Action brought on 7 September 2021 – WG v EUIPO
(Case T-567/21)
Language of the case: German
Parties
Applicant: WG (represented by: P. Schimanek, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Form of order sought
The applicant claims that the Court should:
annul the decision of the Management Board of EUIPO of 17 November 2020 not to appoint the applicant as a member of the Board of Appeal following the selection procedure ‘EXT/20/42/AD 11/Member of the Board of Appeal’;
annul the decision of the Management Board of the same day, appointing Ms Nina Korjus, Dr. Alejandra González and Mr Sergio Rizzo as members;
annul the decision not to include the applicant on the list of six candidates proposed by the Selection Committee to the Management Board for election by vote;
annul all decisions of the Selection Committee, the Management Board and, where appropriate, others in the selection procedure ‘EXT/20/42/AD 11/Member of the Board of Appeal’, which preceded and led to those decisions;
annul the decision of 7 June 2021, rejecting the applicant’s complaint;
order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law, alleging infringements of Article 166 of Regulation (EU) 2017/1001 1 and procedural errors
Pursuant to Article 166(5) of Regulation (EU) 2017/1001, the Management Board of EUIPO is competent to appoint members of the Board of Appeal. The Management Board divested itself of its decision-making powers and transferred them to the Preparatory Subcommittee. The Preparatory Subcommittee exceeded its purely preparatory powers and adopted its own decisions which were not comprehensible for the Management Board because the relevant and decisive information was not submitted to it.
As a result of the participation of the President of the Boards of Appeal in the Subcommittee, the latter’s constitution infringes Article 166(5) of Regulation (EU) 2017/1001. The President of the Boards of Appeal is not a member of the Management Board. The participation of the President of the Board of Appeal is contrary to the wording of Article 166(5) of Regulation (EU) 2017/1001, which enumerates the competences of the organs/bodies referred to therein.
Second plea in law, alleging manifest errors of assessment due to objective unsuitability of the examination of the candidates in the interview
The candidates’ language skills were assessed only from level C1 in the interview; the language skills indicated by the candidates as level B2 were not tested at all. Only a conversation took place, reading or writing was not tested. A brief conversation on everyday subjects is manifestly unsuitable for assessing level C1 as defined in the vacancy notice by reference to the Common European Framework of Reference for Languages.
The personal competences pursuant to point 4(e) of the vacancy notice were exclusively and jointly assessed by the three members of the Preparatory Subcommittee. However, those members had neither a specialisation in human resources/recruitment nor sufficient training which is why the examination could only have been based on a subjective assessment.
Third plea in law, alleging infringements of the vacancy notice and subsequent modification of the selection criteria
The defendant did not act in accordance with the vacancy notice. It did not invite only the ‘best qualified candidates’ to the interview. It had subsequently modified the selection criteria by applying a weighting which had not been provided for.
Fourth plea in law, alleging infringements of the principles of equal treatment, transparency and the duty of documentation, failure to state reasons and abuse of discretion
Two unequal categories of candidates were invited to the interview, those who were graded ‘excellent’ and those who were graded ‘very good’. In addition, the initial grade, which was awarded after the evaluation of the written application, was later disregarded as only the grade obtained in the interview was decisive in drawing up the list of six candidates proposed by the Selection Committee to the Management Board for voting.
The criteria for the invitation to the interview were subsequently modified in relation to the vacancy notice. This occurred at a time when the experience, skills and knowledge of the individual candidates were known to the secretariat of the Management Board.
The crucial stages of the procedure were not documented. There is no documentation regarding the course of the interview.
There is a lack of justification for the downgrading by two marks (from ‘excellent’ to ‘good’) in the interview, constituting a devaluation of the results obtained in the first stage of the selection procedure.
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1 Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).