 November 2018 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Novartis Farma SpA v Agenzia Italiana del Farmaco (AIFA), Roche Italia SpA, Consiglio Superiore di Sanità (Reference for a preliminary ruling — Medicinal products for human use — Directive 2001/83/EC — Article 3(1) — Article 6 — Directive 89/105/EEC — Regulation (EC) No 726/2004 — Articles 3, 25 and 26 — Repackaging of a medicinal product for use as a treatment not covered by its marketing authorisation (off-label use) — Reimbursement by the national healthcare insurance system)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/4

      Judgment of the Court (First Chamber) of 21 November 2018 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Novartis Farma SpA v Agenzia Italiana del Farmaco (AIFA), Roche Italia SpA, Consiglio Superiore di Sanità
      (Case C-29/17) (1)

      ((Reference for a preliminary ruling - Medicinal products for human use - Directive 2001/83/EC - Article 3(1) - Article 6 - Directive 89/105/EEC - Regulation (EC) No 726/2004 - Articles 3, 25 and 26 - Repackaging of a medicinal product for use as a treatment not covered by its marketing authorisation (off-label use) - Reimbursement by the national healthcare insurance system))
      (2019/C 25/05)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Applicant: Novartis Farma SpA

         Defendants: Agenzia Italiana del Farmaco (AIFA), Roche Italia SpA, Consiglio Superiore di Sanità

         intervening parties: Ministero della Salute, Regione Veneto, Società Oftalmologica Italiana (SOI) — Associazione Medici Oculisti Italiani (AMOI), Regione Emilia-Romagna

         Operative part of the judgment

                  1.

                  Article 3(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2012/26/EU of the European Parliament and of the Council of 25 October 2012, must be interpreted as meaning that Avastin, after being repackaged according to the conditions laid down by the national measures at issue in the main proceedings, falls within the scope of Directive 2001/83, as amended by Directive 2012/26.

                  2.

                  Article 6 of Directive 2001/83, as amended by Directive 2012/26, must be interpreted as not precluding national measures such as those at issue in the main proceedings which lay down the conditions under which Avastin may be repackaged in order to be used for the treatment of ophthalmological indications not covered by its market authorisation.

                  3.

                  Articles 3, 25 and 26 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency, as amended by Regulation (EU) No 1027/2012 of the European Parliament and of the Council of 25 October 2012, must be interpreted as not precluding a national measure such as that taken pursuant to Article 1(4)bis of decreto-legge 21 ottobre 1996, n. 536, recante ‘Misure per il contenimento della spesa farmaceutica e la rideterminazione del tetto di spesa per l'anno 1996’, convertito dalla legge del 23 dicembre 1996, n. 648 (Decree-Law No 536 of 21 October 1996 on ‘Measures for containing pharmaceutical expenditure and for adjusting the maximum level of expenditure for 1996’, converted into statute by Law No 648 of 23 December 1996), as amended by decreto-legge del 20 marzo 2014, n. 36, convertito dalla legge del 16 maggio 2014, n. 79 (Decree-Law No 36 of 20 March 2014, converted into statute by Law No 79 of 16 May 2014) which authorises the Agenzia Italiana del Farmaco (AIFA) (Italian Medicines Agency (AIFA)) to monitor medicinal products such as Avastin the off-label use of which is reimbursed by the Servizio Sanitario Nazionale (National Health Service, Italy) and, where relevant, to introduce measures necessary to safeguard patient safety.

         (1)  OJ C 195, 19.6.2017.


title: Case C-687/18: Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) made on 7 November 2018 — SY v Associated Newspapers Ltd

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/27

      Reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) made on 7 November 2018 — SY v Associated Newspapers Ltd
      (Case C-687/18)
      (2019/C 25/34)
      Language of the case: English

         Referring court

      Court of Appeal (England & Wales) (Civil Division)

         Parties to the main proceedings

         Applicant: SY

         Defendant: Associated Newspapers Ltd

         Question referred

      Are provisions of national law such as subsections 32(4) and (5) of the Data Protection Act 1998 (‘the DPA’) — which provide that, where a data controller claims that any personal data to which proceedings against that data controller relate are being processed: (i) only for the purposes of journalism, artistic purposes, or literary purposes; and (ii) with a view to the publication of journalistic, literary or artistic material which has not previously been published by the data controller, such proceedings shall be stayed insofar as they concern unpublished personal data until (a) a determination by the Information Commissioner that conditions (i) or (ii) are not fulfilled, (b) the data controller's claim is withdrawn or (c) the personal data are published — compatible with Articles 9, 22 and 23 of Directive 95/46/EC (1) and Articles 7, 8 and 47 of the Charter of Fundamental Rights?

         (1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995, L 281, p. 31).


title: Case C-147/17: Judgment of the Court (Grand Chamber) of 20 November 2018 (request for a preliminary ruling from the Curtea de Apel Constanța — Romania) — Sindicatul Familia Constanţa, Ustinia Cvas and Others v Direcția Generală de Asistență Socială și Protecția Copilului Constanța (Reference for a preliminary ruling — Protection of the safety and health of workers — Organisation of working time — Charter of Fundamental Rights of the European Union — Article 31 — Directive 2003/88/EC — Scope — Derogation — Article 1(3) — Directive 89/391/EEC — Article 2(2) — Work performed by foster parents)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/5

      Judgment of the Court (Grand Chamber) of 20 November 2018 (request for a preliminary ruling from the Curtea de Apel Constanța — Romania) — Sindicatul Familia Constanţa, Ustinia Cvas and Others v Direcția Generală de Asistență Socială și Protecția Copilului Constanța
      (Case C-147/17) (1)

      ((Reference for a preliminary ruling - Protection of the safety and health of workers - Organisation of working time - Charter of Fundamental Rights of the European Union - Article 31 - Directive 2003/88/EC - Scope - Derogation - Article 1(3) - Directive 89/391/EEC - Article 2(2) - Work performed by foster parents))
      (2019/C 25/06)
      Language of the case: Romanian

         Referring court

      Curtea de Apel Constanța

         Parties to the main proceedings

         Appellants: Sindicatul Familia Constanţa, Ustinia Cvas, Silvica Jianu, Dumitra Bocu, Cader Aziz, Georgeta Crângaşu, Sema Cutlacai

         Respondent: Direcția Generală de Asistență Socială și Protecția Copilului Constanța

         Operative part of the judgment

      Article 1(3) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, read in conjunction with Article 2(2) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, must be interpreted as meaning that the work performed by a foster parent under an employment contract with a public authority, which consists in taking in a child, integrating that child into his or her household and ensuring, on a continuous basis, the harmonious upbringing and education of that child, does not come within the scope of Directive 2003/88.

