Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

(2020/C 54/01)

Last publication

OJ C 45, 10.2.2020

Past publications

OJ C 36, 3.2.2020

OJ C 27, 27.1.2020

OJ C 19, 20.1.2020

OJ C 10, 13.1.2020

OJ C 432, 23.12.2019

OJ C 423, 16.12.2019

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

Judgment of the Court (Eighth Chamber) of 11 December 2019 — Mytilinaios Anonymos Etairia — Omilos Epicheiriseon, formerly Alouminion tis Ellados VEAE v European Commission, Dimosia Epicheirisi Ilektrismou AE (DEI)

(Case C-332/18 P) (1)

(Appeal - State aid - Production of aluminium - Preferential electricity supply tariff granted by a contract - Decision declaring the aid compatible with the internal market - Termination of the contract - Judicial suspension, as an interim measure, of the effects of termination - Decision declaring the aid unlawful)

(2020/C 54/02)

Language of the case: Greek

Parties

Appellant: Mytilinaios Anonymos Etairia — Omilos Epicheiriseon, formerly Alouminion tis Ellados VEAE (represented by: N. Korogiannakis, N. Keramidas, E. Chrysafis, D. Diakopoulos and A. Komninos, dikigoroi, and by K. Struckmann, Rechtsanwalt)

Other parties to the proceedings: European Commission (A. Bouchagiar and E. Gippini Fournier, acting as Agents), Dimosia Epicheirisi Ilektrismou AE (DEI) (represented by: E. Bourtzalas and D. Waelbroeck, avocats, and by C. Synodinos, H. and E. Salaka, dikigoroi)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders Mytilinaios Anonymos Etairia — Omilos Epicheiriseon to pay the costs.

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(1)  OJ C 285, 13.8.2018.

Judgment of the Court (Fifth Chamber) of 12 December 2019 (request for a preliminary ruling from the Najvyšší súd Slovenskej republiky — Slovak Republic) — Slovenské elektrárne a.s. v Úrad pre vybrané hospodárske subjekty, formerly Daňový úrad pre vybrané daňové subjekty

(Case C-376/18) (1)

(Reference for a preliminary ruling - Admissibility - Common rules for the internal market in electricity - Directive 2009/72/EC - Scope - Article 3 - Objectives - Principle of non-discrimination - Special levy on the revenue of entities that are holders of an authorisation to carry on activity in regulated sectors - Electricity sector)

(2020/C 54/03)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Slovenské elektrárne a.s.

Defendant: Úrad pre vybrané hospodárske subjekty, formerly Daňový úrad pre vybrané daňové subjekty

Operative part of the judgment

Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC and, in particular, Article 3(1) to (3) and (10) thereof, must be interpreted as not precluding national legislation that establishes a special levy on the revenue, with respect to activities performed both nationally and abroad, of undertakings operating, on the basis of an authorisation issued by a public authority, in various regulated activity sectors, including undertakings that hold an authorisation for supplying electricity issued by the competent national regulatory authority.

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(1)  OJ C 285, 13.8.2018.

Judgment of the Court (First Chamber) of 12 December 2019 (request for a preliminary ruling from the Raad van State — Netherlands) — Staatssecretaris van Justitie en Veiligheid v E.P.

(Case C-380/18) (1)

(Reference for a preliminary ruling - Border controls, asylum and immigration - Regulation (EU) 2016/399 - Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) - Article 6 - Entry conditions for third-country nationals - Concept of ‘threat to public policy’ - Return decision issued to an illegally staying third-country national)

(2020/C 54/04)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellant: Staatssecretaris van Justitie en Veiligheid

Respondent: E.P.

Operative part of the judgment

Article 6(1)(e) of Regulation (EU) 2016/399 of the European Parliament and the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) must be interpreted as not precluding a national practice under which the competent authorities may issue a return decision to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, on the basis of the fact that that national is considered to be a threat to public policy because he or she is suspected of having committed a criminal offence, provided that that practice is applicable only if, first, the offence is sufficiently serious, in the light of its nature and of the punishment which may be imposed, to justify that national’s stay on the territory of the Member States being brought to an immediate end and, second, those authorities have consistent, objective and specific evidence to support their suspicions, matters which are for the referring court to establish.

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(1)  OJ C 294, 20.8.2018.

Judgment of the Court (First Chamber) of 12 December 2019 (requests for a preliminary ruling from the Raad van State — Netherlands) — G.S. (C-381/18), V.G. (C-382/18) v Staatssecretaris van Justitie en Veiligheid

(Joined Cases C-381/18 and C-382/18) (1)

(References for a preliminary ruling - Border controls, asylum and immigration - Immigration policy - Directive 2003/86/EC - Right to family reunification - Requirements for the exercise of the right to family reunification - Concept of ‘grounds of public policy’ - Rejection of an application for entry and residence of a family member - Withdrawal of or refusal to renew a residence permit of a family member)

(2020/C 54/05)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Appellants: G.S. (C-381/18), V.G. (C-382/18)

Respondent: Staatssecretaris van Justitie en Veiligheid

Operative part of the judgment

1.

The Court has jurisdiction under Article 267 TFEU to interpret Article 6 of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification in a situation in which a court is called upon to rule on an application for entry and residence of a third-country national who is a member of the family of a Union citizen who has not exercised his or her right to free movement, where that provision has been made directly and unconditionally applicable to such a situation by national law.

2.

Article 6(1) and (2) of Directive 2003/86 must be interpreted as not precluding a national practice under which the competent authorities may, on grounds of public policy, first, reject an application, founded on that directive, for entry and residence, on the basis of a criminal conviction imposed during a previous stay on the territory of the Member State concerned and, second, withdraw a residence permit founded on that directive or refuse to renew it where a sentence sufficiently severe in comparison with the duration of the stay has been imposed on the applicant, provided that that practice is applicable only if the offence which warranted the criminal conviction at issue is sufficiently serious to establish that it is necessary to rule out residence of that applicant and that those authorities carry out the individual assessment provided for in Article 17 of that directive, matters which are for the referring court to verify.

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(1)  OJ C 294, 20.8.2018.

Judgment of the Court (First Chamber) of 12 December 2019 (request for a preliminary ruling from the Korkein oikeus - Finland) – ML v Aktiva Finants OÜ

(Case C-433/18) (1)

(Reference for a preliminary ruling - Regulation (EC) No 44/2001 - Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters - Requirement for adversarial proceedings and an effective remedy - Decision of a national court declaring enforceable a judgment delivered by a court of another Member State - National procedure granting leave for further consideration of an appeal)

(2020/C 54/06)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: ML

Defendant: Aktiva Finants OÜ

Operative part of the judgment

1.

Article 43(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding a procedure granting leave for further consideration of an appeal in which, first, a court of appeal rules on the grant of that leave on the basis of the judgment delivered at first instance, the appeal brought before it, any observations of the respondent and, if necessary, other information in the file and, second, leave for further consideration must be granted, in particular, if there are doubts as to the correctness of the judgment in question, if it is not possible to assess the correctness of that judgment without granting leave for further consideration or if there is another significant reason to grant leave for further consideration of the appeal;

2.	Article 43(3) of Regulation No 44/2001 must be interpreted as not precluding a procedure examining an appeal against a judgment on the application for a declaration of enforceability which does not require the respondent to be heard in advance when a decision in the respondent’s favour is made.

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(1)  OJ C 352, 1.10.2018.

Judgment of the Court (Fifth Chamber) of 12 December 2019 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Otis GmbH, Schindler Liegenschaftsverwaltung GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Kone AG, ThyssenKrupp Aufzüge GmbH v Land Oberösterreich and Others

(Case C-435/18) (1)

(Reference for a preliminary ruling - Article 101 TFEU - Damages for the loss caused by a cartel - Right to compensation of persons not acting as supplier or purchaser on the market affected by the cartel - Damage suffered by a public body which granted loans on favourable terms in order to acquire assets subject to the cartel)

(2020/C 54/07)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicants: Otis GmbH, Schindler Liegenschaftsverwaltung GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Kone AG, ThyssenKrupp Aufzüge GmbH

Defendants: Land Oberösterreich, Gemeinnützige Wohnungsgenossenschaft ‘Lebensräume’ eingetragene GmbH, EBS Wohnungsgesellschaft mbH, WAG Wohnungsanlagen GmbH, WSG Gemeinnützige Wohn- und Siedlergemeinschaft reg.GmbH, Neue Heimat Oberösterreich Gemeinnützige Wohnungs- und SiedlungsgesmbH, BRW Gemeinnützige Wohnungs- und Siedlungsgenossenschaft ‘Baureform Wohnstätte’ eingetragene Gen.m.b.H., Gemeinnützige Wohnungs- und Siedlungsgenossenschaft ‘Familie’ eingetragene Gen.m.b.H., VLW Vereinigte Linzer Wohnungsgenossenschaften Gemeinnützige GmbH, Gemeinnützige Steyrer Wohn- und Siedlungs Genossenschaft ‘Styria’ reg.Gen.m.b.H., Innviertler Gemeinnützige Wohnungs- und Siedlungsgenossenschaft reg.Gen.m.b.H., Gemeinnützige Wohnungsgesellschaft der Stadt Steyr GmbH, Gemeinnützige Industrie-Wohnungsaktiengesellschaft, Gemeinnützige Siedlungsgesellschaft m.b.H. für den Bezirk Vöcklabruck, GEWOG Neues Heim Gemeinnützige Wohnungsgesellschaft m.b.H.

Operative part of the judgment

Article 101 TFEU must be interpreted as meaning that persons who are not active as suppliers or customers on the market affected by a cartel, but who provide subsidies, in the form of promotional loans, to buyers of the products offered on that market, may seek an order that the undertakings which participated in that cartel pay compensation for the losses they suffered as a result of the fact that, since the amount of those subsidies was higher than what it would have been without that cartel, those persons were unable to use that difference more profitably.

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(1)  OJ C 352, 1.10.2018.

Judgment of the Court (First Chamber) of 12 December 2019 (request for a preliminary ruling from the Juzgado de lo Social No 3 de Gerona — Spain) — WA v Instituto Nacional de la Seguridad Social

(Case C-450/18) (1)

(Reference for a preliminary ruling - Social policy - Directive 79/7/EEC - Equal treatment for men and women in matters of social security - Article 4(1) and (2) - Article 7(1) - Calculation of benefits - Directive 2006/54/EC - Equal treatment of men and women in matters of employment and occupation - National legislation granting a right to a pension supplement for women who have had at least two biological or adopted children, and who are in receipt of a contributory permanent incapacity pension - Same right not granted to men in an identical situation - Comparable situation - Direct discrimination on grounds of sex - No exceptions)

(2020/C 54/08)

Language of the case: Spanish

Referring court

Juzgado de lo Social No 3 de Gerona

Parties to the main proceedings

Applicant: WA

Defendant: Instituto Nacional de la Seguridad Social

Operative part of the judgment

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 must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which makes provision for the right to a pension supplement for women who have had at least two biological or adopted children and who are in receipt of contributory permanent incapacity pensions under a scheme within the national social security system, while men in an identical situation do not have a right to such a pension supplement.

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(1)  OJ C 399, 5.11.2018.

Judgment of the Court (Fifth Chamber) of 12 December 2019 (request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság — Hungary) — TB v Bevándorlási és Menekültügyi Hivatal

(Case C-519/18) (1)

(Reference for a preliminary ruling - Immigration policy - Right to family reunification - Directive 2003/86/EC - Article 10(2) - Optional provision - Prerequisites for exercising the right to family reunification - Member of a refugee’s family not referred to in Article 4 - Concept of a ‘dependant’)

(2020/C 54/09)

Language of the case: Hungarian

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: TB

Defendant: Bevándorlási és Menekültügyi Hivatal

Operative part of the judgment

Article 10(2) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification must be interpreted as not precluding a Member State from authorising the family reunification of a refugee’s sister only if she is, on account of her state of health, unable to provide for her own needs, provided that:

—	first, that inability is assessed having regard to the special situation of refugees and at the end of a case-by-case examination taking into account all the relevant factors, and

—

secondly, that it may be ascertained, having regard also to the special situation of refugees and at the end of a case-by-case examination taking into account all the relevant factors, that the material support of the person concerned is actually provided by the refugee, or that the refugee appears as the family member most able to provide the material support required.

