Case C-520/08 P: Appeal brought on 27 November 2008 by HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 September 2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o. (formerly HP Temporärpersonalgesellschaft mbH) v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Manpower, Inc.
Date: 2008-11-27
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, temporary employment agency, trade-mark law

7.3.2009

EN

Official Journal of the European Union

C 55/7

5. In the appellant's view, the reasoning of the Court of First
Instance in the matter of opinions of the legal service is at
variance with the judgment of the Court in the Turco case.
Even if the present case does not concern legislation, clearly
an examination must also take place in this instance on the
basis of the content of the opinions. The fact that the
lawfulness of a previous decision could be called into ques-
tion does not of itself constitute a reason for not disclosing
the document — rather the contrary. The absence of infor-
mation can in itself give rise to doubt as to the lawfulness
of a certain decision and the legitimacy of the decision-
making process as a whole. The risk of doubt could also be
averted if the Commission clearly stated in the decision the
reasons why it had opted for a solution which the legal
service had advised against. The claim that the legal service
would be more reticent and cautious lacks any basis, in the
same way as the Court's reasoning regarding other docu-
ments. Besides, the appellant considers that the argument
that it would be difficult for the legal service to defend a
different position in court is stated in terms which are too
general to show that there is a risk which is reasonably
foreseeable and not purely hypothetical.

6. The appellant does not question that a large part of the
content of the documents in question may be so sensitive
and that it must remain confidential. Such a conclusion
must, however, be based, according to case-law, on a
specific and individual examination to determine whether
disclosure of the content of the document would result in
the interest to be protected being seriously undermined.

7. As regards the freedom of opinion of officials, the appellant
wishes to point out that it is incumbent on an official to
perform the duties which arise from the service and in
accordance with the staff regulations of officials employed
in the Community institutions. The fact that the public
have a legal right to scrutinise the activity does not consti-
tute an acceptable reason for him to neglect the proper
performance of his duties.

8. An undertaking which is party to a concentration of under-
in common with any Union citizen or business
takings,
with its seat in the European Union whatsoever, has a right
to be informed about a document even if the information
in the document is confidential
in order to protect the
internal decision-making procedure, if there is nevertheless
an overriding public interest in the disclosure of the docu-
ment. The considerations which MyTravel has put forward
could,
in the appellant's view, quite plausibly constitute
such a public interest and cannot be dismissed without
further examination — as the Court of First Instance has
done — solely with reference to the applicant's private
interests. The applicant is under no obligation either to
plead or to prove anything in that regard; rather, it is for
the institutions to ascertain whether there is an overriding
public interest.

9. The appellant submits that, by its decision, the Court of
First Instance has disregarded Community law and failed to
apply the second indent of Article 4(2) and the second sub-
paragraph of Article 4(3) of the transparency regulation
correctly.

10. In any event there are probably parts of the documents
which it should be possible to disclose pursuant to the
provisions on partial disclosure in Article 4(6) of the trans-
parency regulation.

(1) OJ C 272, p. 18.

sp.

z o.o.

Appeal brought on 27 November 2008 by HUP Uslugi
Polska
(formerly HP Temporärpersonal-
gesellschaft mbH) against the judgment of the Court of
First Instance (Fifth Chamber) delivered on 24 September
2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o.
(formerly HP Temporärpersonalgesellschaft mbH) v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs), Manpower, Inc.

(Case C-520/08 P)

(2009/C 55/10)

Language of the case: English

Parties

Appellant: HUP Uslugi Polska sp. z o.o. (formerly HP Temporär-
personalgesellschaft mbH) (represented by: M. Ciresa, Rechtsan-
walt)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Manpower, Inc.

Form of order sought

The appellant claims that the Court should:

— annul the judgment under appeal

— order OHIM to pay the costs

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First
Instance
in conjunction with
Article 7(1)(b), 7(1)(c), 7(1)(d) and 7(1)(g) of Council Regulation
No 40/94 on the Community trademark.

infringes Articles 51(1)(a)