Action brought on 8 December 2009 - Papathanasiou v OHIM

(Case F-99/09)

Language of the case: German

Parties

Applicant: Elisavet Papathanasiou (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Subject-matter and description of the proceedings

Application, first, for a declaration of invalidity of the clause in the applicant's contract providing for the automatic termination of the employment contract in the event that the applicant is not selected in an external selection procedure for OHIM and, second, for a declaration that selection procedures OHIM/AD/01/07, OHIM/AD/02/07, OHIM/AST/01/07 and OHIM/AST/02/02 have no effect on the applicant's contract. In addition, application for damages.

Form of order sought

Set aside the letter from OHIM of 12 March 2009 and annul the decisions of OHIM contained in it, according to which the applicant's employment relationship is terminated with eight months' notice from 16 March 2009, and declare that the applicant's employment relationship with OHIM is ongoing and has not been terminated. To the extent that the Tribunal considers it necessary, the applicant claims that the Tribunal should also set aside further letters from OHIM of 3 August 2009 (three-month suspension of notice period) and 9 October 2009 (rejection of complaint), classified by the applicant as related;

set aside or declare invalid the cancellation clause in Article 5 of the applicant's employment contract with OHIM, and in the alternative,

declare that the applicant's contract of employment cannot in future be terminated on the basis of the cancellation clause in her employment contract;

in the further alternative, declare that, in any event, the selection procedures referred to in OHIM's letter of 12 March 2009 were not capable of entailing negative consequences on the basis of the cancellation clause;

order OHIM to pay the applicant compensation of an appropriate amount at the discretion of the Tribunal for the non-material damage arising from the decisions referred to in the first paragraph of the application;

in the event that, owing to OHIM's unlawful conduct, the applicant's actual employment has already ended at the date of the Tribunal's decision and/or payment of the remuneration owed to the applicant by OHIM, notwithstanding the continuation of the employment relationship:

declare that OHIM is under an obligation to continue to employ the applicant under the same conditions as hitherto and to reinstate her, and order OHIM to compensate the applicant fully for the material damage suffered by her, in particular by paying any outstanding salary and all other expenses incurred by the applicant as a result of OHIM's unlawful conduct (after deduction of unemployment benefit received);

in the alternative, in the event that, in the present situation, for legal or practical reasons the applicant is not reinstated or re-employed under the same conditions as hitherto, order OHIM to pay the applicant compensation for the material damage arising from the unlawful termination of her employment corresponding to the difference between her actual anticipated lifetime earnings and the lifetime earnings the applicant would have achieved if the contract had remained in force, taking into account pension benefits and other entitlements;

order OHIM to pay the costs.

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