Case T-560/08 P: Appeal brought on 19 December 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 14 October 2008 in Case F-74/07 Meierhofer v Commission
Date: 2008-12-19
Institutions: Court of First Instance
Subjects: European Commission, action by staff, appeal, appointment of staff, competition (EU), recruitment

C 55/36

EN

Official Journal of the European Union

7.3.2009

Form of order sought

Form of order sought by the appellant

— Annul the decision of the First Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 30 September 2008 in case R 221/2007-1
to the extent that the opposition filed by the applicant has
been rejected; and

— Order the defendant and the other party to the proceedings

before the Board of Appeal to pay the costs.

— Set aside the judgment of

the Civil Service Tribunal of

14 October 2008 in Case F-74/07 Meierhofer v Commission;

— Each party to bear its own costs.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The other party to the
proceedings before the Board of Appeal

Community trade mark concerned: The figurative mark ‘MPAY’, for
goods and services in classes 9, 35, 36, 37, 38 and 42 — appli-
cation No 3 587 896

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

or

sign cited: Community

Mark
trade mark registration
No 2 061 656 of the word mark ‘MPAY24’ for goods and
services in classes 9, 16, 35, 36 and 38; Austrian trade mark
registration No 200 373 of the word mark ‘MPAY24’ for goods
and services in classes 9, 16, 35, 36 and 38.

Decision of the Opposition Division: Rejected the trade mark appli-
cation in its entirety

Decision of the Board of Appeal: Partial dismissal of the appeal

Pleas in law: Infringement of Article 8(1) and (4) of Council
Regulation 40/94 as the Board of Appeal wrongly assessed the
likelihood of confusion between the trade marks concerned.

Appeal brought on 19 December 2008 by the Commission
of the European Communities against the judgment of the
Civil Service Tribunal delivered on 14 October 2008 in
Case F-74/07 Meierhofer v Commission

(Case T-560/08 P)

(2009/C 55/66)

Language of the case: German

Parties

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

Other party to the proceedings: S. Meierhofer (Munich, Germany)

The appeal is brought against the judgment of the Civil Service
Tribunal of the European Union of 14 October 2008 in Case
F-74/07 Meierhofer v Commission, in which the Tribunal set aside
the
in Competition
selection
EPSO/AD/26/05 of 19 June 2007 for infringement of the duty
to state reasons.

decision

board

the

of

By the contested decision, the candidate's request for review of
the selection board's decision that the candidate had not passed
the oral test of the competition was dismissed. The candidate
had fallen short of the required minimum mark in the oral test
by half a point. According to the competition notice, the oral
test was assessed by a single overall mark.

The appeal is directed against the requirements of the duty to
state reasons on a selection board and the review criteria of the
Community judicature. The Commission challenges in particular
the conclusion of the Civil Service Tribunal that in ‘particular
circumstances’, for example in the case of a mark just under the
minimum number of points, the duty to state reasons was not
satisfied by communicating to the candidate excluded at the oral
stage only a single mark leading to exclusion.

The Commission argues that that approach leads to legal uncer-
tainty:

— First, the duty to state reasons must,

in accordance with
consistent case-law, be reconciled with the preservation of
confidentiality which applies to the work of a selection
board pursuant to Article 6 of Annex III to the Staff Regula-
tions, and which forbids the dissemination of the opinions
of individual members of the selection board and the disclo-
sure of details in relation to the assessment of the applicants
personally or in comparison with others.

— Second, the comparison drawn by the Tribunal with cases
concerning access to documents is inappropriate, since
Article 6 of Annex III makes no provision for exceptional
cases or the balancing of interests.

— Third, the Tribunal overlooked the case-law according to
which the duty to state reasons must stand in a propor-
tionate relationship to the measure in question, and is
simply designed to enable the Tribunal to review the legality
of the decision. Since subsequent review of an oral test by
the Community judicature is impossible in the nature of
things, the latter has hitherto essentially confined its review
to compliance with the competition regulations and the
advertising of the competition.

7.3.2009

EN

Official Journal of the European Union

C 55/37

The judgment creates further legal uncertainty in relation to the
distinction between various
types of procedural measures,
concerning requests for the production of confidential docu-
ments by an entity and the circumstances in which such
requests may be refused (measures of organisation of procedure
and orders for evidence to be taken). In the present case, the
Tribunal also fundamentally misinterpreted the Commission's
position, as the latter did not in any way refuse such production.
The Commission merely explained that it could not produce the
relevant documents on the basis of the measures of organisation
of procedure ordered by the Tribunal, but was awaiting an order
(for the production of evidence) of the Tribunal.

