12.9.2009

Official Journal of the European Union

C 220/35

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(Case T-260/09 P)

2009/C 220/74

Language of the case: French

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by I. de Medrano Caballero, Agent, and D. Waelbroeck, lawyer)

Other party to the proceedings: Manuel Simões Dos Santos (Madrid, Spain)

Form of order sought by the appellant

The appellant claims that the Court of First Instance should:

—set aside the judgment of the Civil Service Tribunal in Case F-27/08, including the ruling as to costs;

—uphold the form of order contended for by OHIM at first instance, that is to say, dismiss the action as unfounded;

—order the respondent to pay the costs of the present proceedings, together with those incurred in the proceedings before the Civil Service Tribunal.

Pleas in law and main arguments

By the present appeal, OHIM is seeking to have set aside the judgment of 5 May 2009 in Case F-27/08 Simões Dos Santos v OHIM, by which the Civil Service Tribunal annulled Decision PERS-01-07 and OHIM’s letter of 7 June 2007 in so far as they entail the elimination of the balance of the merit points held by Manuel Simões Dos Santos following his promotion.

In support of its appeal, OHIM relies on three pleas in law:

—error of law in that, contrary to the case-law concerning the conditions relating to the retroactive application of an act and in breach of the principle of the protection of legitimate expectations, the Civil Service Tribunal held that OHIM was in breach of the principles of legal certainty and non-retroactivity;

—error of law, in that the Civil Service Tribunal held that OHIM had infringed Article 233 EC and disregarded the authority of res iudicata of the judgment in Case T-435/04 Simões Dos Santos v OHIM, whereas in fact the measures taken by OHIM for the purposes of complying with that judgment are the only measures permissible if the principle of non-discrimination is not to be infringed;

—unlawfulness of the award by the Civil Service Tribunal of costs for the reparation of purported non-physical damage, since OHIM is in no way at fault and the ruling of the Civil Service Tribunal in that respect is ultra petita.

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