title: Case C-109/19: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Raggio di Sole Società Cooperativa Onlus v Comune di Cisternino, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/12

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Raggio di Sole Società Cooperativa Onlus v Comune di Cisternino, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino
      (Case C-109/19)
      (2019/C 182/15)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Applicant: Raggio di Sole Società Cooperativa Onlus

         Defendants: Comune di Cisternino, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino

         Question referred

      Does EU law (in particular the principles of legitimate expectations, legal certainty, freedom of movement, freedom of establishment and freedom to provide services) preclude a national legislative provision, such as Article 83(9), Article 95(10) and Article 97(5) of the Italian ‘Codice dei contratti pubblici’ (Public Procurement Code), under which failure to indicate labour costs and costs relating to the safety of workers by a tenderer in a public procurement procedure results in any event in the tenderer being excluded from the procedure without the tenderer being given, at a later stage, the benefit of the ‘soccorso istruttorio’ procedure [whereby a tenderer is given an opportunity to remedy shortcomings in his tender documentation after submission of his tender], even where the existence of such an obligation to indicate those costs is apparent from sufficiently clear legal provisions in the public domain and irrespective of the fact that the contract notice does not expressly refer to the legal obligation to provide specific information?


title: Case C-110/19: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Raggio di Sole Società Cooperativa Onlus v Comune di Ostuni, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/13

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Raggio di Sole Società Cooperativa Onlus v Comune di Ostuni, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino
      (Case C-110/19)
      (2019/C 182/16)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Applicant: Raggio di Sole Società Cooperativa Onlus

         Defendants: Comune di Ostuni, Consorzio per l’Inclusione Sociale dell’Ats Fasano — Ostuni — Cisternino

         Question referred

      Does EU law (in particular the principles of legitimate expectations, legal certainty, freedom of movement, freedom of establishment and freedom to provide services) preclude a national legislative provision, such as Article 83(9), Article 95(10) and Article 97(5) of the Italian ‘Codice dei contratti pubblici’ (‘Public Procurement Code’), under which failure to indicate labour costs and costs relating to the safety of workers by a tenderer in a public procurement procedure results in any event in the tenderer being excluded from the procedure without the tenderer being given, at a later stage, the benefit of the ‘soccorso istruttorio’ procedure (whereby a tenderer is given an opportunity to remedy shortcomings in his tender documentation after submission of his tender), even where the existence of such an obligation to indicate those costs is apparent from sufficiently clear legal provisions in the public domain and irrespective of the fact that the contract notice does not expressly refer to the legal obligation to provide specific information?


title: Case C-111/19: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Industria Italiana Autobus SpA v Comune di Palermo

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/14

      Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 February 2019 — Industria Italiana Autobus SpA v Comune di Palermo
      (Case C-111/19)
      (2019/C 182/17)
      Language of the case: Italian

         Referring court

      Consiglio di Stato

         Parties to the main proceedings

         Applicant: Industria Italiana Autobus SpA

         Defendant: Comune di Palermo

         Question referred

      Does EU law (in particular the principles of legitimate expectations, legal certainty, freedom of movement, freedom of establishment and freedom to provide services) preclude a national legislative provision, such as Article 83(9), Article 95(10) and Article 97(5) of the Italian ‘Codice dei contratti pubblici’ (‘Public Procurement Code’), under which failure to indicate labour costs and costs relating to the safety of workers by a tenderer in a public procurement procedure results in any event in the tenderer being excluded from the procedure without the tenderer being given, at a later stage, the benefit of the ‘soccorso istruttorio’ procedure (whereby a tenderer is given an opportunity to remedy shortcomings in his tender documentation after submission of his tender), even where the existence of such an obligation to indicate those costs is apparent from sufficiently clear legal provisions in the public domain and irrespective of the fact that the contract notice does not expressly refer to the legal obligation to provide specific information?


title: Case C-129/19: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 19 February 2019 — Presidenza del Consiglio dei Ministri v BV

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/15

      Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 19 February 2019 — Presidenza del Consiglio dei Ministri v BV
      (Case C-129/19)
      (2019/C 182/19)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main proceedings

         Appellant: Presidenza del Consiglio dei Ministri

         Respondent: BV

         Questions referred

      The Court of Justice of the European Union is requested to rule [in the specific circumstances in the main proceedings concerning an action for damages, brought by an Italian citizen ordinarily resident in Italy, against the legislator State on grounds of non-fulfilment and/or incorrect fulfilment and/or incomplete fulfilment of the obligations laid down in Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (1), and, in particular, the obligation, set out in Article 12(2) thereof, on the Member States to introduce, by 1 July 2005 (as laid down in the subsequent Article 18(1)) a general scheme of compensatory protection capable of guaranteeing fair and appropriate compensation to the victims of any violent and intentional crimes (including the crime of sexual violence of which the party concerned was victim), in cases where such victims are unable to obtain, from those directly responsible, full compensation for the damaged sustained] on the following questions:

                  1.

                  In relation to the situation of late (and/or incomplete) implementation in the national legal system of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, which is non-self-executing as regards the establishment, required by it, of a scheme for compensation for the victims of violent crimes, which gives rise, in relation to cross-border persons, who are the sole addressees of the directive, to a liability on the part of the Member State to pay compensation in accordance with the principles set out in the case-law of the Court of Justice (inter alia the judgments in Francovich and Brasserie du Pêcheur and Factortame III), does [EU] law require that a similar liability be imposed on the Member State in relation to non-cross-border (and thus resident) persons, who are not the direct addressees of the benefits deriving from implementation of the directive but who, in order to avoid infringement of the principle of equal treatment/non-discrimination in that [EU] law, should have and could have — if the directive had been implemented in full and in good time — benefited, by extension, from the effet utile of that directive (that is to say, the abovementioned compensation scheme)?
                  If the answer to the preceding question is in the affirmative:

                  2.

                  Can the compensation established for the victims of violent intentional crimes (and in particular the crime of sexual violence referred to in Article 609-bis of the Italian Criminal Code) by the Decree of the Minister for the Interior of 31 August 2017 [issued pursuant to Article 11(3) of Law No 122 of 7 July 2016 on provisions to comply with the obligations arising from Italy’s membership of the European Union — European Law 2015-2016, with subsequent amendments (referred to in Article 6 of Law No 167 of 20 November 2017 and Article 1(593) to (596) of Law No 145 of 30 December 2018)] in the fixed amount of EUR 4 800 be regarded as ‘fair and appropriate compensation to victims’ within the meaning of Article 12(2) of Directive 2004/80?

         (1)  Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15).


title: Case C-131/19 P: Appeal brought on 15 February 2019 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-743/16 RENV, CX v Commission

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/16

      Appeal brought on 15 February 2019 by the European Commission against the judgment of the General Court (Third Chamber) delivered on 13 December 2018 in Case T-743/16 RENV, CX v Commission
      (Case C-131/19 P)
      (2019/C 182/20)
      Language of the case: French

         Parties

         Appellant: European Commission (represented by: G. Berscheid, T. S. Bohr and C. Ehrbar, Agents)

         Other party to the proceedings: CX

         Form of order sought

      The Commission claims that the Court should:

                  —

                  set aside the judgment of the General Court of 13 December 2018 in Case T-743/16 RENV, CX v Commission, in so far as it annulled the disciplinary decision of removal from post;

                  —

                  refer the case back to the General Court for a ruling on the other pleas in law of the action;

                  —

                  reserve the costs.

         Grounds of appeal and main arguments

         First ground of appeal: misapplication of Articles 4 and 22 of Annex IX to the Staff Regulations of Officials in incorrectly interpreting the scope of the right to appear in person.

      The arguments in support of the first ground of appeal are divided into several parts.
      In the first part, the Commission submits that the judgment failed to have regard to the legal criteria applicable for the purpose of assessing the official’s inability to appear in person, the duty to state reasons and the rules governing burden of proof.
      In the second part, the Commission submits that the judgment incorrectly applied the concept of a body of consistent evidence in order to establish that the official was unable to appear at the hearings and that the General Court carried out an incomplete examination of the relevant evidence.
      In the third part, the Commission maintains that the judgment distorted the clear sense of two pieces of evidence.

