APPEAL against the judgment of the European Union Civil Service Tribunal (First Chamber) of 14 October 2008 in Case F‑74/07 Meierhofer v Commission [2008] ECR-SC I‑A‑1-0000 and II‑A-1-0000 seeking to have that judgment set aside,

This has several times been the subject of resolutions in the European Parliament, and, even more seriously, has been the subject of four adverse judgements by the European Court of Justice, most recently Commission v Italy (Case C-212/99, judgement reported in 2001), yet as of the end of 2003 no finally effective action has been taken by the Italian State to observe its legal obligations to the European citizens affected by its non-compliant conduct.

However, the European Court of Justice rulings in November 2002 in the so-called "open skies"-cases clearly stated that such bilateral air transport agreements are not in conformity with the EU Treaty since they violate the external competence of the Community.

Accordingly, as the Court of First Instance essentially held in paragraph 55 of the judgment under appeal, the legality of those decisions must be assessed solely on the basis of that regulation and not on the basis of a previous decision-making practice of those boards (Case C‑37/03 P BioID v OHIM [2005] ECR I-0000, paragraph 47).

Pursuant to the principle of the rule of law in criminal matters, the Court of Justice has also recently ruled (in its judgment of 3 May 2005, cases C-387/02, C-391/02 and C-403/02) that a directive 'cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive' (judgment of the Court of 8 October 1987, Case 80/86, Kolpinghuis Nilmegen, reports page 3969, point 13, and judgment of 7 January 2004, in cases C-60/02, X, not yet published in the reports, poi ...[+++]nt 61, and the case law cited therein).

That means the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, to that effect, in relation to Article 3(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), which is identical to Article 7(1)(b) of Regulation No 40/94, Case C-218/01 Henkel [2004] ECR I-0000, paragraph 50 and the case-law cited there; see also Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I-0000, paragraph 35 and the case-law cited there).