Case T-51/08 P: Appeal brought on 5 February 2008 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 22 November 2007 in Case F-109/06, Dittert v Commission
Date: 2008-02-05
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, appeal, promotion, staff assessment

12.4.2008

EN

Official Journal of the European Union

C 92/37

The applicant, the owner-operator of a service station which
had concluded a supply contract with REPSOL CPP claims that
since 19 November 2007, the date on which it received notifica-
tion from the monitoring trustee of its inclusion in Annex I of
REPSOL CPP's commitments, the contested decision directly and
individually concerns it.

In support of its claims, the applicant complains, first of all, that
the Commission infringed Article 9 of Regulation 1/2003. In
particular, the applicant claims that the Commission, although
aware of the correct interpretation of the competition rules
relating to time limits, accepted the commitments proposed by
REPSOL CPP, going beyond and infringing the aim of Article 9
of Regulation 1/2003. In addition, the applicant claims in that
context that the contested decision infringes Article 9 of Regu-
lation 1/2003 and the principle of proportionality since the
commitments accepted by the Commission were not effective to
give an appropriate response to the concerns expressed by the
applicant.

Second, the applicant relies on infringement of the principle
according to which persons subject to Community law may not
benefit
from their own unlawful acts or become enriched
without just cause.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

— order OHIM and the intervening party, Antonio Fusco Inter-
national SA, to pay the costs of the present proceedings and
those of the proceedings before the Board of Appeal and the
Opposition Division.

Pleas in law and main arguments

Applicant for a Community trade mark: Antonio Fusco Interna-
tional SA, Luxembourg (Lugano branch)

Community trade mark concerned: Figurative mark FUSCOLLEC-
TION (application for registration No 1.503.366) in respect of
goods in Classes 9, 18 and 25

Proprietor of the mark or sign cited in the opposition proceedings: The
applicant

Mark or
sign cited in opposition: Community trade mark
(No 727.375) and Italian trade mark (No 489.262) ENZO
FUSCO in respect of goods in Class 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law:
No 40/94 on the Community trade mark

Infringement of Art 8(1)(b) of Regulation (EC)

Action brought on 28 January 2008 — Fusco v OHIM —
Fusco International (FUSCOLLECTION)

(Case T-48/08)

(2008/C 92/74)

Language in which the application was lodged: Italian

Parties

Appeal brought on 5 February 2008 by Commission of the
European Communities against the judgment of the Civil
Service Tribunal delivered on 22 November 2007 in Case
F-109/06, Dittert v Commission

(Case T-51/08 P)

(2008/C 92/75)

Language of the case: French

Applicant: Vincenzo Fusco (represented by: B. Saguatti, lawyer)

Parties

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Antonio Fusco International SA, Luxembourg (Lugano branch)
(Lugano, Switzerland)

Appellant: Commission of the European Communities (repre-
sented by G. Berscheid and K. Herrmann, acting as Agents)

Other party to the proceedings: Daniel Dittert (Luxembourg, Grand
Duchy of Luxembourg)

Form of order sought

Form of order sought by the appellant

— annul

the decision of

the Second Board of Appeal of
24 October 2007 and amend it to the effect that the action
brought by the applicant before the Board of Appeal should
be considered to be well founded and, consequently, the
opposition should be upheld;

— Annul

the judgment of

the Civil Service Tribunal of
22 November 2007 in Case F-109/06 Dittert v Commission
and refer the case back to the Civil Service Tribunal;

— order the respondent to pay the costs.

C 92/38

EN

Official Journal of the European Union

12.4.2008

Pleas in law and main arguments

Form of order sought by the appellant

By the present appeal, the Commission seeks annulment of the
judgment of 22 November 2007 in Case F-109/06 Dittert v
Commission, by which the Civil Service Tribunal (CST) annulled
its decision allocating to the applicant at first instance a number
of priority points insufficient for him to be promoted in promo-
tion year 2005 and its decision finalising the list of officials
promoted during that promotion year inasmuch as it does not
include the applicant's name.

In support of its appeal, the Commission raises three pleas in
law seeking annulment.

Firstly, the Commission submits that the CST wrongly applied
Article 45 of the Staff Regulations in that it attributed excessive
importance to the involvement of the Director General in the
procedure for allocating points,
thus restricting unduly the
discretion of the Appointing Authority following the finding
that
the lack of such involvement constituted a substantial
procedural error.

Secondly, the Commission submits that the CST infringed the
jurisdiction of the Appointing Authority in breach of Article 45
of the Regulations and exceeded its powers of judicial control
by addressing an instruction to the Appointing Authority.

Thirdly, the Commission alleges that the CST failed to give suffi-
cient reasons for the finding that the allocation to the applicant
at first instance of a certain number of priority points by the
Promotion Committee did not constitute an adequate remedy
for the procedural error classified by the Tribunal as ‘substantial’
consisting in the lack of involvement of the Director General.
Moreover, it claims that the CST based the contested judgment
on a distortion of the contents of minutes of a meeting of the
Promotion Committee.

— Annul

the judgment of

the Civil Service Tribunal of
22 November 2007 in Case F-110/06 Carpi Badía v Commis-
sion and refer the case back to the Civil Service Tribunal;

— order the respondent to pay the costs.

Pleas in law and main arguments

By the present appeal, the Commission seeks annulment of the
judgment of 22 November 2007 in Case F-110/06 Carpi Badía v
Commission, by which the Civil Service Tribunal (CST) annulled
its decision allocating to the applicant at first instance a number
of priority points insufficient for him to be promoted in promo-
tion year 2005 and its decision finalising the list of officials
promoted during that promotion year inasmuch as it does not
include the applicant's name.

In support of its appeal, the Commission raises three pleas in
law seeking annulment
to those raised in Case
identical
T-51/08 P Commission v Dittert.

Appeal brought on 8 February 2008 by Commission of the
European Communities against the judgment of the Civil
Service Tribunal delivered on 27 November 2007 in Case
F-122/06, Roodhuijzen v Commission

(Case T-58/08 P)

(2008/C 92/77)

Language of the case: French

Appeal brought on 5 February 2008 by Commission of the
European Communities against the judgment of the Civil
Service Tribunal delivered on 22 November 2007 in Case
F-110/06, Carpi Badía v Commission

Parties

(Case T-52/08 P)

(2008/C 92/76)

Language of the case: French

Parties

Appellant: Commission of the European Communities (repre-
sented by G. Berscheid and K. Herrmann, acting as Agents)

party

Other
(Luxembourg, Grand Duchy of Luxembourg)

proceedings:

the

to

José María Carpi Badía

Appellant: Commission of the European Communities (repre-
sented by J. Currall and D. Martin, acting as Agents)

party

Other
(Luxembourg, Grand Duchy of Luxembourg)

the proceedings: Anton Pieter Roodhuijzen

to

Form of order sought by the appellant

— Annul

the judgment of

the Civil Service Tribunal of
27 November 2007 in Case F-122/06 Roodhuijzen v Commis-
sion;

— dismiss the action brought by Mr Roodhuijzen;

— order that each party shall bear its own costs of the present
appeal and of the action before the Court of First Instance.