Case C-198/07 P: Appeal brought on 12 April 2007 by Donal Gordon against the judgment of the Court of First Instance (Third Chamber) delivered on 7 February 2007 in Case T-175/04: Donal Gordon v Commission of the European Communities
Date: 2007-06-09
Institutions: Court of Justice
Subjects: European Commission, European official, action for annulment (EU), appeal, indemnification, personnel administration, professional career, report, staff assessment, staff regulations (EU)

C 129/12

EN

Official Journal of the European Union

9.6.2007

— order the Office for Harmonization in the Internal Market
(OHIM) to pay the costs of the proceedings before the Court
of Justice.

9. based its decision of unfair advantage on reputation — not
repute — which does not comply with article 8(5) CTMR

— set aside the decision of the First Board of Appeal of the
Office for the Harmonization in the Internal Market dated
7 October 2004, case R-364/2003-1

— order the Office for Harmonization in the Internal Market
(OHIM) to pay the costs of the proceedings before the Court
of First Instance and OHIM.

Pleas in law and main arguments

With the present appeal, the Appellant submits that:

in finding reputation under 8(5) CTMR for the earlier marks the
Court of First Instance wrongly:

1. did not, in the contested decision, distinguish between the

36 earlier marks

10. found that a possibility which cannot be ruled out is suffi-
cient to prove prima facie evidence of a future risk, which
is not hypothetical, of the taking of unfair advantage by the
applicant of the reputation of the earlier marks.

Appeal brought on 12 April 2007 by Donal Gordon against
the judgment of
Instance (Third
the Court of First
Chamber) delivered on 7 February 2007 in Case T-175/04:
European
Donal Gordon

the

of

v Commission
Communities

(Case C-198/07 P)

(2007/C 129/21)

2. took into account evidence which did not comply with offi-

cial OHIM guidelines

Language of the case: English

3. took into account evidence with no reference to the earlier

marks

4. took into account undated evidence

Parties

5. did not take into account that the relevant date for proving
reputation is the filing date of the contested CTM application

Appellant: Donal Gordon (represented by: J. Sambon, P.-P. Van
Gehuchten, and Ph. Reyniers, avocats)

6. confirmed reputation based on evidence which was not
approximate in time to the filing date of the contested CTM
application

Other party to the proceedings: Commission of
Communities

the European

7. took into account a market survey as evidence of reputation

without any proof as to:

(a) whether it has been conducted by an independent and

recognised research institute or company

Form of order sought

(b) the number and profile (sex, age, occupation and back-

ruling on the substance of this case

ground) of the interviewees

— to annul the Judgment in Case T-175/04 and to make a

(c) the method and circumstances under which the survey
was carried out and the complete list of questions
included in the questionnaire

(d) whether the percentage reflected in the survey corre-
sponds to the total amount of persons questioned or
only to those who actually replied.

8. did not consider

the individual evidential value of
evidence submitted before making an overall assessment.

the

— to confirm the appellant's intrinsic interest in his CDR inde-

pendent of the administration's interest therein;

— to recognise that invalidity is by definition reversible, and is
so regarded and so treated by the Commission's Medical
Service;

— to accord the appellant the right to judicial protection in

respect of his CDR;

— to allow the claim to damages and to award the appellant

€1.5 million in compensation;

In finding unfair advantage of reputation under 8(5) CTMR the
Court of First Instance wrongly:

— to make an appropriate award as to costs.

9.6.2007

EN

Official Journal of the European Union

C 129/13

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First
Instance is based on false and/or arbitrary premises in that it:

— Denies the appellant's autonomous interest

in his career

development report;

— Misrepresents the legislation on invalidity and the applica-

tion thereof;

— Denies the appellant judicial protection despite the unre-
solved issue of whether his invalidity is occupational or not;

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy) lodged on 13 April 2007 — Alfonso
Luigi Marra v Clemente Antonio

(Case C-201/07)

(2007/C 129/23)

Language of the case: Italian

— Makes a ruling on damages in disregard of the evolving

Referring court

realities of the appellant's situation.

Reference for a preliminary ruling from the Corte Suprema
di Cassazione (Italy) lodged on 12 April 2007 — Alfonso
Luigi Marra v Edoardo De Gregorio

(Case C-200/07)

(2007/C 129/22)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Alfonso Luigi Marra

Defendant: Edoardo De Gregorio

Questions referred

1. In the event that a Member of the European Parliament
does not act by exercising the right granted to him under
Rule [6(3)] of the Rules of Procedure of the European Parlia-
ment (1) directly to request the President to defend privileges
and immunities, is the court before which a civil action is
pending in any event required to request the President to
waive immunity for the purposes of pursuing proceedings
and adopting a decision?

or

2. In the absence of a communication by the European Parlia-
ment that it intends to defend the immunities and privileges
of the Member concerned, may the court before which that
civil action is pending rule as to the existence or otherwise
of that privilege, regard being had to the specific circum-
stances of the case?

(1) OJ L 44, 15.2.2005, p. 1.

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Alfonso Luigi Marra

Defendant: Antonio Clemente

Question referred

The questions are the same as those in Case C-200/07.

Action brought on 19 April 2007 — Commission of the
European Communities v Portuguese Republic

(Case C-206/07)

(2007/C 129/24)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignatero and M. Afonso, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

— A declaration that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2004/33/EC (1) of 22 March 2004
implementing Directive 2002/98/EC of the European Parlia-
ment and of the Council as regards certain technical require-
ments for blood and blood components or, in any event, by
failing to communicate them to the Commission, the Portu-
guese Republic has failed to fulfil its obligations under that
directive;

— an order that the Portuguese Republic should pay the costs.