title: Case T-203/18: Action brought on 23 March 2018 — VQ v ECB

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/26

         Action brought on 23 March 2018 — VQ v ECB
   (Case T-203/18)
   (2018/C 182/31)
   Language of the case: English

      Parties

      Applicant: VQ (represented by: G. Cahill, Barrister)

      Defendant: European Central Bank

      Form of order sought

   The applicant claims that the Court should:

               —

               annul, pursuant to Article 263 TFEU, the European Central Bank’s Decision SNC-2016-0026 of 14 March 2018;

               —

               declare, pursuant to Article 277 TFEU, that Article 18(6) of the SSM Regulation (1) is unlawful, and therefore annul the said decision; and

               —

               order the ECB to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging the ECB infringed Article 18(1) of the SSM Regulation and Article 49(1) of the Charter of Fundamental Rights of the European Union, by imposing an administrative pecuniary penalty on the grounds of a legal framework based on non-directly effective EU and national law.

                           —

                           The applicant pleads that its repurchases of treasury shares between 1 January 2014 and 31 December 2015 should not be considered in breach of Articles 77(a) and 78 of Regulation 575/2013, (2) since the capital conservation buffer was not in force nor determined until 1 January 2016.

                           —

                           As long as the decision of the ECB relies on the rules governing the capital conservation buffer in Directive 2013/36, (3) which were not binding not in force nor determined until 1 January 2016, the applicant respectfully submits that the ECB has imposed an administrative pecuniary penalty in the absence of a directly applicable rule of EU and national law.

                           —

                           The contested decision therefore breaches Article 18(1) of the SSM Regulation and, in particular, the principle of legality enshrined in Article 49(1) of the Charter of Fundamental Rights.

               2.

               Second plea in law, alleging that the ECB infringed Article 132(1)(b) of Regulation 468/2014, (4) as it orders the publication of an administrative pecuniary penalty on a non-anonymised basis.

               3.

               Third plea in law, alleging that Article 18(6) of the SSM Regulation is unlawful and in breach of Article 263, sixth paragraph, TFEU and Article 47 of the Charter of Fundamental Rights, in that it imposes a duty to publish an administrative pecuniary penalty irrespective of the fact that the applicant has the intention to bring an action before the General Court within the time limits provided in Article 263, sixth paragraph, TFEU.

                           —

                           By introducing a rule such as Article 18(6) of the SSM Regulation, the Council has deprived an applicant interested in bringing an action against the decision not to anonymise an administrative pecuniary penalty of the two-month time-limit provided in Article 263, sixth paragraph, TFEU.

                           —

                           The contested provision derogates from the two month time-limit to bring an action of annulment, and grants the ECB a unilateral power to determine at which time a credit institution must bring an action.

                           —

                           While the ECB has the power to publish the administrative pecuniary penalty, the credit institution concerned must bring an application prior to the ECB’s decision to publish the penalty. This situation creates an unreasonable uncertainty on the credit institution which can eventually limit its ability to bring an action and, ultimately, violates its fundamental right to an effective remedy.

                           —

                           Consequently, Article 18(6) of the SSM Regulation is contrary to Article 263, sixth paragraph, TFEU and 47 of the Charter of Fundamental Rights.

                           —

                           Inasmuch as the ECB deprived the applicant of its right to an effective remedy, the contested Decision should be annulled.

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

      (2)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1).

      (3)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

      (4)  Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (ECB/2014/17) (OJ 2014 L 141, p. 1).


title: Case C-160/18: Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 28 February 2018 — X BV v Staatssecretaris van Financiën

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/10

         Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 28 February 2018 — X BV v Staatssecretaris van Financiën
   (Case C-160/18)
   (2018/C 182/11)
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Appellant: X BV

      Respondent: Staatssecretaris van Financiën

      Questions referred

               1.

               Must paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95, (1) read in conjunction with Article 141 of Regulation (EC) No 1234/2007, (2) be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the cif import price reported is correct and could constitute grounds for a supplementary inspection?
               Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the Community market at a price below the reported cif import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the Community market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies?

               2.

               If it follows from the answers to the questions set out under 1 above that reselling at a loss constitutes a sufficient ground for rejecting the reported cif import price, how should the level of the additional duties due be determined? Should that basis be established in accordance with the methods for determining customs value laid down in Articles 29 to 31 of Council Regulation (EEC) No 2913/92 (3) establishing the Community Customs Code? Or must it be established solely on the basis of the applicable representative price? Does Article 141(3) of Regulation (EC) No 1234/2007 preclude use of the representative price determined prior to 11 September 2009?

               3.

               If it follows from the answers to Questions 1 and 2 that the decisive factor in additional duties being owed is the resale of imported products at a loss on the Community market, and the representative price must then be taken as a basis for calculating the level of those additional duties, are paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95 compatible with Article 141 of Regulation (EC) No 1234/2007 in the light of the judgment of the Court of Justice of the European Union of 13 December 2001, Kloosterboer Rotterdam B.V., C-317/99, EU:C:2001:681?

      (1)  Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing additional import duties in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC (OJ 1995 L 145, p. 47).

      (2)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

      (3)  OJ 1992 L 302, p. 1.


title: Case T-219/18: Action brought on 30 March 2018 — Piaggio & C. v EUIPO — Zhejiang Zhongneng Industry Group (Mopeds)

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/28

         Action brought on 30 March 2018 — Piaggio & C. v EUIPO — Zhejiang Zhongneng Industry Group (Mopeds)
   (Case T-219/18)
   (2018/C 182/32)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Piaggio & C. SpA (Pontedera, Italy) (represented by: F. Jacobacci, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Zhejiang Zhongneng Industry Group Co. Ltd (Taizhou, China)

      Details of the proceedings before EUIPO

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

      Design at issue: Community design No 1 783 655-0002

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 19 January 2018 in Case R 1496/2015-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               declare the proprietor’s Community design registered under No 1 783 655-0002 invalid, on all the grounds set out in the present application;

               —

               order the defendant and the proprietor to pay the procedural costs relating to the proceedings before the Board of Appeal, pursuant to Article 190 of the Rules of Procedure of the General Court;

               —

               order EUIPO and the potential other party to the present proceedings to pay the entirety of the costs of the proceedings.

      Pleas in law

               —

               Incorrect interpretation and application of Article 6 CDR;

               —

               Infringement of Article 25(1)(e) CDR;

               —

               Infringement of Article 25(1)(f) CDR.


title: Case C-163/18: Request for a preliminary ruling from the Rechtbank Noord-Nederland (Netherlands) lodged on 1 March 2018 — HQ, on her own behalf and as the legal representative of her minor child IP, JO v Aegean Airlines SA

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/11

         Request for a preliminary ruling from the Rechtbank Noord-Nederland (Netherlands) lodged on 1 March 2018 — HQ, on her own behalf and as the legal representative of her minor child IP, JO v Aegean Airlines SA
   (Case C-163/18)
   (2018/C 182/12)
   Language of the case: Dutch

      Referring court

   Rechtbank Noord-Nederland

      Parties to the main proceedings

      Applicants: HQ, on her own behalf and as the legal representative of her minor child IP, JO

      Defendant: Aegean Airlines SA

      Questions referred

               1.

               Must Article 8(2) of Regulation No 261/2004 (1) be interpreted as meaning that a passenger who, under Directive 90/[314]/EEC (2) on package travel (as implemented in national law), has the right to hold his tour organiser liable for reimbursement of the cost of his ticket, can no longer claim reimbursement from the air carrier?

               2.

               If the answer to Question 1 is in the affirmative, can a passenger nevertheless hold the air carrier liable for reimbursement of the cost of his ticket if it is to be assumed that his tour organiser, if it were to be held liable, would be financially incapable of actually reimbursing the cost of the ticket and that tour organiser has also not taken any safeguard measures to guarantee reimbursement?

      (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).

