Case T-373/03: Action brought on 12 November 2003 by Solo Italia S.r.l. against the Office for Harmonisation in the Internal Market
Date: 2004-01-24
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), cheese, trade-mark law

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

24.1.2004

EN

Official Journal of the European Union

C 21/39

Decision of the Board of
Appeal:

Pleas in law:

Dismissal of the appeal as inad-
missible as a result of a failure
to comply with the time-limit
prescribed for lodging appeals.

— infringement of Article 6 of
the European Convention on
Human Rights in that notifi-
cation by fax does not satisfy
the requirement for security
of notification in proceed-
ings.

— in the alternative,

infringe-
ment of Rules 55, 61 and 65
of Commission Regulation
No
of
Article 59 of Regulation
No 40/94.

2868/95

and

Pleas in law and main arguments

Competition notice CONSEIL/A/270 stated that candidates
were required to have a perfect command of one of the
official languages of the European Communities, a very good
knowledge of either English or French and an adequate
knowledge of the other of those two languages. However,
candidates choosing French or English as the language of
which they had a perfect command were required to show
evidence of a very good knowledge of the other of those two
languages and also an adequate knowledge of a third official
language. By his first plea, the applicant claims that this
provision discriminates between, on the one hand, anglophone
and francophone candidates and, on the other, other candi-
dates. In that context, he relies on breach of the principle of
equal
the first
paragraph of Article 28 of the Staff Regulations. By his second
plea, the applicant claims that, at the third written test,
candidates were asked to write a brief account of the role of
the Secretariat General of the Council,
the
competition notice, which provided for an account of the
activities of the Council. The third plea refers to the Council’s
refusal to grant the applicant access to the corrected copy of
his third written test. The applicant pleads infringement of
Article 255(1) EC and also breach of the obligation to state
reasons and of the principles of good management and good
administration.

treatment and also of subparagraph f of

in breach of

Action brought on 10 November 2003 by Michel Hen-
drickx against Council of the European Union

(Case T-376/03)

(2004/C 21/81)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 10 November 2003 by Michel Hendrickx,
residing in Brussels, represented by Sébastien Orlandi, Albert
Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decisions of the Selection Board for competition
CONSEIL/A/270 to award him an eliminatory mark for
written test A.3 and not to admit him to the oral tests;

— order the Council to pay the applicant symbolic damages
of one euro for the non-pecuniary harm sustained;

Action brought on 17 November 2003 by ATI Tech-
nologies Inc. against the Office for Harmonisation in the
Internal Market

(Case T-377/03)

(2004/C 21/82)

(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 17 November 2003 by ATI
Technologies Inc., established in Thornhill (Canada), represen-
ted by Chantal Silvia Moreau,
lawyer, with an address for
service in Luxembourg.

— order the defendant to pay the costs.

Asociación de Técnicos de Informatica — ATI was also a party
to the proceedings before the Board of Appeal.