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set aside the judgment of the General Court of the European Union of 5 March 2019 in Case T-169/17;

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annul Transfer Decision PERS-AFFECT-16-134 of the Executive Director of the European Union Intellectual Property Office (EUIPO) and award compensation for the material and non-material damage caused by the unlawful transfer;

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in the alternative, set aside the judgment and refer the case back to the General Court.

1.

Infringement of Article 7 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) (1) and Article 36 of the Statute of the Court of Justice of the European Union

The appellant claims that the General Court erred in law in its application of Article 7 of the Staff Regulations. Downgrading from the post of Director of the Operations Department to that of Senior Expert without any career prospects and without any evaluation or disciplinary procedure protecting the appellant’s rights does not constitute lawful redeployment, but is unlawful demotion. The 2014 amendment of the Staff Regulations developed the prospect of promotion for Directors above Grade AD 12 into a right to be enjoyed by such officials. The appointing authority cannot unilaterally withdraw that right without a proper evaluation or disciplinary procedure. Since 2014, according to the law, it has no longer been possible to consider a post as a Director to be equivalent to a post as a Senior Expert without promotion prospects.

Further, the General Court makes reference to case-law on redeployment under Article 7 of the Staff Regulations and the equivalence of posts, but goes on to draw the wrong conclusions from it.

Finally, the General Court made an error in law and an administrative error by failing to come to a comprehensive decision on the second plea in law, namely on the unlawful demotion of the appellant on 10 October 2016 without simultaneous transfer to a new post, which occurred only on 17 October 2016. For that very reason, this does not come within the meaning of a transfer under Article 7 of the Staff Regulations (paragraphs 49-106 of the judgment).

2.

Distortion of facts

Not only did the General Court base the judgment under appeal on facts that were not set out in the case file, but it also based its decision on facts that were different from those set out in that file.

Additionally, in the present case, it is evident that the General Court carried out no assessment of the evidence. Had it done so, it would have had to assess the credibility of the statements of the present respondent.

Furthermore, the assessment carried out by the General Court of the appellant’s actions in relation to his duty to report manifestly unlawful measures deprives Articles 21a(1) and 22 of the Staff Regulations of all practical effect.

3.

Unlawful assessment of the allegations of psychological harassment and breach of the duty to have regard for the welfare of officials, and Article 36 of the Statute of the Court of Justice of the European Union

The General Court rejected the allegation that the measures of the Executive Director between 10 October 2016 and 17 October 2016 constituted psychological harassment on the basis that they were an infringement of the law currently in force. The breach of the duty to have regard for the welfare of officials and the allegation of psychological harassment are inextricably linked to the unlawful decisions to demote and redeploy taken between 10 October 2016 and 17 October 2016. Contrary to the assertions of the General Court, a ‘pattern of behaviour’ is not a prerequisite for the existence of psychological harassment under Article 12a(3) of the Staff Regulations. Further, the General Court did not comment on the breach of the duty to have regard for the welfare of officials in the form of the public defamation of the appellant’s professional achievements which occurred when he was redeployed.

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set aside in full the judgment of the General Court of the European Union (First Chamber) of 2 April 2019 in Case T-492/17;

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annul the decision of 19 September 2016 by which the Director of the ‘Human Resources’ Directorate of the European External Action Service (EEAS), acting in his capacity as the authority authorised to conclude contracts of employment, decided to terminate the appellant’s employment contract of indefinite duration with effect from 19 June 2017, and order the EEAS to pay compensation for the non-material damage caused by the unlawful termination;

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in the alternative, set aside the judgment and refer the case back to the General Court;

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order the EEAS to pay the costs in both sets of proceedings.

1.

Does the Framework Decision (1) apply to the situation where the requested person was convicted and sentenced in a third state but by virtue of a bilateral treaty between that third state and the issuing state, the judgment in the third state was recognised in the issuing state and enforced according to the laws of the issuing state?

2.

If so, in circumstances where the executing member state has applied in its national legislation the optional grounds for non-execution of the European arrest warrant set out in Article 4.1 and Article 4.7(b) of the Framework Decision, how is the executing judicial authority to make its determination as regards an offence stated to be committed in the third state, but where the surrounding circumstances of that offence display preparatory acts that took place in the issuing state?

1.

