----

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)

(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.

The appellant claims that the Court should:

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.

----