         (1)  OJ C 231, 17.7.2017.


title: Case C-295/17: Judgment of the Court (Fifth Chamber) of 22 November 2018 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — MEO — Serviços de Comunicações e Multimédia SA v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Common system of value added tax (VAT) — Directive 2006/112/EC — Scope — Taxable transactions — Supply for consideration — Distinction between non-taxable damages and interest and the taxable supply of services provided in return for ‘compensation’)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/8

      Judgment of the Court (Fifth Chamber) of 22 November 2018 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — MEO — Serviços de Comunicações e Multimédia SA v Autoridade Tributária e Aduaneira
      (Case C-295/17) (1)

      ((Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Scope - Taxable transactions - Supply for consideration - Distinction between non-taxable damages and interest and the taxable supply of services provided in return for ‘compensation’))
      (2019/C 25/09)
      Language of the case: Portuguese

         Referring court

      Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

         Parties to the main proceedings

         Applicant: MEO — Serviços de Comunicações e Multimédia SA

         Defendant: Autoridade Tributária e Aduaneira

         Operative part of the judgment

                  1.

                  Article 2(1)(c) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the predetermined amount received by an economic operator in the event of early termination by its client, or for a reason attributable to the latter, of a contract for the provision of services with a minimum commitment period, which amount corresponds to the amount that the operator would have received during the remainder of that period had it not been for such termination, this being a matter for the referring court to determine, must be regarded as consideration for a supply of services for consideration and, as such, must be regarded as being subject to VAT.

                  2.

                  The fact that the objective of the lump sum is to dissuade customers from non- observance of the minimum commitment period and to make good the damage that the operator suffers in the event of failure to observe that period, the fact that the remuneration received by a commercial agent for the conclusion of contracts stipulating a minimum period of employment is higher than that provided for under contracts which do not stipulate such a period, and the fact that the amount invoiced is classified under national law as a penalty clause, are not decisive for the characterisation of the amount predetermined in the service contract which the customer is liable to pay in the event of early termination.

         (1)  OJ C 256, 7.8.2017.


title: Case T-681/18: Action brought on 16 November 2018 — "Korporaciya ‘Masternet’ v EUIPO — Stayer Ibérica (STAYER)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/55

      Action brought on 16 November 2018 — "Korporaciya ‘Masternet’ v EUIPO — Stayer Ibérica (STAYER)
      (Case T-681/18)
      (2019/C 25/71)
      Language of the case: English

         Parties

         Applicant: ZAO "Korporaciya ‘Masternet’ (Moscow, Russia) (represented by: N. Bürglen, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Stayer Ibérica, SA (Pinto, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union figurative mark STAYER — European Union trade mark No 4 675 881

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 7 September 2018 in Case R 1940/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case C-661/18: Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 22 October 2018 — CTT — Correios de Portugal v Autoridade Tributária e Aduaneira

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/22

      Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 22 October 2018 — CTT — Correios de Portugal v Autoridade Tributária e Aduaneira
      (Case C-661/18)
      (2019/C 25/26)
      Language of the case: Portuguese

         Referring court

      Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

         Parties to the main proceedings

         Applicant: CTT — Correios de Portugal

         Defendant: Autoridade Tributária e Aduaneira

         Questions referred

                  1.

                  Do the principles of neutrality, effectiveness, equivalence and proportionality preclude an interpretation of Article 98(2) of the VAT Code to the effect that it does not apply to situations where deductions which have already been made are altered or adjusted?

                  2.

                  Do those principles preclude legislation such as Article 23(1)(b) and (6) of the VAT Code, interpreted to the effect that a taxable person, who had opted for a coefficient method and/or allocation key in order to calculate the right to deduct tax paid on goods and services of mixed use and who had made the correction on the basis of the final amounts for the year to which the deduction related, pursuant to Article 23(6), may not retroactively alter those amounts by recalculating the initial deduction which has already been adjusted in accordance with that provision following a retroactive VAT assessment relating to an activity which it had initially regarded as being exempt?


title: Case C-575/17: Judgment of the Court (Fifth Chamber) of 22 November 2018 (request for a preliminary ruling from the Conseil d’État — France) — Sofina SA, Rebelco SA, Sidro SA v Ministre de l’Action et des Comptes publics (Reference for a preliminary ruling — Free movement of capital — Withholding tax on the gross amount of nationally sourced dividends paid to non-resident companies — Deferral of taxation of dividends paid to a resident company in the event of a loss-making year — Difference in treatment — Justification — Comparability — Balanced distribution of the powers of taxation between the Member States — Effective collection of tax — Proportionality — Discrimination)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/10

      Judgment of the Court (Fifth Chamber) of 22 November 2018 (request for a preliminary ruling from the Conseil d’État — France) — Sofina SA, Rebelco SA, Sidro SA v Ministre de l’Action et des Comptes publics
      (Case C-575/17) (1)

      ((Reference for a preliminary ruling - Free movement of capital - Withholding tax on the gross amount of nationally sourced dividends paid to non-resident companies - Deferral of taxation of dividends paid to a resident company in the event of a loss-making year - Difference in treatment - Justification - Comparability - Balanced distribution of the powers of taxation between the Member States - Effective collection of tax - Proportionality - Discrimination))
      (2019/C 25/11)
      Language of the case: French

         Referring court

      Conseil d’État

         Parties to the main proceedings

         Applicants: Sofina SA, Rebelco SA, Sidro SA

         Defendant: Ministre de l’Action et des Comptes publics

         Operative part of the judgment

      Articles 63 and 65 TFEU must be interpreted as precluding the legislation of a Member State, such as that at issue in the main proceedings, pursuant to which the dividends paid by a resident company are subject to a withholding tax when they are received by a non-resident company, whereas, when such dividends are received by a resident company, under the general corporation tax rules they are subject to taxation at the end of the financial year in which they were received only if the latter company was profitable in that financial year, and such taxation may, where applicable, never be levied if that company ceases trading without becoming profitable after receiving those dividends.

         (1)  OJ C 437, 18.12.2017.


title: Case C-619/17: Judgment of the Court (Sixth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Tribunal Supremo — Spain) — Ministerio de Defensa v Ana de Diego Porras (Reference for a preliminary ruling — Social Policy — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Principle of non-discrimination — Justification — Clause 5 — Measures to prevent abuse arising from the use successive fixed-term employment contracts or relationships — Compensation in the event of termination of a permanent employment contract on objective grounds — No compensation on the expiry of a fixed-term ‘interinidad’ employment contract)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/10

      Judgment of the Court (Sixth Chamber) of 21 November 2018 (Request for a preliminary ruling from the Tribunal Supremo — Spain) — Ministerio de Defensa v Ana de Diego Porras
      (Case C-619/17) (1)

      ((Reference for a preliminary ruling - Social Policy - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Principle of non-discrimination - Justification - Clause 5 - Measures to prevent abuse arising from the use successive fixed-term employment contracts or relationships - Compensation in the event of termination of a permanent employment contract on objective grounds - No compensation on the expiry of a fixed-term ‘interinidad’ employment contract))
      (2019/C 25/12)
      Language of the case: Spanish

         Referring court

      Tribunal Supremo

         Parties to the main proceedings

         Applicant: Ministerio de Defensa

         Defendant: Ana de Diego Porras

         Operative part of the judgment

                  1.

