SÚHRN konaní: 25. jún-8. júl 2018

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

SÚHRN konaní: 25. jún-8. júl 2018

Tuesday 26th June 2018 09h00

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 due to the fact 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 France.com v EUIPO

(EU trademark – opposition –likelihood of confusion)

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

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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:

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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. 

France.com 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

Thursday 28th June 2018 09h00

Judgment in Case C-564/16 P EUIPO v Puma

(Appeal – trademark – concept of ‘reputation’)

In 2013, the Italian company, Gemma Group, filed an application for registration of the following figurative sign as an EU trademark for machines for processing wood, aluminium and PVC. 

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The German company, Puma SE, filed a notice of opposition on the basis of the reputation of its earlier marks in all of the Member States for leather products and bags, clothes, shoes, games and toys. 

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The EUIPO rejected Puma’s opposition. Specifically, it rejected the evidence of the reputation of the Puma marks considering that, even assuming that the reputation of those marks had to be regarded as proven, the opposition had to be rejected because the other conditions, namely the existence of an advantage that has been unfairly taken of the distinctive character or the repute of the earlier marks, or of detriment to those marks, had not been satisfied either. 

Puma brought an action for annulment of the EUIPO’s decision before the General Court. On 9 September 2016, the General Court annulled EUIPO decision (case T-159/15). The General Court considered that the reputation of the Puma marks had been established by the EUIPO in three previous decisions and that the EUIPO should have taken those decision into account in the opposition proceedings brought by Puma, which it failed to do. Consequently, the General Court found that the EUIPO’s decision did not comply with the principle of good administration and the obligation to state reasons.

The EUIPO has brought an appeal against this decision before the Court of Justice.

Background Documents C-564/16 P

Monday 2nd July 2018

Hearing in Cases T-760/16 Netherlands v Commission and T-636/16 Starbucks v Commission  

(State aid – tax rulings – action for annulment)

In October 2015, the European Commission decided that a tax ruling issued by the Netherlands in 2008 gave a selective advantage to Starbucks Manufacturing, which unduly reduced Starbucks Manufacturing’s tax burden 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. The Netherlands was therefore order to recover the state aid in accordance with methodology established in the Commission decision (see also Commission Press ReleaseIP/15/5880).

The Netherlands and Starbucks seek the annulment of this decision before the General Court.

Background Documents T-760/16

Background Documents T-636/16

Tuesday 3rd July 2018

Judgment in Cases T-379/10 RENV Keramag Keramische v Commission, T-381/10 RENV Sanitec Europe v Commission 

(Cartel – bathroom fittings and fixtures – new judgment of the General Court)

On 23 June 2010, the Commission imposed fines totalling more than €622 million on 17 bathroom fittings manufacturers for their participation in a cartel in the bathroom fixtures and fittings sector. A number of the companies penalised by the Commission brought actions before the General Court seeking annulment of the Commission’s decision and/or reduction of the fines.

By judgments of 16 September 2013, the General Court partly annulled the Commission’s decision with regard to some of those companies and reduced the fines upon them (see Press Release No. 108/13). 

Certain companies and the Commission brought appeals before the Court of Justice against those judgments. In respect of some of those cases, including the appeals brought by Keramag Keramische and Sanitec Europe, the Court of Justice found that the judgments of the General Court contained errors in law and decided to refer the case back to the General Court in respect of the part of the judgment set aside.

Today, the General Court will hand down its judgment in those cases.

There will be a press release for these cases.

Background Documents T-379/10

Background Documents T-381/10

Wednesday 4th July 2018 09h00

Judgment in Case C-626/16 Commission v Slovakia

(Infringement proceedings – non-compliance with ECJ judgment – fines)

On 25 April 2013, the Court of Justice found that Slovakia has failed to fulfil its obligations under EU law by authorising the operation of the Žilina – Považský Chlmec waste site, without a site conditioning plan and in the absence of a final decision on the continued operation on the basis of an approved site conditioning plan.

In 2016, the Commission brought further infringement proceedings against Slovakia before the Court of Justice on the basis that Slovakia had not taken the measures necessary to comply with the Court’s judgment. 

The Court will deliver its judgment today.

There will be a press release for this case.