      (2)  Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).


title: Case C-192/18: Action brought on 15 March 2018 — European Commission v Republic of Poland

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/14

         Action brought on 15 March 2018 — European Commission v Republic of Poland
   (Case C-192/18)
   (2018/C 182/17)
   Language of the case: Polish

      Parties

      Applicant: European Commission (represented by: A. Szmytkowska, K. Banks, H. Krämer and C. Valero, acting as Agents)

      Defendant: Republic of Poland

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, by introducing, in Article 13(1) to (3) of the Ustawa z dnia 12 lipca 2017 r. o zmianie ustawy — Prawo o ustroju sądów powszechnych (Law of 12 July 2017 amending the Law on the Organisation of Ordinary Courts), a distinction between the retirement age for men and women working as ordinary judges, Supreme Court judges, and prosecutors, the Republic of Poland has failed to fulfil its obligations under Article 157 of the Treaty on the Functioning of the European Union and under Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); (1) and that,

               —

               by lowering, by means of Article 13(1) of that law, the retirement age applicable to ordinary court judges, and at the same time granting the Minister for Justice the right to decide whether to extend the period of active service of judges pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union;

               —

               order the Republic of Poland to pay the costs.

      Pleas in law and main arguments

   The Commission submits that, by introducing, in Article 13(1) to (3) of the Ustawa z dnia 12 lipca 2017 r. o zmianie ustawy — Prawo o ustroju sądów powszechnych (Law of 12 July 2017 amending the Law on the Organisation of Ordinary Courts), provisions distinguishing between the retirement age for men and women working as ordinary judges, Supreme Court judges, and prosecutors, and by lowering, by means of Article 13(1) of that law, the retirement age applicable to ordinary court judges, and at the same time granting the Minister for Justice the right to decide whether to extend the period of active service of judges pursuant to Article 1(26)(b) and (c) of that law, the Republic of Poland has failed to fulfil its obligations under Article 157 of the Treaty on the Functioning of the European Union and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) and its obligations under the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union.

      (1)  OJ 2006 L 204, p. 23.


title: Case T-228/18: Action brought on 5 April 2018 — Transtec v. Commission

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/29

         Action brought on 5 April 2018 — Transtec v. Commission
   (Case T-228/18)
   (2018/C 182/33)
   Language of the case: French

      Parties

      Applicant: Transtec (Brussels, Belgium) (represented by: L. Levi and N. Flandin, avocats)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the present application admissible and well founded;

         and consequently:

               —

               annul the decision of 26 March 2018 by which the European Commission rejected the tender of the consortium led by the applicant for Lot No. 3 in the context of the ‘Framework contract for the implementation of external aid 2018 (SIEA EUROPAID/138778/DH/SER/MULTI’)’ call for tenders (‘Call for Tenders’) relating to a framework contract for the supply of services for the benefit of third countries receiving external EU aid and by which it awarded Lot No. 3 to 10 other tenderers,

               —

               call on the defendant, by way of measures of organisation of procedure (cf. Article 55 of the Rules of Procedure of the General Court), to provide the following: (i) the characteristics and relative advantages of the 10 successful tenders for Lot No. 3 along with the scores obtained with regard to the criteria set out in points 1.1, 1.2, 1.3, 1.4, 1.5, 1.6 of the technical assessment grid contained in Part C-I of ‘the Global Organisation and Methodology and the ‘technical’ and ‘financial’ scores obtained by those tenders for Lot No. 3 (ii) a copy of the evaluation committee’s detailed report;

               —

               declare the claim for damages in the amount of EUR 2 400 000 with a gross margin admissible and well founded;

               —

               order the defendant to pay all the costs.

      Pleas in law and main arguments

   In support of its argument, the applicant puts forward six pleas in law.

               1.

               A first plea, alleging that, by failing to exclude, on the ground of irregularities, a member of one of the tendering consortia to which the contract was awarded, the Commission infringed Article 106 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) (‘the Financial Regulation’) and point 4 of the Instructions to Tenderers (‘the Instructions’).

               2.

               A second plea, alleging a manifest error of assessment by the Commission and that, by failing to carry out a sufficiently careful examination of abnormally low tenders, the Commision infringed Article 110(5) of the Financial Regulation, Article 151 of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1) (‘the implementing regulation’), the obligation under Article 41(2) of the Charter of fundamental rights of the European Union (‘the Charter’) to have due regard for the principle of sound administration and point 15.3 of the Instructions.

               3.

               A third plea, alleging breach of the obligation to state reasons arising from 113(2) of the Finance Regulation and of Article 161(1) of the implementing regulation.

               4.

               A fourth plea, alleging breach of the right to an effective remedy, as laid down in Article 47 of the Charter.

               5.

               A fifth plea, alleging that the principles of equal treatment, non-discrimination, and the guarantee of fair competition under Article 102(1) and (2) of the Financial Regulation have been infringed as a result of the illegality of point 7 of the Instructions.

               6.

               A sixth plea, alleging breach of the principle of sound administration under Article 41 of the Charter as a result of the illegality of point 7.3 of the Instructions.


title: Case C-201/18: Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 19 March 2018 — Mydibel S.A. v État belge

text:
               28.5.2018

               EN

               Official Journal of the European Union

               C 182/15

         Request for a preliminary ruling from the Cour d’appel de Mons (Belgium) lodged on 19 March 2018 — Mydibel S.A. v État belge
   (Case C-201/18)
   (2018/C 182/18)
   Language of the case: French

      Referring court

   Cour d’appel de Mons

      Parties to the main proceedings

      Applicant: Mydibel S.A.

      Respondent: État belge

      Question referred

   Must Articles 14, 15, 168, 184, 185, 187 and 188 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) be interpreted and applied as meaning that there is, or is not, a revision/adjustment of VAT on an investment good comprising immovable property which had initially been deducted correctly, in the case where that immovable property acquired as a capital good was the subject of a ‘sale and lease back’ transaction, given that:

               —

               the ‘sale and lease back’ is created by the combined and simultaneous granting of a right of emphyteusis (being a temporary right in rem) by the taxable person to two financial institutions and by a leasing by those two institutions to the taxable person;

               —

               that ‘sale and lease back’ is a purely financial transaction designed to increase the liquidity of the taxable person;

               —

               the ‘sale and lease back’ transaction was not subject to VAT;

               —

               the investment property remained in the possession of the taxable person and was used for the taxable activity of the taxable person in a continuous and sustainable manner, both before and after the transaction?

         Does an interpretation and application of the abovementioned provisions leading to a revision/adjustment of the VAT initially deducted comply with the principle of neutrality of VAT and/or with the principle of equal treatment??

      (1)  OJ 2006 L 347, p. 1.


title: Judgment of the Court of 31 October 2017 in Case E-16/16 — Fosen-Linjen AS v AtB AS (Public procurement — Directive 89/665/EEC — Directive 2004/18/EC — Claim for compensation — Culpability — Gravity of the breach — Burden of proof — Verification of the tender submitted — Principles of effectiveness, equal treatment, transparency and proportionality)

text:
               31.5.2018

               EN

               Official Journal of the European Union

               C 186/12

         JUDGMENT OF THE COURT
   of 31 October 2017
   in Case E-16/16
   Fosen-Linjen AS v AtB AS

      (Public procurement — Directive 89/665/EEC — Directive 2004/18/EC — Claim for compensation — Culpability — Gravity of the breach — Burden of proof — Verification of the tender submitted — Principles of effectiveness, equal treatment, transparency and proportionality)

   (2018/C 186/06)
   In Case E-16/16, Fosen-Linjen AS v AtB AS — REQUEST to the Court pursuant to Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Frostating Court of Appeal (Frostating lagmannsrett) concerning the interpretation of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, and in particular Article 1(1) and Article 2(1)(c) thereof, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Benedikt Bogason (ad hoc), Judges, gave judgment on 31 October 2017, the operative part of which is as follows:

               1.

               The award of damages according to Article 2(1)(c) of Directive 89/665/EEC does not depend on whether the breach of a provision of public procurement law was due to culpability and conduct deviating markedly from a justifiable course of action, or whether it occurred on basis of a material error or whether it is attributable to the existence of a material, gross and obvious error. A simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority to compensate the person harmed for the damage incurred, pursuant to Article 2(1)(c) of Directive 89/665/EEC, provided that the other conditions for the award of damages are met, including, in particular, the condition of a causal link.