                  Clause 4(1) of the framework agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, is to be interpreted as not precluding national legislation under which no provision is made for the payment of compensation to workers employed under fixed-term contracts concluded to replace a worker who has a reserved right to his post, such as the interinidad (temporary replacement) contract at issue in the main proceedings, on the expiry of the term for which those contracts were concluded, whereas compensation is paid to permanent workers when their employment contract is terminated on objective grounds.

                  2.

                  Clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, is to be interpreted as meaning that it is for the national court to determine, in accordance with all the rules of national law applicable, whether a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of that provision.

                  3.

                  In the event the national court finds that a measure, such as that at issue in the main proceedings, which provides for the compulsory payment of compensation to workers employed under certain fixed-term contracts on the expiry of the term for which those contracts were concluded, constitutes an adequate measure for the purpose of preventing, and, where appropriate, imposing penalties in respect of, abuse arising from the use of successive fixed-term employment contracts or relationships, or an equivalent legal measure within the meaning of clause 5 of the framework agreement on fixed-term work, which is annexed to Directive 1999/70, that provision must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which the expiry of certain categories of fixed-term employment contracts confers entitlement to payment of such compensation to workers employed under such contracts, whereas the expiry of other categories of fixed-term employment contracts does not entitle the workers employed under those contracts to payment of any compensation, unless there is no other effective measure available under the national legal system for avoiding and imposing penalties for such abuse in respect of the latter group of workers, which is a matter for the referring court to determine.

         (1)  OJ C 22, 22.1.2018.


title: Case T-683/18: Action brought on 20 November 2018 — Conte v EUIPO (CANNABIS STORE AMSTERDAM)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/56

      Action brought on 20 November 2018 — Conte v EUIPO (CANNABIS STORE AMSTERDAM)
      (Case T-683/18)
      (2019/C 25/73)
      Language of the case: Italian

         Parties

         Applicant: Santa Conte (Naples, Italy) (represented by: D. Demichelis, E. Ortaglio and G. Iorio Fiorelli, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for EU figurative mark CANNABIS STORE AMSTERDAM in the colours black, olive green, light green and white — Application for registration No 16 176 968

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 13 August 2018 in Case R 2181/2017-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs of the present action, including the costs incurred by the applicant in the proceedings before the examiner and before the Second Board of Appeal of EUIPO.

         Pleas in law

                  —

                  Infringement of Article 71(1), read in conjunction with Article 95(1), of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Lack of assessment of a fact relevant to registration of the contested mark;

                  —

                  Lack of impartiality and care in the assessment of the meaning of the contested mark and of the perception of that mark on the part of the relevant public;

                  —

                  Infringement of Article 7(1)(f), read in conjunction with Article 7(2), of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Misidentification of the relevant public and of the perception of the contested mark;

                  —

                  Mark not contrary to public policy.


title: Case C-670/18: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 29 October 2018 — CO v Comune di Gesturi

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/23

      Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sardegna (Italy) lodged on 29 October 2018 — CO v Comune di Gesturi
      (Case C-670/18)
      (2019/C 25/28)
      Language of the case: Italian

         Referring court

      Tribunale Amministrativo Regionale per la Sardegna

         Parties to the main proceedings

         Applicant: CO

         Defendant: Comune di Gesturi

         Question referred

      Does the principle of non-discrimination referred to in Articles 1 and 2 of Council Directive 2000/78/EC (1) of 27 November 2000 preclude the provision in Article 5(9) of Decree-Law No 95 of 6 July 2012 (converted, with amendments, by Law No 135 of 7 August 2012, in the version of the text amended by Article 6 of Decree-Law No 90 of 24 June 2014, converted by Law No 114 of 11 August 2014), prohibiting public administrative authorities from awarding analysis and consultancy roles to individuals who are already retired public or private employees?

         (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).


title: Case T-239/11: Judgment of the General Court of 15 November 2018 — Sigma Alimentos Exterior v Commission (State aid — Corporate income tax provisions allowing companies domiciled in Spain to amortise the goodwill resulting from acquisitions of shareholdings in undertakings which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Selectivity — Reference system — Derogation — Differential treatment — Justification of differential treatment)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/34

      Judgment of the General Court of 15 November 2018 — Sigma Alimentos Exterior v Commission
      (Case T-239/11) (1)

      ((State aid - Corporate income tax provisions allowing companies domiciled in Spain to amortise the goodwill resulting from acquisitions of shareholdings in undertakings which are tax resident abroad - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of State aid - Selectivity - Reference system - Derogation - Differential treatment - Justification of differential treatment))
      (2019/C 25/43)
      Language of the case: Spanish

         Parties

         Applicant: Sigma Alimentos Exterior, SL (Madrid, Spain) (represented initially by A. Morillo Méndez and M. Ferre Navarrete, and subsequently by A. Morillo Méndez, J. Igual Gorgonio and C. Cañizares Pacheco, lawyers.)

         Defendant: European Commission (represented initially by R. Lyal, C. Urraca Caviedes and P. Němečková and subsequently by Lyal and C. Urraca Caviedes, acting as Agents)

         Re:

      Application pursuant to Article 263 TFEU seeking the annulment of Article 1(1) and Article 4 of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action.

                  2.

                  Orders Sigma Alimentos Exterior, SL to bear its own costs and to pay those incurred by the European Commission.

         (1)  OJ C 204, 9.7.2011.


title: Case C-625/17: Judgment of the Court (First Chamber) of 22 November 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Vorarlberger Landes- und Hypothekenbank AG v Finanzamt Feldkirch (Reference for a preliminary ruling — Articles 56 and 63 TFEU — Freedom to provide services and free movement of capital — Credit institutions — Stability charge and the special contribution for that charge determined according to the unconsolidated balance sheet total of credit institutions established in Austria — Inclusion of cross-border banking transactions — Exclusion of subsidiaries’ transactions in another Member State — Difference in treatment — Restriction — Justification)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/11

      Judgment of the Court (First Chamber) of 22 November 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Vorarlberger Landes- und Hypothekenbank AG v Finanzamt Feldkirch
      (Case C-625/17) (1)

      ((Reference for a preliminary ruling - Articles 56 and 63 TFEU - Freedom to provide services and free movement of capital - Credit institutions - Stability charge and the special contribution for that charge determined according to the unconsolidated balance sheet total of credit institutions established in Austria - Inclusion of cross-border banking transactions - Exclusion of subsidiaries’ transactions in another Member State - Difference in treatment - Restriction - Justification))
      (2019/C 25/13)
      Language of the case: German

         Referring court

      Verwaltungsgerichtshof

         Parties to the main proceedings

         Applicant: Vorarlberger Landes- und Hypothekenbank AG

         Defendant: Finanzamt Feldkirch

         Operative part of the judgment

      Article 56 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, in so far as it imposes on credit institutions established in Austria, such as the credit institution at issue in the main proceedings, which do not supply services to their clients resident in other Member States through permanent credit institutions established in those Member States, a charge determined according to the ‘average unconsolidated balance sheet total’, which includes the banking transactions which those institutions enter into directly with nationals of other Member States, whilst excluding the same transactions entered into by subsidiaries of credit institutions established in Austria where those subsidiaries are established in other Member States.