         Second ground of appeal: misapplication of Articles 4 and 22 of Annex IX to the Staff Regulations of Officials in incorrectly interpreting the scope of the right to be heard in writing or through a representative.

      The arguments in support of the second ground of appeal are divided into two parts.
      The first part relates to the failure to have regard to the legal criteria applicable for the purpose of assessing the official’s inability to submit his comments in writing or through a representative, the failure to have regard to the duty to state reasons, the failure to have regard to the rules governing burden of proof as regards the official’s inability to defend himself at the hearings and the incorrect application of the concept of a body of consistent evidence.
      The second part relates to the inconsistency of the reasons concerning the official’s inability to ensure his defence.

         Third ground of appeal: failure to have regard to the duty to state reasons regarding the consequences of the infringement of the right to be heard.

      The General Court failed to state reasons why the procedural irregularity flowing from the infringement of the right to be heard led to the annulment of the decision at issue.


title: Case C-147/19: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 20 February 2019 — Atresm dia Corporación de Medios de Comunicación, S.A. v Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas e Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/18

      Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 20 February 2019 — Atresm dia Corporación de Medios de Comunicación, S.A. v Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas e Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE)
      (Case C-147/19)
      (2019/C 182/21)
      Language of the case: Spanish

         Referring court

      Tribunal Supremo

         Parties to the main proceedings

         Appellant: Atresmedia Corporación de Medios de Comunicación, S.A.

         Respondents: Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas e Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE)

         Questions referred

                  1.

                  Does the concept of the ‘reproduction of a phonogram published for commercial purposes’ referred to in Article 8(2) of Directives 92/100 (1) and 2006/115 (2) include the reproduction of a phonogram published for commercial purposes in an audiovisual recording containing the fixation of an audiovisual work?

                  2.

                  In the event that the answer to the previous question is in the affirmative, is a television broadcasting organisation which, for any type of communication to the public, uses an audiovisual recording containing the fixation of a cinematographic or audiovisual work in which a phonogram published for commercial purposes has been reproduced, under an obligation to pay the single equitable remuneration provided for in Article 8(2) of the aforementioned directives?

         (1)  Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61).

         (2)  Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).


title: Case C-148/19 P: Appeal brought on 19 February 2019 by BTB Holding Investments SA and Duferco Participations Holding SA against the judgment of the General Court (First Chamber) delivered on 11 December 2018 in Case T-100/17, BTB Holding Investments SA and Duferco Participations Holding SA v Commission

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/18

      Appeal brought on 19 February 2019 by BTB Holding Investments SA and Duferco Participations Holding SA against the judgment of the General Court (First Chamber) delivered on 11 December 2018 in Case T-100/17, BTB Holding Investments SA and Duferco Participations Holding SA v Commission
      (Case C-148/19 P)
      (2019/C 182/22)
      Language of the case: French

         Parties

         Appellants: BTB Holding Investments SA, Duferco Participations Holding SA (represented by: J.-F. Bellis, R. Luff, M. Favart, Q. Declève, avocats)

         Other parties to the proceedings: European Commission, Foreign Strategic Investments Holding (FSIH)

         Form of order sought

      The appellants submit that the Court should:

                  —

                  Set aside the judgment of the General Court of 11 December 2018, BTB Holding Investments and Duferco Participations Holding v Commission (T-100/17);

                  —

                  Refer the case back to the General Court;

                  —

                  Order the defendant to pay the costs of these proceedings and the costs of the proceedings before the General Court.

         Grounds of appeal and main arguments

      By their appeal against judgment T-100/17, the appellants submit that, in the judgment under appeal, the General Court infringed their right to a fair hearing when it stated that, ‘in order to establish that the Commission made a manifest error in the [complex economic] assessment of the facts justifying the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the assessment of the facts in the decision at issue implausible’. The appellants submit that, in particular, the General Court infringed the principles relating to the burden of proof and the principle of equality of arms.


title: Case C-153/19: Request for a preliminary ruling from the Amtsgericht Köln (Germany) lodged on 22 February 2019 — FZ v DER Touristik GmbH

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/19

      Request for a preliminary ruling from the Amtsgericht Köln (Germany) lodged on 22 February 2019 — FZ v DER Touristik GmbH
      (Case C-153/19)
      (2019/C 182/23)
      Language of the case: German

         Referring court

      Amtsgericht Köln

         Parties to the main proceedings

         Applicant: FZ

         Defendant: DER Touristik GmbH

         Question referred

      Do a traveller’s claims against a travel organiser, under a contract for travel, for a price reduction because of shortcomings in the flight on account of a flight delay constitute claims to further compensation under Article 12 of Regulation No 261/2004 (1), and can compensation granted as a result of the flight delay in application mutatis mutandis of Article 7 of the Regulation be deducted from those claims in accordance with Article 12 of that regulation?

         (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case C-181/19: Request for a preliminary ruling from the Landessozialgericht Nordrhein-Westfalen (Germany) lodged on 25 February 2019 — JD v Jobcenter Krefeld — Widerspruchsstelle

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/20

      Request for a preliminary ruling from the Landessozialgericht Nordrhein-Westfalen (Germany) lodged on 25 February 2019 — JD v Jobcenter Krefeld — Widerspruchsstelle
      (Case C-181/19)
      (2019/C 182/24)
      Language of the case: German

         Referring court

      Landessozialgericht Nordrhein-Westfalen

         Parties to the main proceedings

         Applicant: JD

         Defendant: Jobcenter Krefeld — Widerspruchsstelle

         Questions referred

                  1.

                  Is the exclusion of Union citizens having a right of residence under Article 10 of Regulation No 492/2011 (1) from receipt of social assistance within the meaning of Article 24(2) of Directive 2004/38 (2) compatible with the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Articles 10 and 7 of Regulation No 492/2011?

                              (a)

                              Does social assistance within the meaning of Article 24(2) of Directive 2004/38 constitute a social advantage within the meaning of Article 7(2) of Regulation No 492/2011?

                              (b)

                              Does the limitation set out in Article 24(2) of Directive 2004/38 apply to the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Articles 10 and 7 of Regulation No 492/2011?

                  2.

                  Is the exclusion of Union citizens from receipt of special non-contributory cash benefits within the meaning of Articles 3(3) and 70(2) of Regulation No 883/2004 (3) compatible with the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Article 4 of Regulation No 883/2004 if those citizens have a right of residence arising from Article 10 of Regulation No 492/2011 and are integrated into a social security system or family benefits system within the meaning of Article 3(1) of Regulation No 883/2004?

         (1)  Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union Text with EEA relevance (OJ 2011 L 141, p. 1).

         (2)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

         (3)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).


title: Case C-189/19: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 26 February 2019 — Spenner GmbH & Co. KG v Bundesrepublik Deutschland

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/21

      Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 26 February 2019 — Spenner GmbH & Co. KG v Bundesrepublik Deutschland
      (Case C-189/19)
      (2019/C 182/25)
      Language of the case: German

         Referring court

      Bundesverwaltungsgericht

         Parties to the main proceedings

         Applicant and appellant on a point of law: Spenner GmbH & Co. KG

         Defendant and respondent in the appeal on a point of law: Bundesrepublik Deutschland

         Questions referred

                  1.

                  Does Article 9(9) of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (1) presuppose that the significant capacity extension of an incumbent installation has taken place within the baseline period determined by the Member State in accordance with Article 9(1) of that decision?

                  2.

                  As regards significant capacity extensions, is the first subparagraph of Article 9(9) of Decision 2011/278/EU, read in conjunction with Article 9(1) thereof, to be interpreted as meaning that, for the purposes of determining the historical activity levels for the baseline period from 1 January 2009 to 31 December 2010, the historical activity levels of the added capacity are to be left out of account (even) if the significant capacity extension took place in the baseline period from 1 January 2005 to 31 December 2008?

                  3.

                              (a)

                              If Question 1 is to be answered in the affirmative:
                              Is Article 9(1) of Decision 2011/278/EU to be interpreted as meaning that the competent authority of the Member State must itself determine the baseline period from 1 January 2005 to 31 December 2008 or from 1 January 2009 to 31 December 2010 or may the Member State confer on the operator the right to choose the baseline period?

                              (b)

                              In the event that the Member State may confer on the operator the right to choose:
                              Must the Member State take into account the baseline period leading to the higher activity level of each installation even if the operator has the freedom under national law to choose between the baseline periods and decides to choose a baseline period with lower historical activity levels?

