Case T-435/04: Action brought on 22 November 2004 by Manuel Simões Dos Santos against the Office for Harmonisation in the Internal Market
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: European Union Intellectual Property Office, European official, action by staff, personnel administration, promotion, staff assessment

8.1.2005

EN

Official Journal of the European Union

C 6/43

The applicants claim that the Court should:

The applicant claims that the Court should:

— Annul the list of officials promoted under the 2003 proce-
dure, in so far as that list does not include the applicants'
names, and,
incidentally, the formal measures leading to
that decision;

— Annul the decision of 7 July 2004 rejecting the applicant's
complaint and the decisions of 15 December 2003 fixing
the cumulative total of merit points awarded to the
complainant and the decision of 12 December 2003
confirming that decision;

— Alternatively, annul

the allocation of promotion points

under the 2003 procedure in relation to the applicants;

— Order the Commission to pay the costs.

— Order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicants, Commission officials, were not promoted under
the 2003 procedure. By their action, they question the system
used by the Commission for that procedure, in so far as that
system provides for the addition to merit and seniority points
awarded to each official,
‘reliquat’ points awarded to officials
on the list of officials eligible for promotion in the previous
procedure but not promoted, as well as points awarded by the
Directorates-General, special transitional points, points in the
interests of the service and ‘appeal’ points awarded by the
Promotions Committee. The applicants claim that by operating
such a system the Commission did not, in breach of Article 45
of the Staff Regulations and the General Provisions for its
implementation, consider the comparative merits of the offi-
cials eligible for promotion.

On the same basis, the applicants plead breach of the principle
of non-discrimination, of the ban on arbitrary procedures, of
the duty to state reasons, of the principle of legitimate expecta-
tions, of the rule ‘patere legem quam ipse facit’ and of the duty
to have regard to the interests of officials.

The applicant in this case was promoted to Grade A5 in the
2002 promotion procedure. On that occasion, the Appointing
Authority notified him of an outstanding balance of 54.19
points. Nevertheless, by letter of 15 December 2003 from the
Department of Human Resources, he learnt that his points total
at 30 September 2003 was only 1.5 points. It follows from
that letter, which constitutes the contested decision, that that
reduction in points is not the result of the conversion of the
points awarded before the new system established by the Offi-
ce's decision ADM-03-35, but of a complete cancellation
thereof, in consequence of the application of the new rule for
starting at zero after promotion, as laid down in that decision.

In support of his claims, the applicant first of all pleads breach
of the principles of legality,
legal certainty and non-retroac-
tivity, in so far as there are no exceptional circumstances, in
this case, which could justify the withdrawal of the balance of
points already awarded to an official and to which he was
entitled under the regime in force at the time.

The applicant also pleads breach of the principles of protection
of legitimate expectations and of non-discrimination, and of
the duty to state reasons.

Action brought on 22 November 2004 by Manuel Simões
Dos Santos against the Office for Harmonisation in the
Internal Market

Action brought on 26 October 2004 by Carlos Sánchez
Ferriz against the Commission of the European Commu-
nities

(Case T-435/04)

(2005/C 6/84)

(Case T-436/04)

(2005/C 6/85)

(Language of the case: French)

(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 22 November 2004, by Manuel
Simões Dos Santos, residing in Alicante (Spain), represented by
A.C. Carreras, lawyer.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 October 2004, by Carlos
Sánchez Ferriz, residing in Brussels, represented by G. Bounéou
and F. Frabetti, lawyers.