Action brought on 17 March 2017 — Pethke v EUIPO

(Case T-169/17)

Language of the case: German

Parties

Applicant: Ralph Pethke (Alicante, Spain) (represented by: H. Tettenborn, lawyer)

Defendant: European Union Intellectual Property Office

Form of order sought

The applicant claims that the Court should:

annul Decision PERS-AFFECT-16-134 of 17 October 2016, by which the applicant was transferred from the post of Director of the Operations Department to another post with the Observatory and was demoted to the post of Senior Expert with effect from 17 October 2016;

award compensation for the material and non-material damage suffered by the applicant by reason of the infringement of his rights; and

order EUIPO to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law: infringement of the provisions of the disciplinary code established by the Staff Regulations of Officials of the European Union (‘the Staff Regulations’)

The applicant claims that his demotion from the post of Director of the Operations Department to that of Senior Expert without any career opportunity is not a legitimate transfer, but a punitive demotion that would have required prior disciplinary proceedings in the absence of any other legal basis. Through its actions, the defendant Office therefore infringed the provisions of Article 86 of the Staff Regulations and Annex IX thereto.

Second plea in law: unlawful transfer/misuse of powers

The applicant submits that the conditions governing a legitimate transfer have not been satisfied. The demotion and transfer of the applicant is not in the interests of the service, the various (changing) reasons submitted for the applicant’s transfer point to a misuse of powers and the equivalence principle required for a legitimate transfer has not been respected.

Third plea in law: infringement of the principle prohibiting arbitrary treatment and the prohibition of discrimination on grounds of the applicant’s sex

The applicant claims in this connection that his demotion and transfer, in order to raise the proportion of women in management, amounts to direct discrimination on grounds of his sex.

Fourth plea in law: infringement of the principle of proportionality

The applicant maintains that his disciplinary transfer is a disproportionate measure in the course of the internal reorganisation of the Office.

Fifth plea in law: infringement of the right to good administration and of the duty of care — attack on the applicant’s physical and psychological integrity — harassment

In connection with the fifth plea in law, the applicant claims that his ‘ambush-like’ demotion constitutes an attack on his physical and psychological integrity and falls short of even a minimum standard of good administration.

A claim for financial compensation in respect of the material and non-material damage has arisen for the applicant by reason of the actions and omissions of the Office.

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