Should the second subparagraph of Article 19(1), Articles 2, 4(3) and 6(3) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights (‘CFR’) and the third paragraph of Article 267 TFEU, be interpreted as meaning that the court of final instance of a Member State may, in proceedings seeking a declaration that a service relationship is non-existent, declare that a person who has received a document appointing him to the position of judge in that court is not a judge in the case where that document of appointment was issued on the basis of provisions which infringe the principle of effective judicial protection or under a procedure which is incompatible with that principle, in the case where a judicial review of these matters prior to the delivery of the document of appointment has intentionally been made impossible?

2.

Should the second subparagraph of Article 19(1), Articles 2 and 4(3) TEU and Article 47 of the CFR, in conjunction with Article 267 TFEU, be interpreted as meaning that the principle of effective judicial protection is infringed in the case where a document appointing a person to the position of judge is delivered after a national court has requested a preliminary ruling concerning the interpretation of EU law and where that preliminary ruling will determine the compatibility with EU law of the national provisions the application of which made it possible for the document of appointment to be delivered?

3.

Should the second subparagraph of Article 19(1), Articles 2, 4(3) and 6(3) TEU, and Article 47 of the CFR, be interpreted as meaning that the principle of effective judicial protection is infringed by the failure to guarantee the right to effective judicial protection in the case where a document appointing a person to the position of judge of a court in a Member State is delivered following an appointment procedure carried out in flagrant breach of the laws of that Member State governing the appointment of judges?

4.

Should the second subparagraph of Article 19(1), Articles 2 and 4(3) TEU and Article 47 of the CFR, in conjunction with the third paragraph of Article 267 TFEU, be interpreted as meaning that the principle of effective judicial protection is infringed through the establishment by the national legislature of an organisational unit within the court of final instance of a Member State which is not a court or tribunal within the meaning of EU law?

5.

Should the second subparagraph of Article 19(1), Articles 2 and 4(3) TEU and Article 47 of the CFR, in conjunction with the third paragraph of Article 267 TFEU, be interpreted as meaning that the existence of a service relationship and the status of judge of a person who received a document appointing him to the position of judge of the court of final instance in a Member State cannot be determined by the organisational unit of that court which is competent in that matter under national law, to which unit that person has been appointed, and which unit is composed exclusively of persons whose appointment documents suffer from the defects referred to in Questions 2 to 4 and which unit for those reasons is not a court or tribunal within the meaning of EU law, but must rather be determined by another organisational unit of that court which satisfies the requirements of EU law for a court or tribunal?

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annul Council Decision (CFSP) 2019/806 of 17 May 2019 amending Decision 2013/255/CFSP concerning restrictive measures against Syria, in so far as it concerns the applicant;

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annul Council Implementing Regulation (EU) 2019/798 of 17 May 2019 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria, in so far as it concerns the applicant;

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order the Council to pay the entirety of the costs and expenses of the proceedings, including those incurred by the applicant.

1.

First plea in law, alleging manifest error in the assessment of the facts. The applicant takes the view that the Council committed a manifest error of assessment by justifying the measures taken against him on the ground that he is allegedly ‘a leading businessman operating in Syria’ within the meaning of Article 27.2(a) and Article 28.2(a) of Decision 2013/255/CFSP. The applicant disputes that categorisation of ‘leading businessman’ and the rebuttable presumption of association with the Syrian regime which arises from the contested measures. The applicant maintains that he has not connection with the Syrian regime.

Furthermore, in accordance with Article 27.3 and Article 28.3 of Decision 2013/255/CFSP, the applicant rebuts the rebuttable presumption laid down in Article 27.2(a) and Article 28.2(a) of that decision by voluntarily demonstrating that he (i) is not, or is no longer, associated with the Syrian regime, (ii) does not exercise any influence on it, and (iii) does not pose any real risk of circumvention of the restrictive measures taken by the Council in view of the situation in Syria.

In the applicant’s view, by failing to take into account the rebuttal of that presumption, the Council continues to commit a manifest error of assessment of the facts.

2.

Second plea in law, alleging disproportionate infringement of the right of ownership and of the right to carry out a professional activity. The applicant takes the view that, by the sanctions adopted, the Council has inevitably infringed the applicant’s right of ownership, as well as his right to carry out his professional activity, in breach of the first additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the applicant, he cannot be prevented from peacefully enjoying his assets and economic freedom, for which reason the contested measures should be annulled in so far as they concern him.