         (1)  OJ C 112, 26.3.2018.


title: Case C-672/18: Request for a preliminary ruling from the Conseil d’État (France) lodged on 29 October 2018 — DN v Ministre de l’Action et des Comptes publics

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/23

      Request for a preliminary ruling from the Conseil d’État (France) lodged on 29 October 2018 — DN v Ministre de l’Action et des Comptes publics
      (Case C-672/18)
      (2019/C 25/29)
      Language of the case: French

         Referring court

      Conseil d’État

         Parties to the main proceedings

         Applicant: DN

         Defendant: Ministre de l’Action et des Comptes publics

         Questions referred

                  1.

                  Must the provisions of Article 8 of the Directive of 19 October 2009 (1) be interpreted as precluding different bases of assessment and rate rules being used to tax the capital gain arising on a transfer of securities received in exchange and the deferred capital gain?

                  2.

                  Must those provisions be interpreted in particular as precluding a situation in which reductions of the basis of assessment intended to take into account the period for which securities have been held do not apply to the deferred capital gain, having regard to the fact that that basis of assessment rule did not apply on the date on which the capital gain arose, but they do apply to the capital gain on a transfer of the securities received in exchange, taking into account the date of the exchange instead of the date on which the securities given in exchange were acquired?

         (1)  Council Directive 2009/133/EC of 19 October 2009 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office of an SE or SCE between Member States (OJ 2009 L 310, p. 34).


title: Case T-646/18: Action brought on 26 October 2018 — Bonnafous v Commission

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/42

      Action brought on 26 October 2018 — Bonnafous v Commission
      (Case T-646/18)
      (2019/C 25/55)
      Language of the case: French

         Parties

         Applicant: Laurence Bonnafous (Brussels, Belgium) (represented by: A. Blot and S. Rodrigues, lawyers)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the Court should:

                  —

                  declare that the present action is admissible and well founded;

            consequently,

                  —

                  annul the contested decision;

                  —

                  order the defendant to pay all of the costs.

         Pleas in law and main arguments

      In support of her action seeking annulment of the Commission decision of 9 October 2018 rejecting the confirmatory application for access to a document (the 2018 Audit Service Report on HR Management in the Education, Audiovisual and Culture Executive Agency, registered under internal registration number ARES(2018)361356 and dated 21 January 2018), the applicant relies on three pleas in law.

                  1.

                  First plea in law, alleging infringement of Regulation No 1049/2001, of Article 15(3) TFEU and of Article 42 of the Charter, on the ground that the Commission failed to fulfil its obligations resulting from the public’s right of access to the documents of the institutions and the duty of transparency.

                  2.

                  Second plea in law, alleging infringement of Article 296 TFEU and of Article 41 of the Charter, that is, the duty to state reasons, in that the analysis set out in the contested decision relies on general statements and abstract reasoning.

                  3.

                  Third plea in law, alleging breach of the principle of proportionality, on the ground that the Commission refused to grant access to the requested document by wrongly invoking a general presumption of non-disclosure.


title: Case T-685/18: Action brought on 16 November 2018 — Apple v EUIPO — Society for Worldwide Interbank Financial Telecommunication (SWIFT)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/57

      Action brought on 16 November 2018 — Apple v EUIPO — Society for Worldwide Interbank Financial Telecommunication (SWIFT)
      (Case T-685/18)
      (2019/C 25/74)
      Language of the case: English

         Parties

         Applicant: Apple Inc. (Cupertino, California, United States) (represented by: J. Olsen and P. Andreottola, Solicitors)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Society for Worldwide Interbank Financial Telecommunication SCRL (La Hulpe, Belgium)

         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 word mark SWIFT — Application for registration No 13 370 861

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 30 August 2018 in Case R 476/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  uphold the applicant’s appeal against the contested decision in its entirety;

                  —

                  order EUIPO to pay the costs of the applicant.

         Plea in law

                  —

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


title: Case C-627/17: Judgment of the Court (Tenth Chamber) of 22 November 2018 (request for a preliminary ruling from the Okresný súd Dunajská Streda — Slovak Republic) — ZSE Energia a.s. v RG (Reference for a preliminary ruling — Regulation (EC) No 861/2007 — European Small Claims Procedure — Articles 2(1) and 3(1) — Scope — Concept of ‘parties’ — Cross-border disputes)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/12

      Judgment of the Court (Tenth Chamber) of 22 November 2018 (request for a preliminary ruling from the Okresný súd Dunajská Streda — Slovak Republic) — ZSE Energia a.s. v RG
      (Case C-627/17) (1)

      ((Reference for a preliminary ruling - Regulation (EC) No 861/2007 - European Small Claims Procedure - Articles 2(1) and 3(1) - Scope - Concept of ‘parties’ - Cross-border disputes))
      (2019/C 25/14)
      Language of the case: Slovak

         Referring court

      Okresný súd Dunajská Streda

         Parties to the main proceedings

         Applicant: ZSE Energia a.s.

         Defendant: RG

         intervener: ZSE Energia CZ, s.r.o.

         Operative part of the judgment

                  1.

                  Article 3(1) of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, as amended by Council Regulation (EU) No 517/2013 of 13 May 2013, must be interpreted as meaning that the concept of ‘parties’ covers solely the applicant and the defendant in the main proceedings.

                  2.

                  Article 2(1) and Article 3(1) of Regulation No 861/2007, as amended by Regulation No 517/2013, must be interpreted as meaning that a dispute such as that in the main proceedings, in which the applicant and the defendant have their domicile or their habitual residence in the same Member State as the court or tribunal seised, does not come within the scope of that regulation.

         (1)  OJ C 42, 5.2.2018.


title: Case T-653/18: Action brought on 31 October 2018 — Armani v EUIPO — Asunción (GIORGIO ARMANI le Sac 11)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/43

      Action brought on 31 October 2018 — Armani v EUIPO — Asunción (GIORGIO ARMANI le Sac 11)
      (Case T-653/18)
      (2019/C 25/56)
      Language of the case: English

         Parties

         Applicant: Giorgio Armani SpA (Milano, Italy) (represented by: S. Martínez-Almeida y Alejos-Pita, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Felipe Domingo Asunción (Madrid, 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 GIORGIO ARMANI le Sac 11 — Application for registration No 13 826 623

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 13 August 2018 in Case R 2462/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  alter the contested decision so as to hold that the appeal brought by the Applicant before the Board of Appeal is well founded and, consequently, that the opposition is to be rejected and the EUTM Application to be admitted; or, alternatively, annul the contested decision;

                  —

                  order EUIPO and if the case might be, the intervener, to pay the costs of the proceedings and the costs of appeal incurred within the EUIPO.

