Case T-32/09 P: Appeal brought on 26 January 2009 by Luigi Marcuccio against the judgment of the Civil Service Tribunal delivered on 4 November 2008 in Case F-18/07 Marcuccio v Commission
Date: 2009-01-26
Institutions: Court of First Instance
Subjects: Civil Service Tribunal, European Commission, appeal, fundamental rights

21.3.2009

EN

Official Journal of the European Union

C 69/51

Appeal brought on 26 January 2009 by Luigi Marcuccio
against the judgment of the Civil Service Tribunal delivered
on 4 November 2008 in Case F-18/07 Marcuccio v
Commission

(Case T-32/09 P)

(2009/C 69/111)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

— Unlawful findings as regards the alleged manifest inadmissi-

bility of the action at first instance in its entirety.

Complete failure to state adequate reasons and a failure to make
preliminary enquiries as regards the date on which the defence
was lodged and a procedural error in that no account was taken
of
to have regard to the arguments
contained in the defence in so far as made out of time.

the requirement not

— Infringement of the rule that there should be a fair hearing,
as laid down in Article 6 of the European Convention on
Human Rights and Article 47 of the Charter of Fundamental
Rights of the European Union.

Other party to the proceedings: Commission of
Communities

the European

Action brought on 26 January 2009 — Procaps v OHIM —
Bioframa (PROCAPS)

Form of order sought by the appellant

— In every case

(A.1) set aside in its entirety and without exception the

order under appeal;

(A.2) declare the action at first instance to be admissible in

full.

— As a primary remedy:

(B.1) uphold in their entirety and without exception the
appellant's pleas in law set out in the application at
first instance;

(B.2) order

the respondent

to pay the appellant's costs
relating to this appeal and to the proceedings at first
instance;

— or, in the alternative:

(B.3) refer the case back to the Civil Service Tribunal, sitting

in a different formation, for a fresh decision.

Pleas in law and main arguments

is directed against the order of the Civil Service
This appeal
Tribunal of 4 November 2008 in Case F-18/07 Marcuccio v
Commission, which declared the appellant's action to be mani-
festly inadmissible.

In support of the forms of order sought by him, the appellant
raises the following pleas in law:

— Complete failure to state adequate reasons as regards the
classification of the note of 11 October 2005 referred to in
paragraph 3 of the order under appeal as an application
made under Article 90 of the Staff Regulations, with the
result that, in the case at issue, the provisions of Article 90
of the Staff Regulations were applied.

— Complete failure to state adequate reasons as regard the
statements concerning the date on which the note of
11 October 2005 reached the respondent and the date on
which the contested decision took effect.

(Case T-35/09)

(2009/C 69/112)

Language in which the application was lodged: Spanish

Parties

Applicant: Procaps SA (Barranquilla, Colombia) (represented by:
M. Vidal-Quadras Trias de Bes, lawyer)

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

Other party to the proceedings before the Board of Appeal of
OHIM: Biofarma SAS (Neuilly sur Seine, France)

Form of order sought

for Harmonisation

— Annul the decision of the Fourth Board of Appeal of OHIM
Internal Market
(Office
(Trade Marks and Designs) of 24 November 2008 in Case
R 867/2007-4 which was notified to the parties on
25 November 2008.

the

in

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant

Community trade mark concerned: Word mark ‘PROCAPS’ (Trade
mark application No 3.519.394)
for goods and services in
Classes 5, 35, 39, 40, 44.

Proprietor of the mark or sign cited in the opposition proceed-
ings: BIOFARMA, société par actions simplifiée.

Mark or sign cited in opposition: National and international
word mark ‘PROCAPTAN’, for goods in Class 5.

Decision of the Opposition Division: Opposition: Opposition
rejected.