CELEX: C2003/184/104
Language: en
Date: 2003-08-02 00:00:00
Title: Case T-192/03: Action brought on 3 June 2003 by Atlantean Limited against the Commission of the European Communities

C 184/48              EN                          Official Journal of the European Union                                             2.8.2003
Action brought on 26 May 2003 by Alexandre Tilgenkamp                     Instance to annul the previous          appointment of the same
   against the Commission of the European Communities                     candidate to the same post. (1)         It therefore appears from
                                                                          objective, relevant and consistent      evidence that the contested
                         (Case T-191/03)                                  measures were taken in order to         achieve an end other than
                                                                          that of complying in good faith         with the judgment in Case
                                                                          T-158/01.
                        (2003/C 184/103)
                   (Language of the Case: French)                         (1) Judgment of 9 July 2002 in Case T-158/01 Tilgenkamp v Commis-
                                                                              sion, not yet published in the European Court Reports.
An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 May 2003 by Alexandre Tilgen-
kamp, resident in Overijse (Belgium), represented by Éric
Boigelot.
                                                                          Action brought on 3 June 2003 by Atlantean Limited
The applicant claims that the Court should:                                  against the Commission of the European Communities
—     annul the decision of the appointing authority of 24 July                                      (Case T-192/03)
      2002 to publish vacancy notice COM/125/02 for the post
      of Deputy Director-General of the Directorate-General for                                     (2003/C 184/104)
      Agriculture;
—     annul the decision of the appointing authority of                                       (Language of the case: English)
      19 November 2002 to appoint another candidate to that
      vacant post;
                                                                          An action against the Commission of the European Commu-
—     annul the decision of the appointing authority of
                                                                          nities was brought before the Court of First Instance of the
      27 November 2002 not to select the applicant for that
                                                                          European Communities on 3 June 2003 by Atlantean Limited,
      post;
                                                                          Donegal, Ireland, represented by Mr A. Hussey, Solicitor,
—     order the defendant to pay to the applicant, provisionally,         Mr G. Hogen, Senior Counsel, and Mr E. Regan, Barrister,
      the sum of EUR 1 from an amount to be determined for                with an address for service in Luxembourg.
      non-material harm, and a sum, assessed on an equitable
      basis, in damages for non-material harm and prejudice to            The applicant claims that the Court should:
      the applicant's career equal to half of the amount of the
      material damage which will be finally determined;                   —      annul Commission Decision of 4 April 2003 (2003/245/
                                                                                 EC) insofar as it provides for the rejection of the request
—     order the defendant to pay the costs in any event.                         by Ireland , in respect of the vessel the MFV Atlantean, to
                                                                                 increase capacity MAGP (IV) objectives for reasons of
                                                                                 safety, navigation at sea, hygiene, product quality and
                                                                                 working conditions that concern vessels of more than
Pleas in law and main arguments                                                  12 m in length overall, as set out in Annex 2 of the said
                                                                                 Decision.
The applicant in this case challenges both the rejection of his
application for the post of Deputy Director-General of the                —      order the Commission to pay the applicant's costs of
Directorate-General for Agriculture (vacancy notice COM/125/                     these proceedings
02) and the appointment of another candidate to that post.
In support of his claims, the applicant pleads that Article 7,
the second paragraph of Article 25, the third paragraph of                Pleas in law and main arguments
Article 27, Article 29(1)(a) and Article 45(1) of the Staff
Regulations, and the code of conduct adopted on 18 September              The applicant replaced its fishing vessel with a new vessel, the
1999 on appointments to Grades A 1 and A 2 were infringed,                MFV Atlantean. This vessel was ordered in 1997 and delivered
that the appointment procedure was flawed, that there was a               in 1999. It incorporated safety improvements which gave rise
misuse of powers, and that general principles of law, such as             to an increase in the capacity of gross tonnage. The applicant
the principle of legality (failure to observe the terms of the            relied in this respect on Article 4(2) of Council Decision 97/
vacancy notice) and the principle of the protection of legit-             413/EEC (1) of 26 June 1997 concerning the objectives and
imate expectations, were disregarded.                                     detailed rules for restructuring the Community fisheries sector
                                                                          for the period from 1 January 1997 to 31 December 2001
He contends in particular that the appointment of the candi-              with a view to achieving a balance on a sustainable basis
date ultimately chosen, who had been already been appointed               between resources and their exploitation. This article provides
once before, was predetermined and that everything contrib-               that increases in capacity resulting exclusively from safety
uted towards his being appointed again, including publication             improvements shall justify, on a case by case basis, an increase
of a vacancy notice particularly lacking its essential elements,          by the same amount of the objectives for fleet segments where
that is to say precisely those which had led the Court of First           they do not increase the fishing effort of the vessels concerned.
