Case T-306/04: Action brought on 15 July 2004 by Monika Luxem against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), appointment of staff, competition (EU), recruitment

23.10.2004

EN

Official Journal of the European Union

C 262/41

Pleas in law and main arguments:

Pleas in law and main arguments:

The applicant is part of a consortium that was the successful
tenderer as service provider for ESP Lot 5, web applications.
ESP Lot 4, Data/Information management applications, was
awarded to another consortium.

Community trade mark
sought:

Olfactory mark
‘ODEUR DE
FRAISE MÛRE’ accompanied by
a graphic
a
of
strawberry
Registration
No 001122118.

representation

—

According to the applicant, the tender contested in the present
application, ESP-DIMA, was based on the wrong assumption
that the provision of services for data and information manage-
ment constitutes a new market and that the use of ESP Lot 4
had exceeded all expectations. The applicant submits that the
Commission has wrongly allocated work to ESP Lot 4 that,
according to the applicant, actually fell within ESP Lot 5. The
applicant states that, as a result,
the Commission had to
increase the budget forecast for ESP Lot 4 and issue a new
tender ESP-DIMA while the budget used for ESP Lot 5
remained behind the provisions.

furthermore submits

the Commission
The applicant
infringed an essential procedural requirement in that at least
one member of the evaluation committee of the contested
tender had a conflict of interest with the applicant.

that

the applicant claims

Finally,
second
successful tenderer for ESP-DIMA is not sufficiently justified.
The applicant also submits that the Commission refused to
disclose information regarding the evaluation report.

ranking as

that

its

Action brought on 26 July 2004 by Eden against the
Office for Harmonisation in the Internal Market (OHIM)

(Case T-305/04)

(2004/C 262/78)

(Language of the case: French)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 26 July 2004 by Eden, estab-
lished in Paris, represented by M. Antoine-Lalance, lawyer.

The applicant claims that the Court should:

— annul the decision of the First Board of Appeal of OHIM of

24 May 2004 (Case R 591/2003-4);

Goods or services:

Goods in Classes 3, 16, 18 and
25.

Decision
before
Appeal:

contested
the Board of

Refusal
examiner.

to

register

by

the

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal.

Infringement of Article 7(1)(a) of
Regulation No 40/94.

Action brought on 15 July 2004 by Monika Luxem against
the Commission of the European Communities

(Case T-306/04)

(2004/C 262/79)

(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 15 July 2004 by Monika Luxem,
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 of First Instance should:

— annul the Commission's decision not to appoint her an offi-
cial of the European Communities, not to assign her to DG
DEV/A 2 to the post declared vacant under reference COM/
2002/6022/F and refusing to assign her to any other post
corresponding to her abilities and her professional qualifica-
tions and experience;

— order OHIM to pay the costs.

— order the defendant to pay the costs.

C 262/42

EN

Official Journal of the European Union

23.10.2004

Pleas in law and main arguments:

The applicant submitted her candidature for open competition
COM/A/6/01 for the recruitment of administrators in the fields
of external relations and the management of aid. In her candi-
dature she stated that she had obtained a German diploma after
three years of studies. Having passed the competition, she
applied for a vacant post in the Commission. By letter of 30
July 2003 the Commission informed her that, having regard to
her diploma,
candidature.
According to the Commission, only a German diploma
obtained after four years' studies would satisfy the conditions
for admission to the competition, which stipulated that the
necessary diplomas must give access to doctoral studies.

it was unable

to accept her

In support of her action for annulment of that decision, the
applicant pleads breach of the principle of legal certainty, the
unlawfulness of withdrawing a decision that has conferred
rights on an individual, infringement of the competition notice
in question and a manifest error of assessment.

Action brought on 19 July 2004 by Carlo Pagliacci against
the Commission of the European Communities

(Case T-307/04)

(2004/C 262/80)

(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 19 July 2004 by Carlo Pagliacci,
resident 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 decision of the jury in competition COM/A/1/02
awarding the applicant insufficient marks for him to be
placed on the list of successful candidates;

— order the Commission to pay the costs.

Pleas in law and main arguments:

In support of his action, the applicant alleges an infringement
of the competition notice, since a number of candidates placed
on the list of those to have been successful did not possess the
prescribed qualification, directly related to the sphere of agri-
culture. He also submits that one of the members of the jury
worked with some of the candidates on a daily basis. In his
submission, that fact placed the relevant candidates in a special
situation by comparison with the other candidates and conse-

quently entailed an infringement of the principle of equal treat-
ment and non-discrimination. Since it
the
appointing authority had not been made aware of this situa-
tion, the applicant also relies on an infringement of Article 14
of the Staff Regulations on that basis.

is alleged that

Action brought on 19 July 2004 by Francesco Ianniello
against the Commission of the European Communities

(Case T-308/04)

(2004/C 262/81)

(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 19 July 2004 by Francesco
Ianniello, resident 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 appeal assessor's decision of 8 September 2003
approving the applicant's 2001-2002 career development
report;

— order the Commission to pay the costs.

Pleas in law and main arguments:

In support of his appeal, the applicant invokes a breach of
Article 8 of the general provisions implementing Article 43 of
the Staff Regulations. The applicant claims that the provision is
unlawful because it provides for the appointment of members
of the Joint Evaluation Committee whose grade is the same as,
or lower than, that of the applicant and who thus do not
possess all the guarantees of independence or the requisite
powers. The applicant adds that, although he acts on the
authority of a staff union, the director of resources or his alter-
nate did not withdraw and took part in the consideration of his
appeal.

The applicant also claims that there was a breach of the duty of
confidentiality on the part of the members of the Joint Evalua-
tion Committee, a breach of
the Joint
Committee should be impartial and objective, a breach of the
rights of defence and of the right to an inter partes hearing, a
breach of the principle of sound administration and a manifest
error of assessment and inconsistency between the comments
and the marks awarded.

the principle that