Case C-25/08 P: Appeal brought on 24 January 2008 by Giuseppe Gargani against the order of the Court of First Instance (Third Chamber) of 21 November 2007 in Case T-94/06 Giuseppe Gargani v European Parliament
Date: 2008-01-24
Institutions: Court of Justice
Subjects: European Parliament, President of the EP, appeal, appeal to the Court (EU), operation of the Institutions, rules of procedure

C 79/20

EN

Official Journal of the European Union

29.3.2008

Grounds of appeal and main arguments

— order the Republic of Portugal to pay the costs.

By its first ground of appeal the appellant claims that there has
the duty to give reasons under
been an infringement of
Article 73 of the Community Trade Mark Regulation. Neither in
the decision of the Board of Appeal nor in the judgment under
appeal of the Court of First Instance were any findings set out
or explanations given regarding the shapes which OHIM or the
Court of First Instance recognised as being common on the
market and in what ways the shape applied for would have to
differ from common shapes on the market to be found to be
distinctive. In the absence of such findings or explanations it is
not conceivable how OHIM or the Court of First Instance could
have come to the conclusion that the shape applied for was not
distinctive.

the appellant alleges that
By its second ground of appeal
Article 7(1)(b) of the Community Trade Mark Regulation has
been infringed by an assessment of distinctiveness which, in the
absence of a statement of the factual basis for its decision, could
only have come about as a result of a distortion by the Court of
First Instance of the facts presented to it, a matter open to
review by the Court of Justice. Contrary to the view of the
Court of First Instance in the judgment under appeal, the appel-
lant claims that the shape applied for is distinctive since it is
significantly different from the normal shapes found on the
market and is not merely a variant of such shapes. Among the
relevant public the shape applied for can be recognised and
indeed is recognisable as an indication of origin irrespective of
its use and without further enquiries or thought.

Pleas in law and main arguments

The period prescribed for transposing the Directive into national
law expired on 29 April 2004.

(1) OJ 2004 L 157, p. 45.

Appeal brought on 24 January 2008 by Giuseppe Gargani
against
Instance
(Third Chamber) of 21 November 2007 in Case T-94/06
Giuseppe Gargani v European Parliament

the Court of

the order of

First

(Case C-25/08 P)

(2008/C 79/35)

Language of the case: German

Parties

Appellant: Giuseppe Gargani
Rechtsanwalt)

(represented by: W. Rothley,

Other party to the proceedings: European Parliament

Action brought on 22 January 2008 — Commission of the
European Communities v Republic of Portugal

Form of order sought

(Case C-24/08)

(2008/C 79/34)

— Set aside the order of the Court of First Instance (Third

Chamber) of 21 November 2007 in its entirety;

— refer the case back to the Court of First Instance for a fresh

Language of the case: Portuguese

decision;

— order the respondent to pay the costs of the appeal.

Parties

Pleas in law and main arguments

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

Defendant: Republic of Portugal

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/48/EC (1) of
the
Council of 29 April 2004 on the enforcement of intellectual
property rights, or in any event by not communicating such
measures to the Commission, the Republic of Portugal has
failed to fulfil its obligations under that directive;

the European Parliament and of

The Court of First Instance failed to give the appellant a fair
hearing by failing to address the appellant's submissions and,
instead, changing the parties and then declaring the action to be
inadmissible.

the
The action, which was brought by the Chairman of
European Parliament's Committee on Legal Affairs, not
(as
stated in the order under appeal) by an individual as such, is
expressly directed against the then President of the European
Parliament, and not against the European Parliament itself or
against a ‘natural person’. The Court of First Instance regards the
appellant as any Italian applicant seeking a declaration that the
conduct of the European Parliament is unlawful, and the Presi-
dent of the European Parliament at the time as any Spanish
defendant being accused in respect of the unlawful conduct of
the President of the European Parliament.

29.3.2008

EN

Official Journal of the European Union

C 79/21

The Court of First Instance failed to ascertain whether the judi-
cial system provides a means of redress that would enable the
chairman of a committee to apply for a declaration of unlawful-
ness in respect of the conduct of the President of the European
Parliament where the latter exceeds his powers under the Rules
of Procedure and thereby infringes the participation rights of a
committee chairman or of the Parliament as a whole.

The Court of First Instance the Court held that Article 8(b) of
Regulation (EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection of indivi-
duals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement
of such data (2) may not be applied in the case of personal data
in documents held by an institution falling under Regulation
1049/2001. However no provision of
either Regulation
45/2001 or Regulation 1049/2001 requires or permits this
provision to be disabled in order to permit a norm under Regu-
lation 1049/2001 to have effect. The CFI has therefore erred in
law in interpreting Article 4(1)(b) of Regulation 1049/2001 so
as require a provision of Community law to be set aside.

Appeal brought on 24 January 2008 by Commission of the
European Communities against the judgment of the Court
of First Instance (Third Chamber) delivered on 8 November
2007 in Case T-194/04: Commission of
the European
Communities v The Bavarian Lager Co. Ltd, European Data
Protection Supervisor (EDPS)

Second, the Court held that, notwithstanding the specific refer-
ence in Article 4(1)(b) to Community legislation on data protec-
tion, personal data in documents shall be disclosed to the public
under Regulation 1049/2001 except in cases where there is a
clear risk of undermining the protection of the right of privacy
and integrity of the individual.

(Case C-28/08 P)

(2008/C 79/36)

Language of the case: English

Parties

Appellant: Commission of the European Communities (repre-
sented by: C. Docksey and P. Aalto, Agents)

Other parties to the proceedings: The Bavarian Lager Co. Ltd,
European Data Protection Supervisor

Form of order sought

The appellant claims that the Court should:

— to quash the contested judgment in full;

— to give final judgment in the matters that are the subject of

this appeal; and

— to order the Applicant in Case T-194/04 to pay the costs of
the Commission arising from that case and from the present
appeal, or, in the event of a ruling against the Commission
upon appeal, to order that the Commission should pay half
the costs of the Applicant in Case T-194/04 arising from
that case.

Pleas in law and main arguments

the interpretation of

This appeal concerns
the exceptions
relating to the protection of privacy and data protection and
investigations set forth respectively in Articles 4(1)(b) and 4(2),
2nd indent of Regulation (EC) No 1049/2001 of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents (1).

By limiting the scope of the exception under Article 4(1)(b) to
such cases, the Court has adopted a restrictive interpretation of
the exception in Article 4(1)(b) which deprives the additional
requirement in the second part of that exception (‘in particular
in accordance with Community legislation on data protection’)
of its effet utile. The Court has erred in law in limiting the said
exception to exclude Community legislation on data protection
from its scope in cases where access is requested to personal
data contained in a document.

Third, the Court adopted an interpretation of the exception
relating to the protection of ‘investigations’ which casts doubt on
the ability of the Commission to carry out its functions effec-
tively by relying on information received on a confidential basis
from third parties in order for them to assist the Commission in
conducting its inquiries.

The CFI has erred in law by interpreting the exception relating
to investigations in Article 4(2), third indent, of Regulation
1049/2001 to the effect that the Commission may not provide
assurances of confidentiality made in the course of its investiga-
tions of an alleged violation of Community law, nor respect
such assurances in the future.

Finally, the Commission has appealed on costs.

(1) OJ L 145, p. 43.
(2) OJ L 8, p. 1.