               2.

               Directive 89/665/EEC does not preclude a requirement according to which the award of damages is conditional on the aggrieved tenderer proving with clear, that is, qualified preponderance of evidence that he should have been awarded the contract had the contracting authority not committed the error, as long as the principles of equivalence and effectiveness are respected.

               3.

               Directive 89/665/EEC does not preclude national law that exempts a contracting authority from liability for positive contract interest where the tender procedure, due to an error by the contracting authority, was cancelled in compliance with EEA public procurement law, even where that error was not invoked during the tender procedure and is different from the error invoked by the claimant. It is for the contracting authority to prove the existence of such an error and justify its decision to withdraw the tender procedure.

               4.

               The award criteria of a tender procedure must be formulated in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way. The contracting authority is furthermore obliged to verify whether the information submitted by the tenderer is plausible, in the sense that the respective tenderers are capable of providing what was offered in the bid, and whether that bid corresponds to the requirements set out by the contracting authority. The verification requirement must comply with the principle of proportionality. As long as all tenderers are treated equally, the contracting authority may have regard to any information provided in the tender in order to make an effective verification of the information linked to the award criteria. It is for the referring court, having regard to the principles of equal treatment, transparency, and proportionality, to determine whether these conditions were complied with in the underlying tender procedure.


title: Case C-605/16 P: Order of the President of the Court of 16 February 2018 — Council of the European Union v PT Ciliandra Perkasa, European Commission, European Biodiesel Board (EBB)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/18

         Order of the President of the Court of 16 February 2018 — Council of the European Union v PT Ciliandra Perkasa, European Commission, European Biodiesel Board (EBB)
   (Case C-605/16 P) (1)

   (2018/C 190/26)
   Language of the case: English
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 30, 30.1.2017.


title: Case C-606/16 P: Order of the President of the Court of 16 February 2018 — Council of the European Union v PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas), European Commission, European Biodiesel Board (EBB)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/18

         Order of the President of the Court of 16 February 2018 — Council of the European Union v PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas), European Commission, European Biodiesel Board (EBB)
   (Case C-606/16 P) (1)

   (2018/C 190/27)
   Language of the case: English
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 30, 30.1.2017.


title: Case C-252/17: Order of the Court (Eighth Chamber) of 21 March 2018 (request for a preliminary ruling from the Juzgado de lo Social No 2 de Cádiz — Spain) — Moisés Vadillo González v Alestis Aerospace SL (Reference for a preliminary ruling — Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice — Insufficient information regarding the factual and legal context of the dispute in the main proceedings and lack of grounds justifying why an answer to the questions referred is necessary — Manifest inadmissibility)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/2

         Order of the Court (Eighth Chamber) of 21 March 2018 (request for a preliminary ruling from the Juzgado de lo Social No 2 de Cádiz — Spain) — Moisés Vadillo González v Alestis Aerospace SL
   (Case C-252/17) (1)

   ((Reference for a preliminary ruling - Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice - Insufficient information regarding the factual and legal context of the dispute in the main proceedings and lack of grounds justifying why an answer to the questions referred is necessary - Manifest inadmissibility))
   (2018/C 190/02)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 2 de Cádiz

      Parties to the main proceedings

      Applicant: Moisés Vadillo González

      Defendant: Alestis Aerospace SL

      Intervener: Ministerio Fiscal

      Operative part of the order

   The request for a preliminary ruling made by the Juzgado de lo Social No 2 de Cádiz (Social Court No 2, Cádiz, Spain), by decision of 8 May 2017, is manifestly inadmissible.

      (1)  OJ C 256, 7.8.2017.


title: Case C-170/17: Order of the President of the Ninth Chamber of the Court of 2 February 2018 — European Commission v Portuguese Republic

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/19

         Order of the President of the Ninth Chamber of the Court of 2 February 2018 — European Commission v Portuguese Republic
   (Case C-170/17) (1)

   (2018/C 190/29)
   Language of the case: Portuguese
   The President of the Ninth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 161, 22.5.2017.


title: Case T-178/18: Action brought on 8 March 2018 — Région de Bruxelles-Capitale v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/32

         Action brought on 8 March 2018 — Région de Bruxelles-Capitale v Commission
   (Case T-178/18)
   (2018/C 190/55)
   Language of the case: French

      Parties

      Applicant: Région de Bruxelles-Capitale (Brussels, Belgium) (represented by: A. Bailleux and B. Magarinos Rey, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               declare the present action admissible and well founded;

               —

               annul the contested regulation [Commission Implementing Regulation (EU) 2017/2324 of 12 December 2017 renewing the approval of the active substance glyphosate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2017 L 333, p. 10)], while maintaining its effects until its replacement within a reasonable period, and at the latest until 16 December 2021;

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the principles of a high level of protection of human health and of the environment. This plea is divided into two parts.

                           —

                           First part, alleging infringement of the obligation to ensure a high level of protection of human health and of the environment at the stage of the scientific assessment of risk, in so far as the contested regulation is based on a scientific assessment of risks to health and the environment that does not meet the requirements of the precautionary principle. According to the applicant, insufficiencies arise in relation to identification, selection and weighting, the treatment method and the interpretation of the available data and scientific studies.

                           —

                           Second part, alleging infringement of the obligation to ensure a high level of protection of human health and the environment at the stage of policy assessment and risk management, in so far as the contested regulation fails to carry out a policy assessment and risk management that comply with the precautionary principle. The applicant submits, on the one hand, that the renewal of the approval occurred in circumstances in which significant deficiencies and uncertainties persist in relation to risk assessment, and, on the other hand, that the renewal is not accompanied by sufficient risk mitigation or risk reduction measures in the broad sense.

               2.

               Second plea in law, alleging infringement of the obligation to state reasons and the principle of sound administration, in so far as the contested regulation contains an internal inconsistency. The applicant claims that the preamble and articles of that regulation suggest that glyphosate does not have any harmful effects on human or animal health or any unacceptable influence on the environment, whereas the specific provisions contained in Annex I to that regulation are underpinned by the existence of such effects. Such an internal inconsistency thus leaves the public uncertain as to whether or not glyphosate poses a risk to health or the environment.


title: Case T-439/16: Judgment of the General Court of 20 April 2018 — holyGhost v EUIPO — CBM (holyGhost) (EU trade mark — Opposition proceedings — Application for EU word mark holyGhost — Earlier EU word mark HOLY — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/24

         Judgment of the General Court of 20 April 2018 — holyGhost v EUIPO — CBM (holyGhost)
   (Case T-439/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark holyGhost - Earlier EU word mark HOLY - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 190/43)
   Language of the case: German

      Parties

      Applicant: holyGhost GmbH (Munich, Germany) (represented by: M. Wiedemann and D. Engbrink, lawyers)

      Defendant: European Union Intellectual Property Office (represented initially by A. Schifko and subsequently by D. Walicka, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO: CBM Creative Brands Marken GmbH (Zurich, Switzerland)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 30 May 2016 (Case R 2867/2014-5), concerning opposition proceedings between CBM and holyGhost.

      Operative part of the judgment

   The Court:

               1.

               The action is dismissed;

               2.

               HolyGhost GmbH is ordered to pay the costs.

