JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

26 November 2008

Case T-284/07 P

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)**

**v**

**Adelaida López Teruel**

(Appeal – Civil service – Officials – Admissibility – Invalidity – Application for an Invalidity Committee to be convened – Circumscribed powers of the appointing authority)

**Appeal:**against the judgment of the Civil Service Tribunal of the European Union (First Chamber) of 22 May 2007 in Case F-97/06 *López Teruel* v *OHIM* [2007] ECR-SC I-A-1-0000 and II-A-1-0000, asking for that judgment to be set aside.

**Held:**The appeal is dismissed. The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is ordered to
pay the costs.

**Summary**

1.      *Appeal – Admissibility – Assessed in relation to the case at issue – Party having failed in some or all of its pleas before
the Civil Service Tribunal*

*(Statute of the Court of Justice, Annex I, Art. 9)*

2.      *Appeal – Pleas in law – Review by the Court of First Instance of the Civil Service Tribunal’s determination of the subject-matter
of the action*

*(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))*

3.      *Appeal – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of First Instance of the
assessment of the evidence – Possible only where the clear sense of the evidence has been distorted*

*(Statute of the Court of Justice, Annex I, Art. 11(1))*

4.      *Officials – Invalidity – Initiation of the invalidity procedure*

*(Staff Regulations, Art. 78, first para.; Annex VIII, Art. 13(1))*

5.      *Appeal – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissibility*

*(Statute of the Court of Justice, Annex I, Art. 11(1))*

6.      *Officials – Invalidity – Initiation of the invalidity procedure – Conditions – Initiated at the request of the person concerned
– Administration’s circumscribed powers*

*(Staff Regulations, Art. 78, first para.; Annex VIII, Art. 13(1))*

1.      Since the conditions governing the admissibility of appeals laid down by the second paragraph of Article 9 of Annex I to the
Statute of the Court of Justice are assessed in relation to the case at issue and that alone, a party is entitled to appeal
against a judgment of the Civil Service Tribunal which is based on principles identified by another judgment that has become
definitive, even if the Civil Service Tribunal has examined similar questions of law in the judgment which is the subject
of the appeal. The fact that the grounds of a judgment of the Civil Service Tribunal which has become definitive uphold a
plea does not prevent an appellant who has entered an admissible appeal from contesting, in other proceedings, the Civil Service
Tribunal’s assessment of a similar plea to that examined in the judgment which has become definitive.

It is also clear from the second paragraph of Article 9 of Annex I to the Statute of the Court of Justice that, if a party
was unsuccessful, in whole or in part, in its submissions, that is sufficient for it to be entitled to bring an appeal before
the Court of First Instance.

(see paras 23-26)

See: C‐432/98 P and C‐433/98 P *Council* v *Chvatal and Others* [2000] ECR I‐8535, paras 22 and 24; F-119/05 *Gesner* v *OHIM* [2007] ECR-SC I-A-1-0000 and II-A-1-0000

2.      The determination of the subject-matter of the application in a judgment handed down by the Civil Service Tribunal constitutes
a point of law which may be subject to assessment by the Court of First Instance in the context of an appeal. The application
is the formal document initiating proceedings in which the parties are required to state the subject-matter of the dispute.

(see paras 33-34)

See: C‐242/07 P *Belgium* v *Commission* [2007] ECR I‐9757, para. 41; C‐135/06 P *Weißenfels* v *Parliament* [2007] ECR I‐12041, paras 51-57

3.      The court at first instance, in the present case the Civil Service Tribunal, has exclusive jurisdiction, first, to establish
the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second,
to assess those facts. The appraisal of the facts does not constitute, save where the evidence put before the Tribunal has
been fundamentally misconstrued, a point of law which is subject, as such, to review by the Court of First Instance as the
appeal court. Such misconstruction must be manifestly evident from the documents in the file, without any need for a fresh
assessment of the facts and evidence.

(see paras 46-47)

See: C‐397/03 P *Archer Daniels Midland and Archer Daniels Midland Ingredients* v *Commission* [2006] ECR I‐4429, para. 85; C‐167/04 P *JCB Service* v *Commission* [2006] ECR I‐8935, paras 107 and 108; T-252/06 P *Beau* v *Commission* [2007] ECR-SC I-B-0000 and II-B-1-0000, paras 45 to 47

4.      The Civil Service Tribunal does not commit any error of law by taking the first paragraph of Article 78 of the Staff Regulations
and Article 13(1) of Annex VIII to the Staff Regulations as the basis for assessing the lawfulness of an official’s application
for an Invalidity Committee to be convened. It follows from the terms of those provisions that an official aged less than
65 years who at any time during the period in which he is acquiring pension rights is recognised by the Invalidity Committee
to be suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career
bracket, and who is obliged on these grounds to end his service with the Communities shall be entitled, for so long as such
incapacity persists, to invalidity benefit. In order to ensure the effectiveness of that entitlement, which can be recognised
only once the invalidity procedure has been concluded, the entitlement must be regarded as necessarily including the right,
for such an official, to ask the appointing authority to initiate that procedure.

(see paras 65-67)

See: 12/83 *Bähr* v *Commission* [1984] ECR 2155, paras 12 and 13; T‐59/01 *Nardone* v *Commission* [2003] ECR-SC I‐A‐55 and II‐323, paras 31 and 32

5.      Since, in the context of an appeal, the jurisdiction of the Court of First Instance is confined to review of the findings
of law on the pleas argued before the Civil Service Tribunal, an argument put forward in an appeal which was not relied on
in the proceedings before the Civil Service Tribunal must be rejected as inadmissible.

(see paras 72-73)

See: C‐136/92 P *Commission* v *Brazzelli Lualdi and Others* [1994] ECR I‐1981, para. 59; C‐24/01 P and C‐25/01 P *Glencore and Compagnie Continentale* v *Commission* [2002] ECR I‐10119, para. 62; order of 28 September 2006 C‐104/05 P *El Corte Inglés* v *OHIM and Pucci*, not published in the ECR, para. 40

6.      Once it has received an application from an official for the initiation of an invalidity procedure, the appointing authority
is, in principle, required under the provisions of Article 78 of the Staff Regulations, as defined in Article 13(1) of Annex
VIII to the Staff Regulations, to initiate that procedure. Those provisions confer circumscribed powers on the appointing
authority, in that it is obliged to initiate the invalidity procedure if it finds that the conditions laid down by those provisions
are satisfied. In that respect, it would be contrary to those provisions to accept that referral to an Invalidity Committee
is merely a possibility open to the administration, since such conditions for referral would render the entitlement conferred
on the official by those provisions ineffective. That being so, the appointing authority, which has no powers to conduct medical
assessments, is not justified in rejecting an application for an Invalidity Committee to be convened unless it has objective,
undisputed evidence that the basic conditions laid down in those provisions are not satisfied.

Moreover, it is not a contradiction to state that the appointing authority has circumscribed powers when it comes to convening
an Invalidity Committee while at the same time acknowledging that certain criteria may come into play in the exercise of those
powers. The appointing authority is entitled to ascertain, though without having any discretion in the matter, whether any
of the conditions for the exercise of its circumscribed powers is not satisfied.

(see paras 78-82)