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(1)  OJ C 436, 3.12.2018.

Judgment of the Court (Third Chamber) of 11 December 2019 (request for a preliminary ruling from Tribunalul București — Romania) — TK v Asociația de Proprietari bloc M5A-ScaraA

(Case C-708/18) (1)

(Reference for a preliminary ruling - Protection of individuals with regard to the processing of personal data - Charter of Fundamental Rights of the European Union - Articles 7 and 8 - Directive 95/46/EC - Article 6(1)(c) and Article 7(f) - Making the processing of personal data legitimate - National legislation allowing video surveillance for the purposes of ensuring the safety and protection of individuals, property and valuables and for the pursuit of legitimate interests, without the data subject’s consent - Installation of a video surveillance system in the common parts of a residential building)

(2020/C 54/10)

Language of the case: Romanian

Referring court

Tribunalul București

Parties to the main proceedings

Applicant: TK

Defendant: Asociația de Proprietari bloc M5A-ScaraA

Operative part of the judgment

Article 6(1)(c) and Article 7(f) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national provisions which authorise the installation of a video surveillance system, such as the system at issue in the main proceedings, installed in the common parts of a residential building, for the purposes of pursuing legitimate interests of ensuring the safety and protection of individuals and property, without the consent of the data subjects, if the processing of personal data carried out by means of the video surveillance system at issue fulfils the conditions laid down in Article 7(f), which it is for the referring court to determine.

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(1)  OJ C 65, 18.2.2019.

Judgment of the Court (Tenth Chamber) of 12 December 2019 — European Union Intellectual Property Office v Wajos GmbH

(Case C-783/18 P) (1)

(Appeal - EU trade mark - Regulation (EC) No 207/2009 - Article 7(1)(b) - Absolute ground for refusal - Marks devoid of distinctive character - Three-dimensional marks consisting of the shape of the product - Criteria for the assessment of distinctive character - Obligation to state reasons - Form of a container - Amphora)

(2020/C 54/11)

Language of the case: German

Parties

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

Other party to the proceedings: Wajos GmbH (represented by: J. Schneiders, R. Krillke and B. Schneiders, Rechtsanwälte)

Operative part of the judgment

The Court:

1.	Dismisses the appeal;

2.	Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs and to pay those incurred by Wajos GmbH.

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(1)  OJ C 112, 25.3.2019.

Judgment of the Court (Ninth Chamber) of 11 December 2019 (request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas — Lithuania) — TV Play Baltic AS v Lietuvos radijo ir televizijos komisija

(Case C-87/19) (1)

(Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/21/EC (Framework Directive) - Article 2(m) - Provision of an electronic communications network - Concept - Directive 2002/22/EC (Universal Service Directive) - Article 31(1) - ‘Must carry’ obligation to broadcast specified radio and television channels - Operator offering a package of channels via satellite - Reasonable ‘must carry’ obligations - Conditions - Article 56 TFEU - Proportionality)

(2020/C 54/12)

Language of the case: Lithuanian

Referring court

Lietuvos vyriausiasis administracinis teismas

Parties to the main proceedings

Applicant: TV Play Baltic AS

Defendant: Lietuvos radijo ir televizijos komisija

Intervener in support of the defendant: Lietuvos nacionalinis radijas ir televizija VšĮ

Operative part of the judgment

1.

Article 2(m) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that activities of television rebroadcasting over satellite networks owned by third parties are not covered by the concept of ‘provision of an electronic communications network’, for the purposes of that provision;

2.

Article 31(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding Member States from imposing a ‘must carry’ obligation to broadcast a television programme on undertakings which rebroadcast, by means of satellite networks owned by third parties, television channels protected by a conditional access system and offer their customers television programme packages;

3.

Article 56 TFEU must be interpreted as not precluding the Member States from imposing a ‘must carry’ obligation to broadcast a television channel free of charge on undertakings which rebroadcast, by means of satellite networks owned by third parties, television programmes protected by a conditional access system and offer their customers television programme packages, provided, first, that that obligation to broadcast allows a significant number or percentage of end users of all of the means of broadcasting television programmes to access the channel benefiting from that obligation and, secondly, that account is taken of the geographical distribution of the end users of the services supplied by the operator on whom that ‘must carry’ obligation is imposed, of the fact that the latter rebroadcasts that channel unencrypted and of the fact that that channel is freely available online and via the terrestrial broadcasting network, which it is for the referring court to verify.

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(1)  OJ C 155, 6.5.2019.

Judgment of the Court (Fifth Chamber) of 12 December 2019 — Der Grüne Punkt — Duales System Deutschland GmbH v European Union Intellectual Property Office (EUIPO)

(Case C-143/19 P) (1)

(Appeal - EU trade mark - Regulation (EC) No 207/2009 - Articles 15 and 66 - Genuine use of an EU collective trade mark - Mark concerning a system of collection and recovery of packaging waste - Affixing to the packaging of goods for which the mark is registered)

(2020/C 54/13)

Language of the case: German

Parties

Appellant: Der Grüne Punkt — Duales System Deutschland GmbH (represented by: P. Goldenbaum, Rechtsanwältin)

Other party to the proceedings: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

Operative part of the judgment

The Court:

1.	Sets aside the judgment of the General Court of the European Union of 12 September 2018, Der Grüne Punkt v EUIPO — Halston Properties (Representation of a circle with two arrows) (T-253/17, EU:T:2018:909);

2.	Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 February 2017 (Case R 1357/2015-5);

3.	Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs and to pay the costs incurred by Der Grüne Punkt — Duales System Deutschland GmbH relating to both this appeal and the proceedings at first instance.

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(1)  OJ C 220, 1.7.2019.

Judgment of the Court (First Chamber) of 12 December 2019 (requests for a preliminary ruling from the Cour d’appel, Rechtbank Amsterdam — Luxembourg, Netherlands) — Execution of European arrest warrants issued against JR (C-566/19 PPU) and YC (C-626/19 PPU)

(Joined Cases C-566/19 PPU and C-626/19 PPU) (1)

(Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 6(1) - Concept of ‘issuing judicial authority’ - Criteria - European arrest warrant issued by the public prosecutor’s office of a Member State for the purpose of criminal proceedings)

(2020/C 54/14)

Languages of the case: French and Dutch

Referring courts

Cour d’appel, Rechtbank Amsterdam

Parties to the main proceedings

JR (C-566/19 PPU), YC (C-626/19 PPU)

Operative part of the judgment

Article 6(1) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the public prosecutors of a Member State, who are responsible for conducting public prosecutions and are placed under the management and supervision of their hierarchical superiors, fall within the concept of ‘issuing judicial authority’, within the meaning of that provision, provided that their status affords them a guarantee of independence, in particular in relation to the executive, in the context of the issuing of a European arrest warrant.

Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, must be interpreted as meaning that the requirements inherent in effective judicial protection from which a person in respect of whom a European arrest warrant is issued for the purpose of criminal proceedings must benefit are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.

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(1)  OJ C 337, 7.10.2019.

OJ C 383, 11.11.2019.

Judgment of the Court (First Chamber) of 12 December 2019 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against XD

(Case C-625/19 PPU) (1)

(Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 6(1) - Concept of ‘issuing judicial authority’ - Criteria - European arrest warrant issued by the public prosecutor’s office of a Member State for the purpose of criminal proceedings)

(2020/C 54/15)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Party to the main proceedings

XD

Operative part of the judgment

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that the requirements inherent in effective judicial protection from which a person in respect of whom a European arrest warrant is issued for the purpose of criminal proceedings must benefit are fulfilled if, according to the law of the issuing Member State, the conditions for issuing such a warrant, and in particular its proportionality, are subject to judicial review in that Member State.

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(1)  OJ C 382, 11.11.2019.

Judgment of the Court (First Chamber) of 12 December 2019 (request for a preliminary ruling from the Rechtbank Amsterdam — Netherlands) — Execution of a European arrest warrant issued against ZB

(Case C-627/19 PPU) (1)

(Reference for a preliminary ruling - Urgent preliminary ruling procedure - Police and judicial cooperation in criminal matters - European arrest warrant - Framework Decision 2002/584/JHA - Article 6(1) - Concept of ‘issuing judicial authority’ - Criteria - European arrest warrant issued by the public prosecutor’s office of a Member State for the purpose of executing a sentence)

(2020/C 54/16)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Party to the main proceedings

ZB

Operative part of the judgment

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that it does not preclude legislation of a Member State which, although it confers the competence to issue a European arrest warrant for the purposes of executing a sentence on an authority which, whilst participating in the administration of justice in that Member State, is not itself a court, does not provide for the existence of a separate judicial remedy against the decision of that authority to issue such a European arrest warrant.

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(1)  OJ C 383, 11.11.2019.

Request for a preliminary ruling from the Judecătoria Sectorului 2 București (Romania) lodged on 1 October 2019 — IO v Impuls Leasing România IFN SA

(Case C-725/19)

(2020/C 54/17)

Language of the case: Romanian

Referring court

Judecătoria Sectorului 2 București

Parties to the main proceedings

Applicant: IO

Defendant: Impuls Leasing România IFN SA

Question referred

Taking into account the principle of effectiveness, is Directive 93/13/EEC (1) to be interpreted as precluding national legislation, such as the Romanian legislation in force concerning the conditions under which an objection to enforcement is admissible, namely Article 713(2) of the Code of Civil Procedure, as amended by Law No 310/2018, pursuant to which, in the context of an objection to enforcement, the examination, at the request of the consumer or by the court acting of its own motion, of whether the terms of a leasing contract that constitutes the enforceable instrument are unfair is precluded because it is possible to bring a common law action in which a contract concluded between a ‘consumer’ and a ‘seller or supplier’ may be examined in order to determine whether it contains unfair terms within the meaning of that directive?

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

Request for a preliminary ruling from the Tribunalul București (Romania) lodged on 4 October 2019 — ITH Comercial Timișoara SRL v Agenția Națională de Administrare Fiscală ‒ Direcția Generală Regională a Finanțelor Publice București ‒ Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Sector 1 a Finanțelor Publice

(Case C-734/19)

(2020/C 54/18)

Language of the case: Romanian

Referring court

Tribunalul București

Parties to the main proceedings

Applicant: ITH Comercial Timișoara SRL

Defendants: Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București, Agenția Națională de Administrare Fiscală — Direcția Generală Regională a Finanțelor Publice București — Administrația Sector 1 a Finanțelor Publice

Questions referred

1.1.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) in particular Articles 167 and 168 thereof, and the principles of legal certainty, the protection of legitimate expectations, non-discrimination and tax neutrality permit or preclude that the right of a taxable person to deduct VAT in relation to certain investment expenditure which the taxable person incurs with the intention of allocating it for the purpose of carrying out of a taxable transaction should be forfeited in the event that the planned investment is subsequently abandoned?

1.2.	Do those same provisions and principles permit or preclude that the right of deduction should, in the event that the investment is abandoned, be called into question even in circumstances other than those where the taxable person is guilty of abuse or fraud?

1.3.

Do those same provisions and principles permit or preclude an interpretation to the effect that the circumstances in which the right of deduction may be called into question in the event that the investment is abandoned include: 1.3.1. the subsequent materialisation of a risk that the investment project will not be completed, which the taxable person was aware when incurring the investment expenditure, such as the fact that a public authority has not approved an urban development plan necessary for the completion of the investment project; 1.3.2. a change in economic circumstances over time, such that the planned investment is no longer viable as it was when the project was commenced?

1.4.

Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the general principles of EU law to be interpreted as meaning that, in the event that the investment is abandoned: 1.4.1. there is a presumption of abuse or fraud justifying the calling into question of the right of deduction, or must the tax authorities demonstrate such abuse or fraud, and 1.4.2. such abuse or fraud may be demonstrated by simple presumption, or is objective evidence required?