      (1)  OJ C 350, 26.9.2016.


title: Case C-604/17: Order of the Court (Sixth Chamber) of 16 January 2018 (request for a preliminary ruling from the Varhoven kasatsionen sad — Bulgaria) — PM v AH (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Area of freedom, security and justice — Judicial cooperation in civil matters — Jurisdiction in matters of parental responsibility — Regulation (EC) No 2201/2003 — Jurisdiction of a court of a Member State to hear and determine an action relating to parental responsibility where the child is not resident in the territory of that State — Jurisdiction in matters relating to maintenance obligations — Regulation (EC) No 4/2009)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/3

         Order of the Court (Sixth Chamber) of 16 January 2018 (request for a preliminary ruling from the Varhoven kasatsionen sad — Bulgaria) — PM v AH
   (Case C-604/17) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Area of freedom, security and justice - Judicial cooperation in civil matters - Jurisdiction in matters of parental responsibility - Regulation (EC) No 2201/2003 - Jurisdiction of a court of a Member State to hear and determine an action relating to parental responsibility where the child is not resident in the territory of that State - Jurisdiction in matters relating to maintenance obligations - Regulation (EC) No 4/2009))
   (2018/C 190/04)
   Language of the case: Bulgarian

      Referring court

   Varhoven kasatsionen sad

      Parties to the main proceedings

      Applicant: PM

      Defendant: AH

      Operative part of the order

   Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that a court of a Member State with jurisdiction, under Article 3(1)(b) of that regulation, to hear and determine an application for divorce between two spouses who are nationals of that Member State does not have jurisdiction to rule on rights of custody and rights of access in respect of the spouses’ child in the case where, at the time when the court is seised, that child is habitually resident in another Member State, that the conditions for such jurisdiction, under Article 12 of that regulation, are not satisfied by that court, and that, on account of the circumstances of the main proceedings, it follows that neither does that court have such jurisdiction under Articles 9, 10 or 15 of that regulation. Furthermore, that court does not satisfy the conditions, laid down in Article 3(d) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, for having jurisdiction to rule on an application relating to maintenance.

      (1)  OJ C 22, 22.1.2018.


title: Case C-651/17 P: Appeal brought on 21 November 2017 by Grupo Osborne S.A. against the judgment of the General Court (Seventh Chamber) delivered on 20 September 2017 in Case T-350/13, Jordi Nogués v EUIPO — Grupo Osborne (BADTORO)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/4

         Appeal brought on 21 November 2017 by Grupo Osborne S.A. against the judgment of the General Court (Seventh Chamber) delivered on 20 September 2017 in Case T-350/13, Jordi Nogués v EUIPO — Grupo Osborne (BADTORO)
   (Case C-651/17 P)
   (2018/C 190/05)
   Language of the case: Spanish

      Parties

      Appellant: Grupo Osborne S.A. (represented by: J.M. Iglesias Monravá, abogado)

      Other parties to the proceedings: Jordi Nogués S.L. and European Union Intellectual Property Office
   By order of 12 April 2018, the Court of Justice (Sixth Chamber) dismissed the appeal and ordered Grupo Osborne S.A. to bear its own costs.


title: Case C-198/18: Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 20 March 2018 — CeDe Group AB v KAN Sp. z o.o. in bankruptcy

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/11

         Request for a preliminary ruling from the Högsta domstolen (Sweden) lodged on 20 March 2018 — CeDe Group AB v KAN Sp. z o.o. in bankruptcy
   (Case C-198/18)
   (2018/C 190/15)
   Language of the case: Swedish

      Referring court

   Högsta domstolen

      Parties to the main proceedings

      Applicant: CeDe Group AB

      Defendant: KAN Sp. z o.o. in bankruptcy

      Questions referred

               1.

               Must Article 4 of Regulation No 1346/2000 (1) be interpreted as meaning that it applies to an action which is brought before a Swedish court by the liquidator of a Polish company — which is the subject of insolvency proceedings in Poland — against a Swedish company for payment of goods delivered under an agreement into which the companies entered before that insolvency?

               2.

               If the answer to the first question is in the affirmative, is it of any importance that, during the proceedings before the courts, the liquidator transfers the claim at issue to a company which enters the proceedings in the place of the liquidator?

               3.

               If the answer to the second question is in the affirmative, is it of any importance if the company which has entered the proceedings thereafter becomes insolvent?

               4.

               If the defendant in the proceedings before the courts in the situation set out in the first question claims that the liquidator’s claim for payment should be set off against a counterclaim which arises from the same agreement as the claim, is that set-off situation covered by Article 4(2)(d)?

               5.

               Is the relationship between Article 4(2)(d) and Article 6(1) of Regulation No 1346/2000 to be interpreted as meaning that Article 6(1) applies only if it is not possible under the law of the State of the opening of proceedings to apply a set-off, or can Article 6(1) also apply to other situations, for example where there is only a certain difference between the level of possibility of set-off in the legal orders in question or where there are no differences at all but set-off is nonetheless refused in the State of the opening of proceedings?

      (1)  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).


title: Case C-652/17 P: Appeal brought on 21 November 2017 by Grupo Osborne S.A. against the judgment of the General Court (Seventh Chamber) delivered on 20 September 2017 in Case T-386/15, Jordi Nogués v EUIPO — Grupo Osborne (BADTORO)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/4

         Appeal brought on 21 November 2017 by Grupo Osborne S.A. against the judgment of the General Court (Seventh Chamber) delivered on 20 September 2017 in Case T-386/15, Jordi Nogués v EUIPO — Grupo Osborne (BADTORO)
   (Case C-652/17 P)
   (2018/C 190/06)
   Language of the case: Spanish

      Parties

      Appellant: Grupo Osborne S.A. (represented by: J.M. Iglesias Monravá, abogado)

      Other parties to the proceedings: Jordi Nogués S.L. and European Union Intellectual Property Office
   By order of 12 April 2018, the Court of Justice (Sixth Chamber) dismissed the appeal and ordered Grupo Osborne S.A. to bear its own costs.


title: Case C-209/18: Action brought on 23 March 2018 — European Commission v Republic of Austria

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/12

         Action brought on 23 March 2018 — European Commission v Republic of Austria
   (Case C-209/18)
   (2018/C 190/16)
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: G. Braun and H. Tserepa-Lacombe, acting as Agents)

      Defendant: Republic of Austria

      Form of order sought

   The applicant claims that the Court should:

               1.

               hold that, by upholding requirements with regard to registered offices for patent law companies under Paragraph 29a(7), in conjunction with Paragraph 2(1)(c), of the Patentanwaltsgesetz (Law on patent lawyers; ‘the PatAnwG’) and for civil engineering companies under Paragraph 25(1) of the Ziviltechnikergesetz (Law on civil engineers; ‘the ZTG’), with regard to the legal form and the share capital ownership of civil engineering companies under Paragraphs 26(1) and 28(1) of the ZTG, patent law companies under Paragraph 29a(1), (2) and (11) of the PatAnwG and veterinary companies under Paragraph 15a(1) of the Tierärztegesetz (Law on veterinarians) and the limitation on multidisciplinary activities for civil engineering companies under Paragraph 21(1) of the ZTG and for patent law companies under Paragraph 29(6) of the PatAnwG, the Republic of Austria has infringed its obligations under Article 14(1), Article 15(1), (2)(b) and (c) and (3), and Article 25 of the Services Directive (1) and under Articles 49 TFEU and 56 TFEU;

               2.

               order the Republic of Austria to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant claims as follows:
   Austrian law still contains requirements with regard to the registered offices of professional companies of civil engineers and patent lawyers that infringe Article 14(1)(b) of the Services Directive. The provisions discriminate directly through the registered office of the company and indirectly through the nationality of the company’s shareholders.
   The requirements with regard to the legal form and the share capital ownership of companies of civil engineers, patent lawyers and veterinarians impede both Austrian service providers as well as the establishment of new service providers from other Member States in so far as they limit the capacity of those providers to open a second branch in Austria if they do not adapt their organisational structures in order to comply with those provisions.
   The Austrian conditions requiring those particular professional companies to confine their activities to professional patent law services and civil engineering services infringe Article 25 of the Services Directive, as they limit both the establishment in Austria of second branches of multidisciplinary professional companies from other Member States as well as the establishment of first branches of such Austrian companies. This impedes the development of new, innovative business models that would place undertakings in a position to offer a wider range of services.