 ---pagebreak--- 2.8.2003               EN                          Official Journal of the European Union                                        C 184/49
The application for increase in capacity of the applicant was              —     order the Commission to pay him EUR 1 as token
submitted by Ireland to the European Commission, who rejected                    damages for the harm suffered;
it in the contested decision.
                                                                           —     order the Commission to pay the costs.
In support of its present application, the applicant submits that
the Commission erred in law and in fact. According to the
applicant, the increase in capacity complies with the provisions
of Article 4(2) of Council Decision 97/413/EEC and is there-
fore eligible for approval.                                                Pleas in law and main arguments
The applicant furthermore submits that the Commission                      In support of his action, the applicant pleads breach of the
violated the principle of legal certainty, the applicant's legit-          obligation to state reasons in that the appeal assessor, when
imate expectations and the principle of non-retroactivity.                 drawing up the applicant's report for 1999 to 2001, did not
According to the applicant, the Commission applied criteria                indicate the reasons why he did not take account of the views
which were not in existence at the time the replacement vessel             of the persons consulted or of the difficult working conditions.
was ordered or at the time the application for increase in                 Nor did he explain precisely why the general assessment made
capacity was submitted to the Commission.                                  by him was less favourable than that appearing in the staff
                                                                           report drawn up before the appeal to the Joint Committee on
                                                                           Staff Reports.
In addition, the applicant claims that the Commission had
regard to the nature of the applications for increase prior to
                                                                           The applicant also pleads the non-material damage suffered by
adopting the said criteria and applied criteria that discriminated
                                                                           reason of the belated drawing up of his staff report.
against the applicant. The applicant claims that the exception
for vessels lost at sea and allowing an increase in tonnage in
respect of these new vessels constitutes an unjustified discrimi-
nation.
The applicant also submits that the Commission violated the
principle of proportionality, failed to give adequate or sufficient
reasons and denied the applicant's right to be heard.
                                                                           Action brought on 30 May 2003 by Il Ponte Finanziaria
                                                                           S.p.A. against the Office for Harmonisation in the Internal
(1) OJ L 175, p. 27.                                                                 Market (Trade Marks and Designs) (OHIM)
                                                                                                   (Case T-194/03)
                                                                                                  (2003/C 184/106)
                                                                                             (Language of the case: Italian)
Action brought on 20 May 2003 by Giuseppe Piro against
       the Commission of the European Communities
                                                                           An action against the Office for Harmonisation in the Internal
                          (Case T-193/03)                                  Market (Trade Marks and Designs) (OHIM) was brought before
                                                                           the Court of First Instance of the European Communities on
                                                                           30 May 2003 by Il Ponte Finanziaria S.p.A., represented by
                         (2003/C 184/105)                                  P.L. Roncaglia, A.T. Malaspina and M. Boletto, lawyers.
                    (Language of the Case: French)                         The other party to the proceedings before the Board of Appeal
                                                                           was Marine Enterprise Projects Società Unipersonale di Alberto
                                                                           Fiorenzi S.r.l.
An action against the Commission of the European Commu-                    The applicant claims that the Court should:
nities was brought before the Court of First Instance of the
European Communities on 20 May 2003 by Giuseppe Piro,
resident in Wezembeek Oppem (Belgium), represented by                      —     annul the decision of the Fourth Board of Appeal of the
Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Étienne                    Office for Harmonisation in the Internal Market (Trade
Marchal, lawyers, with an address for service in Luxembourg.                     Marks and Designs) of 17 March 2003 in Case R 1015/
                                                                                 2001-4
The applicant claims that the Court should:                                —     order the OHIM to dismiss the application for a Commu-
                                                                                 nity trade mark No 940007 BAINBRIDGE (figurative);
—     annul the decision establishing the definitive staff report
      for 1997 to 1999;                                                    —     order the OHIM to pay the costs.