         Pleas in law

                  —

                  Infringement of the procedural rules applicable to proceedings before EUIPO and in particular of Article 94 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

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

                  —

                  Infringement of Articles 18 and 47(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case C-673/18: Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 30 October 2018 — Santen SAS v Directeur général de l’Institut national de la propriété industrielle

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/24

      Request for a preliminary ruling from the Cour d’appel de Paris (France) lodged on 30 October 2018 — Santen SAS v Directeur général de l’Institut national de la propriété industrielle
      (Case C-673/18)
      (2019/C 25/30)
      Language of the case: French

         Referring court

      Cour d’appel de Paris

         Parties to the main proceedings

         Applicant: Santen SAS

         Defendant: Directeur général de l’Institut national de la propriété industrielle

         Questions referred

                  1.

                  Must the concept of a ‘different application’ within the meaning of the judgment of 19 July 2012, Neurim (C-130/11, EU:C:2012:489), be interpreted strictly, that is to say:

                              —

                              as limited only to the situation where an application for human use follows a veterinary application;

                              —

                              or as relating to an indication within a new therapeutic scope, in the sense of a new proprietary medical product, compared with the earlier marketing authorisation, or a medicinal product in which the active ingredient acts differently from how it acts in the medicinal product to which the first marketing authorisation related;

                              —

                              or more generally, in the light of the objectives of Regulation (EC) No 469/2009 (1) of establishing a balanced system taking into account all the interests at stake, including those of public health, must the concept of a ‘new therapeutic use’ be assessed according to stricter criteria than those for assessing the patentability of the invention;

                        or must it on the other hand be interpreted broadly, that is to say, as including not only different therapeutic indications and diseases, but also different formulations, posologies and/or means of administration?

                  2.

                  Does the expression ‘[application] within the limits of the protection conferred by the basic patent’ within the meaning of the judgment [of the Court of Justice] of 19 July 2012, Neurim (C-130/11, [EU:C:2012:489]), mean that the scope of the basic patent must be the same as that of the marketing authorisation relied upon and, therefore, be limited to the new medical use corresponding to the therapeutic indication of that marketing authorisation?

         (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 T-654/18: Action brought on 31 October 2018 — Armani v EUIPO — Asunción (le Sac 11)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/44

      Action brought on 31 October 2018 — Armani v EUIPO — Asunción (le Sac 11)
      (Case T-654/18)
      (2019/C 25/57)
      Language of the case: English

         Parties

         Applicant: Giorgio Armani SpA (Milano, Italy) (represented by: S. Martínez-Almeida y Alejos-Pita, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Felipe Domingo Asunción (Madrid, 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 le Sac 11 — Application for registration No 13 612 593

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 13 August 2018 in Case R 2464/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  alter the contested decision so as to hold that the appeal brought by the Applicant before the Board of Appeal is well founded and, consequently, that the opposition is to be rejected and the EUTM Application to be admitted; or, alternatively, annul the contested decision;

                  —

                  order EUIPO and if the case might be, the intervener, to pay the costs of the proceedings and the costs of appeal incurred within the EUIPO.

         Pleas in law

                  —

                  Infringement of the procedural rules applicable to proceedings before EUIPO and in particular of Article 94 of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

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

                  —

                  Infringement of Articles 18 and 47(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case C-677/18: Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 5 November 2018 — Amoena Ltd v Commissioners for Her Majesty's Revenue and Customs

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/25

      Reference for a preliminary ruling from the First-tier Tribunal (Tax Chamber) (United Kingdom) made on 5 November 2018 — Amoena Ltd v Commissioners for Her Majesty's Revenue and Customs
      (Case C-677/18)
      (2019/C 25/31)
      Language of the case: English

         Referring court

      First-tier Tribunal (Tax Chamber)

         Parties to the main proceedings

         Applicant: Amoena Ltd

         Defendant: Commissioners for Her Majesty's Revenue and Customs

         Questions referred

                  1.

                  Was the CCC (1) and/or the European Commission· manifestly wrong to classify the MBs (2):

                              a)

                              under Chapter 62 of the Combined Nomenclature (3) of the European Union with tariff heading 6212, which specifically includes ‘Brassieres’, and CN code 6212 10 90;
                              instead of

                              b)

                              Chapter 90 with tariff heading 9021 and CN Code 9021 10 10 as accessories to artificial parts of the body within the meaning of Note 2(b) to Chapter 90 of the CN?

                  2.

                  Does the CIR (4) illegitimately narrow the scope of the classification for accessories for artificial body parts under tariff heading 9021 and Note 2(b) to Chapter 90 of the CN, thereby making it ultra vires the European Commission's powers?

                  3.

                  Does the CIR constitute a breach of the principal of sincere co-operation set out in Article 4(3) of the Treaty on European Union in circumstances where:

                              a)

                              the European Commission must respect the decisions of national courts, but must also promote the uniform (and correct) application of the Customs Code and CN;

                              b)

                              the United Kingdom Supreme Court came to the unanimous conclusion that the MBs are properly to be classified under Chapter 90 of the CN with tariff heading 9021; and

                              c)

                              the Supreme Court's decision was put before the European Commission and submitted by it to all EU Member States along with a summary of the Supreme Court's reasoning?

         (1)  Customs Code Committee (CCC).

         (2)  Mastectomy bras (MBs).

         (3)  CN.

         (4)  Commission Implementing Regulation (EU) 2017/1167 of 26 June 2017 concerning the classification of certain goods in the Combined NomenclatureCommission Implementing Regulation (OJ 2017, L 170, p. 50) (CIR).


title: Case T-655/18: Action brought on 30 October 2018 — Aupicon and Others v EEAS

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/45

      Action brought on 30 October 2018 — Aupicon and Others v EEAS
      (Case T-655/18)
      (2019/C 25/58)
      Language of the case: French

         Parties

         Applicants: Delphine Aupicon (Gaborone, Botswana) and ten other applicants (represented by: N. de Montigny, lawyer)

         Defendant: European External Action Service

         Form of order sought

      The applicants claim that the Court should:

                  —

                  annul Decision ADMIN(2017)26 of the Director General of Budget and Administration of the European External Action Service of 19 December 2017 on the determination of the countries in which living conditions can be deemed equivalent to those of the European Union, which do not give rise to the right to an allowance for living conditions referred to in Article 10 of Annex X to the Staff Regulations — financial year 2018;

                  —

                  so far as necessary, annul the applicants’ pay slip for January 2018;

                  —

                  order the defendant to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of the third paragraph of Article 1 of Annex X to the Staff Regulations of Officials of the European Union, on the ground that the EEAS did not adopt any general implementing provisions in accordance with Article 110 of the Staff Regulations.

                  2.