      (1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).


title: Case C-660/17 P: Appeal brought on 24 November 2017 by RF against the order of the General Court (Sixth Chamber) delivered on 13 September 2017 in Case T-880/16, RF v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/5

         Appeal brought on 24 November 2017 by RF against the order of the General Court (Sixth Chamber) delivered on 13 September 2017 in Case T-880/16, RF v Commission
   (Case C-660/17 P)
   (2018/C 190/07)
   Language of the case: Polish

      Parties

      Appellant: RF (represented by: K. Komar-Komarowski, legal adviser)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the order under appeal and refer the case back to the General Court in order that it may re-examine the case and give a ruling on the merits, subject to appeal;

               —

               alternatively — if the Court finds that the conditions for giving final judgment are satisfied in the present case — set aside the order under appeal and uphold the forms of order sought at first instance in their entirety;

               —

               order the Commission to pay the costs.

      Grounds of appeal and main arguments

               (1)

               The General Court infringed the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 53 thereof, through misinterpretation of those provisions. In finding that the concepts of ‘force majeure’ and ‘unforeseeable circumstances’ were identical in terms of their meaning, the General Court infringed the principle of the reasonable legislator. Such a reading of those concepts also runs counter to the aim of Article 45 of the Statute, which is intended to compensate for any differences arising as a result of distance (between the place of residence of the parties and the location of the Court). Consequently, the General Court unreasonably failed to take account of the unforeseeable circumstances preventing the appellant from delivering the (original) paper version of the application on time.

               (2)

               The General Court infringed Article 126 of its Rules of Procedure of 4 March 2015 by misapplying that provision. Despite there being no grounds for doing so, the General Court applied Article 126 of those Rules, unreasonably declaring the appellant’s action manifestly inadmissible. The General Court’s infringement of that provision was the inevitable and obvious result of its infringement of Article 45 of the Statute, read in conjunction with Article 53 thereof.

               (3)

               The General Court incorrectly found that the appellant had not proved the existence of unforeseeable circumstances as referred to in the second paragraph of Article 45 of the Statute. The appellant proved the existence of unforeseeable circumstances. It not only submitted more evidence of those circumstances than was necessary but submitted all the evidence available to it in general. As regards ensuring the timely delivery of the parcel containing the application, the appellant exercised all the diligence that could reasonably be required of it. From the moment of sending the parcel, the appellant ceased to have any influence on its delivery process; from that point, any circumstances affecting the date of delivery were wholly outside the appellant’s control.

               (4)

               The General Court infringed Article 1, Article 6(1) and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, by hindering access to the Court and discriminating between the parties on the basis of their place of residence or establishment. The adoption by the General Court of a single extension on account of distance for all the Member States of the European Union has the effect of hindering access to the Court for parties residing or established at a considerable distance from the location of the Court, including in the provinces of their countries, and consequently constitutes discrimination between parties to proceedings depending on their place of residence.


title: Case T-648/16: Judgment of the General Court of 17 April 2018 — Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO (BOBO cornet) (European Union trade mark — Opposition proceedings — Application for EU figurative mark BOBO cornet — Prior EU figurative mark OZMO cornet — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/25

         Judgment of the General Court of 17 April 2018 — Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO (BOBO cornet)
   (Case T-648/16) (1)

   ((European Union trade mark - Opposition proceedings - Application for EU figurative mark BOBO cornet - Prior EU figurative mark OZMO cornet - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 190/44)
   Language of the case: English

      Parties

      Applicant: Şölen Çikolata Gıda Sanayi ve Ticaret AŞ (Şehitkamil Gaziantep, Turkey) (represented by: T. Tsenova, lawyer)

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

      Other party to the proceedings before the Board of Appeal of EUIPO: Elka Zaharieva (Plovdiv, Bulgaria)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 July 2016 (Case R 906/2015-4) concerning opposition proceedings between Şölen Çikolata Gıda Sanayi ve Ticaret and Ms Zaharieva.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Şölen Çikolata Gıda Sanayi ve Ticaret AŞ to pay the costs.

      (1)  OJ C 402, 31.10.2016.


title: Case C-135/18: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 20 February 2018 — Logistik XXL GmbH v CMR Transport & Logistik

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/6

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 20 February 2018 — Logistik XXL GmbH v CMR Transport & Logistik
   (Case C-135/18)
   (2018/C 190/08)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Logistik XXL GmbH

      Defendant: CMR Transport & Logistik

      Questions referred

               1.

               In the case of a judgment which orders the defendant, without restriction and unconditionally, to make a payment and against which an ordinary appeal has been lodged in the Member State of origin, or in the case of which the time limit for bringing such an appeal has not yet expired, does the order of the court of origin to the effect that that judgment is provisionally enforceable only on provision of a security constitute a condition within the meaning of point 4.4 of the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1)?

               2.

               If Question 1 is answered in the affirmative, is this also the case where, in the Member State of origin, the judgment declared to be provisionally enforceable may be the subject of protective enforcement even though no security has been provided?

               3.

               If Question 2 is answered in the affirmative:

                           (a)

                           How is the court of origin to proceed, in the case of a judgment which contains an enforceable obligation and against which an ordinary appeal has been lodged in the Member State of origin, or in the case of which the time limit for bringing such an appeal has not yet expired, with regard to the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, where that judgment, pursuant to its operative part or pursuant to a statutory provision, may not be enforced until after a security has been provided?

                           (b)

                           In those circumstances, must the court of origin issue the certificate, using the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, without furnishing the particulars stipulated in points 4.4.1. to 4.4.4 of that form?

                           (c)

                           In those circumstances, may the court of origin issue the certificate, using the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in such a way as to include — in point 4.4.1. or point 4.4.3. of that form, for example — additional information on the required provision of a security and to attach to that form the text of the relevant statutory provision?

               4.

               If Question 2 is answered in the negative:

                           (a)

                           How is the court of origin to proceed with regard to the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, where, pursuant to a statutory provision in the Member State of origin, protective enforcement may not be pursued until after a certain period of time has elapsed?

                           (b)

                           In those circumstances, may the court of origin issue the certificate, using the form set out in Annex I to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in such a way as to include — in point 4.4.1. or point 4.4.3. of that form, for example — additional information on that period of time and to attach to that form the text of the relevant statutory provision?

      (1)  OJ 2012 L 351, p. 1.


title: Case T-190/18: Action brought on 15 March 2018 — Solwindet las Lomas v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/33

         Action brought on 15 March 2018 — Solwindet las Lomas v Commission
   (Case T-190/18)
   (2018/C 190/56)
   Language of the case: English

      Parties

      Applicant: Solwindet las Lomas, SL (Girona, Spain) (represented by: L. Sandberg-Mørch, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul European Commission Decision of 10 November 2017 in State aid case SA.40348 (2015/NN) — Spain — Support for electricity generation from renewable energy sources, cogeneration and waste; (1)

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission infringed its obligation to initiate the formal investigation procedure. The applicant alleges that there is evidence of serious difficulties relating to the length and the circumstances of the preliminary investigation procedure.

               2.

               Second plea in law, alleging that the Commission erred in law and committed a manifest error of assessment regarding the assessment of payments received by existing facilities under the previous scheme.

               3.

               Third plea in law, alleging that the Commission failed to fulfil its duty to state reasons regarding the alleged existence of aid in relation to the payments received by existing facilities under the previous scheme.

      (1)  OJ 2017 C 442, p. 1.


title: Case C-161/18: Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León (Spain) lodged on 27 February 2018 — Violeta Villar Láiz v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/7

         Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León (Spain) lodged on 27 February 2018 — Violeta Villar Láiz v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)
   (Case C-161/18)
   (2018/C 190/09)
   Language of the case: Spanish

      Referring court

   Tribunal Superior de Justicia de Castilla y León

      Parties to the main proceedings

      Appellant: Violeta Villar Láiz

      Respondent: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

      Questions referred

               1.

               Under Spanish law, in order to calculate a retirement pension, a percentage based on the number of years for which contributions have been paid throughout the person’s entire working life must be applied to the reference basis, which is calculated on the basis of earnings in the most recent years. Must a rule of national law, such as that in Article 247(a) and Article 248(3) of the Ley General de la Seguridad Social (General Law on Social Security), which reduces the number of qualifying years for the purpose of applying the percentage in the case of periods of part-time working, be considered contrary to Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security? (1) Does Article 4(1) of Directive 79/7/EEC require that the number of years of contributions that are taken into account in order to determine the percentage to be applied in calculating the retirement pension be determined in the same way for full-time workers and part-time workers?

