CVRIA- SÚHRN konaní: 18. jún-1. júl 2018

Právne Noviny vám v spolupráci so Súdnym dvorom Európskej únie prinášajú priebežný súhrn konaní a rozhodnutí Súdneho dvora EÚ.

CVRIA- SÚHRN konaní: 18. jún-1. júl 2018

Tuesday 19th June 2018

Judgment in Case C-181/16 Gnandi

(Non-EU nationals – order for removal from territory - legal remedies)

In 2011, Mr Gnandi, a Togolese national submitted an application for asylum. His application was rejected in 2014 and he was ordered to leave Belgium. Mr Gnandi lodged an appeal against the rejection of his asylum application and sought the annulment and suspension of the order requiring him to leave Belgium.

Belgium law requires that an order to leave Belgium must be adopted as soon as the application for asylum is rejected, irrespective of whether that rejection is final.

Mr Gnandi contends that such an obligation infringes EU law, in particular the right to an effective remedy and the principle of non-refoulement.

The Conseil d’État asks the Court of Justice whether EU law does preclude the issuance of an order to leave Belgium after an asylum application has been rejected and before the legal remedies against that rejection decision can be exhausted and the asylum procedure definitively concluded. 

There will be a press release for this case.

Background Documents C-181/16

Tuesday 19th June 2018

Judgment in Case C-15/16 Baumeister  

(Financial markets supervisory authority – access to documents – concepts of ‘professional secrecy’ and ‘confidential information’)

Mr Baumeister is one of the investors who suffered loss as a result of fraudulent conduct by the company Phoenix Kapitaldienst GmbH. In 2005, insolvency proceedings were commenced against Phoenix after it emerged that its funding model was based on a fraudulent Ponzi scheme.

Mr Baumeister made a request to the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Office for the Supervision of Financial Services, ‘the BaFin’) for access to certain documents concerning Phoenix, namely the special audit report, reports prepared by auditors, internal documents and reports and correspondence received or drawn up by BaFin in the context of its monitoring of that company. The BaFin denied that request on the basis that the documents were protected from disclosure under the Markets in Financial Instruments Directive (MiFID). Mr Baumeister challenged that decision before the German courts.

The Bundesverwaltungsgericht (Federal Administrative Court, Germany) now asks the Court of Justice to clarify the scope of the obligation of professional secrecy which is imposed on national financial markets supervisory authorities by MiFID. It also asks the Court of Justice whether, in order for business information communicated by the supervisory authority to be classified as ‘confidential information’ within the meaning of the Directive, and therefore benefit from protection, the relevant factor is solely the date of communication to the supervisory authority.

There will be a press release for this case.

Background Documents C-15/16

Tuesday 19th June 2018

Hearing in Case C-497/17 Oeuvre d’assistance aux betes d’abattoirs

(Halal meat – organic certification – compatibility with high standards of animal welfare)

The Administrative Court of Appeal of Versailles asks the Court of Justice whether the EU Regulations on organic production and labelling of organic products and the protection of animals at the time of killing must be interpreted as permitting or prohibiting approval of the use of the European label ‘organic farming’ in relation to products derived from animals which have been slaughtered in accordance with religious rites, without first having been stunned. The French court asks whether this is the case even where unstunned slaughter takes place in accordance with the requirements of the Regulation on the protection of animals at the time of killing.  

The case has come before the Court of Justice following a challenge by the Oeuvre d’assistance aux betes d’abattoirs (Society for the Welfare of Slaughter Animals - OABA) to Ecocert’s (the organic certification body) decision to grant Bionoor organic certification for its halal meats. The OABA argues that the fact the animals are not stunned prior to slaughter means that the requirement of high standards of animal welfare is not satisfied. 

Background Documents C-497/17

Tuesday 19th June 2018

Judgment in Case T-86/17 Le Pen   

(MEP - parliamentary assistance – recovery of undue payments)

In December 2016, following a report by the European Anti-Fraud Office (OLAF), the Secretary-General of the European Parliament noted that MEP Marine Le Pen had been unduly paid an amount of just under €300,000 for parliamentary assistance for the period December 2010 to February 2016 and that this amount had to be reclaimed. The Parliament sent Ms Le Pen a debit note stating that if the amount was not paid by the end of January 2017, the amount would be deducted from her monthly parliamentary salary.

Ms Le Pen has brought an action for annulment of this decision before the General Court. By Order of 6 April 2017, the General Court dismissed Ms Le Pen’s application to suspend the measures until the judgment was delivered.  

There will be a press release for this case.

Background Documents T-86/17


Thursday 21st June 2018

Judgment in Case C-557/15 Commission v Malta

(Conservation of wild birds – derogations–infringement action)

An EU Directive sets out rules for the conservation of wild birds (Directive 2009/147/EC). The directive obliges Member States to prohibit the capture and keeping of wild birds not included in Annex II to that directive. The prohibition covers several species of wild finches. Any derogation from these prohibitions is subject to strict conditions.