— order

the European Community to pay the applicants'
compensatory interest at the default rate from the date of
the losses suffered;

— order the European Community to pay default interest of
8 % or any other appropriate rate to be determined by the
Court, calculated on the amount payable as from the date of
the Court's judgment until actual payment; and

— order the Commission to pay all costs of these proceedings.

Action brought on 15 December 2008 — Bactria and
Gutknecht v Commission

(Case T-561/08)

(2009/C 55/67)

Language of the case: English

Parties

Applicants: Bactria Industriehygiene-Service Verwaltungs GmbH
Jürgen Gutknecht (Kirchheim-
(Kirchheimbolanden, Germany),
bolanden, Germany) (represented by: K. Van Maldegem and C.
Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the application admissible and well founded;

Pleas in law and main arguments

By means of their application, the applicants claim compensa-
tion, pursuant to Article 235 EC, for the damages allegedly
suffered form the adoption of Article 6(2) of Commission Regu-
lation 1896/2000 of 7 September 2000 (1) on the first phase of
the programme referred to in Article 16(2) of Directive 98/8/EC
of the European Parliament and of the Council concerning the
placing of biocidal products on the market (2) together with
Commission Regulation 2032/2003 (3) and Commission Regu-
lation 1451/2007 (4).

In the alternative, the applicants claim compensation for the
damages allegedly suffered from the failure of the Commission
to ensure protection of the data protection rights granted to
to Article 12 of Directive 98/8/EC. They
notifiers pursuant
further submit that the damage suffered by the applicants as a
result of the Commission's unlawful conduct consists of a signif-
icant reduction in the value of the first applicant's business and
the lost profit (lucrum cessans) which the first applicant would
have made by selling the biocidal products at issue an the active
substances contained in those biocidal products but for the
conduct of the Community.

In addition to the damage allegedly suffered by the second appli-
cant as a shareholder of and therefore owner of the business of
the first applicant, it is submitted that the second applicant has
also suffered the loss of his livelihood. Finally, the applicants
claim compensatory interest at the default rate from the date the
losses claimed occurred.

— order the European Community to pay the damages suffered
by the applicants as a result of (i) the unlawful adoption of
Article 6(2) of the First Review Regulation together with the
Second Review Regulation and Commission Regulation
1451/2007; or,
the Commission's
in the alternative (ii)
failure to take the necessary measures to ensure that the
applicants' data protection rights under
the Directive
98/8/EC were maintained and free-riding avoided during the
review programme,
amount of
estimated at
EUR 3 912 569, or other amount as further established by
the applicants in the course of these proceedings or by the
Court ex aequo et bono;

total

a

— in the alternative, rule on interlocutory judgment that the
European Community is obliged to make reparation for the
loss suffered and order the parties to produce to the Court
within a reasonable period from the date of the judgment
the compensation agreed
figures as to the amount of
between the parties or, failing agreement, order the parties
to produce to the Court within the same period their
submissions with detailed figures in support;

(1) Commission Regulation (EC) No 1896/2000 of 7 September 2000
on the first phase of the programme referred to in Article 16(2) of
Directive 98/8/EC of the European Parliament and of the Council on
biocidal products (OJ 2000 L 228, p. 6).

(2) Directive 98/8/EC of the European Parliament and of the Council of
16 February 1998 concerning the placing of biocidal products on
the market (OJ 1998 L 123, p. 1).

(3) Commission Regulation (EC) No 2032/2003 of 4 November 2003
on the second phase of the 10-year work programme referred to in
Article 16(2) of Directive 98/8/EC of the European Parliament and
of the Council concerning the placing of biocidal products on the
market, and amending Regulation (EC) No 1896/2000 (OJ 2003
L 307, p. 1).

(4) Commission Regulation (EC) No 1451/2007 of 4 December 2007
on the second phase of the 10-year work programme referred to in
Article 16(2) of Directive 98/8/EC of the European Parliament and
of the Council concerning the placing of biocidal products on the
market (OJ 2007 L 325, p. 3).