               2.

               Must a rule of national law such as that in dispute in the present proceedings be interpreted as also being contrary to Article 21 of the Charter of Fundamental Rights of the European Union, thus requiring the national court to give full effect to the Charter and to refrain from applying the disputed provisions of national law, without requesting or awaiting the prior setting aside of the provisions by legislative or other constitutional means?

      (1)  OJ 1979 L 6, p. 24.


title: Case T-197/18: Action brought on 16 March 2018 — JV Voscf and Others v Council and Others

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/34

         Action brought on 16 March 2018 — JV Voscf and Others v Council and Others
   (Case T-197/18)
   (2018/C 190/57)
   Language of the case: English

      Parties

      Applicants: JV Voscf LTD (Limassol, Cyprus) and 9 others (represented by: P. Tridimas, Barrister, K. Kakoulli, P. Panayides and C. Pericleous, lawyers)

      Defendants: Council of the European Union, European Commission, European Central Bank, Eurogroup and European Union

      Form of order sought

   The applicants claim that the Court should:

               —

               order the defendants to pay the applicants the sums shown in the schedule annexed to this application plus interest accruing from 26 March 2013 until the judgment of the Court;

               —

               order the defendants to pay the costs.

         In the alternative, by way of subsidiary claim, the applicants request the Court to:

               —

               find that the European Union and/or the defendant institutions have incurred non-contractual liability;

               —

               determine the procedure to be followed in order to establish the recoverable loss actually suffered by the applicants; and

               —

               order the defendants to pay the costs.

      Pleas in law and main arguments

   The applicants consider that the bail-in measures adopted by the Republic of Cyprus were introduced solely in order to implement measures adopted by the defendants and were also approved by the defendant institutions. The applicants consider that the bail-in scheme is a serious violation and in support of their action, they rely on four pleas in law.

               1.

               First plea in law, alleging violation of the right to property, as protected by Article 17(1) of the Charter of Fundamental Rights of the EU and Article 1 of Protocol 1 of the European Convention for the Protection of Fundamental Rights and Freedoms.

               2.

               Second plea in law, alleging violation of the principle of proportionality.

               3.

               Third plea in law, alleging violation of the principle of protection of legitimate expectations.

               4.

               Fourth plea in law, alleging violation of the principle of non-discrimination.


title: Case C-171/18: Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 5 March 2018 — Safeway Ltd v Andrew Richard Newton, Safeway Pension Trustees Ltd

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/8

         Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 5 March 2018 — Safeway Ltd v Andrew Richard Newton, Safeway Pension Trustees Ltd
   (Case C-171/18)
   (2018/C 190/10)
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Applicant: Safeway Ltd

      Defendants: Andrew Richard Newton, Safeway Pension Trustees Ltd

      Question referred

   Where the rules of a pension scheme confer a power, as a matter of domestic law, upon the amendment of its Trust deed, to reduce retrospectively the value of both men’s and women’s accrued pension rights for a period between the date of a written announcement of intended changes to the scheme and the date when the Trust deed is actually amended, does Article 157 of the Treaty on the Functioning of the European Union (previously and at the material time Article 119 of the Treaty of Rome) require both men’s and women’s accrued pension rights to be treated as indefeasible during that period, in the sense that their pension rights are protected from retrospective reduction by the use of the domestic law power?


title: Case C-439/17: Order of the President of the Court of 7 February 2018 (request for a preliminary ruling from the Verwaltungsgericht Hamburg — Germany) — British American Tobacco (Germany) GmbH v Freie und Hansestadt Hamburg

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/20

         Order of the President of the Court of 7 February 2018 (request for a preliminary ruling from the Verwaltungsgericht Hamburg — Germany) — British American Tobacco (Germany) GmbH v Freie und Hansestadt Hamburg
   (Case C-439/17) (1)

   (2018/C 190/34)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 347, 16.10.2017.


title: Case T-15/17: Judgment of the General Court of 20 April 2018 — Mitrakos v EUIPO — Belasco Baquedano (YAMAS) (EU trade mark — Opposition proceedings — Application for the EU figurative mark YAMAS — Earlier EU word mark LLAMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/25

         Judgment of the General Court of 20 April 2018 — Mitrakos v EUIPO — Belasco Baquedano (YAMAS)
   (Case T-15/17) (1)

   ((EU trade mark - Opposition proceedings - Application for the EU figurative mark YAMAS - Earlier EU word mark LLAMA - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))
   (2018/C 190/45)
   Language of the case: English

      Parties

      Applicant: Dimitrios Mitrakos (Palaio Faliro, Greece) (represented by: D. Bakopanou, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Kusturovic and J. Crespo Carrillo, acting as Agents)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Juan Ignacio Belasco Baquedano (Viana, Spain) (represented by P. Merino Baylos, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 11 October 2016 (Case R 532/2016-2), relating to opposition proceedings between Mr Belasco Baquedano and Mr Mitrakos.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Dimitrios Mitrakos to pay the costs.

      (1)  OJ C 63, 27.2.2017.


title: Case T-207/18: Action brought on 23 March 2018 — PlasticsEurope v ECHA

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/35

         Action brought on 23 March 2018 — PlasticsEurope v ECHA
   (Case T-207/18)
   (2018/C 190/58)
   Language of the case: English

      Parties

      Applicant: PlasticsEurope (Brussels, Belgium) (represented by: R. Cana, E. Mullier, and F. Mattioli, lawyers)

      Defendant: European Chemicals Agency

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the application admissible and well-founded;

               —

               Annul the contested decision;

               —

               Order ECHA to pay the costs of these proceedings; and

               —

               Take such other or further measure as justice may require.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the defendant manifestly erred in its assessment of the information which, when properly assessed, could not support the defendant’s conclusion, and because it failed to take into consideration all relevant information related to pending studies. The defendant also manifestly erred in its assessment because it failed to establish that (a) there is scientific evidence of probable serious effects due to its endocrine disrupting properties for the environment, and that (b) such evidence would give rise to an equivalent level of concern to substances listed in points (a) to (e) of Article 57 of REACH.

               2.

               Second plea in law, alleging that the contested decision breaches Articles 59 and 57(f) of the REACH Regulation by identifying BPA as an SVHC on the basis of the criteria referred to in Article 57(f), since Article 57(f) only covers substances which have not yet been identified under Article 57(a) to (e).

               3.

               Third plea in law, alleging that the contested decision breaches Article 2(8)(b) of the REACH Regulation since intermediates are exempt from the entire Title VII, and are thus outside the scope of Articles 57 and 59 and outside the scope of autorisation.

               4.

               Fourth plea in law, alleging that the contested decision the principle of proportionality, since the inclusion of BPA in the candidate list, when it is a non-intermediate, exceeds the limits of what is appropriate and necessary to attain the objective pursued and is not the least onerous measure to which the agency could have had recourse.


title: Case C-490/17: Order of the President of the Court of 26 January 2018 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Passengers Rights sp. z o.o. v Deutsche Lufthansa AG

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/20

         Order of the President of the Court of 26 January 2018 (request for a preliminary ruling from the Sąd Okręgowy w Warszawie — Poland) — Passengers Rights sp. z o.o. v Deutsche Lufthansa AG
   (Case C-490/17) (1)

   (2018/C 190/35)
   Language of the case: Polish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 357, 23.10.2017.


title: Case T-211/18: Action brought on 26 March 2018 — Vanda Pharmaceuticals v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/35

         Action brought on 26 March 2018 — Vanda Pharmaceuticals v Commission
   (Case T-211/18)
   (2018/C 190/59)
   Language of the case: English

      Parties

      Applicant: Vanda Pharmaceuticals Ltd (London, United Kingdom) (represented by: M. Meulenbelt, B. Natens, A.-S. Melin, and C. Muttin, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Implementing Decision C(2018) 252 final of 15 January 2018 refusing marketing authorisation under Regulation (EC) No 726/2004 for ‘Fanaptum — iloperidone’, a medicinal product for human use, together with the scientific conclusions and grounds for refusal of 9 November 2017 and the Assessment Report of the Committee for Medicinal Products for Human Use of 9 November 2017;

               —

               in the alternative, annul only the said Commission Implementing Decision C(2018) 252 final;

               —

               order the European Commission to pay the applicant’s 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 that the risk assessment of the arrhythmogenic potential of iloperidone is based on a failure to state reasons (and, in any event, is manifestly erroneous), and violates the principle of equal treatment.