Malta introduced a derogation regime for the authorisation of trapping seven species of wild finches in 2014 under which it authorised trapping seasons in 2014 and 2015. The Commission considers that Malta’s derogation regime is inconsistent with the Directive and Malta has failed to fulfil its obligations under EU law. The Commission has brought infringement proceedings against Malta.

There will be a press release for this case.

Background Documents C-557/15

Thursday 21st June 2018

Hearing in Cases T-755/15 Luxembourg v Commission and T-759/15 Fiat Chrysler Finance Europe   

(State aid – tax rulings – action for annulment)

In October 2015, the European Commission decided that a tax ruling issued by Luxembourg in 2012 gave a selective tax advantage to Fiat Finance and Trade, which unduly reduced its tax burden since 2012 by €20 - €30 million. 

EU state aid rules require incompatible state aid to be recovered in order to reduce the distortion of competition created by the aid. Luxembourg was therefore ordered to recover the state aid in accordance with methodology established in the Commission decision (see also Commission Press Release IP/15/5880).

Luxembourg and Fiat seek the annulment of this decision before the General Court.

Background Documents T-755/15

Background Documents T-759/15

Thursday 21st June 2018

Opinion in Cases C-391/16 M, C-77/17 X and C-78/17 X  

(Revocation of refugee status – conviction for serious offence – Charter of Fundamental Rights)

In these cases, three asylum seekers have challenged the decisions of the Czech and Belgium authorities to either refuse to grant them refugee status or subsidiary protection, or to revoke refugee status. The national authorities took those decisions on the basis that all three individuals had committed, and been convicted of, particularly serious offences in those countries.

The Qualification Directive harmonises the criteria by which Member States define who qualifies as a refugee, as well as other forms of protection for persons who face serious risks in their country of origin (subsidiary protection). The Directive also provides that Member States may revoke, end or refuse to renew the status granted to a refugee when: (a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present; (b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State. In those circumstances, the Directive also allows Member States to decide not to grant status to a refugee. 

The Czech and Belgium national courts ask the Court of Justice whether those provisions of the Directive are compatible with international law, specifically the Geneva Convention, and the right to asylum enshrined under the EU Charter of Fundamental Rights. 

There will be a press release for these cases.

Background Documents C-391/16

Background Documents C-77/17

Background Documents C-78/17

Tuesday 26th June 2018

Judgment in Case C-451/16 MB    

(Transgender individuals – discrimination – pension rights) 

In this case, the Court of Justice is asked whether an EU Directive on Equal Treatment for Men and Women in Matters of Social Security precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

An EU Directive (Directive 79/7/EEC) prohibits discrimination on grounds of sex with respect to state benefits, including old age and retirement pensions. The Directive provides for an exception to this allowing Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The UK has exercised that right and the pensionable age for a woman born before 6 April 1950 is 60, and for a man born before 6 December 1953 is 65. 

However, at the time this case was brought before the national courts, the acquired gender of a transsexual person was not recognised for the purpose of determining the qualifying age for a state pension, if that person was and remained party to a subsisting marriage. The UK Supreme Court asks whether this position is compatible with the Directive.

MB was born in 1948 and was registered at birth as a man. In 1974 MB was married. In 1991 she began to live as a woman and in 1995 underwent sex reassignment surgery. She and her wife wish to remain married and are unwilling to see their marriage annulled or replaced by a civil partnership. In 2008, MB reached the age of 60 and applied for a state retirement pension on the basis that she was a woman. Her application was rejected on the basis that in the absence of a full gender recognition certificate, she could not be treated as a woman for the purpose of determining her pensionable age.

There will be a press release for this case.

Background Documents Case C-451/16

Tuesday 26th June 2018

Judgment in Case T-71/17 v EUIPO

(EU trademark – opposition –likelihood of confusion)

In August 2014, Mr Jean-Noël Frydman (who later transferred his rights to the American company applied to the European Intellectual Property Office for registration of the following sign as an EU trademark.

Táto e-mailová adresa je chránená pred spamovacími robotmi. Na jej zobrazenie potrebuješ mať nainštalovaný JavaScript.">

Registration of the mark was sought for advertising services, travel-related services and online publications. 

France lodged an objection and argued that there was a liklihood of confusion with its earlier mark registered in 2010:

Táto e-mailová adresa je chránená pred spamovacími robotmi. Na jej zobrazenie potrebuješ mať nainštalovaný JavaScript.">

EUIPO upheld France’s opposition on the basis that, overall, there was a high degree of similarity between the two signs and both covered identical or similar services. As such, the likelihood of confusion could not be excluded. seeks the annulment of this decision before the General Court.