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annul the Council’s implicit refusal of 3 July 2019 to acknowledge a failure to act as regards the lack of reply to the application dated 3 May 2019 requesting that the European elections of late May 2019 be postponed;

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declare that the Council of the European Union acted unlawfully by failing to postpone the European elections and accordingly modify the dates set out in Council Decision (EU, Euratom) 2018/767 of 22 May 2018 in order to allow the British applicants to play an active part in the ballot of the 2019 European elections, which was crucial inter alia in the light of the ratification of a potential exit agreement between the European Union and the United Kingdom;

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take note of that failure to act;

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order the Council to pay each of the applicants the sum of EUR 1 500 in respect of their legal costs.

1.

First plea in law, alleging infringement of the applicants’ right to vote in European elections protected by European law. In the context of that plea, the applicants allege in particular:

2.

Second plea in law, alleging threefold deprivation of the right to vote in the European elections due to the Council’s unlawful failure to act. In the context of that plea, the applicants consider in particular that:

3.

Third plea in law relating to a plea of illegality regarding the Council’s refusal to declare that it has failed to act and postpone the European elections. That refusal is based on Council Decision (EU, Euratom) of 22 May 2017 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for that Member State’s withdrawal from the European Union (document XT 21016/17), including the annex to that decision establishing directives for the negotiation of that agreement (document XT 21016/17 ADD 1 REV 2), considered to be unlawful by the applicants.

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declare the action admissible and well founded, and consequently;

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annul the decision of 3 May 2019, notified to the applicant on 6 May 2019 by Mr [X], Senior Legal Counsellor at the Council, and taken by Mr [Y] in his capacity as appointing authority and under which ‘1. the applicant, born on 25 March 1956 [confidential], (1) official in Grade AST 7, is placed on leave in the interests of the service pursuant to Article 42c of the Staff Regulations and is entitled to the pecuniary benefits provided for therein. 2. This decision shall take effect on 31 December 2015.’;

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order the Council to pay, by way of compensation for material harm and damage to the applicant’s career, subject to an increase or reduction in that amount in the course of the proceedings, EUR 151 101,72’;

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order the Council to pay, by way of compensation for non-material harm and damage to the applicant’s reputation, subject to an increase or reduction in that amount in the course of the proceedings, EUR 70 000;

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in any event, order the defendant to pay all the costs, in accordance with Article 134(1) of the Rules of Procedure of the General Court of the European Union.

1.

First plea in law, alleging infringement of Article 266 TFEU and of fundamental and general principles of EU law, including, inter alia, protection of legitimate expectations, the principles of sound administration, good faith, legal certainty and observance of the principle of proportionality.

In that regard, the applicant considers that the appointing authority has clearly not correctly applied and interpreted the abovementioned provisions and principles by not taking the necessary measures to give effect to the judgment given in proceedings for annulment by the General Court of the European Union on 14 December 2018, FV v Council (T-750/16, EU:T:2018:972). She also considers that the appointing authority infringed the principle which requires the administration to adopt a decision which is not disproportionate, that is to say, which is necessary in order to attain the objectives pursued, which entails that the content and form of the decision is in line with those objectives. Lastly, the applicant submits that there has been a breach of her legitimate expectation that the appointing authority gives correct and expeditious effect to the abovementioned judgment, T-750/16, not only through the correct application of Article 266 TFEU but also without retroactive effect.

2.

Second plea in law, alleging, first, that the contested decision infringed the conditions of Article 42c of the Staff Regulations and Staff Note 71/15 of 23 October 2015, in breach of the principle requiring the administration to adopt a decision solely on the basis of legally admissible grounds, that is to say, grounds which are relevant and not vitiated by manifest error of assessment, fact or law, and, secondly, abuse of process.

In that regard, the applicant considers that in adopting the contested decision in those circumstances, the appointing authority clearly did not correctly apply and interpret the abovementioned statutory provisions and Staff Note, basing its decision on reasoning that is incorrect both in fact and in law. She submits that the Council has not established that the decision was in the interests of the service, which it intended to further by applying Article 42c to the applicant, and has not identified genuine organisational needs which required the alleged acquisition of new skills which the applicant was not in a position to acquire, in addition, the appointing authority clearly used Article 42c in place of disciplinary proceedings.