               2.

               Second plea in law, alleging that the assessment of the risk minimisation measures proposed for iloperidone is based on a failure to state reasons (and, in any event, is manifestly erroneous), and violates Articles 5(1) and 5(4) of the Treaty on European Union (TEU) and the principle of equal treatment.

               3.

               Third plea in law, alleging that the assessment of the consequences of the delayed onset of iloperidone is based on a failure to state reasons and violates Articles 5(1) and 5(4) TEU.

               4.

               Fourth plea in law, alleging that the requirement to identify a population in which iloperidone would outperform other products violates Article 5(1), 5(2) and 5(3) TEU, Articles 12 and 81(2) of Regulation 726/2004, (1) and the principle of equal treatment.

               5.

               Fifth plea in law, alleging that the overall risk-benefit assessment of iloperidone is based on a failure to state reasons (and, in any event, is manifestly erroneous).

      (1)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1).


title: Case C-172/18: Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 5 March 2018 — AMS Neve Ltd, Barnett Waddingham Trustees, Mark Crabtree v Heritage Audio SL, Pedro Rodríguez Arribas

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/8

         Reference for a preliminary ruling from the Court of Appeal (United Kingdom) made on 5 March 2018 — AMS Neve Ltd, Barnett Waddingham Trustees, Mark Crabtree v Heritage Audio SL, Pedro Rodríguez Arribas
   (Case C-172/18)
   (2018/C 190/11)
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Applicants: AMS Neve Ltd, Barnett Waddingham Trustees, Mark Crabtree

      Defendants: Heritage Audio SL, Pedro Rodríguez Arribas

      Questions referred

   In circumstances where an undertaking is established and domiciled in Member State A and has taken steps in that territory to advertise and offer for sale goods under a sign identical to an EU trade mark on a website targeted at traders and consumers in Member State B:

               i)

               does an EU trade mark court in Member State B have jurisdiction to hear a claim for infringement of the EU trade mark in respect of the advertisement and offer for sale of the goods in that territory?

               ii)

               if not, which other criteria are to be taken into account by that EU trade mark court in determining whether it has jurisdiction to hear that claim?

               iii)

               in so far as the answer to (ii) requires that EU trade mark court to identify whether the undertaking has taken active steps in Member State B, which criteria are to be taken into account in determining whether the undertaking has taken such active steps?


title: Case T-218/18: Action brought on 29 March 2018 — Deutsche Lufthansa v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/36

         Action brought on 29 March 2018 — Deutsche Lufthansa v Commission
   (Case T-218/18)
   (2018/C 190/60)
   Language of the case: German

      Parties

      Applicant: Deutsche Lufthansa AG (Cologne, Germany) (represented by: A. Martin-Ehlers, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 31 July 2017 in Case SA.47969, C(2017)5289 — Hahn Airport;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant alleges, in essence, the following:

               —

               procedural errors, as the defendant made a ‘deal’ with the Federal Republic of Germany with regard to the assessment of the aid granted to Flughafen Frankfurt-Hahn GmbH (‘FFHG’) and Ryanair;

               —

               failure to take into account certain essential factual elements, despite the fact that the defendant was fully aware of these at the time when the contested decision was adopted;

               —

               partially incorrect representation of the facts of the case;

               —

               failure to take into account other aid in favour of FFHG that was ultimately passed on to Ryanair as the principal user of the airport.


title: Case T-119/17: Judgment of the General Court of 13 April 2018 –Alba Aguilera and Others v EEAS (Civil service — Officials — Members of the temporary staff — Members of the contract staff — Remuneration — EEAS staff posted to a third country — Article 10 of Annex X to the Staff Regulations — Annual assessment of the allowance for living conditions — Decision reducing the allowance for living conditions in Ethiopia from 30 % to 25 % — Failure to adopt general implementing provisions giving effect to Article 10 of Annex X to the Staff Regulations — Liability — Non-material damage)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/27

         Judgment of the General Court of 13 April 2018 –Alba Aguilera and Others v EEAS
   (Case T-119/17) (1)

   ((Civil service - Officials - Members of the temporary staff - Members of the contract staff - Remuneration - EEAS staff posted to a third country - Article 10 of Annex X to the Staff Regulations - Annual assessment of the allowance for living conditions - Decision reducing the allowance for living conditions in Ethiopia from 30 % to 25 % - Failure to adopt general implementing provisions giving effect to Article 10 of Annex X to the Staff Regulations - Liability - Non-material damage))
   (2018/C 190/47)
   Language of the case: French

      Parties

      Applicants: Ruben Alba Aguilera (Addis Ababa, Ethiopia) and the other EEAS officials and agents whose names are listed in the annex (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European External Action Service (represented by: S. Marquardt and R. Spac, acting as Agents, and by M. Troncoso Ferrer, F.-M. Hislaire and S. Moya Izquierdo, lawyers)

      Re:

   Application pursuant to Article 270 TFEU seeking (i) the annulment of the EEAS decision of 19 April 2016 reducing, as of 1 January 2016, the allowance for living conditions paid to European Union staff posted to Ethiopia; and (ii), compensation in respect of the non-material damage allegedly suffered by the applicants.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the European External Action Service (EEAS) of 19 April 2016 reducing, as of 1 January 2016, the allowance for living conditions paid to European Union staff posted to Ethiopia from 30 % to 25 % of the reference amount;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the EEAS to pay the costs.

      (1)  OJ C 129, 24.4.2017.


title: Case C-533/17: Order of the President of the Court of 15 January 2018 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Anja Oehlke, Wolfgang Oehlke v TUIfly GmbH

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/20

         Order of the President of the Court of 15 January 2018 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Anja Oehlke, Wolfgang Oehlke v TUIfly GmbH
   (Case C-533/17) (1)

   (2018/C 190/36)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 424, 11.12.2017.


title: Case T-220/18: Action brought on 28 March 2018 — Torrefazione Caffè Michele Battista v EUIPO — Battista Nino Caffè (Battistino)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/37

         Action brought on 28 March 2018 — Torrefazione Caffè Michele Battista v EUIPO — Battista Nino Caffè (Battistino)
   (Case T-220/18)
   (2018/C 190/61)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Torrefazione Caffè Michele Battista Srl (Triggiano, Italy) (represented by: V. Franchini, F. Paesan and R. Bia, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Battista Nino Caffè Srl (Triggiano, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the figurative mark including the word element Battistino — International registration designating the European Union No 1 071 387

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 22 January 2018 in Case R 400/2017-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and consequently reject the application for a declaration of invalidity of the mark at issue;

               —

               order EUIPO and Battista Nino Caffè Srl to pay the costs of the present proceedings and of the two earlier sets of proceedings before the Cancellation Division of EUIPO and the Fifth Board of Appeal of EUIPO.

      Pleas in law

               —

               Infringement of Articles 64(2), 60(1)(a) and 8(1)(b) of Regulation 2017/1001.


title: Case C-191/18: Reference for a preliminary ruling from the Supreme Court (Ireland) made on 16 March 2018 — KN v Minister for Justice and Equality

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/9

         Reference for a preliminary ruling from the Supreme Court (Ireland) made on 16 March 2018 — KN v Minister for Justice and Equality
   (Case C-191/18)
   (2018/C 190/12)
   Language of the case: English

      Referring court

   Supreme Court

      Parties to the main proceedings

      Applicant: KN

      Defendant: Minister for Justice and Equality

      Questions referred

               1.

