# C_2005093EN.01000402.xml

| 16.4.2005 | EN | Official Journal of the European Union | C 93/4 |
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16.4.2005

EN

Official Journal of the European Union

C 93/4

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Appeal brought on 18 January 2005 by H. Meister against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between
  H. Meister
  and
  Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

H. Meister

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

(Case C-12/05 P)

(2005/C 93/08)

Language of the case: French

An appeal against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between H. Meister and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 18 January 2005 by H. Meister, represented by P. Goergen, avocat.

H. Meister

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

The appellant claims that the Court should:

| 1. | declare the appeal admissible and well founded; |
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1.

declare the appeal admissible and well founded;

| 2. | accordingly, set aside the judgment of the Court of First Instance (Third Chamber) of 28 October 2004 (Case T-76/03), with the exception of paragraphs 202 to 208 of the contested judgment, namely the provisions stating that the President of OHIM committed a breach of his administrative duty such as to give rise to a right to reparation; |
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2.

accordingly, set aside the judgment of the Court of First Instance (Third Chamber) of 28 October 2004 (Case T-76/03), with the exception of paragraphs 202 to 208 of the contested judgment, namely the provisions stating that the President of OHIM committed a breach of his administrative duty such as to give rise to a right to reparation;

| 3. | give final judgment on the dispute, if it does not remit the case to the Court of First Instance, and grant the forms of order sought at first instance; |
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3.

give final judgment on the dispute, if it does not remit the case to the Court of First Instance, and grant the forms of order sought at first instance;

| 4. | order OHIM to pay all the costs of the proceedings before both courts. |
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4.

order OHIM to pay all the costs of the proceedings before both courts.

Pleas on appeal and main arguments:

The Court of First Instance, first, gave its reasoning in an erroneous, inadequate and contradictory manner and, second, made errors in law.

First of all, the defects in the Court's reasoning amount to a clear distortion of the facts. The Court's selection of the matters of fact was arbitrary and its assessment of them inaccurate. Secondly, those defects are the result of an incorrect legal qualification of the contested decision, in particular the refusal to classify it as a disciplinary measure. The Court made a further error in its reasoning in finding that the administration had a broad discretion when evaluating the interest of the service, which renders ineffective the duty to have regard to the welfare of officials, and in stating that judicial review concerning observance of the condition relating to the interest of the service is limited to the question as to whether or not the appointing authority used its discretionary powers in a clearly erroneous manner. The Court also carried out an inaccurate assessment of the interest of the service and failed to take the welfare of officials into account. The Court also misapplied the principle of proportionality in deciding that the contested decision complied with the principle, although the decision was neither an appropriate measure, nor the least restrictive one. The Court made a further error in assessing the equivalence or comparability of the new position with the former post. In fact, if the Court's reasoning were accepted, every transfer related to the current grade would comply with the principle of assignment to an equivalent post. Finally, the Court failed to indicate which elements it took into account when it assessed the non-material damage suffered by the appellant.

The Court also made a number of errors in law. First of all, it exempted the transfer decision from the duty to state reasons in considering it a mere measure of internal organisation, even though that duty has been held to constitute a general principle of law. Secondly, the Court made an error of law in finding there to be no infringement of the right to a fair hearing to the detriment of the appellant. The Court also made an error of law in failing to make a clear statement on the scope of the right to freedom of expression, on which the appellant should have been able to rely in this instance. Finally, the Court made an error of law concerning the application of the rights of defence, in particular the right to be heard before the transfer decision was made.

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