                  4.

                  Is Commission Decision (EU) 2017/126 of 24 January 2017 amending Decision 2013/448/EU as regards the establishment of a uniform cross-sectoral factor in accordance with Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (2) to be interpreted as meaning that the cross-sectoral correction factor for allocations made before 1 March 2017 is to be applied to the years 2013-2020 in the form in which it appears in the original version of Article 4 of, and Annex II to, Decision 2013/448/EU, and, in the case of additional allocations of emission entitlements granted by judicial decision after 28 February 2017, to the full quantity of additional allowance for the years 2013 to 2020 or only to the additional allowance for the years 2018 to 2020?

         (1)  OJ 2011 L 130, p. 1.

         (2)  OJ 2017 L 19, p. 93.


title: Case C-210/19: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 6 March 2019 — TN v Bevándorlási és Menekültügyi Hivatal

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/22

      Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 6 March 2019 — TN v Bevándorlási és Menekültügyi Hivatal
      (Case C-210/19)
      (2019/C 182/26)
      Language of the case: Hungarian

         Referring court

      Fővárosi Közigazgatási és Munkaügyi Bíróság

         Parties to the main proceedings

         Applicant: TN

         Defendant: Bevándorlási és Menekültügyi Hivatal

         Questions referred

                  1.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/3[2]/EU (1) of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that it is possible for effective judicial protection to be guaranteed in a Member State even if its courts cannot amend decisions given in asylum procedures but may only annul them and order that a new procedure be conducted?

                  2.

                  Can Article 47 of the Charter of Fundamental Rights and Article 31 of Directive 2013/3[2]/EU of the European Parliament and of the Council (known as the ‘Procedures Directive’) be interpreted, again in the light of Articles 6 and 13 of the European Convention on Human Rights, as meaning that legislation of a Member State which lays down a single mandatory time limit of 60 days in total for judicial proceedings in asylum matters, irrespective of any individual circumstances and without regard to the particular features of the case or any potential difficulties in relation to evidence, is compatible with those provisions?

         (1)  Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).


title: Case C-218/19: Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 March 2019 — XR v Coseil de l’ordre des avocats au barreau de Paris, Bâtonnier de l’ordre des avocats au barreau de Paris, Procureur général près la cour d’appel de Paris

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/22

      Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 March 2019 — XR v Coseil de l’ordre des avocats au barreau de Paris, Bâtonnier de l’ordre des avocats au barreau de Paris, Procureur général près la cour d’appel de Paris
      (Case C-218/19)
      (2019/C 182/27)
      Language of the case: French

         Referring court

      Cour de cassation

         Parties to the main proceedings

         Applicant: XR

         Defendants: Conseil de l’ordre des avocats au barreau de Paris, Bâtonnier de l’ordre des avocats au barreau de Paris, Procureur général près la cour d’appel de Paris

         Questions referred

                  1.

                  Does the principle that the Treaty establishing the European Economic Community, now, after amendment, the Treaty on the Functioning of the European Union, has created its own legal system, which is integrated into the legal systems of the Member States and which their courts are bound to apply, preclude national legislation which makes the grant of an exemption from the training and diploma requirements laid down, in principle, for entry to the profession of lawyer, dependent on the requirement of sufficient knowledge, on the part of the person requesting exemption, of national law of French origin, so that similar knowledge of the law of the European Union alone is not taken into account?

                  2.

                  Do Articles 45 and 49 of the Treaty on the Functioning of the European Union preclude national legislation which restricts an exemption from the training and diploma requirements laid down, in principle, for entry to the profession of lawyer, to certain members of the civil service of the same Member State who have performed legal work in that capacity, in France, in an administration or a public service or an international organisation, and which excludes from the scope of that exemption members or former members of the European civil service who have performed legal work in that capacity, in one or more fields of the law of the European Union, within the European Commission?


title: Case C-243/19: Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 20 March 2019 — A v Veselības ministrija

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/23

      Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 20 March 2019 — A v Veselības ministrija
      (Case C-243/19)
      (2019/C 182/28)
      Language of the case: Latvian

         Referring court

      Augstākā tiesa (Senāts)

         Parties to the main proceedings

      Applicant: A

         Defendant: Veselības ministrija

         Questions referred

                  1.

                  Must Article 20(2) of Regulation (EC) No 883/2004 (1) of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, in conjunction with Article 21(1) of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of residence, even though the method of treatment used is contrary to that person’s religious beliefs?

                  2.

                  Must Article 56 of the Treaty on the Functioning of the European Union and Article 8(5) of Directive 2011/24/EU (2) of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare, in conjunction with Article 21(1) of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 8(1) of that directive where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs?

         (1)  OJ 2004 L 166, p. 1.

         (2)  OJ 2011 L 88, p. 45.


title: Case C-244/19: Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 21 March 2019 — GB v Decker KFZ-Handels u. -Reparatur GmbH, Volkswagen AG

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/24

      Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 21 March 2019 — GB v Decker KFZ-Handels u. -Reparatur GmbH, Volkswagen AG
      (Case C-244/19)
      (2019/C 182/29)
      Language of the case: German

         Referring court

      Handelsgericht Wien

         Parties to the main proceedings

         Applicant: GB

         Defendants: Decker KFZ-Handels u. -Reparatur GmbH, Volkswagen AG

         Questions referred

                  1.

                  Must Article 5(1) of Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (1) be interpreted as meaning that the equipment of a vehicle, within the meaning of Article 1(1) of Regulation No 715/2007, is inadmissible if the exhaust gas recirculation valve (i.e. a component that is likely to affect emissions performance) is designed in such a way that the exhaust gas recirculation rate (i.e. the portion of the exhaust gas being recirculated) is regulated in such a way that the valve ensures a low-emission mode only between 15 and 33 degrees Celsius and only below an altitude of 1,000 m, and, outside this temperature window, per 10 degrees Celsius, and above an altitude of 1,000 m, per 250 metres of altitude, the rate decreases in a linear way down to zero, meaning that NOx emissions increase beyond the limits of Regulation No 715/2007?

                  2.

                  Is it relevant to the assessment of Question 1 whether the equipment referred to in Question 1 is necessary to protect the engine against damage?

                  3.

                  Furthermore, is it relevant to the assessment of Question 2 whether the part of the engine which is to be protected against damage is the exhaust gas recirculation valve?

                  4.

                  Is it relevant to the assessment of Question 1 whether the equipment of the vehicle referred to in Question 1 was already installed when the vehicle was produced or whether the regulation of the exhaust gas recirculation valve described in Question 1 is to be installed in the vehicle by way of a repair within the meaning of Article 3(2) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees? (2)

                  5.

                  Must Article 3(6) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees be interpreted as meaning that, when a contract for the purchase of a vehicle has been concluded under which a vehicle is to be supplied which must comply with statutory (EU-law) provisions and such vehicle has been installed with a ‘switch logic’ (i.e. is regulated in such a way that when the vehicle is started it is in mode 1, and if the software detects a test situation — i.e. the operation of the vehicle in the framework of the New European Drive Cycle (NEDC) — the vehicle remains in mode 1 (NEDC), but if the software detects the movement of the vehicle outside the tolerance levels of the NEDC (deviations from the speed profile of +/- 2 km/h or +/- 1s), the vehicle switches to mode 0 (drive mode), in which the exhaust gas recirculation valve is regulated in such a way that the limits of Regulation No 715/2007 can no longer be met, whereby this method of regulation occurs so promptly that as a result the vehicle is essentially operated only in mode 0), this does not constitute a minor breach of contract?

         (1)  OJ 2007 L 171, p. 1.

         (2)  OJ 1999 L 171, p. 12.


title: Case C-250/19: Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 25 March 2019 — B. O. L. v État belge

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/25

      Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 25 March 2019 — B. O. L. v État belge
      (Case C-250/19)
      (2019/C 182/30)
      Language of the case: French

         Referring court

      Conseil d’État

         Parties to the main proceedings

         Applicant: B. O. L.

         Defendant: État belge

         Questions referred

                  1.

