Case T-491/08 P: Appeal brought on 17 November 2008 by Philippe Bui Van against the judgment of the Civil Service Tribunal delivered on 11 September 2008 in Case F-51/07 Bui Van v Commission
Date: 2008-11-17
Institutions: Court of First Instance
Subjects: European Commission, European official, action by staff, appeal, equal treatment, personnel administration, professional career, regulations for civil servants

7.2.2009

EN

Official Journal of the European Union

C 32/39

Form of order sought

— Declare the action brought by Longevity Health Products,

Inc. admissible;

— annul

the decision of

the Fourth Board of Appeal of
28 August 2008 and dismiss the nullity proceedings of
Merck KGaA against registration of Community trade mark
003 979 143; and

— Annul the decision of the Appointing Authority of 5 March

2007 not to accept the appellant's complaint;

— Annul the decision of the Director General of the JRC of
4 October 2006, in so far as it reclassifies the appellant in
Grade AST 3, Step 2, whereas he was initially classified in
Grade AST 4, Step 2;

— Confirm the decision of 28 June 2006 which appoints the

— order the Office for Harmonisation in the Internal Market to

appellant in Grade AST 4, Step 2;

pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘Kids Vits’ for goods
and services in Classes 3, 5 and 35 (Community trade mark
No 3 979 143).

— State to the Appointing Authority the consequences of the
annulment of the contested decisions and, in particular, clas-
sification in Grade AST 4, Step 2, and the retroactive effect
of appointment in Grade AST 4, Step 2, from the date the
post was first taken up;

— Order the respondent to bear the costs.

Proprietor of the mark or sign cited in the opposition proceedings:
Merck KGaA.

Pleas in law and main arguments

Mark or sign cited in opposition: Word mark ‘VIDS4KIDS’ for
goods in Class 5 (mark No 3 128 196).

Decision of the Opposition Division: Upholding of the opposition.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas
in law: Breach of Article 8(1)(b) of Regulation (EC)
No 40/94 (1), since there is no likelihood of confusion between
the opposing marks.

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

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

Appeal brought on 17 November 2008 by Philippe Bui
Van against the judgment of the Civil Service Tribunal
delivered on 11 September 2008 in Case F-51/07 Bui Van v
Commission

(Case T-491/08 P)

(2009/C 32/76)

Language of the case: French

Parties

Appellant: Philippe Bui Van (Hettange-Grande, France)
sented by P. Nelissen Grade, lawyer)

(repre-

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— Declare the appeal admissible and well-founded;

— Set aside the judgment of the Civil Service Tribunal of the
European Union (Second Chamber) of 11 September 2008
in Case F-51/07;

By the present appeal, the appellant seeks to have set aside the
judgment of the Civil Service Tribunal (CST) of 11 September
2008 in Case F-51/07 Bui Van v Commission, by which the CST
ordered the respondent
the sum of
EUR 1 500 by way of damages and dismissed, as to the
remainder, the action for annulment of the decision reclassifying
the appellant in Grade AST 3, whereas he had initially been clas-
sified in Grade AST 4.

to pay the appellant

In support of his appeal, the appellant puts forward three pleas
in law.

First, the judgment under appeal ought to be set aside in so far
the Commission
as it considers, while acknowledging that
infringed the appellant's rights of defence, that the fact that the
appellant was not heard did not affect
the
Commission's contested decision.

the validity of

Second, in connection with the appellant's plea at first instance
alleging that there had been a manifest error of assessment and
breach of the principles of
legal certainty and protection of
legitimate expectations,
the CST was wrong to uphold the
administrative decision of 4 October 2006, downgrading the
appellant from Grade AST 4 to Grade AST 3, by holding,
wrongly, that the appellant did not have reason to have legiti-
mate expectations in the act appointing him in Grade AST 4,
on the ground that the appellant should have known, because
of a footnote in the competition notice, that his appointment in
Grade AST 4 was unlawful and that the new Staff Regulations
of Officials of the European Communities — which, according
to the competition notice, were the ones to apply — could be
pleaded against him. The appellant submits that that footnote
could not alter the provisions of the Staff Regulations in force
at the time of the competition notice.

Third, the CST was wrong to dismiss the plea that there was an
infringement of the principle of equal treatment even though
the Appointing Authority, while it downgraded the appellant to
Grade AST 3, responded positively to the complaints brought
by three other officials who were essentially in the same situa-
tion as the appellant.