3.

Third plea in law, alleging, infringement of the duty to have regard for the welfare of staff. In that regard, the applicant considers that in adopting the contested decision in those circumstances, the appointing authority did not respect the balance of rights and obligations which requires the institution to take into consideration all the factors which may affect its decision and to take account both the interest of the service and the interest of the official concerned.

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annul Decision C(2019)4027 final of 23 May 2019 in part, as follows:

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order the Commission to pay the costs.

1.

First plea in law, alleging misuse by the Commission of its powers to calculate the amount chargeable to the Funds and failure to observe the principle of legitimate expectations

2.

Second plea in law, alleging failure to fulfil the duty to state reasons laid down in the second paragraph of Article 296 TFEU and failure to observe the principle of sound administration

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set aside the contested decision in its entirety, so that the appeal is upheld and the opposition is entirely rejected;

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order that the defendant bears all costs arising from or relevant to the proceedings before the Opposition Division, the Board of Appeal and present proceedings before the General Court.

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

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

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

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annul the contested decision;

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order the European Commission to pay the costs.

1.

First plea in law, alleging that the contested decision is vitiated by a manifest error in law in so far as, in the interpretation of the concept of ‘satisfactory method’ for the purposes of Article 3(1)(b) of Regulation (EC) No 141/2000, (2) data about Trecondi compared with unauthorised uses of Melphalan und Cyclophosphamid was requested in breach of that provision.

2.

Second plea in law, alleging a resulting misuse of powers in so far as the consideration of unauthorised uses infringes the relevant ‘Commission notice on the application of Articles 3, 5 and 7 of Regulation (EC) No 141/2000 on orphan medicinal products (2016/C 424/03) (3).

3.

Third plea in law, alleging that the contested decision also breaches the principle of equal treatment and the principle of the protection of legitimate expectations as categories of the misuse of powers, in so far as the Commission, in the assessment of satisfactory methods for the purposes of Article 3(1)(b) of Regulation (EC) No 141/2000 in the present case, no longer relied on conditioning therapy in the context of stem-cell transplantation, but rather on stem-cell transplantation treatment as a benchmark.

4.

Fourth plea in law, alleging in addition a manifest misuse of powers in so far as, in the assessment whether there existed a ‘significant benefit’ of Trecondi for the purposes of Article 3(1)(b) of Regulation (EC) No 141/2000, not all of the data was taken into account, but rather clinical data, which were obtained on the basis of indirect comparisons, and which as methodologically invalid were excluded from the evaluation.

5.

Fifth plea in law, alleging finally that the contested decision breached the principle of equal treatment as a specific category of the misuse of powers, in so far as indirect comparison data were not accepted from a methodological point of view, although in the past indirect comparison data based on comparable methodology had been accepted in similar cases.

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annul the contested decision;

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order EUIPO to pay the costs.

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

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annul the contested decision;

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order EUIPO to pay the costs derived from the procedure before the General Court and the EUIPO.

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Infringement of Art 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council and of Article 296 of the Treaty on the Functioning of the European Union;

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Infringement of Art 72(6) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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Infringement of Art 7(1)(c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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Infringement of Art 7(1)(b) of Regulation EU) 2017/1001 of the European Parliament and of the Council.

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declare that, by taking no action and failing to adopt a decision, pursuant to Article 8(2) of Directive 93/42/EEC, (1) in the safeguard clause procedure initiated by Germany on 7 January 1998 concerning the CE-marked medicinal product ‘Inhaler Broncho-Air’, the European Commission has infringed its Treaty obligations;

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order the defendant to pay the costs of the proceedings.

1.

First plea in law, alleging that the European Commission infringed Article 8(2) of Directive 93/42/EEC by failing to adopt a decision since the initiation of the safeguard clause procedure for the CE-marked medicinal product ‘Inhaler Broncho-Air’ on 7 January 1998 and that it had no discretion to do so.

2.

Second plea in law, alleging that, by failing to adopt a decision (failure to act), the European Commission infringed Article 34 TFEU and the right to free movement of goods for the medicinal product ‘Inhaler Broncho-Air’.

3.