                  Second plea in law, alleging (i) manifest errors of assessment committed by the EEAS in its analysis of the criteria which must be taken into account when calculating the allowance for living conditions and (ii) failure to state relevant reasons.


title: Case C-713/17: Judgment of the Court (Third Chamber) of 21 November 2018 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich — Austria) — Ahmad Shah Ayubi v Bezirkshauptmannschaft Linz-Land (Reference for a preliminary ruling — Directive 2011/95/EU — Rules relating to the content of international protection — Refugee status — Article 29 — Social protection — Different treatment — Refuges with temporary right of residence)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/13

      Judgment of the Court (Third Chamber) of 21 November 2018 (request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich — Austria) — Ahmad Shah Ayubi v Bezirkshauptmannschaft Linz-Land
      (Case C-713/17) (1)

      ((Reference for a preliminary ruling - Directive 2011/95/EU - Rules relating to the content of international protection - Refugee status - Article 29 - Social protection - Different treatment - Refuges with temporary right of residence))
      (2019/C 25/16)
      Language of the case: German

         Referring court

      Landesverwaltungsgericht Oberösterreich

         Parties to the main proceedings

         Applicant: Ahmad Shah Ayubi

         Defendant: Bezirkshauptmannschaft Linz-Land

         Operative part of the judgment

                  1.

                  Article 29 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that refugees with a temporary right of residence in a Member State are to be granted social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State.

                  2.

                  A refugee may rely on the incompatibility of legislation, such as that at issue in the main proceedings, with Article 29(1) of Directive 2011/95 before the national courts in order to remove the restriction on his rights provided for by that legislation.

         (1)  OJ C 123, 9.4.2018.


title: Case C-678/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 November 2018 — Procureur-Generaal bij de Hoge Raad der Nederlanden

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/26

      Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 5 November 2018 — Procureur-Generaal bij de Hoge Raad der Nederlanden
      (Case C-678/18)
      (2019/C 25/32)
      Language of the case: Dutch

         Referring court

      Hoge Raad der Nederlanden

         Parties to the main proceedings

         Appellant: Procureur-Generaal bij de Hoge Raad der Nederlanden

         Question referred

      Must Article 90(1) of Regulation No 6/2002 (1) be interpreted as requiring the mandatory granting, to all courts and tribunals of a Member State referred to therein, of jurisdiction to grant provisional and protective measures, or does it leave the Member States — in full or in part — free to delegate jurisdiction to grant such measures exclusively to the courts and tribunals which, in accordance with Article 80(1) of Regulation No 6/2002, have been designated as courts (of first and second instance) for Community design?

         (1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, pp 1-24).


title: Case T-405/11: Judgment of the General Court of 15 November 2018 — Axa Mediterranean v Commission (State aid — Provisions concerning corporate tax allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Selectivity — Reference system — Derogation — Difference in treatment — Justification of the difference in treatment — Undertakings benefiting from the measure — Legitimate expectations)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/36

      Judgment of the General Court of 15 November 2018 — Axa Mediterranean v Commission
      (Case T-405/11) (1)

      ((State aid - Provisions concerning corporate tax allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of State aid - Selectivity - Reference system - Derogation - Difference in treatment - Justification of the difference in treatment - Undertakings benefiting from the measure - Legitimate expectations))
      (2019/C 25/45)
      Language of the case: Spanish

         Parties

         Applicant: Axa Mediterranean Holding, SA (Palma de Mallorca, Spain) (represented by: initially, J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, and, subsequently, J. Buendía Sierra, E. Abad Valdenebro and R. Calvo Salinero, and, finally, J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, lawyers)

         Defendant: European Commission (represented by: R. Lyal, C. Urraca Caviedes and P. Němečková, acting as Agents)

         Re:

      Application based on Article 263 TFEU and seeking annulment of Article 1(1) and Article 4 of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Axa Mediterranean Holding, SA to bear its own costs and to pay those incurred by the European Commission.

         (1)  OJ C 282, 24.9.2011.


title: Case T-686/18: Action brought on 19 November 2018 — LegalCareers v EUIPO (LEGALCAREERS)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/58

      Action brought on 19 November 2018 — LegalCareers v EUIPO (LEGALCAREERS)
      (Case T-686/18)
      (2019/C 25/75)
      Language of the case: German

         Parties

         Applicant: LegalCareers GmbH (Cologne, Germany) (represented by: M. Nielen, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Mark at issue: Application for registration of EU figurative mark LEGALCAREERS — Application No 9 978 594

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 17 September 2018 in Case R 234/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

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

                  —

                  Infringement of Article 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-406/11: Judgment of the General Court of 15 November 2018 — Prosegur Compañía de Seguridad v Commission (State aid — Provisions concerning corporate tax allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Concept of State aid — Selectivity — Reference system — Derogation — Difference in treatment — Justification of the difference in treatment — Undertakings benefiting from the measure — Legitimate expectations)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/37

      Judgment of the General Court of 15 November 2018 — Prosegur Compañía de Seguridad v Commission
      (Case T-406/11) (1)

      ((State aid - Provisions concerning corporate tax allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad - Decision declaring the aid to be incompatible with the internal market and ordering its recovery - Concept of State aid - Selectivity - Reference system - Derogation - Difference in treatment - Justification of the difference in treatment - Undertakings benefiting from the measure - Legitimate expectations))
      (2019/C 25/46)
      Language of the case: Spanish

         Parties

         Applicant: Prosegur Compañía de Seguridad, SA (Madrid, Spain) (represented by: initially, J. Buendía Sierra, E. Abad Valdenebro and M. Muñoz de Juan, and, subsequently, J. Buendía Sierra, E. Abad Valdenebro, R. Calvo Salinero and A. Lamadrid de Pablo, lawyers)

         Defendant: European Commission (represented by: R. Lyal, C. Urraca Caviedes and P. Němečková, acting as Agents)

         Re:

      Application based on Article 263 TFEU and seeking annulment of Article 1(1) and Article 4 of Commission Decision 2011/282/EU of 12 January 2011 on the tax amortisation of financial goodwill for foreign shareholding acquisitions No C 45/07 (ex NN 51/07, ex CP 9/07) implemented by Spain (OJ 2011 L 135, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Prosegur Compañía de Seguridad, SA to bear its own costs and to pay those incurred by the European Commission.

