CELEX: C2004/021/80
Language: en
Date: 2004-01-24 00:00:00
Title: Case T-373/03: Action brought on 12 November 2003 by Solo Italia S.r.l. against the Office for Harmonisation in the Internal Market

C 21/38                EN                         Official Journal of the European Union                                           24.1.2004
The applicant claims that the Court should:                               Action brought on 12 November 2003 by Solo Italia S.r.l.
                                                                          against the Office for Harmonisation in the Internal
—     declare the internal competition A/270 invalid and void,                                         Market
      or at least declare invalid the decision of the Selection
      Board of 28 July 2003 not to admit the applicant to the
      oral test;                                                                                  (Case T-373/03)
—     order the defendant to pay the costs of the applicant
                                                                                                   (2004/C 21/80)
                                                                                             (Language of the case: French)
Pleas in law and main arguments
The challenged Decision in the present case is the non-
admission of the applicant to the oral test of the internal               An action against the Office for Harmonisation in the Internal
competition A/270, which offered grade B officials to acquire             Market was brought before the Court of First Instance of the
grade A.                                                                  European Communities on 12 November 2003 by Solo Italia,
                                                                          established in Ossona (Italy), represented by A. Bensoussan,
                                                                          M.-E. Haas, L. Tellier-Loniewski, lawyers, with an address for
In support of his conclusions, the applicant claims that:                 service in Luxembourg.
—     the content of one of the written tests (A 1) was not
      confined within the limits that were laid down in the
                                                                          The applicant claims that the Court should:
      notice of the competition. With regard to this, it is stated
      that instead of making an analysis of a file with respect
      to a particular EU issue and summarizing it, the candidates         —     declare the action to be admissible and, accordingly,
      were also expected to give their own strategic input. The                 annul Decision No R 0208/2003-2 of the Board of
      test required an approach, and the application of different               Appeal of 10 September 2003 and hold that it is for the
      intellectual and writing skills, other than those for which               Office to draw the appropriate conclusions from the
      the candidates were prepared. This deviation constitutes                  operative part of and the grounds for the judgment to be
      a breach of the requirements for the notification of                      adopted;
      competitions as laid down in Article 1, Annex III, of the
      Staff Regulations.
                                                                          —     rule on the costs and order the defendant to bear its own
                                                                                costs and to pay all of the applicant’s costs.
—     One of the working documents handed out for the
      A 1 tests contained contradictions and errors. These
      imperfections constitute a breach of both the principle of
      non-discrimination and the principle of good manage-
      ment and sound administration.
                                                                          Pleas in law and main arguments
—     The Spanish version of one of the working documents
      contained additional fundamental errors. This constitutes
      a breach of the principle of non-discrimination between             Applicant for Com-             Solo Italia S.r.l.
      candidates of different nationalities participating in the          munity trade mark:
      test.
                                                                          Community trade mark           Word mark ‘PARMITALIA’ in
—     They have reasons to believe that the mastery of the                sought:                        respect of goods in Class 29
      Italian language within the Selection Board was not                                                (cheeses).
      sufficient to objectively assess the Italian tests, which
      would constitute a breach of the principle of non-                  Proprietor of mark or          Nuova Sala S.r.l.
      discrimination.                                                     sign cited in the oppo-
                                                                          sition proceedings:
—     There has been a lack of non-discriminatory standards
      for the evaluation of the written test and lack of                  Mark or sign cited in          Figurative Community trade mark
      transparency due to the lack of an evaluation memor-                opposition:                    ‘PARMITAL’ for goods in Class 29
      andum, both of which impaired the possibility of judicial                                          (Italian grated cheeses).
      scrutiny and control.
                                                                          Decision of the Oppo-          Refusal of the application for
                                                                          sition Division:               registration.
 ---pagebreak--- 24.1.2004             EN                          Official Journal of the European Union                                          C 21/39
Decision of the Board of      Dismissal of the appeal as inad-            Pleas in law and main arguments
Appeal:                       missible as a result of a failure
                              to comply with the time-limit
                              prescribed for lodging appeals.
                                                                          Competition notice CONSEIL/A/270 stated that candidates
                                                                          were required to have a perfect command of one of the
Pleas in law:                 —     infringement of Article 6 of          official languages of the European Communities, a very good
                                    the European Convention on            knowledge of either English or French and an adequate
                                    Human Rights in that notifi-          knowledge of the other of those two languages. However,
                                    cation by fax does not satisfy        candidates choosing French or English as the language of
                                    the requirement for security          which they had a perfect command were required to show
                                    of notification in proceed-           evidence of a very good knowledge of the other of those two
                                    ings.                                 languages and also an adequate knowledge of a third official
                                                                          language. By his first plea, the applicant claims that this
                              —     in the alternative, infringe-         provision discriminates between, on the one hand, anglophone
                                    ment of Rules 55, 61 and 65           and francophone candidates and, on the other, other candi-
                                    of Commission Regulation              dates. In that context, he relies on breach of the principle of
                                    No 2868/95 and of                     equal treatment and also of subparagraph f of the first
                                    Article 59 of Regulation              paragraph of Article 28 of the Staff Regulations. By his second
                                    No 40/94.                             plea, the applicant claims that, at the third written test,
                                                                          candidates were asked to write a brief account of the role of
                                                                          the Secretariat General of the Council, in breach of the
                                                                          competition notice, which provided for an account of the
                                                                          activities of the Council. The third plea refers to the Council’s
                                                                          refusal to grant the applicant access to the corrected copy of
                                                                          his third written test. The applicant pleads infringement of
                                                                          Article 255(1) EC and also breach of the obligation to state
                                                                          reasons and of the principles of good management and good
                                                                          administration.
Action brought on 10 November 2003 by Michel Hen-
       drickx against Council of the European Union
                        (Case T-376/03)
                         (2004/C 21/81)
                                                                          Action brought on 17 November 2003 by ATI Tech-
                   (Language of the case: French)                         nologies Inc. against the Office for Harmonisation in the
                                                                                                  Internal Market
                                                                                                  (Case T-377/03)
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 10 November 2003 by Michel Hendrickx,                                               (2004/C 21/82)
residing in Brussels, represented by Sébastien Orlandi, Albert
Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an
address for service in Luxembourg.                                                           (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Office for Harmonisation in the Internal
—     annul the decisions of the Selection Board for competition          Market was brought before the Court of First Instance of the
      CONSEIL/A/270 to award him an eliminatory mark for                  European Communities on 17 November 2003 by ATI
      written test A.3 and not to admit him to the oral tests;            Technologies Inc., established in Thornhill (Canada), represen-
                                                                          ted by Chantal Silvia Moreau, lawyer, with an address for
                                                                          service in Luxembourg.
—     order the Council to pay the applicant symbolic damages
      of one euro for the non-pecuniary harm sustained;
                                                                          Asociación de Técnicos de Informatica — ATI was also a party
—     order the defendant to pay the costs.                               to the proceedings before the Board of Appeal.