Background Documents C-626/16

Wednesday 4th July 2018

Opinion in Case C-308/17 Kuhn

(Jurisdiction – Greek bonds – place of performance)

Mr Kuhn, an Austrian national, purchased, through an Austrian custodian bank, government bonds issued by Greece and having a nominal value of €35,000. The government bonds in question are bearer securities which, in accordance with the terms applicable to them, confer on the holder a right to repayment of the capital invested on maturity and payment of interest.

In 2012, Greece introduced legislation for conversion of certain bonds, as a result of which Mr Kuhn’s government bonds were compulsorily converted for new government bonds with a lower nominal value. 

Mr Kuhn has brought an action against Greece before the Austrian courts in order to obtain the execution of the initial borrowing conditions or an indemnity. Greece argues that the Austrian courts do not have international jurisdiction to hear the case.

The Oberster Gerichtshof (Austria) (Supreme Court, Austria), asks the Court of Justice to interpret the Brussels I Regulation on judicial competence in civil and commercial matters. Under the Regulation, the general rule on jurisdiction is that the courts of the Member State in which the defendant is domiciled have jurisdiction. However, the Regulation provides for a special jurisdiction rule in contractual matters. That rule provides that, in matters relating to a contract, a person domiciled in one Member State may be sued in the Member State in which the place of performance of the obligation under the contract takes place. Mr Kuhn argues that, until the day of the compulsory conversion, Greece paid interest on his account to a bank in Austria and therefore the Austrian courts have jurisdiction.

The Oberster Gerichtshof (Austria) asks the Court of Justice for clarity on the jurisdictional rules.

Background Documents C-308/17

Wednesday 4th July 2018

Opinion in Case C-220/17 Planta Tabak  

(Tobacco Directive – compatibility with EU law – prohibition on flavoured products)

Planta Tabak is a family-owned business which manufactures and distributes tobacco products. One of the company’s specialist products was the manufacture of flavoured roll-your-own tobaccos. The company argues that certain provisions of the Tobacco Directive (2014/40), transposed into German law in 2016, do not apply to it.

The Directive prohibits the placing on the market of tobacco products with a characterising flavour. It also imposes labelling and packaging requirements, including the obligation to affix text and picture health warnings and a prohibition of the use of any feature that refers to taste, smell, flavourings or other additives.

Planta Tabak argues that the absence of transitional periods in the Directive and transposing national legislation is contrary to the principle of proportionality and that there was insufficient time to convert its production facilities to the new packaging specifications and to abolish or modify any brand name that contained an indication of flavouring. Following transposition of the Directive, a number of brands could no longer be used as a result of the aroma advertising ban. 

The Verwaltungsgericht Berlin (Administrative Court, Berlin) (Germany) has doubts as to the compatibility of certain provisions of the Tobacco Directive with primary EU law and seeks guidance from the Court of Justice in this regard. 

There will be a press release for this case.

Background Documents C-220/17

Wednesday 4th July 2018

Judgment in Case C-532/17 Wirth and ors.

(Air passenger rights – compensation – wet lease)

Mr Wirth and other passengers booked flights with TUI-Fly. The booking confirmation stated ‘operated by Thomson Airways Ltd’. The flight was performed by means of an aircraft and crew which TUIFly chartered from Thomson Airways under a so-called wet lease. Under the terms of that agreement, TUIFly was responsible for ‘ground handling including passenger handling, passenger welfare, cargo handling, security and baggage and arranging on board services). 

Following a delay to the flight of more than three hours, Mr Wirth and a number of other passengers sought compensation from Thomson Airways under the EU Passenger Compensation Regulation (Regulation 261/2004). 

The Landgericht Hamburg asks the Court of Justice whether Thomson Airways is covered by the concept of ‘operating air carrier’ for the purposes of the Regulation, and therefore liable to pay the compensation, where the principle operational responsibility lies with another air carrier.

There will be a press release for this case.

Background Documents C-532/17

Wednesday 4th July 2018

Hearing in Case T-165/16 Ryanair and Airport Marketing Services v Commission

(State aid – Ryan air – Altenburg-Nobitz airport)

By decision of 15 October 2014, the Commission stated the support measures granted by Germany to the operator of the regional airport Altenburg-Nobitz in the south of Thuringia were compatible with EU State aid rules. 