1.5.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the general principles of EU law permit or preclude that, in the event that the investment is abandoned, abuse or fraud justifying the calling into question of the right of deduction should be taken into consideration in circumstances where the taxable person is unable to make any use whatsoever, not even private use, of the goods or services in respect of which it has deducted VAT?

1.6.

Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the general principles of EU law to be interpreted as meaning that, in the event that the investment is abandoned, circumstances arising subsequent to the taxable person’s incurring expenditure, such as (i) an economic crisis (ii) the materialisation of a risk that the investment project will not be completed that was present at the time the investment expenditure was incurred (for example, the fact that a public authority has not approved an urban development plan necessary for the completion of the investment project) or (iii) a change in the viability projections for the investment, are circumstances beyond the control of the taxable person which may be taken into consideration in determining whether the taxable person acted in good faith?

1.7.

Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Articles 184 and 185, and the principles of legal certainty, the protection of legitimate expectations, non-discrimination and tax neutrality to be interpreted as meaning that the abandonment of the investment project constitutes a case requiring the adjustment of VAT? In other words, where the right to deduct VAT relating to certain investment expenditure which the taxable person has incurred with the intention of allocating it to the carrying out of a taxable transaction is called into question, in the event that the investment is subsequently abandoned, should the VAT adjustment mechanism be applied?

1.8.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax permit or preclude national legislation which provides that the right to deduct VAT relating to investments that are abandoned is retained in two cases only, those cases being identified by summary reference to two judgments of the Court of Justice: (i) where, because of circumstances beyond the control of the taxable person, the taxable person never uses the goods or services for the purposes of its economic activity, as the Court ruled in its judgment in Case C-37/95, Belgian State v Ghent Coal Terminal NV, and (ii) in other cases in which purchased goods or services in respect of which the right of deduction has been exercised are not used for the purposes of the taxable person’s economic activities for objective reasons beyond the taxable person’s control, as the Court ruled in Case C-110/94, Intercommunale voor zeewaterontzilting (INZO) v Belgian State?

1.9.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the principle of legal certainty and the principle of the protection of legitimate expectations permit or preclude that tax authorities may withdraw approvals, contained in previous tax inspection reports or in previous decisions on administrative tax appeals, recognising that: 1.9.1. an individual has purchased goods or services with the intention of using them for the purposes of a taxable transaction; 1.9.2. the suspension or abandonment of an investment project was brought about by a particular set of circumstances beyond the control of the taxable person?

2.1.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Article 28 thereof, permit or preclude the application of the mechanism imposing the rules governing commissioning other than in the case of an agency agreement without representation?

2.2.

Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in particular Article 28 thereof, to be interpreted as meaning that the mechanism imposing the rules governing commissioning is applicable where a taxable person constructs a building in accordance with the specifications and business requirements of another legal person, with the intention of retaining ownership of the building and merely letting it once it is finished to the other legal person?

2.3.

Are the same provisions to be interpreted as meaning that, in the situation described above, the builder must invoice the investment expenditure relating to the construction of the building to the legal person to which it is to let the building once it is finished and must collect the corresponding VAT from that legal person?

2.4.

Are the same provisions to be interpreted as meaning that, in the situation described above, the builder is under an obligation to invoice the investment expenditure and collect the corresponding VAT even if it stops the construction work definitively because of a drastic reduction in the economic activity of the person to which the building was to have been let, resulting from the latter’s imminent insolvency?

2.5.

Are the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and the general principles of EU law to be interpreted as meaning that tax authorities may reclassify transactions carried out by a taxable person without having regard to the terms of the contracts which it has concluded, even if the contracts in question are not colourable?

2.6.

Do the provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax and, in particular, the principle of legal certainty and the principle of the protection of legitimate expectations, permit tax authorities to withdraw approvals, contained in previous tax inspection reports or in previous decisions on administrative tax appeals, of a taxable person’s right to deduct VAT, or do they preclude them from doing so?

---

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

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa w Mińsku Mazowieckim v WB

(Case C-748/19)

(2020/C 54/19)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Criminal proceedings against:

WB

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2), in conjunction with recital 22, of Directive (EU) 2016/343 (1) of the European Parliament and of the Council be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a person accused under [Article 200(1)] of the Penal Code and other matters, are conducted in the following manner: — the composition of the court includes a judge (Sędzia Sądu Rejonowego [District Court Judge] HO) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

---

(1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa-Żoliborz w Warszawie v XA and YZ

(Case C-749/19)

(2020/C 54/20)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Criminal proceedings against:

XA and YZ

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against persons accused under Article 280(1) of the Penal Code, are conducted in the following manner: — the composition of the court includes a judge delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister of Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

---

(1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa — Wola w Warszawie v DT

(Case C-750/19)

(2020/C 54/21)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Criminal proceedings against:

DT

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a person accused under Article 62(2) of the Penal Fiscal Code and other matters, are conducted in the following manner: — the composition of the court includes a judge (Sędzia Sądu Rejonowego [District Court Judge] JM) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to make decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court ruled in favour of or against the accused person?

---

(1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa w Pruszkowie v ZY

(Case C-751/19)

(2020/C 54/22)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Criminal proceedings against:

ZY

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a convicted person related to a plea for an aggregate sentence, are conducted in the following manner: — the composition of the court includes a judge (Sędzia Sądu Rejonowego [District Court Judge] KL) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for a judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to make decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court ruled in favour of or against the accused person?

---

(1)  Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1).

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa — Ursynów w Warszawie v AX

(Case C-752/19)

(2020/C 54/23)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicant: Prokuratura Rejonowa Warszawa — Ursynów w Warszawie

Defendant: AX

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 (1) of the European Parliament and of the Council, in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a person accused under Article 177(1) of the Penal Code and other matters, are conducted in the following manner: — the composition of the court includes a judge (LK) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

---

(1)  OJ 2016 L 65, p. 1; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa — Wola w Warszawie v BV

(Case C-753/19)

(2020/C 54/24)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicant: Prokuratura Rejonowa Warszawa — Wola w Warszawie

Defendant: BV

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 of the European Parliament and of the Council, (1) in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a convicted person related to a plea for an aggregate sentence, are conducted in the following manner: — the composition of the court includes a judge (MJ) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to make decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

---

(1)  OJ 2016 L 65, p. 1; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 15 October 2019 — Prokuratura Rejonowa Warszawa — Wola w Warszawie v CU

(Case C-754/19)

(2020/C 54/25)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

Applicant: Prokuratura Rejonowa Warszawa — Wola w Warszawie

Defendant: CU

Questions referred

1.

Should the second subparagraph of Article 19(1) of the Treaty on European Union, in conjunction with Article 2 thereof and the principle of the rule of law enshrined therein, and Article 6(1) and (2) of Directive (EU) 2016/343 of the European Parliament and of the Council, (1) in conjunction with recital 22 thereof, be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the case where judicial proceedings, such as criminal proceedings against a person accused under Article 296(2) of the Penal Code and other matters, are conducted in the following manner: — the composition of the court includes a judge (NI) delegated pursuant to a personal decision of the Minister Sprawiedliwości (Minister for Justice) from a court situated one level below in the court hierarchy, the criteria followed by the Minister for Justice when delegating this judge are not known, and national law does not provide for any judicial review of such a decision and allows the Minister for Justice to terminate the judge’s delegation at any time?

2.

Are the requirements referred to in Question 1 breached in a situation where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those described in Question 1, and this extraordinary appeal is lodged with a court such as the Sąd Najwyższy (Supreme Court, Poland), the decisions of which cannot be the subject of appeal under national law, and national law imposes on the president of the organisational unit of that court (chamber) competent to hear the appeal the obligation to allocate cases in accordance with an alphabetical list of judges of that chamber, expressly prohibiting the omission of any judge, and the judges among whom the cases are allocated include a person appointed upon the motion of a collegiate body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary), the members of which are judges: (a) elected by a chamber of parliament which votes for a list of candidates drawn up in advance by a parliamentary committee from among the candidates nominated by parliamentary factions or a body of that chamber of parliament on the basis of proposals from groups of judges or citizens, and as a result there are three occasions on which the candidates receive support from politicians during the election procedure; (b) who represent a majority of the members of that collegiate body sufficient to take decisions on submitting motions for appointments to judicial positions as well as other binding decisions required under national law?

3.

From the point of view of EU law, including the provisions and requirements referred to in Question 1, what is the effect of a judgment handed down in court proceedings such as those described in Question 1, and of a judgment handed down in proceedings before the Supreme Court, if the person referred to in Question 2 participates in the handing-down of that judgment?

4.	Does EU law, including the provisions referred to in Question 1, make the effects of the judgments referred to in Question 3 conditional upon whether the court in question has ruled in favour of or against the accused person?

---

(1)  OJ 2016 L 65, p. 1; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

Request for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Poland) lodged on 18 October 2019 — D.S. v S.P., A.P., D.K., Sz. w K.

(Case C-763/19)

(2020/C 54/26)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Krakowie

Parties to the main proceedings

Applicant: D.S.

Defendants: S.P., A.P., D.K., Sz. w K.

Questions referred

1.

Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a person who has been appointed to the position of judge in flagrant breach of the laws of a Member State applicable to judicial appointments — which breach included, in particular, the appointment of that person to the position of judge as a result of the designation of a body which does not guarantee independence from the executive and legislative authorities and impartiality, with the systematic exclusion from judicial review of the lawfulness of the nomination procedure, and also the appointment of that person to the position of judge despite a prior appeal to the competent national court (the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)) against the resolution of a national body (the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland)), which included a motion for the appointment of that person to the position of judge, notwithstanding the fact that the implementation of that resolution had been stayed in accordance with national law and that proceedings before the competent national court (Supreme Administrative Court) had not been concluded before the delivery of the appointment letter — is not an independent judge within the meaning of EU law, — and consequently is a court whose composition includes persons appointed under the conditions set out above not an independent and impartial tribunal previously established by law within the meaning of EU law?

2.

If the first question is answered in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a judgment given by a judge and a court of final instance, established in the manner described in paragraph 1, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a tribunal within the meaning of EU law?

Request for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Poland) lodged on 18 October 2019 — C. S.A. v Administrator in the insolvency of I.T. in liquidation

(Case C-764/19)

(2020/C 54/27)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Krakowie

Parties to the main proceedings

Applicant: C. S.A.

Defendant: Administrator in the insolvency of I.T. in liquidation

Questions referred

1.

Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a person who has been appointed to the position of judge in flagrant breach of the laws of a Member State applicable to judicial appointments — which breach included, in particular, the appointment of that person to the position of judge as a result of the designation of a body which does not guarantee independence from the executive and legislative authorities and impartiality, with the systematic exclusion from judicial review of the lawfulness of the nomination procedure, and also the appointment of that person to the position of judge despite a prior appeal to the competent national court (the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)) against the resolution of a national body (the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland)), which included a motion for the appointment of that person to the position of judge, notwithstanding the fact that the implementation of that resolution had been stayed in accordance with national law and that proceedings before the competent national court (Supreme Administrative Court) had not been concluded before the delivery of the appointment letter — is not an independent judge within the meaning of EU law, — and consequently is a court whose composition includes persons appointed under the conditions set out above not an independent and impartial tribunal previously established by law within the meaning of EU law?

2.

If the first question is answered in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a judgment given by a judge and a court of final instance, established in the manner described in paragraph 1, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a tribunal within the meaning of EU law?

Request for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Poland) lodged on 18 October 2019 — M.Ś., I.Ś. v R.B.P. Spółka Akcyjna

(Case C-765/19)

(2020/C 54/28)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Krakowie

Parties to the main proceedings

Applicant: M.Ś., I.Ś.

Defendant: R.B.P. Spółka Akcyjna

Question referred

1.

Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a person who has been appointed to the position of judge in flagrant breach of the laws of a Member State applicable to judicial appointments — which breach included, in particular, the appointment of that person to the position of judge as a result of the designation of a body which does not guarantee independence from the executive and legislative authorities and impartiality, with the systematic exclusion from judicial review of the lawfulness of the nomination procedure, and also the appointment of that person to the position of judge despite a prior appeal to the competent national court (the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)) against the resolution of a national body (the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland)), which included a motion for the appointment of that person to the position of judge, notwithstanding the fact that the implementation of that resolution had been stayed in accordance with national law and that proceedings before the competent national court (Supreme Administrative Court) had not been concluded before the delivery of the appointment letter — is not an independent judge within the meaning of EU law, — and consequently is a court whose composition includes persons appointed under the conditions set out above not an independent and impartial tribunal previously established by law within the meaning of EU law?

2.

If the first question is answered in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a judgment given by a judge and a court of final instance, established in the manner described in paragraph 1, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a tribunal within the meaning of EU law?

Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 24 October 2019 — Criminal proceedings against LG, MH

(Case C-790/19)

(2020/C 54/29)

Language of the case: Romanian

Referring court

Curtea de Apel Brașov

Parties to the main proceedings

LG, MH

Question referred

Must Article 1(3)(a) of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (1) be interpreted as meaning that the person who commits the act which constitutes the offence of money laundering must always be a person other than the person who commits the predicate offence (the alleged offence from which is derived the money that is laundered)?

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(1)  OJ 2015 L 141, p. 73.

Request for a preliminary ruling from the Înalta Curte de Casație și Justiție (Romania) lodged on 4 November 2019 — criminal proceedings against FQ, GP, HO, IN, JM

(Case C-811/19)

(2020/C 54/30)

Language of the case: Romanian

Referring court

Înalta Curte de Casație și Justiție

Parties to the main proceedings

FQ, GP, HO, IN, JM

Questions referred

1.

Must Article 19(1) of the Treaty on European Union, Article 325(1) of the Treaty on the Functioning of the European Union, Article 58 of Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, (1) [and] Article 4 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, (2) drawn up on the basis of Article K.3 of the Treaty on European Union on the protection of the European Communities’ financial interests of 26 June 1995, be interpreted as precluding the adoption of a decision by a body outside the judicial system, the Curtea Constituțională a României (Constitutional Court of Romania), which adjudicates on a procedural objection alleging that the composition of the panel seized of the case is unlawful, in the light of the principle that the judges of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) must be specialised (not provided for in the Romanian Constitution), and which obliges a judicial body to refer cases which are at the (full-merits) appeal stage for re-examination within the first procedural cycle before the same court?

2.

Must Article 2 of the Treaty on European Union and Article 47(2) of the Charter of Fundamental of the European Union be interpreted as precluding a body outside the judicial system from declaring unlawful the composition of the panel seized of the case of a chamber of the supreme court (panel composed of judges in office who, at the time of their promotion, satisfied, inter alia, the specialisation requirement laid down for promotion to the Criminal chamber of the supreme court)?

3.

Must the principle of the primacy of European Union law be interpreted as permitting a national court to disapply a decision of the constitutional court which interprets a rule of lower ranking than the Constitution, concerning the organisation of the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), contained in domestic legislation on the prevention, detection and punishment of offences of corruption, a rule which has been consistently interpreted in the same way, for 16 years, by a court?

4.	On a proper interpretation of Article 47 of the Charter of Fundamental Rights of the European Union[,] [d]oes the principle of unfettered access to justice encompass the specialisation of judges and the establishment of specialist panels in a supreme court?

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(1)  OJ 2015 L 141, p. 73.

(2)  OJ 2017 L 198, p. 29.

Request for a preliminary ruling from the Curtea de Apel Alba Iulia (Romania) lodged on 5 November 2019 — Flavourstream SRL v Direcția Generală Regională a Finanțelor Publice Brașov, Agenția Națională de Administrare Fiscală — Direcția Generală a Vămilor — Direcția Regională Vamală Brașov — Biroul Vamal de Interior Sibiu

(Case C-822/19)

(2020/C 54/31)

Language of the case: Romanian

Referring court

Curtea de Apel Alba Iulia

Parties to the main proceedings

Appellants, defendants at first instance: Direcția Generală Regională a Finanțelor Publice Brașov, Agenția Națională de Administrare Fiscală — Direcția Generală a Vămilor — Direcția Regională Vamală Brașov — Biroul Vamal de Interior Sibiu

Respondent, applicant at first instance: Flavourstream SRL

Question referred

Must the nomenclature in Annex I to Regulation No 2658/87, as amended by Implementing Regulation 2016/1821, (1) be interpreted as meaning that the product ‘AURIC GMO FREE’, which is at issue in the present case, is to be classified under tariff subheading 17 029 095 or subheading 29 124 900 of that nomenclature?

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(1)  Commission Implementing Regulation (EU) 2016/1821 of 6 October 2016 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2016 L 294, p. 1).

Request for a preliminary ruling from the Tribunale di Vicenza (Italy) lodged on 15 November 2019 — AV v Minister for Justice and the Italian Republic

(Case C-834/19)

(2020/C 54/32)

Language of the case: Italian

Referring court

Tribunale di Vicenza

Parties to the main proceedings

Applicant: AV

Defendant: Minister for Justice and the Italian Republic

Questions referred

Does the national practice whereby honorary district court judges who work as described [in the order for reference] (as in AV’s case) are excluded from the concept of ‘part-time worker’, as referred to in Clause 2 of the Framework Agreement annexed to Directive 1997/81/EC, (1) and from the concept of ‘fixed-term worker’, as referred to in Clause 2 of the Framework Agreement annexed to Directive 1999/70/EC, (2) constitute an obstacle to the effectiveness of Directives 1997/81/EC and 1999/70/EC?

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(1)  Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC — Annex: Framework agreement on part-time work (OJ 1998 L 14, p. 9).

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

Request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) (Portugal) lodged on 19 November 2019 — Super Bock Bebidas, S.A. v Autoridade Tributária e Aduaneira

(Case C-837/19)

(2020/C 54/33)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: Super Bock Bebidas, S.A.

Defendant: Autoridade Tributária e Aduaneira

Question referred

1.

Was a new Member State permitted, pursuant to the second paragraph of Article 17(6) of the Sixth Council Directive (1) of 17 May 1977 (which states that Member States ‘may retain all the exclusions provided for under their national laws when this Directive comes into force’), to introduce exclusions from the right to deduct VAT into its domestic legislation on the date of its accession?

2.

Is the scope of the second paragraph of Article 17(6) of the Sixth Council Directive the same as that of the second paragraph of Article 176 of Council Directive 2006/112/EC (2) of 28 November 2006 (which states that Member States that acceded to the Community after 1 January 1979 may retain all the exclusions provided for under their national laws on the date of their accession), as regards the relevant date for determining which ‘exclusions provided for under their national laws’ may be retained?

3.

If, under the Sixth Directive, Portugal was able to retain all the exclusions provided for under its national laws on 1 January 1989 (the date on which the Sixth Directive came into force in Portugal), was that possibility altered by Directive 2006/112/EC, in which the relevant date is given as the date of accession (1 January 1986)?

4.

Is it contrary to the second paragraph of Article 176 of Council Directive 2006/112/EC of 28 November 2006 that, on the date of Portugal’s accession to the European Communities, regulations (such as those in Article 21(1) of the VAT Code) came into force introducing exclusions from the right to deduct tax in respect of certain costs (including the cost of accommodation, food, drink, vehicle leases, fuel and tolls), where those regulations had already been published and were originally intended to come into force before accession but were postponed until the accession date?

5.

Should Article 168(a) of Directive 2006/112 and the neutrality principle be interpreted as precluding a Member State’s domestic legislation from retaining regulations containing exclusions from the right to deduct (such as the rules in Article 21(1) of the VAT Code on the cost of accommodation, food, drink, vehicle leases, fuel and tolls) that apply even where it is demonstrated that the goods and services that were purchased were used for the purposes of the taxable person’s taxed transactions?

6.

Do Article 176 of Directive 2006/112 and the proportionality principle preclude exclusions from the right to deduct that are not provided for in the directive but which Member States may retain under the second paragraph of Article 176 from applying where it is demonstrated that the costs in question are of a strictly business nature and the goods and services were used for the purposes of the taxable person’s taxed transactions?

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(1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

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

Request for a preliminary ruling from the Tribunal Superior de Justicia de Cataluña (Spain) lodged on 20 November 2019 — Instituto Nacional de la Seguridad Social (INSS) v BT

(Case C-843/19)

(2020/C 54/34)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Cataluña

Parties to the main proceedings

Appellant: Instituto Nacional de la Seguridad Social (INSS)

Respondent: BT

Question referred

Does EU law preclude a provision of national law such as Article 208(1)(c) of the 2015 Ley General de la Seguridad Social (General Law on Social Security), which stipulates that, in order for anyone enrolled in the General Scheme to be able to take voluntary early retirement, the pension payable, calculated in the standard way without any minimum pension supplement, must be at least as much as the minimum pension, inasmuch as it indirectly discriminates against women enrolled in the General Scheme, since it affects a far greater number of women than men?

Request for a preliminary ruling from the Tribunal d’arrondissement (Luxembourg) lodged on 21 November 2019 — EQ v Administration de l’Enregistrement, des Domaines et de la TVA

(Case C-846/19)

(2020/C 54/35)

Language of the case: French

Referring court

Tribunal d’arrondissement

Parties to the main proceedings

Applicant: EQ

Defendant: Administration de l’Enregistrement, des Domaines et de la TVA

Questions referred

1.

Is the concept of ‘economic activity’ within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112/EC (1)to be interpreted as including or excluding supplies of services provided in the context of a triangular relationship in which the provider of the services is appointed to provide those services by an entity which is not the same person as the recipient of the supplies of services?

2.	Is the answer to the first question different according to whether the supplies of services are provided in the context of a role entrusted to the provider by an independent judicial authority?

3.	Is the answer to the first question different according to whether the remuneration of the service provider is borne by the recipient of the services or by the State, an entity of which appointed the service provider to provide those services?

4.

Is the concept of ‘economic activity’ within the meaning of the second subparagraph of Article 9(1) of Directive 2006/112/EC to be interpreted as including or excluding supplies of services where the remuneration of the service provider is not a legal requirement and the amount of the remuneration, where it is awarded, (a) is based on a case-by-case assessment, (b) is always dependent on the financial position of the recipient of the services and (c) is calculated by reference to a fixed amount, a percentage of the income of the recipient of the services or the services performed?

5.

Is the concept of ‘the supply of services and of goods closely linked to welfare and social security work’ contained in Article 132(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as including or excluding services performed in the context of a scheme for the protection of adults established by law and subject to the control of an independent judicial authority?

6.

Is the concept of ‘bodies recognised … as being devoted to social wellbeing’ contained in Article 132(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted, in view of the recognition of the social character of the body, as laying down certain requirements vis-à-vis the way in which the service provider operates or as regards the not-for-profit or profit-making objective of the activity of the service provider, or more generally as restricting by other criteria or conditions the scope of the exemption provided for in Article 132(1)(g), or is the performance of services ‘linked to welfare and social security work’ alone sufficient to give the body at issue a social character?

7.

Is the concept of ‘bodies recognised … as being devoted to social wellbeing’ contained in Article 132(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax to be interpreted as requiring a recognition process based upon a pre-defined procedure and pre-determined criteria, or is ad hoc recognition possible on a case-by-case basis, where appropriate by a judicial authority?

8.

Does the principle of legitimate expectations as interpreted by the case-law of the Court of Justice of the European Union allow the authority responsible for recovering VAT to require that a person liable to VAT pays the VAT on economic transactions relating to a period which had ended when the authority’s decision to apply VAT was made after that authority has, for an extended time prior to that period, accepted VAT returns from that taxable person which do not include economic transactions of the same kind in its taxable transactions? Is that possibility on the part of the authority responsible for recovering VAT subject to certain conditions?