         (1)  OJ C 282, 24.9.2011.


title: Case T-487/14: Judgment of the General Court of 15 November 2018 — CHEMK and KF v Commission (Dumping — Imports of ferro-silicon originating in Russia — Definitive anti-dumping duty — Expiry review — Determination of the export price — Single economic entity — Reflection of the anti-dumping duty in resale prices in the European Union — Application of a methodology different from that used in an earlier investigation — Continuation or recurrence of dumping and injury — Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EU) 2016/1036))

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/37

      Judgment of the General Court of 15 November 2018 — CHEMK and KF v Commission
      (Case T-487/14) (1)

      ((Dumping - Imports of ferro-silicon originating in Russia - Definitive anti-dumping duty - Expiry review - Determination of the export price - Single economic entity - Reflection of the anti-dumping duty in resale prices in the European Union - Application of a methodology different from that used in an earlier investigation - Continuation or recurrence of dumping and injury - Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9), Article 3 and Article 11(9) and (10) of Regulation (EU) 2016/1036)))
      (2019/C 25/47)
      Language of the case: English

         Parties

         Applicants: Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) (Chelyabinsk, Russia) and Kuzneckie Ferrosplavy OAO (KF) (Novokuznetsk, Russia) (represented by: B. Evtimov and M. Krestiyanova, lawyers)

         Defendant: European Commission (represented by: M. França, J.-F. Brakeland, A. Stobiecka-Kuik and A. Demeneix, Agents)

         Intervener in support of the defendant: Euroalliages (Brussels, Belgium) (represented by: O. Prost and M.-S. Dibling, lawyers)

         Re:

      Application under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) No 360/2014 of 9 April 2014 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China and Russia, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 (OJ 2014 L 107, p. 13), in so far as it concerns the applicants.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie Ferrosplavy OAO (KF) to bear their own costs and to pay those incurred by the European Commission;

                  3.

                  Orders Euroalliages to bear its own costs.

         (1)  OJ C 282, 25.8.2014.


title: Case T-658/18: Action brought on 31 October 2018 — Hästens Sängar v EUIPO (Representation of a pattern of squares)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/46

      Action brought on 31 October 2018 — Hästens Sängar v EUIPO (Representation of a pattern of squares)
      (Case T-658/18)
      (2019/C 25/59)
      Language of the case: English

         Parties

         Applicant: Hästens Sängar AB (Köping, Sweden) (represented by: M. Johansson and R. Wessman, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: International registration designating the European Union in respect of the figurative mark in colours blue and white (Representation of a pattern of squares) — Application for registration No 1 340 047

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 8 August 2018 in Case R 442/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Pleas in law

                  —

                  Infringement of Article 94 and Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council on the grounds that the Board of Appeal has not made a proper examination, and/or has failed to state the reasons for its decision in relation to the different goods and services applied for;

                  —

                  Infringement of Article 94, Article 95 and Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council on the grounds that the subject trade mark is not a repeated pattern or a three-dimensional mark;

                  —

                  Erroneous assessment of the relevant underlying public interest constituting infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council since the Board of Appeal has made an incorrect assessment as regards inherent distinctiveness.


title: Case T-688/18: Action brought on 21 November 2018 — Exploitatiemaatschappij De Berghaaf v EUIPO — Brigade Electronics Group (CORNEREYE)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/59

      Action brought on 21 November 2018 — Exploitatiemaatschappij De Berghaaf v EUIPO — Brigade Electronics Group (CORNEREYE)
      (Case T-688/18)
      (2019/C 25/77)
      Language of the case: English

         Parties

         Applicant: Exploitatiemaatschappij De Berghaaf BV (Barneveld, Netherlands) (represented by: R. Pansch, S. Klopschinski and M. von Rospatt, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Brigade Electronics Group plc (Kent, United Kingdom)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union word mark CORNEREYE — Application for registration No 15 175 284

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the First Board of Appeal of EUIPO of 24 July 2018 in Case R 1966/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

                  Infringement of Article 95(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

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


title: Case T-661/18: Action brought on 7 November 2018 — Securitec v Commission

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/46

      Action brought on 7 November 2018 — Securitec v Commission
      (Case T-661/18)
      (2019/C 25/60)
      Language of the case: French

         Parties

         Applicant: Securitec (Livange, Luxembourg) (represented by: P. Peuvrel, lawyer)

         Defendant: European Commission

         Form of order sought

      The applicant claims that the General Court should:

                  —

                  declare the present action for annulment formally admissible;

                  —

                  substantively, declare the action for annulment justified;

                  —

                  accordingly, annul the contested refusal decision of 7 September 2018;

                  —

                  also annul the Commission’s decision 17 September 2018;

                  —

                  make any such further orders as may be necessary;

                  —

                  order the Commission to pay the costs and other fees incurred in the context of the present action.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging breach of the obligation to state reasons, vitiating (i) the Commission’s decision of 7 September 2018 to reject the tender submitted by the applicant under call for tender No HR/R1/PR/2017/059 entitled ‘Maintenance of security installations in buildings occupied and/or managed by the European Commission in Belgium and Luxembourg’ (OJ 2018/S 209-476275); and (ii) the decision of 17 September 2018 refusing to provide the applicant with the information that it had requested concerning the abovementioned call for tenders. The decision to reject the tender submitted by the applicant merely asserts that the tender did not offer the lowest price, whereas the price criterion was not the sole award criterion provided for in the tender specifications. An insufficiency of reasoning is tantamount to a failure to state reasons, and must be sanctioned by annulment of the decision.

                  2.

                  Second plea in law, alleging unlawfulness of the contested decision. In this connection, the applicant argues that the lowest-price criterion was not the only one taken into account and that the successful tender had, moreover, to be regular and satisfy the requirements laid down. The applicant takes the view that the successful tenderer did not have NEDAP certification, which was nevertheless a requirement in in the tender specifications. Accordingly, the award of the contract to that company was irregular, and the contested decisions should therefore be annulled.

                  3.

                  Third plea in law, alleging infringement of the principles of transparency, equal treatment and non-discrimination vitiating the contested decisions, particularly in the light of the disproportionate requirement of a minimum turnover of EUR 900 000 for companies tendering for Lot No 4 in Luxembourg, and in view of the Commission’s failure to respond to the questions raised in that connection in the applicant’s letter of 28 June 2018.


title: Case T-689/18: Action brought on 21 November 2018 — Executive Selling v EUIPO (EXECUTIVE SELLING)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/60

      Action brought on 21 November 2018 — Executive Selling v EUIPO (EXECUTIVE SELLING)
      (Case T-689/18)
      (2019/C 25/78)
      Language of the case: French

         Parties

         Applicant: Executive Selling (Paris, France) (represented by: V. Bouchara and A. Maier, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: International registration designating the European Union in respect of the figurative sign EXECUTIVE SELLING — Application for registration No 1 343 783

         Contested decision: Decision of the First Board of Appeal of EUIPO of 14 September 2018 in Case R 313/2018-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

                  The mark applied for taken as a whole is not descriptive of a characteristic of the services concerned. The analysis adopted by EUIPO is contrary to the terms of the applicable provisions and case-law and the registered sign is perfectly distinctive and therefore capable of fulfilling the essential function of a trademark.


title: Case T-663/18: Action brought on 9 November 2018 — Nissin Foods Holdings v EUIPO — The GB Foods (Soba JAPANESE FRIED NOODLES)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/47

      Action brought on 9 November 2018 — Nissin Foods Holdings v EUIPO — The GB Foods (Soba JAPANESE FRIED NOODLES)
      (Case T-663/18)
      (2019/C 25/61)
      Language of the case: English

         Parties

         Applicant: Nissin Foods Holdings Co. Ltd (Osaka, Japon) (represented by: S. Malynicz, QC, G. Messenger, Barrister, K. Gilbert and G. Lodge, Solicitors)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: The GB Foods, SA (L'Hospitalet de Llobregat, Spain)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union figurative mark Soba JAPANESE FRIED NOODLES in colours red, black, grey and white — European Union trade mark No 9 377 904

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 29 August 2018 in Case R 111/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO and the other party to bear their own costs and pay those of Applicant.