Background Documents T-71/17

Tuesday 26th June 2018 09h00

Hearing in Avis 1/17 EU-Canada Agreement

(CETA – compatibility with EU law – fundamental rights)

The Kingdom of Belgium has, in accordance with Article 218(11) TFEU, made a request for the opinion of the Court of Justice as to whether the Comprehensive Economic and Trade Agreement between Canada and the EU and its Member States, which was signed in Brussels on 30 October 2016, is compatible with the Treaties, including with fundamental rights.

The hearing takes place today before a plenary assembly (all 28 judges).

Background Documents 1/17

Tuesday 26th June 2018

Hearing in Case T-865/16 Fútbol Club Barcelona v Commission

(State aid – football clubs – actions for annulment)

On 4 July 2016, the Commission ordered Spain to recover illegal State aid from seven football clubs: FC Barcelona, Real Madrid, Valencia, Athletica Bilbao, Atlético Osasuna, Elche and Hercules (see Commission Press Release IP/16/2401).

The Commission investigated a number of measures taken by Spain in relation to these football clubs. For FC Barcelona, the Commission found that the club has enjoyed a preferential corporate tax rate of 25% instead of the 30% applicable to sport limited companies. It concluded that these measures were incompatible with EU State aid rules and ordered the clubs to return the unpaid taxes. The Commission estimated that the amounts needed to be covered were limited (€0-5 million per club) but the precise amounts were to be determined by the Spanish authorities in the recovery process.

FC Barcelona seeks the annulment of this decision before the General Court.

A number of other clubs also have actions for annulment pending before the General Court: Althetica Bilbao (T-679/16, hearing 16 April 2018); Valencia (T-732/16), Elche (T-901/16) and Real Madrid (T-791/16). 

Background Documents T-865/16


Wednesday 27th June 2018

Hearing in Case C-82/17 P TestBioTech v Commission


(GM products – market authorisation – request for internal review)

In 2009, Monsanto Europe made an application in the Netherlands to place on the market foods, food ingredients and feed containing modified soybean. 

In 2012, the European Food Safety Authority (EFSA) issued an opinion finding that the modified soybean was, in the context of its intended uses, as safe as non-genetically modified soybean with respect to potential effects on human and animal health and on the environment.

Following this opinion, the Commission adopted a decision on 28 June 2009 authorising the placing of the market of products containing, consisting of, or produced from, genetically modified soybean.

Three German, non-governmental organisations opposed the introduction of these products to the market and asked the Commission to carry out an internal review of the authorisation decision. The associations considered that the assessment that the modified soybean was substantially equivalent to its counterpart was flawed, the immunological risks had not been adequately assessed and that no monitoring of the effects on health had been required. The Commission declined the requests for review.

The associations brought an action before the General Court for annulment of the Commission’s decision not to carry out an internal review. 

On 15 December 2016, the General Court confirmed the legality of the Commission decision (see Press Release 135/16). TestBio Tech and the other NGOs have brought an appeal against this judgment before the Court of Justice. 

There will be a press release for this case.

Background Documents C-177/13

Wednesday 27th June 2018

Opinion in Case C-257/17 C and A

(Family reunification – integration tests – compatibility with EU law)

The Directive on the right to family reunification (2003/86) establishes common rules for exercising the right to family reunification in 25 EU Member States (excluding the UK, Ireland and Denmark). It enables those who reside legally in a Member State (referred to as sponsors) to be joined by their family members.

The Directive provides that after five years of residence in a Member State, a family member is entitled to an autonomous residence permit, independent of that of the sponsor. Member States are, however, permitted to limit the granting of the residence permit in cases of breakdown of the family relationships. The Directive also provides that the conditions relating to the granting and duration of the autonomous residence permit are to be established by national law. The Directive does not apply to members of the family of an EU citizen. However, Dutch law makes no distinction between applications made by the family member of a non-EU citizen or by the family member of a Dutch national.  

In the Netherlands, an applicant must successfully pass an integration test, which also includes a language test, to obtain an autonomous residence permit. In these two cases, C and A are both the former spouse of Dutch nationals. They applied for autonomous residence permits but their applications were rejected on the basis that they had not successfully completed the integration test. 

The Dutch Council of State asks the Court of Justice, first, whether the Court of Justice has jurisdiction to hear questions concerning the interpretation of the Directive in the present case, where national law states that the Directive is applicable to the family members of Dutch nationals. The Council of State then asks whether a requirement to pass an integration test is compatible with that Directive. Finally, it asks whether a provision of national law which provides that an autonomous residence permit cannot be granted earlier than the date on which it is applied for is compatible with the Directive.