Third plea in law, alleging that, by failing to adopt a decision, the European Commission infringed Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in so far as it denies the applicant access to review of the decision and the exercise of his rights of defence before a judicial body or the Court of Justice.

4.

Fourth plea in law, alleging that the European Commission infringed Article 41 of the Charter since hitherto the parties concerned by the national banning order have not been consulted and no decision has been adopted within a reasonable time notwithstanding the requirements of EU law set out in Article 8(2) of Directive 93/42/EEC.

5.

Fifth plea in law, alleging that, by failing to adopt a decision, the European Commission infringed the applicant’s right to property in accordance with Article 17 of the Charter, since, for that reason, the applicant is not in a position to place his product ‘Inhaler Broncho-Air’ on the market.

6.

Sixth plea in law, alleging that the European Commission’s failure to act also constitutes an infringement of Article 20 of the Charter, the principle of equality before the law, since it has adopted decisions in comparable cases. Equally, this results in an infringement of the prohibition of discrimination under Article 21 of the Charter.

7.

Seventh plea in law, alleging that, because of the European Commission’s failure to adopt a decision, the applicant has been precluded for more than 20 years from exercising his right to work in his freely chosen profession as inventor of the ‘Inhaler Broncho-Air’, and that this amounts to an infringement by the European Commission of Article 15 of the Charter.

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annul the contested decision;

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order the defendant to pay the costs derived from the procedure before the General Court and EUIPO.

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Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council and of Article 296 of the Treaty on the Functioning of the European Union;

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Infringement of Article 72(6) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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

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

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annul the contested decision.

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Infringement of essential procedural requirements (right of defense, right to access to a judge);

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Infringement of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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annul the contested decision;

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alter the contested decision to: (i) allow the applicant’s appeal; (ii) dismiss in its entirety the invalidity applicants’ applications ICD 10292 and ICD 10689 to declare the RCD an issue invalid; (iii) order the invalidity applicants to pay the applicant’s costs in front of the Board of Appeal and the Invalidity Division; (iv) alternatively remit to the Invalidity Division to address Article 4(1) CDR.

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order the payment the appellant’s fees and costs.

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Infringement of Article 8(1) and of Recital 10 of Council Regulation (EC) No 6/2002.

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annul the contested decision;

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annul the defendant’s decision of 16 January 2019 in so far as priority was not given to European Union design No 5807179 0001-0012; uphold the claimed priority of 26 October 2017 and provide for a corrected notification of the European Union design indicating the priority;

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reimburse it for the appeal fee;

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order EUIPO to pay the costs;

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alternatively, conduct a hearing.

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Infringement of Article 41(1) of Council Regulation (EC) No 6/2002 on Community designs

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annul the contested decision in so far as it dismissed the appeal concerning the revocation of EU trade mark registration No 8 435 695 in respect of the goods ‘hardware, in particular for casino and amusement arcade games, for gaming machines, slot machines, video lottery gaming machines via the internet; casino games, automatic gaming machines and gaming machines, in particular for commercial use in casinos and amusement arcades, with or without a prize payout or games of chance via the internet; slot machines and/or electronic money gaming machines with or without a prize; electronic or electrotechnical gaming apparatus, automatic gaming machines, gaming machines, slot machines which are operated by means of coins, tokens, banknotes, tickets or by means of electronic, magnetic or biometric storage media, in particular for commercial use in casinos and amusement arcades, with or without a prize payout; housings for slot machines, gaming apparatus, gaming machines and gaming machines; electric, electronic or electromechanical apparatus for applying bingo games, lottery games or video lottery games or for betting offices, and which are connected or unconnected; electropneumatic drawing machines (gaming machines)’ and amend that decision so that the other party’s application for cancellation is rejected to that extent and also that the other party is ordered to pay the costs of the appeal and cancellation proceedings;

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in the alternative: annul the contested decision in so far as it dismissed the appeal concerning the revocation of EU trade mark registration No 8 435 695 in respect of the above goods and refer the case back, to that extent, to EUIPO;

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order EUIPO to pay the costs.

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Infringement of Article 58(1)(a) and (2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

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

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Infringement of Article 94(1), second sentence, of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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annul the contested decision;

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reject Aldi Einkauf GmbH & Co. OHG’s opposition;

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order EUIPO to pay the costs.

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