                  In order to guarantee the effectiveness of EU law and not make it impossible to enjoy the right to family reunification which, according to the applicant, is conferred on her by Article 4 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (1), must that provision be interpreted as meaning that the sponsor’s child is able to enjoy the right to family reunification where he becomes an adult during the court proceedings brought against the decision which refuses to grant him that right and was taken when he was still a minor?’

                  2.

                  Must Article 47 of the Charter of Fundamental Rights of the European Union and Article 18 of Directive 2003/86/EC be interpreted as precluding an action for annulment, brought against the refusal to grant a right to family reunification to a minor child, being held to be inadmissible on the ground that the child became an adult during the court proceedings, since he is deprived of the opportunity for a judgment to be given in his action against that decision and his right to an effective remedy is infringed?

         (1)  OJ 2003 L 251, p. 12.


title: Case C-251/19 P: Appeal brought on 25 March 2019 by Comprojecto-Projetos e Construções, Lda and Others against the order of the General Court (Third Chamber) delivered on 14 February 2019 in Case T-768/17 by Comprojecto Pr jetos e Construções, Lda and Others v European Central Bank (ECB)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/26

      Appeal brought on 25 March 2019 by Comprojecto-Projetos e Construções, Lda and Others against the order of the General Court (Third Chamber) delivered on 14 February 2019 in Case T-768/17 by Comprojecto Pr jetos e Construções, Lda and Others v European Central Bank (ECB)
      (Case C-251/19 P)
      (2019/C 182/31)
      Language of the case: Portuguese

         Parties

         Appellants: Comprojecto-Projetos e Construções, Lda, Paulo Eduardo Matos Gomes de Azevedo, Julião Maria Gomes de Azevedo, Isabel Maria Gomes de Azevedo (represented by: M. Ribeiro, advogado)

         Other party to the proceedings: European Central Bank

         Form of order sought

      The appellants submit that the Court of Justice should:

                  —

                  Declare the appeal admissible, and refer the case back to the General Court for it to give judgment on the substance;

                  —

                  Pursuant to Article 61 of the Statute of the Court of Justice, annul the decision and refer the case back to the General Court, requiring that costs be duly assessed, in accordance with Article 138 of the Rules of Procedure of the General Court.


title: Case C-273/19 P: Appeal brought on 31 March 2019 by Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) against the judgment of the General Court (Fourth Chamber) delivered on 22 January 2019 in Case T-166/17, EKETA v European Commission

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/26

      Appeal brought on 31 March 2019 by Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) against the judgment of the General Court (Fourth Chamber) delivered on 22 January 2019 in Case T-166/17, EKETA v European Commission
      (Case C-273/19 P)
      (2019/C 182/32)
      Language of the case: Greek

         Parties

         Appellant: Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) (represented by: V. Christianos and K. Karagounis, lawyers)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court of Justice of the European Union should:

                  1.

                  Set aside the judgment of the General Court of 22 January 2019 in Case Τ-166/17 (1), to the extent of points 2 and 3 of the operative part and the paragraphs of that judgment relating thereto;

                  2.

                  Refer the case back to the General Court for a further ruling;

                  3.

                  Order the Commission to pay the costs.

         Grounds of appeal and main arguments

      The appellant does not challenge point 1 of the operative part of the judgment under appeal, and the related paragraphs 142-143, 145, 171, 173, 187-189 and 191-193 of the judgment under appeal are also not challenged.
      The appellant claims that points 2 and 3 of the operative part of the judgment under appeal and the paragraphs relating to them should be set aside on the following grounds:

                  —

                     First ground of appeal: The General Court failed to give judgment in accordance with the law and did not assess all the evidence produced by ΕΚΕΤΑ. The General Court also distorted the facts, as they emerged from that evidence, erred in law as to the allocation of the burden of proof and was in breach of the obligation to state reasons for its decision (paragraph 5 et seq.).

                  —

                     Second ground of appeal: The General Court erred in law, in that it misinterpreted the issue of whether there was a risk of conflict of interest (paragraph 78 et seq.).

                  —

                     Third ground of appeal: The General Court erred in law, in that it misinterpreted in this case the obligation of the Commission to carry out its audit in accordance with the International Standards on Auditing (paragraph 94 et seq.).

                  —

                     Fourth ground of appeal: The General Court erred in law in its interpretation of the principle of proportionality, which it disregarded (paragraph 103 et seq.).

         (1)  ECLI:EU:T:2019:26.


title: Case C-274/19 P: Appeal brought on 31 March 2019 by Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) against the judgment of the General Court (Fourth Chamber) delivered on 22 January 2019 in Case T-198/17, EKETA v European Commission

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/27

      Appeal brought on 31 March 2019 by Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) against the judgment of the General Court (Fourth Chamber) delivered on 22 January 2019 in Case T-198/17, EKETA v European Commission
      (Case C-274/19 P)
      (2019/C 182/33)
      Language of the case: Greek

         Parties

         Appellant: Ethniko Kentro Erevnas kai Technologikis Anaptyxis (EKETA) (represented by: V. Christianos and K. Karagounis, lawyers)

         Other party to the proceedings: European Commission

         Form of order sought

      The appellant claims that the Court of Justice of the European Union should:

                  1.

                  Set aside the judgment of the General Court of 22 January 2019 in Case Τ-198/17 (1),

                  2.

                  Refer the case back to the General Court for a further ruling;

                  3.

                  Order the Commission to pay the costs.

         Grounds of appeal and main arguments

      The appellant claims that the judgment under appeal should be set aside on the following grounds:

                  —

                     First ground of appeal: The General Court failed to give judgment in accordance with the law and did not assess all the arguments and evidence produced by ΕΚΕΤΑ. The General Court also distorted the facts, as they emerged from that evidence, erred in law as to the allocation of the burden of proof and was in breach of the obligation to state reasons for its decision.

                  —

                     Second ground of appeal: The General Court erred in law, in that it misinterpreted the issue of whether there was a risk of conflict of interest.

                  —

                     Third ground of appeal: The General Court erred in law in its interpretation of the principle of proportionality, which it disregarded.

         (1)  ECLI:EU:T:2019:27.


title: Case C-280/19P: Appeal brought on 2 April 2019 by the European Research Council Executive Agency (ERCEA) against the judgment of the General Court (Eighth Chamber) delivered on 17 January 2019 in Case T-348/16 OP Aristot leio Panepistimio Thessalonikis v ERCEA

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/28

      Appeal brought on 2 April 2019 by the European Research Council Executive Agency (ERCEA) against the judgment of the General Court (Eighth Chamber) delivered on 17 January 2019 in Case T-348/16 OP Aristot leio Panepistimio Thessalonikis v ERCEA
      (Case C-280/19P)
      (2019/C 182/34)
      Language of the case: Greek

         Parties

         Appellant: European Research Council Executive Agency (ERCEA) (represented by: Francesca Sgritta and Miguel Pesquera Alonso, acting as Agents, and by E.Κourakis, lawyer)

         Other party to the proceedings: Aristoteleio Panepistimio Thessalonikis (‘the University’)

         Form of order sought

      The appellant claims that the Court should:

                  —

                  Uphold the present appeal as well-founded and set aside the judgment under appeal in so far as it determined that (1) the amount of EUR 184 157 relating to personnel costs constitute eligible costs and (2) the indirect costs relating to such personnel costs, amounting to EUR 36 831.40, are eligible costs;

                  —

                  Re-examine the substance of Case Τ-348/16 OP (1) and dismiss the action brought by the University which gave rise to the judgment in Case Τ-348/16, in relation to its claim for the amount of EUR 184 157 together with EUR 36 831.40 and

                  —

                  Order the University to bear its own costs and to pay those of ERCEA in relation to these proceedings, and also in relation to the proceedings before the General Court.

         Grounds of appeal and main arguments

      In support of this appeal requesting that the judgment of the General Court be set aside, ERCEA relies on four main grounds of appeal:

                  1.

                  The first ground of appeal is that the General Court erred as followed:

                              i.

                              the General Court infringed the public interest rules of EU law and in particular the rules which relate to the 7th research framework programme, the legislation which governs that programme (for example Regulation (ΕC) Νο 1906/2006) and the Financial Regulation (‘the Rules’).

                              ii.

                              the General Court infringed the rules of interpretation, adopting a clearly erroneous and inadmissible interpretation of Grant Agreement Νο 211166 (‘the Agreement’), which is also incompatible with the Rules, and in that way acted unlawfully.

