Case T-371/03: Action brought on 7 November 2003 by Vincenzo le Voci against the Council of the European Union
Date: 2004-01-24
Institutions: Court of First Instance
Subjects: Council of the European Union, European official, action for annulment (EU), competition (EU), promotion

24.1.2004

EN

Official Journal of the European Union

C 21/37

The applicant brought an application before the Court of First
Instance (3) seeking the annulment of Regulation No 2380/98
insofar as the Council failed to give retroactive effect to the
above amendment. By judgement dated 29 June 2000 (4) the
Court of First Instance annulled the contested provision.
Thereafter the Council adopted Regulation (EC) No 133/2001
of 22 January 2001 (5) amending Regulation (EC) No 1567/97
and granting retroactive effect to the provision in question. All
of the applicant’s payments of duties imposed by Regulation
No 1567/97 were refunded to it.

The applicant claims that the Court should:

— annul the appointing authority’s decision of 11 March
2003 not to accept the applicant’s candidature for the
post of Director in the Directorate ‘Africa, Caribbean,
Pacific’ (AIDCO.C), as a result of the appointing auth-
ority’s decision of 8 January 2003 to appoint another
person to that post;

— in any event, orders the defendant to pay the costs.

By its present action the applicant seeks to obtain compen-
sation in the form of interest on the amounts of import duty
which it initially paid and which were later refunded to it, as
well as in the form of legal expenses it incurred in the course
of administrative proceedings before the Commission and the
German customs authorities.

Pleas in law and main arguments

The applicant in this case challenges the appointing authority’s
rejection of his candidature for the post of Director in the
Directorate ‘Africa, Caribbean, Pacific’ (AIDCO.C).

In support of its application the applicant submits that the
Council acted illegally in refusing to abide by the consequences
of the review findings leading to Regulation 2380/98 and that
this illegal behaviour was of sufficient gravity as to give rise to
liability under Article 288 EC.

In support of his claims, he alleges infringement of Article 7,
of the second paragraph of Article 25, and Articles 29(1)(a) and
45(1) of the Staff Regulations, irregularity in the administrative
procedure prior to the contested decision, and disregard of
general legal principles, such as the protection of legitimate
expectations, equal treatment and career progression.

(1) OJ L 208, 2.8.1997, p. 31-43.
(2) OJ L 296 , 5.11.1998, p. 1-5.
(3) Case no T-7/99, notified in OJ C 86, 27.3.1999, p. 23.
(4) Notified in OJ C 259, 9.9.2000, p. 17.
(5) OJ L 23, 25.1.2001, p. 9.

In that regard, the applicant submits, in particular, that his
candidature was not considered fairly and that he was not, at
the very least, short listed without any statement of reasons,
although the appointing authority had recognised his abilities
for A2 post of Director AIDCO. Furthermore, the appointing
authority subsequently established criteria not set out in the
vacancy notice.

Finally, the appointing authority made a manifest error of
assessment in the comparison of the candidates’ respective
merits.

Action brought on 5 November 2003 by Jacques Wunen-
burger against Commission of the European Communities

(Case T-370/03)

(2004/C 21/78)

(Language of the Case: French)

Action brought on 7 November 2003 by Vincenzo le Voci
against the Council of the European Union

(Case T-371/03)

(2004/C 21/79)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 November 2003 by Jacques
Wunenburger, residing in Zagreb (Croatia), represented by
E. Boigelot, lawyer, with an address for service in Luxembourg.

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 7 November 2003 by Vincenzo le Voci,
Brussels, (Belgium), represented by B. van de Wal and E. Oude
Elferink, lawyers.

C 21/38

EN

Official Journal of the European Union

24.1.2004

The applicant claims that the Court should:

— declare the internal competition A/270 invalid and void,
or at least declare invalid the decision of the Selection
Board of 28 July 2003 not to admit the applicant to the
oral test;

— order the defendant to pay the costs of the applicant

Pleas in law and main arguments

The challenged Decision in the present case is the non-
admission of the applicant to the oral test of the internal
competition A/270, which offered grade B officials to acquire
grade A.

In support of his conclusions, the applicant claims that:

— the content of one of the written tests (A 1) was not
confined within the limits that were laid down in the
notice of the competition. With regard to this, it is stated
that instead of making an analysis of a file with respect
to a particular EU issue and summarizing it, the candidates
were also expected to give their own strategic input. The
test required an approach, and the application of different
intellectual and writing skills, other than those for which
the candidates were prepared. This deviation constitutes
a breach of the requirements for the notification of
competitions as laid down in Article 1, Annex III, of the
Staff Regulations.

— One of the working documents handed out for the
A 1 tests contained contradictions and errors. These
imperfections constitute a breach of both the principle of
non-discrimination and the principle of good manage-
ment and sound administration.

— The Spanish version of one of the working documents
contained additional fundamental errors. This constitutes
a breach of the principle of non-discrimination between
candidates of different nationalities participating in the
test.

— They have reasons to believe that the mastery of the
Italian language within the Selection Board was not
sufficient to objectively assess the Italian tests, which
would constitute a breach of
the principle of non-
discrimination.

— There has been a lack of non-discriminatory standards
for the evaluation of
the written test and lack of
transparency due to the lack of an evaluation memor-
andum, both of which impaired the possibility of judicial
scrutiny and control.

Action brought on 12 November 2003 by Solo Italia S.r.l.
against the Office for Harmonisation in the Internal
Market

(Case T-373/03)

(2004/C 21/80)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 12 November 2003 by Solo Italia,
established in Ossona (Italy), represented by A. Bensoussan,
M.-E. Haas, L. Tellier-Loniewski, lawyers, with an address for
service in Luxembourg.

The applicant claims that the Court should:

— declare the action to be admissible and, accordingly,
annul Decision No R 0208/2003-2 of the Board of
Appeal of 10 September 2003 and hold that it is for the
Office to draw the appropriate conclusions from the
operative part of and the grounds for the judgment to be
adopted;

— rule on the costs and order the defendant to bear its own

costs and to pay all of the applicant’s costs.

Pleas in law and main arguments

Applicant
munity trade mark:

for

Com-

Solo Italia S.r.l.

Community trade mark Word mark ‘PARMITALIA’
sought:

in
respect of goods in Class 29
(cheeses).

Proprietor of mark or
sign cited in the oppo-
sition proceedings:

Nuova Sala S.r.l.

Mark or sign cited in
opposition:

Figurative Community trade mark
‘PARMITAL’ for goods in Class 29
(Italian grated cheeses).

Decision of the Oppo-
sition Division:

Refusal of
registration.

the application for