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

Request for a preliminary ruling from the Juzgado de lo Social n.o 26 de Barcelona (Spain) lodged on 26 November 2019 — LJ v INSS (Instituto Nacional de la Seguridad Social)

(Case C-861/19)

(2020/C 54/36)

Language of the case: Spanish

Referring court

Juzgado de lo Social n.o 26 de Barcelona

Parties to the main proceedings

Applicant: LJ

Defendant: INSS (Instituto Nacional de la Seguridad Social)

Questions referred

1.

Can the maternity supplement provided for in Article 60 of the Ley General de la Seguridad Social (General Law on Social Security), the consolidated version of which was approved by Real Decreto Legislativo 8/2015 (Royal Legislative Decree 8/2015), be considered a positive measure or action designed to achieve substantive equality between women and men which is permissible under Article 157(4) of the Treaty on the Functioning of the European Union?

2.

If the answer to the first question is ‘yes’, is the time limit established by the sole final provision of Royal Legislative Decree 8/2015 that restricts the supplement to pensions arising from 1 January 2016 onwards contrary to the principle of proportionality which must be satisfied by all positive action?

Request for a preliminary ruling from the Tribunal d’instance de Rennes (France) lodged on 27 November 2019 — Caisse de Crédit Mutuel Le Mans Pontlieue v OG

(Case C-865/19)

(2020/C 54/37)

Language of the case: French

Referring court

Tribunal d’instance de Rennes

Parties to the main proceedings

Applicant: Caisse de Crédit Mutuel Le Mans Pontlieue

Defendant: OG

Question referred

Where the annual percentage rate of charge for credit granted to a consumer is 5.364511%, does the rule laid down in Directives 98/7/EC of 16 February 1998, (1) 2008/48/EC of 23 April 2008 (2) and 2014/17/EU of 4 February 2014, (3) according to which, in the [English] version, ‘The result of the calculation shall be expressed with an accuracy of at least one decimal place. If the figure at the following decimal place is greater than or equal to 5, the figure at this particular decimal place shall be increased by one’, allow it to be concluded that an agreement stating that the annual percentage rate of charge is 5.363% is accurate?

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(1)  Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1998 L 101, p. 17).

(2)  Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

(3)  Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 Text with EEA relevance (OJ 2014 L 60, p. 34).

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 26 November 2019 — Prefettura Ufficio territoriale del governo di Firenze v MI

(Case C-870/19)

(2020/C 54/38)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Prefettura Ufficio territoriale del governo di Firenze

Defendant: MI

Question referred

May Article 15 [(7) of Regulation No 3821/85] (1) be interpreted, in the specific case of the driver of the motor vehicle, as a rule which prescribes a single, overall form of conduct and, therefore, entails the commission of a single infringement and the imposition of a single penalty, or may it result, through the cumulation of penalties for each act of omission, in as many infringements and penalties as the number of days in relation to which the record sheets for the tachograph have not been produced in the context of the timeframe laid down (‘current day and the previous 28 days’)?

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(1)  Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).

Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 26 November 2019 — Prefettura Ufficio territoriale del governo di Firenze v TB

(Case C-871/19)

(2020/C 54/39)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Applicant: Prefettura Ufficio territoriale del governo di Firenze

Defendant: TB

Question referred

May Article 15 [(7) of Regulation No 3821/85] (1) be interpreted, in the specific case of the driver of the motor vehicle, as a rule which prescribes a single, overall form of conduct and, therefore, entails the commission of a single infringement and the imposition of a single penalty, or may it result, through the cumulation of penalties for each act of omission, in as many infringements and penalties as the number of days in relation to which the record sheets for the tachograph have not been produced in the context of the timeframe laid down (‘current day and the previous 28 days’)?

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(1)  Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).

Appeal brought on 29 November 2019 by PlasticsEurope against the judgment of the General Court (Fifth Chamber) delivered on 20 September 2019 in Case T-636/17, PlasticsEurope v ECHA

(Case C-876/19 P)

(2020/C 54/40)

Language of the case: English

Parties

Appellant: PlasticsEurope (represented by: R. Cana, E. Mullier, F. Mattioli, avocats)

Other parties to the proceedings: European Chemicals Agency, French Republic, ClientEarth

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court in Case T-636/17;

—	annul the Decision ED/30/2017 by the Executive Director of ECHA of 6 July 2017;

—	Alternatively, refer the case back to the General Court to rule on the appellant’s application for annulment;

—	order the respondent to pay the costs of these proceedings, including the costs of the proceedings before the General Court.

Pleas in law and main arguments

In support of the appeal, the appellant relies on the following pleas in law:

A.	The General Court erred in law by misinterpreting REACH (1) and by holding that the Agency is not required to demonstrate the existence of scientific evidence of probable serious effects pursuant to Article 57(f) of REACH.

B.

The General Court erred in law in the assessment of the evidence available to it and in the assessment of the facts as supported by that evidence. In particular, the Court erred in concluding that the ECHA had established ‘probable’ serious effects; failed to assess whether the ECHA had in fact evaluated the information on the equivalent level of concern, and instead erroneously relied on the ECHA’s assertion that that criterion had been met; erred in dismissing the appellant’s plea related to the relevance of European Food and Safety Authority (EFSA)‘s conclusions for the case at hand; erred in concluding that EFSA’s conclusions support and are consistent with the ECHA’s decision; distorted the evidence submitted by the parties.

C.	The General Court has breached the principle of equal treatment by treating the appellant less favourably than the ECHA.

D.	The General Court erred in law in misinterpreting Article 2(8)(b) of the REACH Regulation and breached its duty to state reasons by failing to address the additional arguments on intermediates made by the appellant.

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(1)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006, L 396, p. 1, corrigendum OJ 2007 L 136, p. 3).

Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 2 December 2019 — FORMAT Urządzenia i Montaże Przemysłowe v Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

(Case C-879/19)

(2020/C 54/41)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: FORMAT Urządzenia i Montaże Przemysłowe

Defendant: Zakład Ubezpieczeń Społecznych I Oddział w Warszawie

Question referred

Is the expression ‘a person normally employed in the territory of two or more Member States’ used in the first sentence of Article 14(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, in the version resulting from Council Regulation (EC) No 118/97 of 2 December 1996, (1) as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, (2) to be interpreted as also applying to a person who, during the period covered by and within the framework of one and the same contract of employment concluded with a single employer, performs work in the territory of each of at least two Member States not simultaneously or concurrently, but during directly consecutive, successive periods of several months?

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(1)  OJ 1997 L 28, p. 1.

(2)  OJ 2006 L 392, p. 1.

Appeal brought on 3 December 2019 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 24 September 2019 in Case T-586/14 RENV, Xinyi PV Products (Anhui) Holdings v Commission

(Case C-884/19 P)

(2020/C 54/42)

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Flynn, A. Demeneix, T. Maxian Rusche, Agents)

Other parties to the proceedings: Xinyi PV Products (Anhui) Holdings Ltd, GMB Glasmanufaktur Brandenburg GmbH

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court (Fifth Chamber) of 24 September 2019 in Case T-586/14 RENV, Xinyi PV Products (Anhui) Holdings Ltd v Commission;

—	reject the first plea of the application at first instance as unfounded in law;

—	refer the case for the second to fourth pleas of the application at first instance to the General Court for reconsideration;

—	reserve the costs of these proceedings and the previous related proceedings, namely those leading to the original judgment, the judgment on appeal and the judgment.

Pleas in law and main arguments

The Commission presents three grounds of appeal.

First, there is an error in law in paragraphs 55 to 61 of the judgment. There, the General Court has misinterpreted both Article 2(7)(b) and the third indent of Article 2(7)(c) of the basic Regulation (1). The General Court has read into those provisions a requirement that MET (2) can only be refused where the Commission finds that the application of Article 2(1) to (6) of the basic Regulation to the company requesting MET would give rise to artificial results. In other words, the assessment must demonstrate the precise effect of the distortion found on the accounting records of the company. However, that duty to show the impact of the distortion on prices, costs and inputs only exists for the first limb of the first indent of Article 2(7)(c) of the basic Regulation, where that requirement is specifically mentioned. In Council v Zhejiang Xinan Chemical Industrial Group, the Court based that requirement on that specific wording. There is no scope for expanding that reasoning by analogy to all five criteria for MET set out in Article 2(7)(c) of the basic Regulation.

Second, there are several errors in law in paragraphs 62 to 73 of the judgment. First, the cost of capital constitutes a factor of production just like the cost of labour. Hence, the two subsidy schemes have a direct link to the cost of production. Second, the General Court fails to engage with the assessment, by the Commission, of the impact of the two subsidy schemes on the applicant at first instance, both as to the identification of the relevant period and as to the total amount received. Instead, it replaces the economic assessment of the Commission by its own assessment.

Third, the judgment is tainted by procedural irregularities. The applicant at first instance did not challenge how the Commission interpreted the third indent of Article 2(7)(c) of the basic Regulation, but only how it applied that provision to the facts. Hence, the General Court ruled ultra vires. In addition, the General Court gave the Commission no opportunity to offer its view on the novel interpretation of Article 2(7)(c) of the basic Regulation developed in the judgment, thereby violating the Commission’s right to a fair hearing.

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(1)  Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (OJ 2009, L 343, p. 51, with corrigendum in OJ 2016, L 44, p. 20).

(2)  Market economy treatment.

Appeal brought on 4 December 2019 by Fortischem a.s. against the judgment of the General Court (Sixth Chamber) delivered on 24 September 2019 in Case T-121/15, Fortischem v Commission

(Case C-890/19 P)

(2020/C 54/43)

Language of the case: English

Parties

Appellant: Fortischem a.s. (represented by: C. Arhold, Rechtsanwalt, P. Hodál, M. Staroň, avocats)

Other parties to the proceedings: European Commission, AlzChem AG, formerly AlzChem Trostberg GmbH, formerly AlzChem Hart GmbH

Form of order sought

The appellant claims that the Court should:

—	set aside judgment under appeal;

—	annul Articles 1 and 3 to 5 of the contested decision (1);

—	order the Commission to pay the costs.

Pleas in law and main arguments

First ground of appeal: the General Court committed an error in law consisting of the misinterpretation and misapplication of Article 107(1), Article 108(2) TFEU and Article 14(1) of Regulation (EC) No. 659/1999 (2) by ruling that in a case like here, the recovery decision could be extended to the appellant even if the appellant had paid a market price for the assets of the beneficiary of the aid.

Second ground of appeal: the General Court committed an error in law by ruling that the Commission did not bear the burden of proof as to the question of whether the aid had been transferred to the appellant by selling the assets below market price.

Third ground of appeal: the General Court committed an error in law or distorted the facts by disregarding several (almost irrefutable) assumptions indicating that a market price was paid for the assets.

Fourth ground of appeal: the General Court committed an error in law in law by misinterpreting the concept of the criteria ‘scope of transaction’ and ‘economic logic of the transaction’ for the establishment of economic continuity.

Fifth ground of appeal: the General Court committed an error in law by accepting that the Commission could come to the conclusion that there was economic continuity on the basis of only two of the established criteria, all the other criteria militating against economic continuity.

Sixth ground of appeal: the General Court committed an error in law consisting of the misinterpretation and misapplication of the relevant provision of the Law which prohibited collective redundancies and an erroneous legal qualification of the facts by concluding that the prohibition of collective redundancies represented an advantage for NCHZ instead of an actual disadvantage in the form of increased costs and by the failure to reduce the alleged State aid amount by an amount corresponding to the increased costs.

Seventh ground of appeal: the General Court committed an error in law by substituting its own reasoning for that in the contested decision, as the Commission did not submit any arguments or explanations as to how the prohibition of collective redundancies represented an advantage for NCHZ.

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(1)  Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015, L 269, p. 71).

(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999, L 83, p. 1).

Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gliwicach (Poland) lodged on 4 December 2019 — A. v Dyrektor Krajowej Informacji Skarbowej

(Case C-895/19)

(2020/C 54/44)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyjny w Gliwicach

Parties to the main proceedings

Applicant: A.

