CELEX: C1999/226/67
Language: en
Date: 1999-08-07 00:00:00
Title: Case T-121/99: Action brought on 19 May 1999 by Sean Irving against the Commission of the European Communities

C 226/38              EN                     Official Journal of the European Communities                                        7.8.1999
Action brought on 19 May 1999 by Sean Irving against                    Action brought on 20 May 1999 by The Procter & Gamble
       the Commission of the European Communities                       Company against the Office for Harmonisation in the
                                                                                                Internal Market
                        (Case T-121/99)
                                                                                                (Case T-122/99)
                        (1999/C 226/67)
                                                                                                (1999/C 226/68)
                  (Language of the case: English)
An action against the Commission of the European Communi-                                  (Language of the case: French)
ties was brought before the Court of First Instance of the
European Communities on 19 May 1999 by Sean Irving
represented by Nuala Butler and James MacGuill, with an                 An action against the Office for Harmonisation in the Internal
address for service in Luxembourg at the Chambers of Stephen            Market (the Office) was brought before the Court of First
Le Goueff, 9 ave Guillaume.                                             Instance of the European Communities on 20 May 1999 by
                                                                        The Procter & Gamble Company of Cincinnatti. Ohio, USA,
The applicant claims that the Court should:                             represented by Thierry van Innis of the Brussels Bar, with an
                                                                        address for service in Luxembourg at the Chambers of Katia
— annul Decision No 517 of 26 February 1999 of the                      Manhaeve, 56-58, Rue Charles Martel.
    appointing authority of the Commission rejecting the
    applicant’s complaint submitted pursuant to Article 90(2)
    of the Staff Regulations and lodged on 9 October 1998;              The applicant claims that the Court should:
— annul the decision of the Commission of 16 July 1998                  — annul Decision R 74/1998-3 of 15 March 1999 of the
    removing the applicant from his post pursuant to Article                Third Board of Appeal;
    86(2)(f) of the Staff Regulations;
— in the event of such annulment, to reinstate the applicant            — order the Office to publish Application No 230680 for a
    in his post as a B2 Official in DGX;                                    Community trace mark following expiry of the period laid
                                                                            down in Article 39(6) of the Regulation on the Community
— order the defendant to pay the applicant damages in                       trace mark;
    respect of the losses sustained by him as a result of the
    defendant’s decisions and actions;                                  — order the Office to pay the whole of the costs.
— order that the applicant’s costs be borne by the defendant.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
                                                                        Trade mark:                       Three dimensional mark —
The applicant maintains, on the one hand, that the failure of                                             Application No. 230680
the Commission to comply with the time-limits prescribed in
the Staff Regulations constitutes an infringement of an essential
procedural requirement and thus renders the decision of                 Goods or services:                Soaps
16 July 1998 void. He contends that the decision to dismiss
him was tainted by delay on the part of the Commission at               Decision contested before         Examiner’s refusal to register
virtually every stage of the procedure. No explanation was              the Board of Appeal:
offered by the Commission for such delay and as no justifi-
cation for the delay exists, the decision is accordingly void for       Pleas in law:                     Infringement by the board of
breach of the procedural requirements laid down in Article 88                                             Appeal of Regulation (EC) No
(3) of the Staff Regulations and Article 7 (1) and Article 7 (3)                                          40/94 and the rights of the
of Annex IX to the Staff Regulations.                                                                     defence by basting its decision
                                                                                                          on absolute grounds of refusal
The applicant submits, on the other hand, that the decision of                                            other than that found by the
the appointing authority was taken in breach of the rule of law                                           examiner;
in that he was not accorded a fair, or indeed any, hearing by
the Appointing Authority before the decision of 16 July 1998                                              Infringement      of      Article
was taken. The applicant’s contention rests on two principal                                              7(1)(e)(i) of Regulation No
grounds. Firstly, he was given inadequate notice of the intended                                          40/94
hearing in Brussels having regard to the fact that he was living
in Dublin and wished to be represented by a lawyer practising           Alternative pleas:                Infringement     of      Articles
in Dublin. Secondly, no financial assistance was made available                                           7(1)(b) and 7(1)(e)(ii) of Regu-
to the applicant for the purposes of meeting the legal expenses                                           lation No 40/94
of a hearing in Brussels.