CELEX: C2004/021/79
Language: en
Date: 2004-01-24 00:00:00
Title: Case T-371/03: Action brought on 7 November 2003 by Vincenzo le Voci against the Council of the European Union

24.1.2004                EN                         Official Journal of the European Union                                           C 21/37
The applicant brought an application before the Court of First              The applicant claims that the Court should:
Instance (3) seeking the annulment of Regulation No 2380/98
insofar as the Council failed to give retroactive effect to the             —     annul the appointing authority’s decision of 11 March
above amendment. By judgement dated 29 June 2000 (4) the                          2003 not to accept the applicant’s candidature for the
Court of First Instance annulled the contested provision.                         post of Director in the Directorate ‘Africa, Caribbean,
Thereafter the Council adopted Regulation (EC) No 133/2001                        Pacific’ (AIDCO.C), as a result of the appointing auth-
of 22 January 2001 (5) amending Regulation (EC) No 1567/97                        ority’s decision of 8 January 2003 to appoint another
and granting retroactive effect to the provision in question. All                 person to that post;
of the applicant’s payments of duties imposed by Regulation
No 1567/97 were refunded to it.                                             —     in any event, orders the defendant to pay the costs.
By its present action the applicant seeks to obtain compen-                 Pleas in law and main arguments
sation in the form of interest on the amounts of import duty
which it initially paid and which were later refunded to it, as
well as in the form of legal expenses it incurred in the course             The applicant in this case challenges the appointing authority’s
of administrative proceedings before the Commission and the                 rejection of his candidature for the post of Director in the
German customs authorities.                                                 Directorate ‘Africa, Caribbean, Pacific’ (AIDCO.C).
                                                                            In support of his claims, he alleges infringement of Article 7,
In support of its application the applicant submits that the                of the second paragraph of Article 25, and Articles 29(1)(a) and
Council acted illegally in refusing to abide by the consequences            45(1) of the Staff Regulations, irregularity in the administrative
of the review findings leading to Regulation 2380/98 and that               procedure prior to the contested decision, and disregard of
this illegal behaviour was of sufficient gravity as to give rise to         general legal principles, such as the protection of legitimate
liability under Article 288 EC.                                             expectations, equal treatment and career progression.
(1 ) OJ L 208, 2.8.1997, p. 31-43.                                          In that regard, the applicant submits, in particular, that his
(2 ) OJ L 296 , 5.11.1998, p. 1-5.                                          candidature was not considered fairly and that he was not, at
(3 ) Case no T-7/99, notified in OJ C 86, 27.3.1999, p. 23.                 the very least, short listed without any statement of reasons,
(4 ) Notified in OJ C 259, 9.9.2000, p. 17.                                 although the appointing authority had recognised his abilities
(5 ) OJ L 23, 25.1.2001, p. 9.                                              for A2 post of Director AIDCO. Furthermore, the appointing
                                                                            authority subsequently established criteria not set out in the
                                                                            vacancy notice.
                                                                            Finally, the appointing authority made a manifest error of
                                                                            assessment in the comparison of the candidates’ respective
                                                                            merits.
Action brought on 5 November 2003 by Jacques Wunen-
burger against Commission of the European Communities
                                                                            Action brought on 7 November 2003 by Vincenzo le Voci
                          (Case T-370/03)                                            against the Council of the European Union
                           (2004/C 21/78)                                                           (Case T-371/03)
                                                                                                     (2004/C 21/79)
                     (Language of the Case: French)
                                                                                               (Language of the case: English)
An action against the Commission of the European Communi-                   An action against the Council of the European Union was
ties was brought before the Court of First Instance of the                  brought before the Court of First Instance of the European
European Communities on 5 November 2003 by Jacques                          Communities on 7 November 2003 by Vincenzo le Voci,
Wunenburger, residing in Zagreb (Croatia), represented by                   Brussels, (Belgium), represented by B. van de Wal and E. Oude
E. Boigelot, lawyer, with an address for service in Luxembourg.             Elferink, lawyers.
 ---pagebreak--- 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.