Defendant: Dyrektor Krajowej Informacji Skarbowej

Question referred

Is Article 167 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (as amended), (1) in conjunction with Article 178 thereof, to be interpreted as precluding national legislation which makes the exercise of the right to deduct input tax in the same accounting period as that in which the tax due was payable on the transactions constituting Community acquisitions of goods subject to entry of the tax due on those transactions in the appropriate tax declaration submitted within the mandatory period (in Poland, three months) following the end of the month in which the tax liability arose in relation to the goods and services acquired?

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(1)  OJ 2006 L 347, p. 1.

Appeal brought on 4 December 2019 by Ireland against the judgment of the General Court (Seventh Chamber, Extended Composition) delivered on 24 September 2019 in joined Cases T-755/15 and T-759/15, Luxembourg and Fiat Chrysler Finance Europe v Commission

(Case C-898/19 P)

(2020/C 54/45)

Language of the case: English

Parties

Appellant: Ireland (represented by: M. Browne, A. Joyce, J. Quaney, P. Gallagher SC, Agents, S. Kingston, B. Doherty, BL)

Other parties to the proceedings: European Commission, Fiat Chrysler Finance Europe, Grand Duchy of Luxembourg

Form of order sought

The appellant claims that the Court should:

—	set aside the judgment of the General Court of 24 September 2019 in Joined Cases, T-755/15 and T-759/15, Luxembourg and Fiat Chrysler Finance Europe v Commission;

—	annul the Commission’s decision (1) of 21 October 2015, and

—	order the Commission to pay the cost of these proceedings.

Pleas in law and main arguments

First ground: the General Court erred in law and misapplied Article 107(1) TFEU in its approach to the so-called ‘arm’s-length principle’.

Second ground: the General Court erred in law and misapplied Article 107(1) TFEU in its analysis of selectivity.

Third ground: the General Court breached its duty to give reasons for its judgment.

Fourth ground: the General Court breached the principle of legal certainty by agreeing that the Commission could review decisions of national tax administrations by reference to a Commission version of the arm’s-length principle which was unpredictable and whose content is unknown.

Fifth ground: the General Court breached Articles 4 and 5 TEU and impermissibly used the State aid rules to harmonise Member States’ direct taxation rules.

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(1)  Commission Decision (EU) 2016/2326 of 21 October 2015 on State aid SA.38375 (2014/C ex 2014/NN) which Luxembourg granted to Fiat (notified under document C(2015) 7152) (OJ 2016, L 351, p. 1).

Appeal brought on 4 December 2019 by Romania against the judgment of the General Court (Second Chamber) delivered on 24 September 2019 in Case T-391/17, Romania v Commission

(Case C-899/19 P)

(2020/C 54/46)

Language of the case: Romanian

Parties

Appellant: Romania (represented by: E. Gane, L. Lițu, and M. Chicu, acting as Agents)

Other parties to the proceedings: European Commission, Hungary

Form of order sought

The appellant claims that the Court should:

—	allow the appeal, set aside in its entirety the judgment of the General Court in Case T-391/17, give judgment in Case T-391/17 upholding the action for annulment of Decision (EU) 2017/652

or

—	allow the appeal, set aside in its entirety the judgment of the General Court in Case T-391/17 and refer Case T-391/17 back to the General Court of the European Union, which, upon fresh consideration of the matter, should uphold the action for annulment and annul Decision (EU) 2017/652;

—	order the Commission to pay the costs.

Pleas in law and main arguments

A.

Infringement of the provisions of the Treaties of the European Union relating to the competences of the European Union The General Court erred in law when, in breach of the principle of conferral of powers enshrined in Article 5(2) of the Treaty on European Union, it equated the values laid down in Article 2 TEU with a specific action/objective within the framework of the competence of the European Union and called on the Commission to submit specific acts whose main objective is respect for the rights of persons belonging to national and linguistic minorities and for rich cultural and linguistic diversity.

B.

Infringement of the second paragraph of Article 296 TFEU The General Court misinterpreted the second paragraph of Article 296 TFEU in so far as concerns the obligation on the part of the Commission to state reasons, erroneously holding that that obligation was met, in the light of the facts of the case, in a situation in which the Commission failed to set out the legal considerations of fundamental importance in the overall scheme of Decision (EU) 2017/652 and, in addition, substantially modified the position it had taken previously, without specifying what subsequent developments justified that change in position.

C.

Procedural irregularities such as to cause prejudice to the interests of the appellant As a result of the fact that, during the oral stage of the procedure in Case T-391/17, the discussions focused, at the behest of the General Court, solely on aspects relating to the admissibility of the action for annulment, while in the judgment given, that court addressed only aspects concerning the substance of the case, the proper conduct of the proceedings was compromised.

Request for a preliminary ruling from the Conseil d’État (France) lodged on 6 December 2019 — One Voice, Ligue pour la protection des oiseaux v Ministre de la Transition écologique et solidaire

(Case C-900/19)

(2020/C 54/47)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: One Voice, Ligue pour la protection des oiseaux

Defendant: Ministre de la Transition écologique et solidaire

Intervener: Fédération nationale de la chasse

Questions referred

1.

Must Article 9(1)(c) of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 (1) be interpreted as precluding Member State from authorising the use of means, devices, methods of capture or killing capable of leading, even minimally and on a strictly temporary basis, to by-catch? Where appropriate, what criteria, relating in particular to the limited proportion or size of such by-catch, to what is in principle the non-lethal nature of the authorised hunting process and to the obligation to release without serious harm the specimens captured accidentally, may be applied in order for the selectivity criteria laid down in that provision to be considered to be satisfied?

2.

Must Directive [2009/147/EC] of 30 November 2009 be interpreted as meaning that the objective of preserving the use of traditional methods and means of hunting birds, for recreational purposes, and in so far as all the other conditions placed on such a derogation by subparagraph c of that paragraph are satisfied, may justify the absence of another satisfactory solution within the meaning of Article 9(1), thus permitting a derogation from the principle laid down in Article 8 that those methods and means of hunting are prohibited?

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

Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli in Warsaw (Poland) lodged on 10 December 2019 — E. Sp. z o.o. v K.S.

(Case C-904/19)

(2020/C 54/48)

Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Woli in Warsaw

Parties to the main proceedings

Applicant: E. Sp. z o.o.

Defendant: K.S.

Questions referred

1.

Must Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1)… and the recitals thereof [the twentieth and twenty-fourth, under which] contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail [and] the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts, in conjunction with Article 10(1) and (2) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (2)…, and recital 31 thereof, be interpreted as precluding Article 339(2) of the Polish Code of Civil Procedure, construed in such a way that it permits the delivery of a default judgment in a case … concerning the repayment of consumer credit … including where the applicant has failed to submit … the consumer credit agreement …, and consequently no examination of the agreement was carried out from the point of view of potentially unfair terms contained in the agreement and no checks were made on whether the agreement contained all the elements required by law, and at the same time requires, when delivering a default judgment, that the applicant’s statement of facts alone be relied on, with no analysis of the evidence from the point of view of ‘reasonable doubts’ within the meaning of that provision? In the light of the judgments of the Court of Justice of 1 October 2015, ERSTE Bank Hungary (C-32/14, EU:C:2015:637, paragraph 62); of 10 September 2014, Kušionová [Or. 1] (C-34/13, EU:C:2014:2189, paragraph 56); and of 6 October 2009, Asturcom Telecomunicaciones (C-40/08, EU:C:2009:615, paragraph 47), is it also permissible to interpret Article 339(2) of the Polish Code of Civil Procedure as meaning that a default judgment may be delivered in a case [concerning a consumer credit agreement] … in which the applicant failed to attach the agreement to the application, and consequently with no examination of the agreement from the point of view of potentially unfair terms contained therein, and also no checks on whether the agreement contained all the elements required by law, relying solely on the applicant’s statement of facts?

2.

Must Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts … and the recitals thereof [the twentieth and twenty-fourth, under which] contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail [and] the courts or administrative authorities of the Member States must have at their disposal adequate and effective means of preventing the continued application of unfair terms in consumer contracts, in conjunction with Article 10(1) and (2) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC …, and recital 31 thereof, be interpreted as precluding Article 339(2) of the Polish Code of Civil Procedure, construed in such a way that it prevents a national court from examining an agreement … on consumer credit attached by the applicant … from the point of view of potentially unfair terms contained therein and examining whether the agreement contained all the elements required by law and at the same time requires, when delivering a default judgment, that the applicant’s statement of facts alone be relied on, with no analysis of the evidence from the point of view of ‘reasonable doubt’ within the meaning of that provision? In the light of the judgments of the Court of Justice of 1 October 2015, ERSTE Bank Hungary (C-32/14, EU:C:2015:637, paragraph 62); of 10 September 2014, Kušionová (C-34/13, EU:C:2014:2189, paragraph 56); and of 6 October 2009, Asturcom Telecomunicaciones (C–40/08, EU:C:2009:615, paragraph 47), is it possibly also permissible to interpret Article 339(2) of the Polish Code of Civil Procedure as meaning that a default judgment may be delivered in a case [concerning a consumer credit agreement] … with no examination of the agreement submitted by the applicant and attached to the application from the point of view of potentially unfair terms contained therein, and also no checks on whether the agreement contained all the elements required by law, relying solely on the applicant’s statement of facts?

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(1)  OJ 1993 L 95, p. 29.

(2)  OJ 2008 L 133, p. 66.

Request for a preliminary ruling from the Sąd Rejonowy w Białymstoku (Poland) lodged on 13 December 2019 – CNP spółka z o.o. v Gefion Insurance A/S

(Case C-913/19)

(2020/C 54/49)

Language of the case: Polish

Referring court

Sąd Rejonowy w Białymstoku

Parties to the main proceedings

Applicant: CNP spółka z o.o.

Defendant: Gefion Insurance A/S

Questions referred

1.

Should Article 13(2), in conjunction with Article 10, of 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) be interpreted as meaning that, in a dispute between a trader and an insurance company, the former having acquired from an injured party a claim arising from civil liability insurance against that insurance company, the establishment of court jurisdiction on the basis of Article 7(2) or Article 7(5) of the regulation is not precluded?

2.

If Question 1 is answered in the affirmative, should Article 7(5) of 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 be interpreted as meaning that a commercial company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurance undertaking established in another Member State is a branch, agency or other establishment of that insurance undertaking?

3.

If Question 1 is answered in the affirmative, should Article 7(2) of 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 be interpreted as meaning that it constitutes an independent basis for the jurisdiction of the court of the Member State in which the harmful event occurred, before which court the creditor who has acquired the claim from the injured party under compulsory insurance against civil liability brings an action against an insurance undertaking established in another Member State?

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(1)  OJ 2012 L 351, p. 1.

Judgment of the General Court of 17 December 2019 — Poland v Commission

(Case T-21/18) (1)

(EAGF and EAFRD - Expenditure excluded from financing - Fruit and vegetable sectors - Aid to producer groups - Expenditure incurred by Poland - Deficiencies in key and secondary controls - Verification of recognition plans and recognition criteria - Checks on applications for aid - Eligibility of producer groups - Economic consistency - Necessity and eligibility for financing - Reasonableness of the expenditure - Systemic deficiencies - Risk to EAGF - Corrective measures - Flat-rate corrections of 25 %)

(2020/C 54/50)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: B. Majczyna, M. Pawlicka and D. Krawczyk, acting as Agents)

Defendant: European Commission (represented by: A. Lewis and A. Stobiecka-Kuik, acting as Agents)

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Implementing Decision (EU) 2017/2014 of 8 November 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 292, p. 61).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Republic of Poland to bear its own costs and to pay the costs incurred by the European Commission.

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(1)  OJ C 104, 19.3.2018.