                              iii.

                              in the alternative, the General Court distorted the clear sense of the relevant provisions of the Agreement and consequently distorted the evidence produced before it.

                              iv.

                              the General Court failed to explain (1) why supervision is not required in the case of teleworking, or (2) why all forms of teleworking automatically satisfy the requirement of supervision, without the necessity of any additional measures (if we assume that it was accepted that supervision is equally required for teleworking).

                  2.

                  The second ground of appeal is that the General Court — if it correctly defined the legal conditions governing eligibility of the claim — accepted that the claim at issue was lawful on the basis that only one of the conditions (namely, the Condition on Actual Hours of Work) is satisfied for the reason (in its judgment) that ERCEA did not dispute it. In that way the General Court erred as follows:

                              i.

                              the General Court infringed the Rules.

                              ii.

                              the General Court also infringed the rules of the law that must be applied to contracts.

                              iii.

                              on the assumption that the General Court did not neglect to assess the other conditions (and that its approach to the subject was deliberate), the General Court also was in breach of the duty to state sufficient reasons in judgments.

                              iv.

                              In any event — and on the view that the General Court did not neglect to assess the other conditions and in fact implicitly examined them — the General Court infringed the rules on the burden of proof.

                  3.

                  The third ground of appeal is that the General Court considered that the employment contract between the University and researchers permitted teleworking and in that way committed a host of errors:

                              i.

                              the General Court infringed the rules of interpretation of agreements, adopting a clearly erroneous and inadmissible interpretation of the project agreements.

                              ii.

                              the General Court distorted the relevant evidence.

                              iii.

                              the General Court delivered a judgment which contained insufficient and contradictory reasoning in connection with the substantive subject matter of the case.

                  4.

                  The fourth ground of appeal is that the General Court erred for the following reasons:

                              i.

                              the General Court failed to examine the normal practices of the University in connection with teleworking and used the subject matter of its assessment (namely, the employment contract under consideration) as the point of reference for its assessment. In that way the General Court failed to state sufficient reasons, given that the statement of reasons was manifestly unfounded.

                              ii.

                              In the alternative, the General Court the rules in relation to proof and the legal sufficiency of statements of reasons for judgments, in that it failed to carry out an overall examination of what was the University’s normal practice in connection with the teleworking of its employees and failed to provide any details on that subject.

         (1)  ECLI:EU:T:2019:14.


title: Affaire T-61/18: Judgment of the General Court of 4 April 2019 — Rodriguez Prieto v Commission (Civil Service — Officials — ‘Eurostat’ case — National criminal proceedings — No need to adjudicate — Request for assistance — Whistle-blower — Presumption of innocence — Action for damages and annulment)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/31

      Judgment of the General Court of 4 April 2019 — Rodriguez Prieto v Commission
      (Affaire T-61/18) (1)

      (Civil Service - Officials - ‘Eurostat’ case - National criminal proceedings - No need to adjudicate - Request for assistance - Whistle-blower - Presumption of innocence - Action for damages and annulment)
      (2019/C 182/35)
      Language of the case: French

         Parties

         Applicant: Amador Rodriguez Prieto (Steinsel, Luxembourg) (represented by: S. Orlandi, T. Martin and R. Garcia-Valdecasas y Fernandez, lawyers)

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

         Re:

      Application based on Article 270 TFEU seeking, primarily, compensation for the material and non-material damage which the appl cant alleges to have suffered and, in the alternative, annulment of the decision of the Commission of 28 March 2017 rejecting the applicant’s request for assistance.

         Operative part of the judgment

      The Court:

                  1)

                     Dismisses the claims for damages;

                  2)

                     Annuls the decision of the European Commission of 28 March 2017 rejecting Mr Amador Rodriguez Prieto’s request for assistance;

                  3)

                     Orders the Commission to bear its own costs and to pay those incurred by Mr Rodriguez Prieto.

         (1)  OJ C 134, 16.4.2018.


title: Case T-373/18: Judgment of the General Court of 4 April 2019 — ABB AB v EUIPO (FLEXLOADER) (European Union trade mark — Application for EU word mark FLEXLOADER — Absolute grounds for refusal — Lack of descriptive character — Distinctive character — Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 — Neologism — Insufficiently direct and specific connection with certain goods and services covered by the mark applied for)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/32

      Judgment of the General Court of 4 April 2019 — ABB AB v EUIPO (FLEXLOADER)
      (Case T-373/18) (1)

      (European Union trade mark - Application for EU word mark FLEXLOADER - Absolute grounds for refusal - Lack of descriptive character - Distinctive character - Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 - Neologism - Insufficiently direct and specific connection with certain goods and services covered by the mark applied for)
      (2019/C 182/36)
      Language of the case: German

         Parties

         Applicant: ABB AB (Västerås, Sweden) (represented by: M. Hartmann and S. Fröhlich, lawyers)

         Defendant: European Union Intellectual Property Office (represented by: D. Hanf and W. Schramek, acting as Agents)

         Re:

      Action brought against the decision of the First Board of Appeal of EUIPO of 29 March 2018 (Case R 93/2018-1), concerning an application for registration of the word sign FLEXLOADER as an EU trade mark.

         Operative part of the judgment

      The Court:

                  1.

                     Annuls the decision of the First Board of Appeal of EUIPO of 29 March 2018 (Case R 93/2018-1) in so far as it refused registration of the word sign FLEXLOADER for:

                              —

                                 the ‘mechanical tools for the application of humectant, binders, oilers, lubricants or dyes’, within Class 7 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957; and

                              —

                                 the ‘electronic data entry and data processing devices, microprocessors, electrical input and output unit, compact discs, floppy disks, magnetic tapes and semiconductors for the storage of technical data’, within Class 9 of the Nice Arrangement.

                  2.

                     Dismisses the action as to the remainder;

                  3.

                     Orders ABB AB and EUIPO to each bear their own costs.

         (1)  OJ C 268, 30.7.2018.


title: Case T-128/19: Action brought on 22 February 2019 — Hemp Foods Australia v EUIPO — Cabrejos (Sativa)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/33

      Action brought on 22 February 2019 — Hemp Foods Australia v EUIPO — Cabrejos (Sativa)
      (Case T-128/19)
      (2019/C 182/37)
      Language of the case: English

         Parties

         Applicant: Hemp Foods Australia Pty Ltd (Sydney, Australia) (represented by: M. Holah and P. Brownlow, Solicitors)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: César Raúl Dávila Cabrejos (Lima, Peru)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: International registration designating the European Union in respect of the mark Sativa — International registration designating the European Union No 1 259 974

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 16 November 2018 in Case R 1041/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order that the costs of the proceedings be borne by the defendant.

         Plea in law

                  —

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


title: Case T-172/19: Action brought on 22 March 2019 — Cognac Ferrand v EUIPO (Shape of braiding on a bottle)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/34

      Action brought on 22 March 2019 — Cognac Ferrand v EUIPO (Shape of braiding on a bottle)
      (Case T-172/19)
      (2019/C 182/38)
      Language of the case: French

         Parties

         Applicant: Cognac Ferrand (Paris, France) (represented by: D. Régnier, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Trade mark at issue: Application for a three-dimensional EU trade mark (Shape of braiding on a bottle) — Application for registration No 17 387 564

         Contested decision: Decision of the Second Board of Appeal of EUIPO of 7 January 2019 in Case R 1640/2018-2

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision.

         Plea in law

                  —

                  Infringement of Article 7(1)(b) of Regulation (EU) No 2017/1001 of the European Parliament and of the Council.


title: Case T-178/19: Action brought on 20 March 2019 — Kalai v Council

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/34

      Action brought on 20 March 2019 — Kalai v Council
      (Case T-178/19)
      (2019/C 182/39)
      Language of the case: French

         Parties

         Applicant: Nader Kalai (Halifax, Canada) (represented by: G. Karouni, lawyer)

         Defendant: Council of the European Union

         Form of order sought

      The applicant claims that the Court should:

                  —

                  Annul, in so far as those acts concern the applicant:

                              —

                              Council Implementing Decision (CFSP) 2019/87 of 21 January 2019 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria;

                              —

                              Council Implementing Regulation (EU) 2019/85 of 21 January 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria;

                  —

                  Order the Council to pay EUR 2000 000.00 in damages to compensate all forms of loss suffered;

                  —

                  Order the Council to bear its own costs and to pay those incurred by the applicant, of which supporting evidence can be shown during the proceedings under Article 134 of the Rules of Procedure of the General Court, according to which the unsuccessful party is to be ordered to pay the costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging breach of the rights of defence and to a fair trial. In that regard, the applicant submits, based on Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the Court’s case-law, that he should have been heard before the Council adopted the restrictive measures against him and that, accordingly, the applicant’s rights of defence were not observed.

