Case C-526/07 P: Appeal brought on 27 November 2007 by Philippe Combescot against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-250/04 Combescot v Commission
Date: 2007-11-27
Institutions: Court of Justice
Subjects: European Commission, European official, action for annulment (EU), appeal, competition (EU), equal treatment, indemnification, professional qualifications, staff assessment

C 37/12

EN

Official Journal of the European Union

9.2.2008

Appeal brought on 27 November 2007 by Philippe
Combescot against the judgment delivered by the Court of
First Instance (Second Chamber) in Case T-249/04 Philippe
Combescot v Commission

(Case C-525/07 P)

(2008/C 37/15)

Language of the case: Italian

therefore asks the Court

superiors, has caused suffering and mental anguish which has in
turn caused a severe state of depression, as substantiated in the
case-file and, above all, verified by the institution's own experts.
to make an overall
The applicant
assessment of the factual circumstances surrounding the matter,
considering them all to be relevant in order to declare the
unlawfulness of the CDR and therefore, declare that the appli-
cant
is entitled to compensation in damages for the harm
suffered.

Parties

Appellant: Philippe Combescot (represented by: A. Maritati and
V. Messa, avvocati)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— declare, by varying the decision of

the Court of First
Instance delivered on 12 September 2007 in Case T-249/04,
that the career development report (‘the CDR’) drawn up by
Mr M, despite his being completely unsuitable to perform, as
in fact he did, the role of hierarchical superior responsible
for appraising Mr Combescot's professionalism, is unlawful;
recognise that unsuitability arising from the serious and irre-
mediable enmity between the applicant and his hierarchical
latterly implicitly recognised by Mr M himself;
superior,
accordingly,
to
compensation in respect of non-material damage, damage to
physical and mental health and damage to his professional
life and career,
less than
EUR 100 000;

to be assessed in a sum not

recognise Mr Combescot's

entitlement

— order the defendant to pay the costs.

Pleas in law and main arguments

The dispute relates to the preparation of the CDR for the period
from 1 July 2001 to 31 December 2002, which was held to be
lawful. The applicant challenges the conclusions reached by the
Court of First Instance inasmuch as it regards the CDR as
unlawful because it was prepared by an individual, Mr M, who
was moved by a deep loathing of Mr Combescot, since the latter
had reported very serious management irregularities committed
at the Delegation in Guatemala by the same Mr M. Following
those complaints, the institution sent an inspection to Guate-
mala and, subsequently, as a result of the complaint brought by
Mr Combescot, OLAF decided on 20 September 2004 to open
an enquiry, concluded by the final report of 30 May 2006 (‘the
OLAF Report’), admitted as evidence in the present proceedings,
together with the report drawn up by the inspection committee
sent out
for
Mr Combescot ask the Court to vary the decision of the Court
of First Instance of the European Communities in so far as it
excludes the unlawfulness of the CDR and, accordingly, rules
out the applicant's entitlement to compensation in damages. By
that appeal the applicant asks the Court, therefore, to find and
declare that, as a result of the incomplete and thus erroneous
and in any event unlawful preparation of
the CDR for
2001-2002, Philippe Combescot has suffered very serious harm
to his career and to his professional
in any
event, the assessment in the CDR, placed in a broader context
of abuses of power and disparaging conduct of hierarchical

in 2002. By the present

image and that,

counsel

appeal,

it

that

recognises

the Court

the initiatives

the decision of

The applicant complains that
is
contradictory, in that it states how the objectives of indepen-
dence and integrity are to be regarded as binding in all situa-
tions in which an employee must express an opinion on a given
matter and such an employee should not therefore find himself
in a situation which, irrespective of the objectivity and fairness
of the opinion, may appear to lack independence and objectivity
in the eyes of third parties, yet none the less reaches conclu-
sions, in the case of M, which are completely incomprehensible.
The applicant also complains that the decision is contradictory,
in so far as
taken by
Mr Combescot, once he had taken office as Advisor resident in
Guatemala, had caused at the very least an unpleasant situation
for Mr M, but that notwithstanding, takes the view that that
situation was not such as to place Mr M in a situation in which
it was completely incompatible for him to perform the task of
assessor in accordance with the principles of impartiality and
neutrality. It points out that the preparation of the CDR involves
the making of a discretionary evaluation, so that any considera-
tion as to the substance of the evaluation itself is of no conclu-
sive value and is not suitable for confirming and/or disproving
the basic fact which is that Mr M made the assessment in the
CDR despite the obvious and serious enmity in his relationship
with Mr Combescot.
the
In that regard,
presence of a person as a co-appraisor who is completely
unconnected with the relationship between Mr Combescot
cannot be advanced as a solution. Accordingly, it criticises the
content of the CDR point by point. Finally, the applicant applies
for measures of enquiry.