Judgment of the General Court of 19 December 2019 — Bulgaria v Commission

(Case T-22/18) (1)

(EAGF and EAFRD - Expenditure excluded from financing - Expenditure incurred by Bulgaria - Rural development - Quality of on-the-spot checks - Review of eligibility and selection criteria - Financial corrections - Ex post controls - Method for calculating financial corrections - Recurrence - Corrective measures - Conformity clearance procedure - Legal certainty - Principle of sound financial management - Proportionality)

(2020/C 54/51)

Language of the case: Bulgarian

Parties

Applicant: Republic of Bulgaria (represented by: E. Petranova and L. Zaharieva, acting as Agents)

Defendant: European Commission (represented by: J. Aquilina, G. Koleva and V. Bottka, acting as Agents)

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Implementing Decision (EU) 2017/2014 of 8 November 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 292, p. 61).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Republic of Bulgaria to pay the costs.

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(1)  OJ C 104, 19.3.2018.

Judgment of the General Court of 19 December 2019 — Wehrheim v ECB

(Case T-100/18) (1)

(Civil service - ECB staff - Remuneration - Expatriation allowance - Discontinuation - Liability - Material and non-material harm - Service-related fault)

(2020/C 54/52)

Language of the case: French

Parties

Applicant: Christine Wehrheim (Offenbach, Germany) (represented by: N. de Montigny, lawyer)

Defendant: European Central Bank (represented by: F. von Lindeiner and A. Andrzejewska, acting as Agents, and by B. Wägenbaur, lawyer)

Re:

Action under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union seeking compensation for the material and non-material harm allegedly suffered by the applicant as a result of the error made by the ECB in the determination of her pecuniary rights at the time of her recruitment resulting in the grant of an expatriation allowance, which was subsequently discontinued.

Operative part of the judgment

The Court:

1.

Orders the European Central Bank (ECB) to pay the sum of EUR 1 000 to Ms Christine Wehrheim in respect of non-material damage, together with interest, from the date of delivery of the present judgment, at the rate applied by the ECB to its main refinancing operations, increased by 3.5 percentage points, until the date of payment by the ECB of the amount of EUR 1 000;

2.	Dismisses the action as to the remainder;

3.	Orders Ms Wehrheim and the ECB to bear their own costs.

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(1)  OJ C 152, 30.4.2018.

Judgment of the General Court of 19 December 2019 — Greece v Commission

(Case T-295/18) (1)

(EAGF and EAFRD - Expenditure excluded from financing - Expenditure incurred by Greece - Rural development - Decoupled direct aid - Key controls - Flat-rate financial corrections)

(2020/C 54/53)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: G. Kanellopoulos, I. Pachi, A. Vasilopoulou and E. Chroni, acting as Agents)

Defendant: European Commission (represented by: D. Triantafyllou and J. Aquilina, acting as Agents)

Re:

Application under Article 263 TFEU seeking the partial annulment of Commission Implementing Decision (EU) 2018/304 of 27 February 2018 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2018 L 59, p. 3).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 249, 16.7.2018.

Judgment of the General Court of 19 December 2019 — Sta*Ware EDV Beratung v EUIPO — Accelerate IT Consulting (businessNavi)

(Case T-383/18) (1)

(EU trade mark - Revocation proceedings - EU figurative mark businessNavi - Genuine use of the mark - Partial revocation - Article 51(1)(a) and (2) of Regulation (EC) No 207/2009 (now Article 58(1)(a) and (2) of Regulation (EU) 2017/1001))

(2020/C 54/54)

Language of the case: German

Parties

Applicant: Sta*Ware EDV Beratung GmbH (Starnberg, Germany) (represented by: M. Bölling and M. Graf, lawyers)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Accelerate IT Consulting GmbH (Ahlen, Germany) (represented by: H. Hofmann, lawyer)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 2 May 2018 (Case R 434/2017-5), relating to revocation proceedings between Sta*Ware EDV Beratung and Accelerate IT Consulting.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Sta*Ware EDV Beratung GmbH to pay the costs.

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(1)  OJ C 294, 20.8.2018.

Judgment of the General Court of 19 December 2019 — XG v Commission

(Case T-504/18) (1)

(Staff of a private company providing IT services within the institution - Refusal to grant access to the Commission’s premises - Competence of the author of the act)

(2020/C 54/55)

Language of the case: French

Parties

Applicant: XG (represented by: S. Kaisergruber and A. Burghelle-Vernet, lawyers)

Defendant: European Commission (represented by: C. Ehrbar and T. Bohr, Agents)

Re:

Application under Article 263 TFEU for the annulment of the decision of the Commission of 3 July 2018 maintaining its refusal to allow the applicant access to its premises.

Operative part of the judgment

The Court:

1.	Annuls the decision of the European Commission of 3 July 2018 maintaining its refusal to allow XG access to its premises;

2.	Orders the Commission to pay the costs.

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(1)  OJ C 373, 15.10.2018.

Order of the President of the General Court of 7 November 2019 — AMVAC Netherlands v Commission

(Case T-317/19 R)

(Application for interim measures - Plant protection products - Regulation (EC) No 1107/2009 - Active substance ethoprophos - Conditions for approval for placing the substance on the market - Application for suspension of operation - Lack of urgency)

(2020/C 54/56)

Language of the case: English

Parties

Applicant: AMVAC Netherlands BV (Amsterdam, Netherlands)) (represented by: C. Mereu, M. Grunchard and S. Englebert, lawyers)

Defendant: European Commission (represented by: F. Castilla-Contreras and I. Naglis, Agents)

Re:

Application pursuant to Articles 278 and 279 TFEU seeking suspension of the operation of Commission Implementing Regulation (EU) 2019/344 of 28 February 2019 concerning the non-renewal of approval of the active substance ethoprophos, 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 2019 L 62, p. 7).

Operative part of the order

1.	The application for interim measures is dismissed.

2.	The costs are reserved.

Action brought on 21 October 2019 – Wagenknecht v European Council

(Case T-715/19)

(2020/C 54/57)

Language of the case: English

Parties

Applicant: Lukáš Wagenknecht (Pardubice, Czech Republic) (represented by: A. Dolejská, lawyer)

Defendant: European Council

Form of order sought

The applicant claims that the Court should:

—	declare that the European Council unlawfully failed to act against the conflict of interest of Mr. Andrej Babiš, the Czech Prime Minister, in relation to the EU budget.

Pleas in law and main arguments

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

1.

First plea in law, alleging that the applicant sent to the European Council an invitation to act by a letter of 5 June 2019 and sent on 10 June 2019 to the European Council a call to act under Article 265 TFEU, requesting it not to invite Mr Andrej Babiš, in alleged conflict of interest, to the meeting of the European Council of 20 June 2019 where the EU budget was discussed under point 4 of the agenda. — The applicant observes that, nevertheless, on 20 June 2019, the Czech prime minister, Mr Babiš, in alleged conflict of interest, was present at the European Council meeting where the EU budget was discussed under point 4 of the agenda.

2.	Second plea in law, alleging that the European Council’s reply to the applicant’s invitation to act was inconclusive and contradictory, failing to define its position.

3.

Third plea in law, alleging that the applicant is directly concerned by the European Council’s failure to exclude Mr Babiš from deliberations on the future EU budget in the meetings of the European Council, since: i. no other intermediary act is necessary in order to exclude persons with a conflict of interest from the European Council meeting; and ii. the legal situation of the applicant is affected due to him being: (a) an elected representative of the Czech Senate, charged with investigation of the alleged conflict of interest of the Czech prime minister as a member of a special Senate Committee established for this purpose, and (b) a future competitor to candidates of the ANO 2011 party controlled by the Czech prime minister.

4.

Fourth plea in law, alleging that the applicant’s individual concern in relation to the alleged omission of the European Council to act against the alleged conflict of interest of the Czech Prime Minister, Mr. Babiš, arises from: i. a constitutional duty to control the correct adoption of EU legal acts, including the EU budget (the Multiannual financial framework 2021-2027); ii. a constitutional duty entailing the right to control the Czech prime minister when acting in the European Council, including the duty to exercise responsibly the function of the member of the special committee of the Senate charged with the investigation of alleged conflict of interest of the Czech prime minister, Mr. Babiš; iii. the applicant’s election to the Czech Senate in 2018, in competition with candidates of ANO 2011 controlled by the Czech prime minister. The applicant alleges that refusal by the Court to accept the present case would equal a denial of justice, leading to an effective impossibility for the members of national parliaments to control their members of government in relation to acts performed in the European Council or the Council.

5.

Fifth plea in law, alleging that there is an obligation on the European Council to act against conflict of interest under Article 325(1) TFEU and Article 61(1) of the Financial Regulation. (1) — The applicant argues that all conditions triggering the European Council’s obligation to act, that is, to prevent or neutralise the alleged conflict of interest of the Czech prime minister, Mr. Babiš, have been fullfiled.

6.	Sixth plea in law, alleging violation of the European Council’s obligation to act pursuant to Article 325(1) TFEU and the said Article 61(1) of the Financial Regulation.

---

(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

Action brought on 20 November 2019 – HC v Commission

(Case T-804/19)

(2020/C 54/58)

Language of the case: English

Parties

Applicant: HC (represented by: G. Pandey and V. Villante, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul, the decision of 20 August 2019 of the European Personnel Selection Office (EPSO) rejecting the applicant’s complaint under Article 90(2) of the Staff Regulations of Officials of the European Union, lodged on 17 April 2019, including the rejection of the request for EUR 50 000 compensation;

—	annul the EPSO/Selection Board decision of 21 March 2019 rejecting the applicant’s request for review of the decision of the Selection Board not to admit him to the next phase of the competition;

—	annul the decision of 28 January 2019 at the online EPSO account not to include the applicant in the draft list of officials selected for the purposes of the competition EPSO/AD/363/18;

—	annul the notice of open competition EPSO/AD/363/18, published on 11 October 2018, (1) and, in its entirety, the resulting draft list of officials selected to take part in the aforesaid competition and/or declare it unlawful and inapplicable to the applicant under Article 277 TFEU;

—	order the defendant to pay the applicant EUR 50 000 in damages in respect of the harm resulting from the abovementioned contested decisions;

—	as a preliminary matter, where appropriate, declare Article 90 of the Staff Regulations invalid and inapplicable in the present proceedings, under Article 277 TFEU.

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 manifest error of assessment in respect of the applicant’s work experience and, in this context, that the obligation to motivate a decision was not fulfilled and that Article 25 of the Staff Regulations of Officials of the European Union and Article 296 TFEU were infringed.

2.	Second plea in law, alleging infringement of Article 41 of the Charter of Fundamental Rights of the European Union and of the applicant’s right to be heard and, in this context, the infringement of the duty to state reasons and of Article 296 TFEU.

3.

Third plea in law, alleging the violation of Articles 1, 2, 3 and 4 of Regulation No. 1 of 1958 (2) and, in this context, the infringement of Articles 1d and 28 of the Staff Regulations as well as of Article 1(1)(f) of Annex III to the Staff Regulations and of the principles of equal treatment and non-discrimination.

4.	Fourth plea in law, alleging the illegality of the talent screener in the light of Articles 1d, 4, 7 and 29 of the Staff Regulations.

---

(1)  OJ 2018 C 368A, p. 1.

(2)  Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition, Series I 1952-1958, p. 59).

Action brought on 4 December 2019 — JMS Sports v EUIPO — Inter-Vion (Spiral hair elastics)

(Case T-823/19)

(2020/C 54/59)

Language in which the application was lodged: Polish

Parties

Applicant: JMS Sports sp. z o.o. (Łódź, Poland) (represented by: D. Piróg and J. Słupski, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Inter-Vion S.A. (Warsaw, Poland)

Details of the proceedings before EUIPO

Proprietor of the design at issue: Applicant before the Court

Design at issue: Community design (spiral hair elastics) — Community design No 1723 677-0001

Contested decision: Decision of the Third Board of Appeal of EUIPO of 13 September 2019 in Case R 1573/2018-3

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO to pay the costs, including the costs incurred by the applicant in the proceedings before the Board of Appeal of EUIPO;

—	order the intervener, in the event of intervention, to bear its own costs.

Pleas in law

—	Infringement of Article 5(1) in connection with Article 7(1) of Council Regulation (EC) No 6/2002;

—	Infringement of the rules governing the burden of proof;

—	Infringement of the principle of equality of arms.