                  2.

                  Second plea in law, alleging breach of the obligation to state reasons flowing from the second paragraph of Article 296 TFEU. The applicant complains that the Council merely set out vague and general considerations and failed to state specific and concrete reasons for its view, in the exercise of its discretionary assessment, that the applicant must be subjected to the restrictive measures at issue. Thus no specific and objective factor has been raised against the applicant that could justify the measures at issue.

                  3.

                  Third plea in law, alleging a manifest error of assessment, in that the Council took as the basis for its reasoning in support of the restrictive measure elements that clearly lack any basis in fact. Therefore, the facts relied on are without any serious foundation.

                  4.

                  Fourth plea in law, alleging breach of the principle of proportionality in the infringement of fundamental rights. The applicant is of the view that the disputed measure should be invalidated since it is disproportionate in the light of the objective stated and it constitutes excessive interference in the freedom to conduct business and the right to property, enshrined, respectively, in Articles 16 and 17 of the Charter. The disproportion lies in the fact that the measure covers all influential economic activity without any other criterion.

                  5.

                  Fifth plea in law, alleging breach of the right to property. The applicant claims, based on Article 17 and 52 of the Charter, that a freezing measure undeniably entails a restriction of the exercise of the right to property and that, in the present case, the freezing of the funds stemming from the applicant’s activities necessarily constitutes a disproportionate interference in relation to the objective pursued by the Council.


title: Case T-183/19: Action brought on 29 March 2019 — Jalkh v Parliament

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/36

      Action brought on 29 March 2019 — Jalkh v Parliament
      (Case T-183/19)
      (2019/C 182/40)
      Language of the case: French

         Parties

         Applicant: Jean-François Jalkh (Gretz-Armainvilliers, France) (represented by: F. Wagner, lawyer)

         Defendant: European Parliament

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the European Parliament’s decision of 31 January 2019 amending that institution’s Rules of Procedure;

                  —

                  order the European Parliament to pay all the costs of the proceedings.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging infringement of the Charter of Fundamental Rights of the European Union on the ground that the amendment at issue discriminates on the basis of language, which constitutes a failure to observe the principle of linguistic diversity and discourages the French member of the European Parliament from using his mother tongue.

                  2.

                  Second plea in law, alleging infringement of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms as the European Parliament’s new Rules of Procedure discriminate against the applicant, who is a French speaker.

                  3.

                  Third plea in law, alleging infringement of the Treaty on European Union. In this regard, the applicant claims that, by discriminating against the French language, the European Parliament’s new Rules of Procedure undermine cultural and linguistic diversity within that institution.

                  4.

                  Fourth plea in law, alleging infringement of Article 18 of the Treaty on the Functioning of the European Union which guarantees the observance of the principle of multilingualism and, therefore, the use of the French language.

                  5.

                  Fifth plea in law, alleging infringement of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59).


title: Case T-202/19: Action brought on 4 April 2019 — Knaus Tabbert v EUIPO — Carado (CaraTour)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/37

      Action brought on 4 April 2019 — Knaus Tabbert v EUIPO — Carado (CaraTour)
      (Case T-202/19)
      (2019/C 182/41)
      Language in which the application was lodged: German

         Parties

         Applicant: Knaus Tabbert GmbH (Jandelsbrunn, Germany) (represented by: N. Maenz, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Carado GmbH (Leutkirch im Allgäu, Germany)

         Details of the proceedings before EUIPO

         Applicant for the trade mark at issue: Applicant

         Trade mark at issue: EU word mark CaraTour — Application for registration No 15 366 313

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 14 January 2019 in Case R 506/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  reject Carado GmbH’s opposition of 27 July 2016 regarding EU trade mark No 4 935 334 and German trade mark No 30 611 776 (Case B 2 742 784) in its entirety;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case T-203/19: Action brought on 4 April 2019 — Knaus Tabbert v EUIPO — Carado (CaraTwo)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/37

      Action brought on 4 April 2019 — Knaus Tabbert v EUIPO — Carado (CaraTwo)
      (Case T-203/19)
      (2019/C 182/42)
      Language in which the application was lodged: German

         Parties

         Applicant: Knaus Tabbert GmbH (Jandelsbrunn, Germany) (represented by: N. Maenz, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Carado GmbH (Leutkirch im Allgäu, Germany)

         Details of the proceedings before EUIPO

         Applicant for the trade mark at issue: Applicant

         Trade mark at issue: EU word mark CaraTwo — Application for registration No 15 170 145

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 14 January 2019 in Case R 851/2018-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  reject Carado GmbH’s opposition of 27 July 2016 regarding EU trade mark No 4 935 334 and German trade mark No 30 611 776 (Case B 2 742 768) in its entirety;

                  —

                  order EUIPO to pay the costs.

         Plea in law

                  —

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


title: Case T-209/19: Action brought on 5 April 2019 — Armani v EUIPO — Invicta Watch Company of America (GLYCINE)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/38

      Action brought on 5 April 2019 — Armani v EUIPO — Invicta Watch Company of America (GLYCINE)
      (Case T-209/19)
      (2019/C 182/43)
      Language of the case: English

         Parties

         Applicant: Giorgio Armani SpA (Milan, Italy) (represented by: J. Rether and M. Kinkeldey, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: Invicta Watch Company of America, Inc. (Hollywood, Florida, United States)

         Details of the proceedings before EUIPO

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

         Trade mark at issue: Application for European Union figurative mark in colours black and white — Application for registration No 15 910 301

         Procedure before EUIPO: Opposition proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 4 February 2019 in Case R 578/2018-4

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order the defendant to pay the costs of the proceedings.

         Plea in law

                  —

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


title: Case T-212/19: Action brought on 8 April 2019 — Apple v EUIPO (Styluses)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/39

      Action brought on 8 April 2019 — Apple v EUIPO (Styluses)
      (Case T-212/19)
      (2019/C 182/44)
      Language of the case: English

         Parties

         Applicant: Apple Inc. (Cupertino, California, United States) (represented by: H. Hartwig and A. von Mühlendahl, lawyers)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Details of the proceedings before EUIPO

         Design: Application for registration No 3012707 -0004

         Contested decision: Decision of the Third Board of Appeal of EUIPO of 7 January 2019 in Case R 2533/2017-3

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision;

                  —

                  order EUIPO to pay the costs of the proceedings, including those incurred by the applicant before the Board of Appeal.

         Pleas in law

                  —

                  Infringement of Article 11(2) of Commission Regulation (EC) No 2245/2002 in conjunction with Article 5 of Council Regulation (EC) No 6/2002;

                  —

                  Infringement of Article 12(2) of Commission Regulation (EC) No 2245/2002 in conjunction with Article 5 of Council Regulation (EC) No 6/2002.


title: Case T-214/19: Action brought on 8 April 2019 — Fleximed v EUIPO — docPrice (Fleximed)

text:
               27.5.2019

               EN

               Official Journal of the European Union

               C 182/40

      Action brought on 8 April 2019 — Fleximed v EUIPO — docPrice (Fleximed)
      (Case T-214/19)
      (2019/C 182/45)
      Language in which the application was lodged: German

         Parties

         Applicant: Fleximed AG (Triesen, Liechtenstein) (represented by: M. Gail, lawyer)

         Defendant: European Union Intellectual Property Office (EUIPO)

         Other party to the proceedings before the Board of Appeal: docPrice GmbH (Koblenz, Germany)

         Details of the proceedings before EUIPO

         Proprietor of the trade mark at issue: Applicant

         Trade mark at issue: EU word mark Fleximed — EU trade mark No 12 025 771

         Procedure before EUIPO: Cancellation proceedings

         Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 6 February 2019 in Case R 1121/2018-4