However, the Commission also found that certain service and marketing agreements concluded between the airport manager and the airline Ryanair/AMS gave the latter an undue advantage estimated at around €300,000 which could not be justified under EU state aid rules. The Commission therefore ordered Ryanair and AMS to repay the incompatible aid to Germany (see Commission Press Release IP/14/1153).

Ryanair and AMS have challenged this decision before the General Court.

Background Documents T-165/16

Wednesday 4th July 2018 14h30

Hearing in Case T-77/16 Ryanair and Airport Marketing Services v Commission

(State aid – Ryan air – Zweibrücken airport)

By decision of 1 October 2014, the Commission concluded that Zweibrücken airport (Germany) received state aid which was incompatible with EU rules and must be recovered (see Commission Press Release IP/14/1065).

The Commission also found airport services and marketing agreements concluded with airlines including Ryanair, were incompatible with state aid rules. Ryanair was ordered to repay €500,000 in respect of its services and marketing agreements (see Commission Memo IP 14/1065). 

Ryanair and its marketing subsidiary, Airport Marketing Services Ltd, have challenged this decision before the General Court.

Background Documents T-77/16

Wednesday 4th July 2018

Hearing in Case T-458/17 Shindler 

(Air passenger rights – compensation – wet lease)

Mr Shindler and 12 other British nationals living in Member States other than the UK have brought an action before the General Court for annulment of the Council Decision of 22 May 2017 to open negotiations on Brexit. They claim that the decision infringes the principle of equal treatment because it begins the withdrawal procedure without allowing citizens living abroad to comment on the possible loss of their EU citizenship.

The Council, in their written response to the legal challenge, argue that Mr Shindler and the other nationals do not have legal standing to bring the action and consequently the case should be dismissed as inadmissible. 

Today, the oral hearing will take place before the General Court. The hearing will deal solely with the question of admissibility. 

Background Documents T-458/17

Thursday 5th July 2018

Judgment in Case C-544/16 Marcandi   


(VAT – online auction sites – issue of credits for online participation – supply of services)


The Court of Justice is asked to clarify the correct VAT treatment of Madbid, an online auction website. Specifically, the First-Tier Tribunal (Tax Chamber) UK asks whether the issue of credits by Madbid to users, which then enables them to participate in Madbid’s online auctions, constitutes a supply of services. 

Madbid is an online auction website registered for VAT in the UK. The site works as follows: (i) users purchase ‘credits’ to participate in online auctions; (ii) the credits are used to place bids in an online auction; (iii) users place bids of £0.01 (iv) an auction timer counts down from 60 seconds; (v) each time a new bid is place the timer restarts; (vi) if no one places a bid before the timer reaches 0:00, the last bidder wins the auction. 

Madbid has an online shop, allowing users to purchase goods directly, as well as the ‘Buy Now’ and ‘Earned Discount’ features for auction participants. The Buy Now feature enables a user taking part in an auction to buy the same item being auctioned directly and purchase at the ‘Buy Now’ price (i.e. the price of the item less the value of the Credits which the user has spent during the auction). If the user does not win the auction and does not make a Buy Now purchase, then the user may instead put the value of the Credits earned during the auction towards the price of any goods in the Madbid online shop. This is the ‘Earned Discount’ feature.

In the UK, HMRC (the tax authority) has decided that Madbid made a supply of services, namely the right to participate in Madbid online auctions, for consideration.

In Germany, the tax authority (Finanzamt) concluded in 2011 that the initial sale of Credits to users is not a supply for VAT purposes. The consideration for that supply of goods includes both the price paid by the user for the goods and the value of the Credits spent by the user in acquiring the goods.

The result of the conclusions of the UK and German tax authorities is that Madbid is now in a position of being subject to what it regards as double taxation.

Madbid argues that the issue of Credits to users is not a supply of services but a preliminary transaction, which falls outside the scope of the VAT Directive. HMRC argues that when a user is provided with Credits, there is a supply by Madbid to the user of the right to participate in a Madbid online penny auction, which the user can use at once. That supply is a supply of services.

The Tribunal asks the Court of Justice for clarity on the correct interpretation of the VAT Directive in relation to the tax treatment of the issue of Credits by Madbid. 

Background Documents C-544/16