               Having regard to:

                           a)

                           The giving by the United Kingdom of notice under Article 50 of the TEU;

                           b)

                           The uncertainty as to the arrangements which will be put in place between the European Union and the United Kingdom to govern relations after the departure of the United Kingdom; and

                           c)

                           The consequential uncertainty as to the extent to which KN would, in practice, be able to enjoy rights under the Treaties, the Charter or relevant legislation, should he be surrendered to the United Kingdom and remain incarcerated after the departure of the United Kingdom,

                     Is a requested Member State required by European Union Law to decline to surrender to the United Kingdom a person the subject of a European arrest warrant, whose surrender would otherwise be required under the national law of the Member State,

                           (i)

                           in all cases?

                           (ii)

                           In some cases, having regard to the particular circumstances of the case?

                           (iii)

                           In no cases?

               2.

               If the answer to Question 1 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether surrender is prohibited?

               3.

               In the context of Question 2 is the court of the requested Member State required to postpone the final decision on the execution of the European arrest warrant to await greater clarity about the relevant legal regime which is to be put in place after the withdrawal of the relevant requesting Member State from the Union

                           (i)

                           in all cases?

                           (ii)

                           In some cases, having regard to the particular circumstances of the case?

                           (iii)

                           In no cases?

               4.

               If the answer to Question 3 is that set out at (ii) what are the criteria or considerations which a court in the requested Member State must assess to determine whether it is required to postpone the final decision on the execution of the European arrest warrant?


title: Case T-364/17: Judgment of the General Court of 17 April 2018 — Bielawski v EUIPO (HOUSE OF CARS) (EU trade mark — Application for EU word mark HOUSE OF CARS — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) — Legitimate expectations — Legal certainty)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/27

         Judgment of the General Court of 17 April 2018 — Bielawski v EUIPO (HOUSE OF CARS)
   (Case T-364/17) (1)

   ((EU trade mark - Application for EU word mark HOUSE OF CARS - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) - Legitimate expectations - Legal certainty))
   (2018/C 190/48)
   Language of the case: Polish

      Parties

      Applicant: Marcin Bielawski (Warsaw, Poland) (represented by: M. Kondrat, lawyer)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 27 March 2017 (Case R 2047/2016-5), concerning an application for registration of the word sign HOUSE OF CARS as an EU trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Marcin Bielawski to pay the costs.

      (1)  OJ C 249, 31.7.2017.


title: Case C-215/18: Request for a preliminary ruling from the District Court for Prague 8 (Czech Republic) lodged on 26 March 2018 — Libuše Králová v Primera Air Scandinavia

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/13

         Request for a preliminary ruling from the District Court for Prague 8 (Czech Republic) lodged on 26 March 2018 — Libuše Králová v Primera Air Scandinavia
   (Case C-215/18)
   (2018/C 190/17)
   Language of the case: Czech

      Referring court

   District Court for Prague 8

      Parties to the main proceedings

      Applicant: Libuše Králová

      Defendant: Primera Air Scandinavia

      Questions referred

               1.

               Did a contractual relationship exist between the applicant and the defendant for the purposes of Article 5(1) of [Council] Regulation No 44/2001 (1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, even though no contract had been concluded between the applicant and the defendant and the flight was part of a package of services provided on the basis of a contract between the applicant and a third party (travel agency)?

               2.

               Can that relationship be qualified as a consumer relationship in accordance with Section 4, Article 15 to Article 17 of [Council] Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

               3.

               Does the defendant have legal capacity to be sued in an action seeking satisfaction of the claims arising from 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?

      (1)  OJ 2001 L 12, p. 1.


title: Case T-221/18: Action brought on 28 March 2018 — Torrefazione Caffè Michele Battista v EUIPO — Battista Nino Caffè (BATTISTINO)

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/38

         Action brought on 28 March 2018 — Torrefazione Caffè Michele Battista v EUIPO — Battista Nino Caffè (BATTISTINO)
   (Case T-221/18)
   (2018/C 190/62)
   Language in which the application was lodged: Italian

      Parties

      Applicant: Torrefazione Caffè Michele Battista Srl (Triggiano, Italy) (represented by: V. Franchini, F. Paesan and R. Bia, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Battista Nino Caffè Srl (Triggiano, Italy)

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: International registration designating the European Union in respect of the mark BATTISTINO — International registration designating the European Union No 1 070 313

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 22 January 2018 in Case R 402/2017-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and consequently reject the application for a declaration of invalidity of the mark at issue;

               —

               order EUIPO and Battista Nino Caffè Srl to pay the costs of the present proceedings and of the two earlier sets of proceedings before the Cancellation Division of EUIPO and the Fifth Board of Appeal of EUIPO.

      Pleas in law

               —

               Infringement of Articles 64(2), 60(1)(a) and 8(1)(b) of Regulation 2017/1001.


title: Case C-605/17: Order of the President of the Court of 28 February 2018 — European Commission v Slovak Republic

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/21

         Order of the President of the Court of 28 February 2018 — European Commission v Slovak Republic
   (Case C-605/17) (1)

   (2018/C 190/37)
   Language of the case: Slovak
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 13, 15.1.2018.


title: Case T-223/18: Action brought on 26 March 2018 — Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission

text:
               4.6.2018

               EN

               Official Journal of the European Union

               C 190/38

         Action brought on 26 March 2018 — Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission
   (Case T-223/18)
   (2018/C 190/63)
   Language of the case: Italian

      Parties

      Applicant: Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo (Albano Laziale, Italy) (represented by: F. Rosi, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               as a preliminary matter, declare the contested decision unlawful on the ground that it is drafted in English rather than in Italian;

               —

               uphold the present action and consequently annul the Commission’s decision for lack of grounds and thus for not being based on established conditions of inquiry;

               —

               recognise that the SGEI scheme applies to the Italian healthcare system, and that the principles set out in the judgment of the Court of Justice of the European Union in the Altmark case of 2003 with regard to Articles 106 TFEU and 107 TFEU for the purposes of the application of State aid are therefore applicable. As a result, the Court should examine the Lazio Region’s actions regarding the remuneration of public facilities, which should have complied with the principles established by the abovementioned rules and therefore should have limited the payments to the healthcare facilities under public ownership to the forecast reimbursement of costs according to the criteria set out in the Altmark judgment relating to the so-called average establishment, and declare that excessive financing constitutes overcompensation;

               —

               recognise that the Lazio Region must remunerate the applicant in accordance with the average-undertaking principle and therefore also by taking into account the increases in labour costs in regard to all employees working in that establishment from 2005 to 2006, fixing this as a parameter for subsequent years;

               —

               give effect to all legal consequences thus arising, including ordering the Commission to pay the costs of the proceedings as well as the costs incurred by the applicant.

      Pleas in law and main arguments

   The present action is directed against Commission Decision C (2017) 7973 final of 4 December 2017, which rejected the complaint brought by the applicant, an Italian religious hospital, concerning the alleged compensation of costs incurred by public hospitals in the Lazio Region. The contested decision finds that the measures under challenge do not amount to State aid.
   In support of its action, the applicant relies on three pleas in law.

               1.

               First, the applicant objects to the use of English for drafting the authentic language version of the final decision.

               2.

               The second plea in law alleges a failure to state adequate reasons. The Commission entirely omitted to consider certain substantial aspects of the question and failed to rebut certain objections raised by the applicant and proven by the documents submitted. The Commission is required to answer all questions raised by the applicant by virtue of the principles of transparency and good faith.

               3.

               As the third plea in law, the applicant challenges the claim that in Italian law the healthcare system is characterised by the universality of care, that is to say, that 100 % of healthcare is provided by the national health service. In addition, the applicant complains that the Commission does not have proof that the Italian State funds, and therefore covers, 100 % of its own citizens’ care, a claim which, it is submitted, fails entirely to correspond to the facts. The applicant contends that universality is not an abstract concept but must be concretely identified, verifiable and perceivable and cannot be assumed to exist merely because the Italian Government says so.