         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 60(1)(a) in conjunction with Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.


title: Case C-405/16 P: Judgment of the Court (Third Chamber) of 28 March 2019 — Federal Republic of Germany v European Commission (Appeal — State aid — Aid granted by certain provisions of the amended German law concerning renewable energy sources (EEG 2012) — Aid supporting renewable electricity and reduced EEG surcharge for energy-intensive users — Decision declaring the aid partially incompatible with the internal market — Concept of State aid — Advantage — State resources — Public control of resources — Measure which can be assimilated to a levy on electricity consumption)

text:
               3.6.2019

               EN

               Official Journal of the European Union

               C 187/3

      Judgment of the Court (Third Chamber) of 28 March 2019 — Federal Republic of Germany v European Commission
      (Case C-405/16 P) (1)

      (Appeal - State aid - Aid granted by certain provisions of the amended German law concerning renewable energy sources (EEG 2012) - Aid supporting renewable electricity and reduced EEG surcharge for energy-intensive users - Decision declaring the aid partially incompatible with the internal market - Concept of State aid - Advantage - State resources - Public control of resources - Measure which can be assimilated to a levy on electricity consumption)
      (2019/C 187/03)
      Language of the case: German

         Parties

         Appellant: Federal Republic of Germany (represented by T. Henze and R. Kanitz, acting as Agents, and by T. Lübbig, Rechtsanwalt)

         Other party to the proceedings: European Commission (represented by K. Herrmann and T. Maxian Rusche, Agents)

         Operative part of the judgment

      The Court:

                  1.

                  Sets aside the judgment of the General Court of the European Union of 10 May 2016, Germany v Commission (T-47/15, EU:T:2016:281);

                  2.

                  Annuls Commission Decision (EU) 2015/1585 of 25 November 2014 in State aid proceedings SA. 33995 (2013/C) (ex 2013/NN) [implemented by Germany for the support of renewable electricity and energy-intensive users];

                  3.

                  Orders the European Commission to pay the costs relating to both the appeal proceedings and the proceedings at first instance.

         (1)  OJ C 326, 5.9.2016.


title: Joined Cases C-487/17 to C 489/17: Judgment of the Court (Tenth Chamber) of 28 March 2019 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Alfonso Verlezza and Others (Reference for a preliminary ruling — Environment — Directive 2008/98/EC and Decision 2000/532/EC — Waste — Classification as hazardous waste — Waste which may be assigned codes for both hazardous waste and non-hazardous waste)

text:
               3.6.2019

               EN

               Official Journal of the European Union

               C 187/17

      Judgment of the Court (Tenth Chamber) of 28 March 2019 (request for a preliminary ruling from the Corte suprema di cassazione — Italy) — Criminal proceedings against Alfonso Verlezza and Others
      (Joined Cases C-487/17 to C 489/17) (1)

      (Reference for a preliminary ruling - Environment - Directive 2008/98/EC and Decision 2000/532/EC - Waste - Classification as hazardous waste - Waste which may be assigned codes for both hazardous waste and non-hazardous waste)
      (2019/C 187/19)
      Language of the case: Italian

         Referring court

      Corte suprema di cassazione

         Parties to the main criminal proceedings against

      Alfonso Verlezza, Riccardo Traversa, Irene Cocco, Francesco Rando, Carmelina Scaglione, Francesco Rizzi, Antonio Giuliano, Enrico Giuliano, Refecta Srl, E. Giovi Srl, Vetreco Srl, SE.IN Srl

         Operative part of the judgment

                  1.

                  Annex III to Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, as amended by Commission Regulation (EU) No 1357/2014 of 18 December 2014, and the Annex to Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, as amended by Commission Decision 2014/955/EU of 18 December 2014, must be interpreted to the effect that a holder of waste which may be classified under either hazardous waste codes or non-hazardous waste codes, but the composition of which is not immediately known, must, in view of that classification, determine that composition and ascertain the hazardous substances which may reasonably be found in that waste in order to establish whether that waste has hazardous properties and may, for that purpose, use the sampling, chemical analyses and tests provided for in Commission Regulation (EC) No 440/2008 of 30 May 2008 laying down test methods pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), or any other internationally recognised sampling, chemical analysis or test.

                  2.

                  The precautionary principle must be interpreted to the effect that where, following an assessment of the risks, which is as complete as possible having regard to the particular circumstances of the case, it is impossible, in practical terms, for a holder of waste which may be classified under either hazardous waste codes or non-hazardous waste codes to determine the presence of hazardous substances or to assess the hazardous property of that waste, it must be classified as hazardous waste.

         (1)  OJ C 374, 6.11.2017.


title: Case C-275/19: Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 2 April 2019 — Sportingbet PLC, Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/34

      Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 2 April 2019 — Sportingbet PLC, Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD
      (Case C-275/19)
      (2019/C 206/39)
      Language of the case: Portuguese

         Referring court

      Supremo Tribunal de Justiça

         Parties to the main proceedings

         Appellants: Sportingbet PLC, Internet Opportunity Entertainment Ltd

         Respondents: Santa Casa da Misericórdia de Lisboa, Sporting Club de Braga, Sporting Club de Braga — Futebol, SAD

         Questions referred

                  1.

                  Given that the Portuguese State did not inform the European Commission of the technical regulations contained in Decree-Law No 442/89 of 2 December 1989, should those provisions ‒ more specifically Article 3 (using the wording shown) and Article 9 mentioned below ‒ be unenforceable, and can individuals rely on that lack of enforceability?

                  2.

                  Given that the Portuguese State did not inform the European Commission of the technical regulations contained in Decree-Law No 282/2003 of 8 November 2003, should those provisions ‒ more specifically Article 2 and Article 3 mentioned below ‒ be unenforceable as against service providers in Portugal?


title: Case C-282/19: Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 3 April 2019 — YT and Others v Ministero dell’Istruzione, dell’Università e della Ricerca, Ufficio Scolastico Regionale per la Campania

text:
               17.6.2019

               EN

               Official Journal of the European Union

               C 206/36

      Request for a preliminary ruling from the Tribunale di Napoli (Italy) lodged on 3 April 2019 — YT and Others v Ministero dell’Istruzione, dell’Università e della Ricerca, Ufficio Scolastico Regionale per la Campania
      (Case C-282/19)
      (2019/C 206/41)
      Language of the case: Italian

         Referring court

      Tribunale di Napoli

         Parties to the main proceedings

         Applicants: YT and Others

         Defendants: Ministero dell’Istruzione, dell’Università e della Ricerca, Ufficio Scolastico Regionale per la Campania

         Questions referred

                  1.

                  Does the different treatment accorded only to Catholic religious education teachers, such as the applicants, constitute discrimination on grounds of religion, within the meaning of Article 21 of the Charter of Fundamental Rights of the European Union and Directive 2000/78/EC, (1) or does the fact that the certificate attesting to their suitability issued to these workers can be revoked constitute an adequate reason why only Catholic religious education teachers, such as the applicants, are treated differently from other teachers and are not covered by any measure precluding such treatment, as required under Clause 5 of the framework agreement on fixed-term work concluded on 18 March 1999 and 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?; (2)

                  2.

                  If direct discrimination is taken to have occurred, within the meaning of Article 2(2)(a) of Directive 2000/78/EC, on grounds of religion (Article 1), and the Charter of Fundamental Rights of the European Union, the Court is requested to consider what instruments are available to the referring court to eliminate the effects of such discrimination, bearing in mind that all teachers other than Catholic religious education teachers are now covered by the special recruitment plan laid down in Law No 107/15, being granted tenure and consequently given employment contracts of indefinite duration. Should this court therefore impose an employment relationship of indefinite duration with the defendant public authorities?;

                  3.

                  Must Clause 5 of the framework agreement laid down in Directive 1999/70/EC be interpreted as precluding a national legal provision, such as the provision at issue, under which the rules of ordinary law governing employment relationships and intended to penalise the misuse of successive fixed-term employment contracts by the automatic conversion of a fixed-term contract into a contract of indefinite duration where the employment relationship continues for more than a certain period of time, do not apply to the schools sector — specifically to Catholic religious education teachers — and therefore permit successive fixed-term employment contracts for an indefinite period of time? In particular, can the requirement to obtain the approval of the diocesan ordinary constitute an objective reason within the meaning of Clause 5(1)(a) of the framework agreement, or, instead, should such treatment be regarded as discrimination prohibited under Article 21 of the Charter of Fundamental Rights of the European Union?;

                  4.