By way of a reminder, the Court of Justice ruled in its judgment P and S of 4 June 2015, that Member States may oblige long-term resident non-EU nationals to successfully pass an integration test (see Press Release 61/15). In addition, in its judgment in K and A of 9 July 2015, it ruled that Member States may require non-EU nationals to successfully complete an integration test before family reunification (see Press Release 78/15).

There will be a press release for this case.

Background Documents C-257/17


Wednesday 27th June 2018

Opinion in Case C-219/17 Berlusconi and Finivest   

(ECB – acquisition refusal – reputation requirement – jurisdiction)

From the mid-1990s Mr Berlusconi held, through the company Fininvest (of which he is a controlling shareholder), a qualifying holding of more than 30% in Mediolanum SpA. Mediolanum was a listed mixed financial holding company and the parent company of Banca Mediolanum.

In October 2014, following Mr Berlusconi’s conviction for tax fraud, Banca d’Italia concluded that Mr Berlusconi no longer satisfied the requirement of good reputation that applies to ownership of qualifying holdings in financial companies. Mr Berlusconi brought an appeal against this decision. The Consiglio di Stato (Italian Council of State) hearing the final appeal annulled the October 2014 decision. It found, in particular, that Mr Berlusconi’s acquisition of the shareholding and the loss of reputation had both occurred before the entry into force of the reputation requirement in respect of mixed financial holding companies. It considered that those rules could not be applied retrospectively and therefore Banca d’Italia’s decision was illegal. 

During the course of the appeal proceedings, the boards of directors of Mediolanum and Banca Mediolanum agreed upon a proposed reverse merger whereby Mediolanum would be incorporated into Banca Mediolanum. That proposal was notified to Banca d’Italia for the purpose of obtaining merger authorisation.

The Banca d’Italia, in a decision of 23 September 2016, proposed that the ECB should oppose Fininvest’s acquisition of the qualifying holding in Banca Mediolanum on the ground that Mr Berlusconi did not satisfy the requirement reputation in Directive 2013/36.

On 25 October 2016, the European Central Bank opposed the acquisition by Fininvest of Banca Mediolanum (via the reverse merger). Fininvest and Berlusconi have brought a challenge to the ECB’s decision before the General Court (case T-913/16 pending). 

Mr Berlusconi and Fininvest have also challenged, before the Italian courts, the proposal sent to the ECB by the Banca d’Italia in relation to the reverse merger. They consider that the proposal was contrary to the earlier finding by the Consiglio di Stato in relation the retroactive application of the reputation requirement. They argue that Banca d’Italia was not entitled to institute a new authorisation procedure in respect of the merger, particularly as the corporate transaction entails no acquisition of new shares.

Banca d’Italia argues that the draft decision of 23 September 2016, which it sent to the ECB was not a binding decision but merely formed part of a procedure governed by EU law, the purpose of which is the adoption of measure that falls within the sole discretion of the ECB. Consequently, the CJEU alone has jurisdiction to review the legality of the final decision, in addition to the procedural measures.

The Consiglio di Stato seeks guidance from the Court of Justice on jurisdiction in this matter.

There will be a press release for this case.

Background Documents Case C-219/17

Thursday 28th June 2018

Opinion in Case C-216/18 Minister for Justice and Equality PPU     

(European arrest warrant – Poland – rule of law)

The Irish High Court has to adjudicate on the enforcement of three European arrest warrants issued by Poland. The person subject to these warrants objected to his surrender on the basis that it would contravene his fundamental right to a fair trial on the grounds that recent legislative changes and proposed changes in Poland create a real risk of a flagrant denial of justice.

The person concerned relies upon a document of the European Commission entitled ‘Reasoned proposal in accordance with Article 7(1) of the TEU regarding the rule of law in Poland’. He also relies on the Opinions of the Venice Commission, an advisory body of the Council of Europe.

The argument of the person concerned is that the changes fundamentally undermine the basis of mutual trust between the issuing and executing judicial authorities, such that the operation of the EAW system is called into question. Further, unlike in the cases Aranyosi and Căldăraru (see press release 36/16), such fundamental changes mean that the requirement to make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to a risk of breach of their fundamental rights, cannot be applicable. 

The Irish High Court therefore asks the Court of Justice to clarify the test and procedure required to be applied in respect of an objection to surrender. Specifically, it asks whether, in circumstances where the executing national court determines that there is cogent evidence that conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice in that Member State is no longer operating under the rule of law, it is necessary for the executing judicial authority to make any further assessment, specific and precise, as to the exposure of the individual concerned to the risk of an unfair trial where his trial will take place within a system no longer operating within the rule of law? If a specific assessment of the requested person’s real risk is required, the High Court asks whether the executing judicial authority is obliged to revert to the issuing judicial authority for any further necessary information that could enable it to discount the existence of the risk to an unfair trial and, if so, what guarantees as to fair trial would be required?

There will be a press release for this case.

Background Documents Case C-261/18