Case T-311/02: Action brought on 10 October 2002 by Vitaly Lissotschenko and Joachim Hentze against the Office for Harmonisation in the Internal Market (Trade, Marks and Designs)
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, action for annulment (EU), apparatus based on the use of rays, lighting equipment, medical device, trade mark

C 305/28

EN

Official Journal of the European Communities

7.12.2002

The applicant further takes issue with the supplementary fixing
of interest. The applicant invokes deferment of payment and
protection of legitimate expectations and raises the objection
of misuse of powers. The Commission, it claims, did not make
it clear during the period required by it for taking a decision
that it would be seeking increased interest for that period.
Instead,
it would forego
enforcement measures during its own decision-making period.
The applicant regards the Commission’s decision as being at
variance with this.

the Commission intimated that

( 1) The applicant has brought an action against that decision (Case
T-239/01 SGL Carbon v Commission, OJ 2002 C 3, p. 34).

Action brought on 30 September 2002 by Athanassios
Theodorakis against Council of the European Union

(Case T-310/02)

(2002/C 305/59)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 30 September 2002 by Athanassios Theodo-
rakis, residing in Uccle (Belgium), represented by Spyros
A. Pappas, lawyer.

The applicant claims that the Court should:

— annul the decision of 10 July 2002 of the appointing
authority replying to his complaint of 24.05.2002;

— annul the decision of the appointing authority of the
the RELEX
Council concerning the appointment of
Director General of the Council and recommence the
selection procedure as initially requested by the applicant;

— order the Council of the European Union to pay the costs.

applications was 18 March 2002. The Commission notified
that vacancy notice to its staff on 14 March 2002. The
deadline for the submission of applications, indicated in that
publication, was 2 April 2002.

The applicant submitted his application after the deadline set
down in the Council’s vacancy notice expired, but before
the expiry of the deadline set down in the Commission’s
publication. The applicant’s application was rejected by the
Council as inadmissible.

In support of his action, the applicant alleges breach of the
principle of sound administration. According to the applicant,
there cannot be contradictory decisions within a single admin-
istrative authority and a single legal person, such as constituted
by the European Communities. The applicant claims moreover
that a more recent or more specific act, such as the Com-
mission’s publication, prevails.
In the applicant’s view, the
principle of sound administration entails the application of the
interpretation which is most plausible for the official.

The applicant further alleges infringement of Article 29(1) of
the Staff Regulations and of Article 1(3) of Annex III to the
Staff Regulations inasmuch as the same deadline did not apply
to all the potential candidates, irrespective of which institution
they belonged to.

Moreover, the result of applying the deadline in the Council’s
vacancy notice was that officials of the Commission and the
other institutions were discriminated against by comparison
with those of the Council inasmuch as officials at the Council
had more time. Finally, the applicant alleges misuse of powers.

Action brought on 10 October 2002 by Vitaly Lissot-
schenko and Joachim Hentze against the Office for
Harmonisation in the Internal Market (Trade, Marks and
Designs)

(Case T-311/02)

(2002/C 305/60)

(Language of the case: German)

Pleas in law and main arguments

The applicant is an official in the Commission. He submitted
an application for the post of Director General at the Council.
That post was published on 25 February 2002 in Vacancy
Notice 412/02. The same day the Council sent that vacancy
notice to the other institutions. The deadline for submitting

An action against the Office for Harmonisation in the Internal
Market (Trade, Marks and Designs) was brought before the
Court of First Instance of the European Communities on
10 October 2002 by Vitaly Lissotschenko, of Dortmund
(Germany), and Joachim Hentze, of Werl (Germany), represent-
ed by B. Hein, Rechtsanwalt.

7.12.2002

EN

Official Journal of the European Communities

C 305/29

The applicants claim that the Court should:

Action brought on 10 October 2002 by Lucio Gussetti
against Commission of the European Communities

— annul the decision adopted on 31 July 2002 by the
Second Board of Appeal of the Office for Harmonisation
in the Internal Market
(Trade, Marks and Designs),
concerning appeal No R 0363/2000-2, in so far as it
rejects the application for registration of the mark ‘Limo’
for goods in Class 9, being ‘Lasers for non-medical
purposes, in particular diode lasers, lasers for measuring
technology, lasers for the treatment of materials, lasers
testing
for the printing industry,
and quality control, lasers for data processing or data
transmission; optical and/or electronic apparatus and
instruments, in particular imaging systems, microoptical
systems, control electronics, optical systems with inte-
lenses; optical
grated electronics and/or light sources;
lenses, supplementary lenses, prisms, corrective lenses;
diffraction apparatus (microscopy)’ and in Class 10, being
‘Lasers for medical purposes’;

lasers for material

(Case T-312/02)

(2002/C 305/61)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 October 2002 by Lucio Gus-
setti, represented by Massimo Merola, avvocato.

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

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the decision of the Directorate General Adminis-
tration of the Commission, notified by letter ADMIN B.3
D(02) 8305 of 15 February 2002 by which, pursuant to
Article 67(2) of the Staff Regulations, the Administration,
with effect from 1 June 2001, retroactively deducted
EUR 273.48 from his monthly salary;

The Community trade
mark applied for:

the word mark ‘LIMO’ — appli-
cation No 1290022

— order the Commission to pay the costs.

Goods or services:

Goods in Classes 9, 10 and 11
(including inter alia lasers for non-
medical purposes, lasers for medi-
cal purposes and lighting appar-
atus and installations)

Decision
before
Appeal:

contested
the Board of

refusal of
examiner

registration by the

Decision of the Board of
Appeal:

Grounds of claim:

rejection of
the application in
respect of goods in Classes 9 and
10 and leave for publication of
the application in respect of goods
in Class 11

no absolute bars to registration
under Article 7(1)(b) and (c) of
Regulation (EC) No 40/94 (1).

( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Pleas in law and main arguments

The applicant in the present case is an official working for the
defendant. Pursuant to Article 67(2) of the Staff Regulations,
EUR 68,48, corresponding to family allowances paid by the
Belgian ‘allocations familiales pour travailleurs salariés’ scheme
to his late wife in respect of their dependant child, was being
deducted from his monthly Community salary.

The present case is based on a change, in accordance with the
Belgian Law of 12 August 2000, in the practice of the Belgian
authorities consisting in no longer deducting the Communities
orphan’s pension.

In his complaint, the applicant raised the difficulty of consist-
ency between the Communities and Belgian orphan’s pensions,
pointing out that the EUR 68,48 being withheld was not
attributable to family allowances since his late wife was no
longer in receipt of them. The defendant was wrong to
consider the sums paid by the Belgian authorities by way of
orphan’s allowances and those paid by the Communities’
administration to be of like nature within the meaning of
Article 67(2) of
the
deduction in question is per se an error.

the Staff Regulations. Accordingly,