                  If the answer to question 3 is in the affirmative, do Article 21 of the Charter of Fundamental Rights of the European Union, Clause 4 of the framework agreement laid down in Directive 1999/70/EC and/or Article 1 of Directive 2000/78/EC permit the disapplication of provisions that preclude the automatic conversion of a fixed-term employment contract into an employment contract of indefinite duration where the employment relationship continues for more than a certain period of time?

         (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).

         (2)  OJ 1999 L 175, p. 43.


title: Case C-768/18 P: Appeal brought on 7 December 2018 by Michal Harvilik — HYDRA against the order of the General Court (Fifth Chamber) delivered on 25 September 2018 in Case T-365/18, Michal Harvilik — HYDRA v Czech Republic and the European Court of Human Rights

text:
               24.6.2019

               EN

               Official Journal of the European Union

               C 213/2

      Appeal brought on 7 December 2018 by Michal Harvilik — HYDRA against the order of the General Court (Fifth Chamber) delivered on 25 September 2018 in Case T-365/18, Michal Harvilik — HYDRA v Czech Republic and the European Court of Human Rights
      (Case C-768/18 P)
      (2019/C 213/02)
      Language of the case: Slovak

         Parties

         Appellant: Michal Harvilik — HYDRA (represented by: A. Wagner, lawyer)

         Other parties to the proceedings: Czech Republic, European Court of Human Rights
      By order of 19 March 2019, the Court of Justice (Seventh Chamber) ruled that the present appeal is inadmissible.


title: Case C-190/19: Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 27 February 2019 — MG, NH v Germanwings GmbH

text:
               24.6.2019

               EN

               Official Journal of the European Union

               C 213/5

      Request for a preliminary ruling from the Amtsgericht Hamburg (Germany) lodged on 27 February 2019 — MG, NH v Germanwings GmbH
      (Case C-190/19)
      (2019/C 213/05)
      Language of the case: German

         Referring court

      Amtsgericht Hamburg

         Parties to the main proceedings

         Applicants: MG, NH

         Defendant: Germanwings GmbH

         Question referred

      Can a right to compensation under Article 7 of Regulation (EC) No 261/2004 (1) also exist when a passenger does not catch a directly connecting flight due to a relatively minor delay in arrival, with the result that there is a delay in arrival at the final destination of three hours or more, but the two flights were operated by different air carriers and the booking confirmation was issued by a travel agency who combined the flights for its customer?

         (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case C-220/19: Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 11 March 2019 — Promociones Oliva Park, S.L. v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana

text:
               24.6.2019

               EN

               Official Journal of the European Union

               C 213/6

      Request for a preliminary ruling from the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) lodged on 11 March 2019 — Promociones Oliva Park, S.L. v Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana
      (Case C-220/19)
      (2019/C 213/06)
      Language of the case: Spanish

         Referring court

      Tribunal Superior de Justicia de la Comunidad Valenciana

         Parties to the main proceedings

         Applicant: Promociones Oliva Park, S.L.

         Defendant: Tribunal Económico Administrativo Regional (TEAR) de la Comunidad Valenciana

         Questions referred

                  1.

                  Should Article 1(2) of Directive 2008/118/EC (1) be interpreted as precluding and being incompatible with a tax such as the IVPEE (tax on the value of electricity production), which is nominally a direct tax but which, having regard to its true nature, is actually an indirect, purely revenue-raising, tax without a specific purpose, given that the classification of the tax under national law cannot override the interpretation provided by EU law, which is governed by the objectives of EU law and reflects the objective characteristics of the tax in question?

                  2.

                  In spite of the fact that it is classed as an environmental tax, is the fundamental aim of the IVPEE to raise revenue, in that activities involving the production of electricity and its incorporation into the electricity system are taxed in the same way, regardless of their intensity and environmental impact, in breach of Article 1, Article 3(1) and (2) and Article 3(3)(a) as read with Article 2(k) of Directive 2009/28/EC? (2)

                  3.

                  Should the principle of free competition and promotion of energy from renewable sources be interpreted as precluding the IVPEE, since it applies the same fiscal treatment to energy from non-renewable and from renewable sources, thus discriminating against the latter and breaching the support scheme established in Article 2(k) and related provisions of Directive 2009/28/EC?

                  4.

                  Finally, do the aforementioned principle of free competition and Articles 32, 33 and 34 of Directive 2009/72/EC (3) (CHAPTER VIII, ORGANISATION OF ACCESS TO THE SYSTEM) preclude the IVPEE, on the grounds that it permits positive discrimination in favour of non-national electricity producers, to the detriment of Spanish producers, thereby distorting the internal electricity market and access to the system?

         (1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

         (2)  Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16).

         (3)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).


title: Case C-227/19: Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 14 March 2019 — DX

text:
               24.6.2019

               EN

               Official Journal of the European Union

               C 213/7

      Request for a preliminary ruling from the Landesverwaltungsgericht Steiermark (Austria) lodged on 14 March 2019 — DX
      (Case C-227/19)
      (2019/C 213/07)
      Language of the case: German

         Referring court

      Landesverwaltungsgericht Steiermark

         Parties to the main proceedings

         Appellant: DX

         Respondent authority: Bürgermeister der Stadt Graz

         Interested party: Finanzpolizei

         Questions referred

                  1.

                  Must Article 56 TFEU, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (1) and Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC (2) be interpreted as precluding a national provision which, for infringements of formal obligations in connection with the cross-border deployment of labour, such as a failure to make available documents relating to pay or a failure to report to the Central Coordination Office (ZKO notifications), provides for very high fines, in particular high minimum penalties, which are imposed cumulatively in respect of each worker concerned?

                  2.

                  If the answer to Question 1 is in the negative:
                  Must Article 56 TFEU, Directive 96/71/EC and Directive 2014/67/EU be interpreted as precluding the imposition of cumulative fines for infringements of formal obligations in connection with the cross-border deployment of labour which have no absolute upper limits?

         (1)  OJ 1997 L 18, p. 1.

         (2)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (OJ 2014 L 159, p. 11).


title: Case C-245/19: Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 20 March 2019 — State of the Grand Duchy of Luxembourg v B

text:
               24.6.2019

               EN

               Official Journal of the European Union

               C 213/8

      Request for a preliminary ruling from the Cour administrative (Luxembourg) lodged on 20 March 2019 — State of the Grand Duchy of Luxembourg v B
      (Case C-245/19)
      (2019/C 213/08)
      Language of the case: French

         Referring court

      Cour administrative

         Parties to the main proceedings

         Appellant: State of the Grand Duchy of Luxembourg

         Respondent: B

         Questions referred

                  1.

                  Must Articles 7, 8 and 52(1) of the Charter of Fundamental Rights of the European Union, whether or not read in conjunction with Article 47 of that Charter, be interpreted as precluding national legislation of a Member State which, in the context of the procedure for the exchange of information on request established in particular with a view to the implementation of Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, (1) excludes any remedy, in particular a judicial remedy, on the part of a third party holding information to challenge a decision by which the competent authority of that Member State requires that third party to communicate information to it for the purposes of implementing a request for exchange of information received from another Member State?

                  2.

                  If the answer to the first question is in the affirmative, must Article 1(1) and Article 5 of Directive 2011/16 be interpreted, if necessary taking account of the evolving nature of the interpretation of Article 26 of the OECD Model Tax Convention, as meaning that a request for exchange of information, and a consequent information order from the competent authority of the requested Member State, satisfy the condition that there is not a manifest lack of foreseeable relevance where the requesting Member State states the identity of the taxpayer concerned, the period covered by the investigation in the requesting Member State and the identity of the holder of the information in question, while seeking information concerning contracts and the associated invoices and payments which are unspecified but which are defined by criteria concerning, first, the fact that the contracts were concluded by the identified holder of the information, secondly, their applicability to the tax years covered by the investigation by the authorities in the requesting State and, thirdly, their relationship with the identified taxpayer concerned?

         (1)  OJ 2011 L 64, p. 1.