         Plea in law

                  —

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


title: Case T-695/18: Action brought on 26 November 2018 — Werner v EUIPO — Merck (fLORAMED)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/61

      Action brought on 26 November 2018 — Werner v EUIPO — Merck (fLORAMED)
      (Case T-695/18)
      (2019/C 25/79)
      Language in which the application was lodged: German

         Parties

         Applicant: Stefan Werner (Baldham, Germany) (represented by: T. Büttner, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Merck KGaA (Darmstadt, Germany)

         Details of the proceedings before EUIPO

         Applicant for the trade mark at issue: Applicant

         Trade mark at issue: European Union figurative mark ‘fLORAMED’ — Registration No 15 336 639

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 17 September 2018 in Case R 197/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision, as well as the decision of the Opposition Division of 24 November 2017, to reject the application for a trade mark in respect of all the goods claimed, which upheld the opposition brought by the opposing party on 7 October 2016.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.


title: Case T-666/18: Action brought on 6 November 2018 — 6Minutes Media v EUIPO — ad pepper media International (ad pepper)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/48

      Action brought on 6 November 2018 — 6Minutes Media v EUIPO — ad pepper media International (ad pepper)
      (Case T-666/18)
      (2019/C 25/62)
      Language in which the application was lodged: German

         Parties

         Applicant: 6Minutes Media GmbH (Berlin, Germany) (represented by: P. Koch and T. Hilser)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: ad pepper media International NV (Nuremberg, Germany)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: European Union figurative mark ad pepper — European Union trade mark No 1 307 966

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the First Board of Appeal of EUIPO of 20 June 2018 in Case R 839/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant and — in the event of a formal intervention — also the other party to the proceedings before the Board of Appeal to pay the costs, including the costs incurred by the applicant.

         Pleas in law

                  —

                  Infringement of Article 58(1)(a) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 58(1)(a), in conjunction with Article 18(1)(a) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.


title: Case T-697/18: Action brought on 26 November 2018 — Aldi v EUIPO — Titlbach (ALTISPORT)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/61

      Action brought on 26 November 2018 — Aldi v EUIPO — Titlbach (ALTISPORT)
      (Case T-697/18)
      (2019/C 25/80)
      Language in which the application was lodged: German

         Parties

         Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: N. Lützenrath, U. Rademacher, C. Fürsen and M. Minkner, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Aleš Titlbach (Meziboří, Czech Republic)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: International registration designating the European Union in respect of the mark ALTISPORT — International registration designating the European Union No 1 226 617

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 19 September 2018 in Case R 2683/2017-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

                  Infringement of Article 8(1)(b) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.


title: Case T-668/18: Action brought on 6 November 2018 — 6Minutes Media v EUIPO — ad pepper media International (ADPepper)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/49

      Action brought on 6 November 2018 — 6Minutes Media v EUIPO — ad pepper media International (ADPepper)
      (Case T-668/18)
      (2019/C 25/63)
      Language in which the application was lodged: German

         Parties

         Applicant: 6Minutes Media GmbH (Berlin, Germany) (represented by: P. Koch and T. Hilser, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: ad pepper media International NV (Nuremberg, Germany)

         Details of the proceedings before EUIPO

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

         Mark at issue: EU word mark ADPepper — EU trade mark No 1 109 990

         Proceedings before EUIPO: Cancellation proceedings

         Contested decision: Decision of the First Board of Appeal of EUIPO of 20 June 2018 in Case R 840/2017-1

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant and — should it formally intervene — also the other party before the Board of Appeal to pay the costs of the proceedings, including those incurred by the applicant.

         Pleas in law

                  —

                  Infringement of Article 95(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

                  —

                  Infringement of Article 58(1)(a), in conjunction with Article 18(1)(a), of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case T-113/15: Judgment of the General Court of 15 November 2018 — RFA International v Commission (Dumping — Imports of ferro-silicon originating in Russia — Rejection of applications for a refund of anti-dumping duties paid — Determination of the normal value and the export price — Single economic entity — Reflection of the anti-dumping duty in resale prices in the European Union — Application of a methodology different from that used in an earlier investigation — Article 2(9) and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9) and Article 11(9) and (10) of Regulation (EU) 2016/1036) — Article 18.3.1 of the WTO anti-dumping agreement)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/38

      Judgment of the General Court of 15 November 2018 — RFA International v Commission
      (Case T-113/15) (1)

      ((Dumping - Imports of ferro-silicon originating in Russia - Rejection of applications for a refund of anti-dumping duties paid - Determination of the normal value and the export price - Single economic entity - Reflection of the anti-dumping duty in resale prices in the European Union - Application of a methodology different from that used in an earlier investigation - Article 2(9) and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9) and Article 11(9) and (10) of Regulation (EU) 2016/1036) - Article 18.3.1 of the WTO anti-dumping agreement))
      (2019/C 25/48)
      Language of the case: English

         Parties

         Applicant: RFA International, LP (Calgary, Canada) (represented by: B. Evtimov and M. Krestiyanova, lawyers)

         Defendant: European Commission (represented by: J.-F. Brakeland and A. Stobiecka-Kuik, Agents)

         Re:

      Application under Article 263 TFEU for annulment in whole or in part of Commission Implementing Decisions C(2014) 9805 final, C(2014) 9806 final, C(2014) 9807 final, C(2014) 9808 final, C(2014) 9811 final, C(2014) 9812 final and C(2014) 9816 final of 18 December 2014 concerning applications for refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders RFA International, LP to pay the costs.

         (1)  OJ C 155, 11.5.2015.


title: Case T-669/18: Action brought on 13 November 2018 — Neoperl v EUIPO (Representation of four filled-in holes in a regular hole pattern)

text:
               21.1.2019

               EN

               Official Journal of the European Union

               C 25/50

      Action brought on 13 November 2018 — Neoperl v EUIPO (Representation of four filled-in holes in a regular hole pattern)
      (Case T-669/18)
      (2019/C 25/64)
      Language of the case: German

         Parties

         Applicant: Neoperl AG (Reinach, Switzerland) (represented by: H. Börjes-Pestalozza, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Mark at issue: Application for an EU position mark (Representation of four filled-in holes in a regular hole pattern) — Application No 16 259 665

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 10 September 2018 in Case R 2059/2017-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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