it points out

that

Appeal brought on 27 November 2007 by Philippe
Combescot against the judgment of the Court of First
Instance (Second Chamber) delivered on 12 September
2007 in Case T-250/04 Combescot v Commission

(Case C-526/07 P)

(2008/C 37/16)

Language of the case: Italian

Parties

Appellant: Philippe Combescot (represented by: A. Maritati and
V. Messa, avvocati)

Other party to the proceedings: Commission of
Communities

the European

9.2.2008

EN

Official Journal of the European Union

C 37/13

Form of order sought

— declare, by varying the decision of

the unlawful

the Court of First
Instance delivered on 12 September 2007 in Case T-250/04,
that there is damage to the profession and health of the
applicant as a result of
rejection of his
application to take part in the competition for appointment
to the post of Head of Delegation in Colombia; determine
the non-material damage in a different manner, and conse-
quently assess the compensation payable in accordance
therewith; accordingly, uphold the form of order already
sought
instance, which read:
‘recognise that Mr Combescot has suffered damage to his
image and professional reputation, and that the illegal deci-
sion excluding him from the competition has had serious
adverse effects on the balance of his mind; and award him
the sum of EUR 100 000,00 as compensation for damage’;

in the proceedings at

first

— order the Commission to pay the costs.

Pleas in law and main arguments

It contests the conclusions reached by the Court in relation to
the absence of actual damage to professional life, pointing out,
moreover,
information relating to the selection criteria
applied by the Commission to appoint the Head of Delegation
in Colombia was never communicated to the applicant, despite
his having requested it.

that

effect of

the unlawful

conduct on the

As regards compensation for physical damage, the evidence of
the
state of
Mr Combescot's health derives from the temporal link between
the same. The exclusion from the competition is, furthermore,
the most recent in a series of harassment on the part of the
in determining the
Commission towards the official. Finally,
non-material damage, the applicant requests a proportionate
assessment of the same on the basis of the principles of fairness
in the determination of damage, which takes account of the
harmful consequences in terms not only of anxiety and stress,
but also of hardship suffered by the official following his exclu-
sion from the competition.

Philippe Combescot, an official, has brought an appeal against
the decision of the Court of First Instance of the European
Communities (Second Chamber) delivered on 12 January 2007
in Case T-250/04, the other party to the proceedings being the
Commission of the European Communities.

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria) lodged on 28 November 2007 —
Chocoladefabriken Lindt & Sprüngli AG v Franz Hauswirth
GmbH

The appeal concerns the exclusion of Philippe Combescot,
then the Advisor
from competition
COM/091/03 for appointment to the post of Head of Delega-
tion in Colombia (‘the exclusion decision’).

in Guatemala,

resident

The Court held that that decision was unlawful and, therefore,
that the application for damages brought by the applicant was
justified, but it excluded the heads of damage relating to profes-
sional life and health, and merely recognised unspecified non-
material damage in respect of which the sum of EUR 3 000 000
was paid to the applicant.

By the present appeal, counsel for the applicant ask the Court
to reverse the decision of the Court of First Instance of the
European Communities in so far as it excludes damage to
professional life and health and therefore quantifies damages on
the basis only of
the non-material damage complained of;
accordingly, it asks the Court to state that the official, following
his unlawful exclusion from the competition, has suffered
obvious damage to his career as well as his professional image,
that, however, the exclusion decision has caused suffering and
mental anguish which in turn has caused a severe state of
depression, as substantiated in the case-file and, above all, veri-
fied by the institution's own experts. The applicant therefore
asks the Court to make an overall assessment of the factual
circumstances surrounding the matter, considering them all to
be relevant for the purposes of appraising, even only on the
grounds of fairness, the non-material damage in a much higher
sum, directly proportional also to the career prospects lost by
the official as a result of the exclusion decision and the foresee-
able serious consequences caused by the same.

The applicant therefore maintains the application for damages
as specified in the form of order sought in the application in the
present proceedings.

(Case C-529/07)

(2008/C 37/17)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Chocoladefabriken Lindt & Sprüngli AG

Defendant: Franz Hauswirth GmbH

Questions referred

1. Is Article 51(1)(b) of Council Regulation (EC) No 40/94 of
20 December 1993 on the Community trade mark (1) to be
interpreted as meaning that an applicant for a Community
trade mark is to be regarded as acting in bad faith where he
knows, at the time of his application, that a competitor in (at
least) one Member State is using the same sign, or one so
similar as to be capable of being confused with it, for the
same or similar goods or services, and he applies for the
trade mark in order to be able to prevent that competitor
from continuing to use the sign?