Case T-192/03: Action brought on 3 June 2003 by Atlantean Limited against the Commission of the European Communities
Date: 2003-08-02
Institutions: Court of First Instance
Subjects: European Commission, Ireland, action for annulment (EU), conservation of resources, fishery management, fishing vessel, maritime safety

C 184/48

EN

Official Journal of the European Union

2.8.2003

Action brought on 26 May 2003 by Alexandre Tilgenkamp
against the Commission of the European Communities

(Case T-191/03)

(2003/C 184/103)

the previous appointment of
It

the same
Instance to annul
candidate to the same post. (1)
from
objective, relevant and consistent evidence that the contested
measures were taken in order to achieve an end other than
that of complying in good faith with the judgment in Case
T-158/01.

therefore appears

(Language of the Case: French)

(1) Judgment of 9 July 2002 in Case T-158/01 Tilgenkamp v Commis-

sion, not yet published in the European Court Reports.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 May 2003 by Alexandre Tilgen-
represented by Éric
kamp,
Boigelot.

in Overijse (Belgium),

resident

The applicant claims that the Court should:

— annul the decision of the appointing authority of 24 July
2002 to publish vacancy notice COM/125/02 for the post
of Deputy Director-General of the Directorate-General for
Agriculture;

— annul

the decision of

appointing authority of
the
19 November 2002 to appoint another candidate to that
vacant post;

— annul

the decision of

appointing authority of
the
27 November 2002 not to select the applicant for that
post;

— order the defendant to pay to the applicant, provisionally,
the sum of EUR 1 from an amount to be determined for
non-material harm, and a sum, assessed on an equitable
basis, in damages for non-material harm and prejudice to
the applicant's career equal to half of the amount of the
material damage which will be finally determined;

— order the defendant to pay the costs in any event.

Pleas in law and main arguments

The applicant in this case challenges both the rejection of his
application for the post of Deputy Director-General of
the
Directorate-General for Agriculture (vacancy notice COM/125/
02) and the appointment of another candidate to that post.

In support of his claims, the applicant pleads that Article 7,
the second paragraph of Article 25, the third paragraph of
Article 27, Article 29(1)(a) and Article 45(1) of
the Staff
Regulations, and the code of conduct adopted on 18 September
1999 on appointments to Grades A 1 and A 2 were infringed,
that the appointment procedure was flawed, that there was a
misuse of powers, and that general principles of law, such as
legality (failure to observe the terms of the
the principle of
vacancy notice) and the principle of the protection of
legit-
imate expectations, were disregarded.

He contends in particular that the appointment of the candi-
date ultimately chosen, who had been already been appointed
once before, was predetermined and that everything contrib-
uted towards his being appointed again, including publication
of a vacancy notice particularly lacking its essential elements,
that is to say precisely those which had led the Court of First

Action brought on 3 June 2003 by Atlantean Limited
against the Commission of the European Communities

(Case T-192/03)

(2003/C 184/104)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 3 June 2003 by Atlantean Limited,
Donegal,
represented by Mr A. Hussey, Solicitor,
Mr G. Hogen, Senior Counsel, and Mr E. Regan, Barrister,
with an address for service in Luxembourg.

Ireland,

The applicant claims that the Court should:

— annul Commission Decision of 4 April 2003 (2003/245/
EC) insofar as it provides for the rejection of the request
by Ireland , in respect of the vessel the MFV Atlantean, to
increase capacity MAGP (IV) objectives for
reasons of
safety, navigation at sea, hygiene, product quality and
working conditions that concern vessels of more than
12 m in length overall, as set out in Annex 2 of the said
Decision.

— order the Commission to pay the applicant's costs of

these proceedings

Pleas in law and main arguments

The applicant replaced its fishing vessel with a new vessel, the
MFV Atlantean. This vessel was ordered in 1997 and delivered
in 1999. It incorporated safety improvements which gave rise
to an increase in the capacity of gross tonnage. The applicant
relied in this respect on Article 4(2) of Council Decision 97/
413/EEC (1) of 26 June 1997 concerning the objectives and
detailed rules for restructuring the Community fisheries sector
for the period from 1 January 1997 to 31 December 2001
with a view to achieving a balance on a sustainable basis
between resources and their exploitation. This article provides
that
increases in capacity resulting exclusively from safety
improvements shall justify, on a case by case basis, an increase
by the same amount of the objectives for fleet segments where
they do not increase the fishing effort of the vessels concerned.

2.8.2003

EN

Official Journal of the European Union

C 184/49

The application for increase in capacity of the applicant was
submitted by Ireland to the European Commission, who rejected
it in the contested decision.

In support of its present application, the applicant submits that
the Commission erred in law and in fact. According to the
applicant, the increase in capacity complies with the provisions
of Article 4(2) of Council Decision 97/413/EEC and is there-
fore eligible for approval.

that

submits

furthermore

the Commission
The applicant
violated the principle of
legal certainty, the applicant's legit-
imate expectations and the principle of non-retroactivity.
According to the applicant, the Commission applied criteria
which were not in existence at the time the replacement vessel
was ordered or at
the time the application for increase in
capacity was submitted to the Commission.

the applicant claims that

In addition,
the Commission had
regard to the nature of the applications for increase prior to
adopting the said criteria and applied criteria that discriminated
against the applicant. The applicant claims that the exception
for vessels lost at sea and allowing an increase in tonnage in
respect of these new vessels constitutes an unjustified discrimi-
nation.

The applicant also submits that the Commission violated the
principle of proportionality, failed to give adequate or sufficient
reasons and denied the applicant's right to be heard.

(1) OJ L 175, p. 27.

Action brought on 20 May 2003 by Giuseppe Piro against
the Commission of the European Communities

(Case T-193/03)

(2003/C 184/105)

(Language of the Case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 May 2003 by Giuseppe Piro,
resident
represented by
Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Étienne
Marchal, lawyers, with an address for service in Luxembourg.

in Wezembeek Oppem (Belgium),

The applicant claims that the Court should:

— order

the Commission to pay him EUR 1 as token

damages for the harm suffered;

— order the Commission to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant pleads breach of the
obligation to state reasons in that the appeal assessor, when
drawing up the applicant's report for 1999 to 2001, did not
indicate the reasons why he did not take account of the views
of the persons consulted or of the difficult working conditions.
Nor did he explain precisely why the general assessment made
by him was less favourable than that appearing in the staff
report drawn up before the appeal to the Joint Committee on
Staff Reports.

The applicant also pleads the non-material damage suffered by
reason of the belated drawing up of his staff report.

Action brought on 30 May 2003 by Il Ponte Finanziaria
S.p.A. against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM)

(Case T-194/03)

(2003/C 184/106)

(Language of the case: Italian)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
30 May 2003 by Il Ponte Finanziaria S.p.A., represented by
P.L. Roncaglia, A.T. Malaspina and M. Boletto, lawyers.

The other party to the proceedings before the Board of Appeal
was Marine Enterprise Projects Società Unipersonale di Alberto
Fiorenzi S.r.l.

The applicant claims that the Court should:

— annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) of 17 March 2003 in Case R 1015/
2001-4

— order the OHIM to dismiss the application for a Commu-
nity trade mark No 940007 BAINBRIDGE (figurative);

— annul the decision establishing the definitive staff report

for 1997 to 1999;

— order the OHIM to pay the costs.