Action brought on 4 December 2019 — Palírna U Zeleného stromu v EUIPO — Bacardi (BLEND 42 VODKA)

(Case T-829/19)

(2020/C 54/60)

Language in which the application was lodged: Czech

Parties

Applicant: Palírna U Zeleného stromu a.s. (Ústí nad Labem, Czech Republic) (represented by: T. Chleboun, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Bacardi & Co. Ltd (Meyrin, Switzerland)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for the EU figurative mark BLEND 42 VODKA — Application for registration No 12 945 879

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2019 in Case R 2531/2018-2

Form of order sought

The applicant claims that the Court should:

—	join the proceedings on the applications against the decision of the defendant of 5 September 2019 in Cases R 2531/2018-2, R 2532/2018-2 and R 2533/2018-2;

—	annul the contested decision;

—	order the defendant and the intervener to pay the applicant’s costs.

Plea in law

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

Action brought on 4 December 2019 — Palírna U Zeleného stromu v EUIPO — Bacardi (BLEND 42 VODKA)

(Case T-830/19)

(2020/C 54/61)

Language in which the application was lodged: Czech

Parties

Applicant: Palírna U Zeleného stromu a.s. (Ústí nad Labem, Czech Republic) (represented by: T. Chleboun, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Bacardi & Co. Ltd (Meyrin, Switzerland)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for the EU figurative mark BLEND 42 VODKA in light blue and dark blue — Application for registration No 12 946 034

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2019 in Case R 2532/2018-2

Form of order sought

The applicant claims that the Court should:

—	join the proceedings on the applications against the decision of the defendant of 5 September 2019 in Cases R 2531/2018-2, R 2532/2018-2 and R 2533/2018-2;

—	annul the contested decision;

—	order the defendant and the intervener to pay the applicant’s costs.

Plea in law

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

Action brought on 4 December 2019 — Palírna U Zeleného stromu v EUIPO — Bacardi (BLEND 42 FIRST CZECH BLENDED VODKA)

(Case T-831/19)

(2020/C 54/62)

Language in which the application was lodged: Czech

Parties

Applicant: Palírna U Zeleného stromu a.s. (Ústí nad Labem, Czech Republic) (represented by: T. Chleboun, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Bacardi & Co. Ltd (Meyrin, Switzerland)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for the EU figurative mark BLEND 42 FIRST CZECH BLENDED VODKA in white, red, grey, light blue, dark blue and orange — Application for registration No 12 946 182

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 5 September 2019 in Case R 2533/2018-2

Form of order sought

The applicant claims that the Court should:

—	join the proceedings on the applications against the decision of the defendant of 5 September 2019 in Cases R 2531/2018-2, R 2532/2018-2 and R 2533/2018-2;

—	annul the contested decision;

—	order the defendant and the intervener to pay the applicant’s costs.

Plea in law

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

Action brought on 16 December 2019 — Leonardo v Frontex

(Case T-849/19)

(2020/C 54/63)

Language of the case: Italian

Parties

Applicant: Leonardo SpA (Rome, Italy) (represented by: M. Esposito, F. Caccioppoli and G. Calamo, lawyers)

Defendant: European Border and Coast Guard Agency (Frontex)

Form of order sought

The applicant claims that the Court should, as regards the substance:

—	annul the acts referred to below;

—	order the defendant to pay compensation for all the direct and indirect damage that has been suffered and continues to be suffered, in whatever capacity, as a result of the unlawful nature of the call for tender at issue;

—

by way of a measure of inquiry, order the commissioning of an expert’s report pursuant to Articles 91(e) and 96 of the Rules of Procedure of the General Court, in order to establish that: (a) the terms of the call for tender at issue are unreasonable, unnecessary and do not comply with the relevant sectoral regulations; (b) the contested terms prevent Leonardo from making an offer; (c) there are cost-related reasons and reasons of technical feasibility for dividing the contract into two or more lots;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The present action has been brought against the call for tender FRONTEX/OP/888/2019/JL/CG for the service ‘Remotely Piloted Aircraft Systems (RPAS) for Medium Altitude Long Endurance Maritime Aerial Surveillance’, published on 18 October 2019 in the Supplement to the Official Journal of the European Union (Tenders Electronic Daily (TED)) under reference 2019/S 202-490010, and the respective acts attached to it, in particular:

—	Invitation to Tender, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61915;

—	Financial proposal, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61916;

—	Declaration, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61917;

—	Annex I — Tender Specifications, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61918;

—	Tender Submission Form, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61919;

—	Draft Contract, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61921;

—	Agreement of non-disclosure, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61922;

—	Appendix 1, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61924;

—	Appendix 2, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61925;

—	Appendix 3, available online at https://etendering.ted.europa.eu/cft/cft-document.html?docId= 61926;

—	Corrigendum — Notice for changes or additional information, published in the Official Journal of the European Union (Tenders Electronic Daily (TED)) under reference 2019/S 216-528930;

—	Corrigendum — Notice for changes or additional information, published in the Official Journal of the European Union (Tenders Electronic Daily (TED)) under reference 2019/S 226-553006;

—	the explanations (questions and answers) provided by FRONTEX under the lex specialis (published online at https://etendering.ted.europa.eu/cft/cft-questions.html?cftId= 5444);

—	the minutes of the Informative Meeting held at FRONTEX’s premises on 28 October 2019;

—	any other prior, associated or subsequent act to those set out above.

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

1.

The applicant seeks annulment of the contested acts in so far as they fail to observe the principles of transparency, proportionality, equal treatment and non-discrimination, as a result of their generic and irrational content, that is, the fact that in certain cases they impose on the tenderers, and in so far as that concerns the applicant, specific technical requirements that are completely unnecessary, disproportionate, excessive and non-functional for the purposes of the service or such that they make the applicant’s participation impossible or subject to excessive economic burdens to the point of undermining the competitiveness of its tender. As a result, those acts infringe recitals 96 and 108 and Articles 160, 161 and 166 of General Financial Regulation (EU, Euratom) 2018/1046 (1) and points 17.1, 17.3 and 17.8 of Annex I thereto, as well as Directives 2014/23/EU (2) and 2014/24/EU (3)of the European Parliament and of the Council. They are also vitiated by ultra vires in the form of failure to observe the principle of proportionality, their illogical nature, the incorrect nature and distortion of their assumptions, inequality of treatment, injustice and misuse of power.

2.

The applicant also seeks annulment of the contested acts on account of the failure to divide the contract at issue into lots. In particular, the applicant claims infringement of Article 160(1), (2) and (3) of General Financial Regulation (EU, Euratom) 2018/1046 as well as infringement of point 33.1 of Annex 1 thereto and failure to apply the third provision of point 18.2 of Annex I to the same regulation.

3.	The applicant also claims infringement of Articles 176 and 179 of the abovementioned regulation, on account of the provision contained in the tender documents which allows the participation of undertakings from third countries.

4.	Lastly, on account of the unlawful nature of the acts, the applicant seeks compensation for all the direct and indirect damage that has been suffered and continues to be suffered as a result, in any capacity, of the unlawful nature of the call for tender at issue.

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(1)  Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

(2)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

(3)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

Action brought on 17 December 2019 – Tehrani v EUIPO – Blue Genes (Earnest Sewn)

(Case T-853/19)

(2020/C 54/64)

Language of the case: English

Parties

Applicant: Reza Hossein Khan Tehrani (Nordhorn, Germany) (represented by: D. Wiedemann, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Blue Genes, Inc. (Gardena, California, United States)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union word mark Earnest Sewn – European Union trade mark No 12 302 071

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 4 October 2019 in Case R 531/2018-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	annul the decision of the Cancellation Division of 30 January 2019 in Case No 12618 C concerning the application for a declaration of invalidity against European Union trade mark No 12 302 071‘Earnest Sewn’;

—	order that European Union trade mark No 12 302 071‘Earnest Sewn’ remain registered;

—	order EUIPO to pay the costs of the proceedings.

Pleas in law

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

—	Infringement of Article 60(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

Action brought on 17 December 2019 – Franz Schröder v EUIPO – RDS Design (MONTANA)

(Case T-854/19)

(2020/C 54/65)

Language of the case: English

Parties

Applicant: Franz Schröder GmbH & Co. KG (Delbrück-Nordhagen, Germany) (represented by: L. Pechan, and N. Fangmann, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: RDS Design ApS (Allerød, Denmark)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union word mark MONTANA – European Union trade mark No 10 708 881

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 14 October 2019 in Case R 2393/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	uphold the application for a declaration of invalidity and declare the European Union trademark No. 10 708 881 invalid for the contested goods and services;

—	order EUIPO and, if appropriate, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including the costs incurred in the course of the appeal proceedings.

Pleas in law

—	Infringement of Article 95(1) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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

Action brought on 17 December 2019 – Franz Schröder v EUIPO – RDS Design (MONTANA)

(Case T-855/19)

(2020/C 54/66)

Language of the case: English

Parties

Applicant: Franz Schröder GmbH & Co. KG (Delbrück-Nordhagen, Germany) (represented by: L. Pechan and N. Fangmann, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: RDS Design ApS (Allerød, Denmark)

Details of the proceedings before EUIPO

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

Trade mark at issue: International registration designating the European Union in respect of the word mark MONTANA – International registration designating the European Union No 1 211 278

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 14 October 2019 in Case R 1006/2019-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	uphold the application for a declaration of invalidity and declare the International trademark registration No. 1 211 278 invalid for the European Union for the contested goods;

—	order EUIPO and, if appropriate, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including the costs incurred in the course of the appeal proceedings.

Pleas in law

—	Infringement of Article 95(1) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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

Action brought on 17 December 2019 – Franz Schröder v EUIPO – RDS Design (MONTANA)

(Case T-856/19)

(2020/C 54/67)

Language of the case: English

Parties

Applicant: Franz Schröder GmbH & Co. KG (Delbrück-Nordhagen, Germany) (represented by: L. Pechan and N. Fangmann, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: RDS Design ApS (Allerød, Denmark)

Details of the proceedings before EUIPO

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

Trade mark at issue: International registration designating the European Union in respect of the word mark MONTANA – International registration designating the European Union No 869 610

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 14 October 2019 in Case R 2394/2018-4

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	uphold the application for a declaration of invalidity and declare the International trademark registration No. 869 610 invalid for the European Union for the contested goods and services;

—	order EUIPO and, if appropriate, the other party to the proceedings before the Board of Appeal, to pay the costs of the proceedings, including the costs incurred in the course of the appeal proceedings.

Pleas in law

—	Infringement of Article 95(1) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—	Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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

Action brought on 9 December 2019 — Alkemie Group v EUIPO — Mann & Schröder (ALKEMIE)

(Case T-859/19)

(2020/C 54/68)

Language in which the application was lodged: Polish

Parties

Applicant: Alkemie Group (Gdynia, Polska) (represented by: A. Korbela, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mann & Schröder GmbH (Siegelsbach, Germany)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant before the Board of Appeal

Trade mark at issue: Application for registration of the EU word mark ‘ALKEMIE’ — Application for registration No 16 417 644

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 16 September 2019 in Case R 2230/2018-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO and Mann & Schröder GmbH to pay the costs.

Plea in law

—	Infringement of Article 8(1)(b) of Regulation No 2017/1001.

Action brought on 9 December 2019 — Alkemie Group v EUIPO — Mann & Schröder (ALKEMIE)

(Case T-860/19)

(2020/C 54/69)

Language in which the application was lodged: Polish

Parties

Applicant: Alkemie Group sp. z o.o. (Gdynia, Poland) (represented by: A. Korbela, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mann & Schröder GmbH (Siegelsbach, Germany)

Details of the proceedings before EUIPO

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

Trade mark at issue: Application for the EU figurative mark ALKEMIE — Application for registration No 16 417 669

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 16 September 2019 in Case R 2231/2018-2

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	order EUIPO and Mann & Schröder GmbH to pay the costs.

Plea in law

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