Case T-391/04: Action brought on 28 September 2004 by Bernard Nonat against Commission of the European Communities
Date: 2004-12-18
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), administrator, promotion, regulations for civil servants, seniority

C 314/22

EN

Official Journal of the European Union

18.12.2004

The applicant claims that the Court should:

The applicant claims that the Court should:

— alter the decision of the Second Board of Appeal of the
Office
for Harmonisation of 23 July 2004 — R
1014/2001-2 so as to allow the appeal and refuse or reject
the opposition;

— annul the Commission's decisions not to enter the appli-
cant's name in a avourable position on either the list of
merit or the list of officials promoted to grade A4 in the
2003 promotion exercise;

— in the alternative, annul the decision of OHIM and require

it to reach a fresh decision on the appeal;

— order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant
munity trade mark:

for

Com-

The applicant

— declare unlawful Article 12 of the general provisions for the
implementation DGE) of Article 45 of the Staff Regulations
in so far as it provides for the award of transitional priority
points at the rate of one point per year of seniority in grade
with a maximum of seven points and additional special
priority points within a limit of 150 % of the possibilities
for promotion in the previous exercise without
taking
account of the actual merits which officials have displayed
during the reference years;

— order the defendant to pay the costs.

Community trade mark
sought:

Word mark ‘Vitacan’ for goods in
Class 29 (milk drinks etc.), Class
30 (cocoa or chocolate drinks) and
Class 32 (fruit drinks etc.), applica-
tion No 452 284

Pleas in law and main arguments

Decision of the Opposi-
tion Division:

Refusal
applied for

to register

the mark

The applicant in these proceedings objects to the appointing
authority's refusal to promote him to A4 in the 2003 promo-
tion exercise.

Decision of
of Appeal:

Pleas in law:

the Board

Dismissal of the appeal

Infringement of Article 8(1)(b) of
Regulation No 40/94 (1)

In support of his claims, he alleges that there has been a breach
of Articles 43 and 45 of the Staff Regulations and also of the
principle of non-discrimination and the principle that an offi-
cial is entitled to reasonable career prospects.

(1) Council Regulation No 40/94 of 20 December 1993 on the Com-

munity trade mark (OJ 1994 L 11, p. 1).

Action brought on 28 September 2004 by Bernard Nonat
against Commission of the European Communities

(Case T-391/04)

(2004/C 314/54)

(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 28 September 2004 by Bernard
Nonat, residing in Brussels, represented by Sébastien Orlandi,
Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers,
with an address for service in Luxembourg.

He states in that regard that the new procedures adopted by
the Commission for the assessment and promotion of officials
deprive officials of an assessment of their own merits. In his
specific case, and in application of Article 12(3b) of the DGE of
Article 45 of the Staff Regulations, he is deemed to have the
same merits, in terms of additional special priority points, as
officials in the same grade who were not proposed in the
previous exercise.

It is thus apparent that two different categories of officials in
terms of merit are treated in the same way, in breach of the
principle of non-discrimination and of Article 45 of the Staff
Regulations: first, officials who, beyond the limit of 150 % of
the possibilities of promotion for the 2002 promotion exercise,
were proposed for promotion in that exercise and, second, offi-
cials eligible for promotion in 2002 who were not proposed.

Likewise, the award of one transitional priority point per year
of seniority in grade has the effect, in breach of Article 45 of
the Staff Regulations, of enhancing the seniority in grade of
officials eligible for promotion without taking account of the
respective merits which they have displayed during the refer-
ence period.