EN Official Journal of the European Union C 107/11

Appeal brought on 1 February 2008 by Jörn Sack against the judgment of the Court of First Instance (Fifth Chamber) delivered on 11 December 2007 in Case T-66/05 Jörn Sack v Commission of the European Communities

(Case C-38/08 P)

(2008/C 107/17)

Language of the case: German

Parties

Appellant: Jörn Sack (represented by: U. Lehmann-Brauns and D. Mahlo, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— set aside the judgment of the Court of First Instance of 11 December 2007 in Case T-66/05 and (while the Court of Justice will itself rule on the legal questions wrongly left open on the basis of the principle of equal treatment) allow the application in so far as the decision of the Commission on the fixing of the applicant's monthly salary for May 2004 is set aside.

— in the alternative, to set aside the judgment and refer the case back to the Court of First Instance for judgment and for that Court to give a ruling on the question of the infringement of the principle of equal treatment by reason of the failure to take the applicant to account in awarding the increment provided for in the second paragraph of Article 44 of the Staff Regulations.

Pleas in law and main arguments

The appeal against the judgment of the Court of First Instance, which held that appellant was not entitled, in his capacity as coordinator for all legal questions relating to the enlargement of the European Union in the relevant section of the Commission's Legal Service, to the increment for heads of unit, is based on the following grounds.

The first plea in law: the Court of First Instance misconstrued the meaning and scope of the general principle of equal treatment under Community law and in so doing infringed that principle.

The principle of equal treatment is enshrined both in its general form as in its particular expression as a prohibition of discrimination in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and has been recognised in the case-law of the Court of Justice for a considerable period as a higher-ranking principle of Community law. The obligation to comply with the requirement of equal treatment represents, under Community law, not merely a duty imposed on each of the institutions but also a subjective right to the equal treatment of individuals affected by a measure of the institutions. Since, that principle takes priority over Community secondary law, as the Court of Justice has long recognised in the abovementioned case-law, the importance of that right as a fundamental right must be properly taken into account in the interpretation and application of Community law. The Court of Justice must also respect the principle of equal treatment in the context of the rules of procedure and the different forms of procedure.

Throughout his arguments, the applicant relied on the principle of equal treatment at all times, and not on the Staff Regulations, and he invoked the fact that he had carried out duties that were not only equivalent to those of a head of unit, but should also be considered to be of greater value by comparison with the duties of many heads of unit in the context of the tasks involved at middle-management level. By failing in any way to undertake any comparative examination of the applicant's situation with that of other categories of official who benefited from the payment, the Court of First Instance deprived him completely of the protection against arbitrary treatment conferred on him by the fundamental rights and in so doing infringed the principle of equal treatment.

The second plea in law: the Court of First Instance infringed the rules of legal logic

Where arbitrary treatment among several parties is alleged, the principles of equal treatment and legal certainty can be complied with only if the court makes a finding that the comparable situation relied on does not exist or determines that the parties in that comparable situation have wrongly been given the benefit of an advantage and, accordingly, that the applicant should also not be entitled to it. If those rules of legal logic are applied, it is clear that it was necessary to examine at least one of the two following questions and to answer it in the negative in relation to the applicant, if the action was to be dismissed. First, the Court of First Instance had to rule on the question whether the duties undertaken by the officials who the Commission assimilated to heads of unit were equivalent to those undertaken by the applicant and, secondly, whether the Commission was right to award them the payment.

Since those two questions were not the subject of any ruling, it must be presumed, if they are to be considered as having no relevance from a legal point of view, that the action would also have been dismissed if those questions had been answered in the manner proposed by the applicant in his pleadings. However, such a conclusion cannot be reached. Since the Court of First Instance did not examine the lawfulness of the inclusion by the Commission of other categories of officials to the requisite legal standard, that is to say, by giving the principle of equal treatment priority over Community secondary law, it must be assumed that such an examination would have led to the conclusion that, by extending the benefit of the payment to other categories of officials, the Commission acted lawfully. Contrary to what the Court of First Instance stated in that regard, the applicant does not seek equal treatment against the law, but equal treatment under the law.

The third plea in law: the Court of First Instance infringed the basic principles of proper procedure

The refusal to verify the existence of an alleged infringement of a fundamental right in any way constitutes an infringement of that right of a considerably more serious kind than an error of law relating to the question whether that right has in fact been infringed, since the party concerned is deprived of the protection afforded by the fundamental right. Only where the applicant's assertion that the fundamental right has been infringed is wholly without merit or where the facts relied on in comparing the situations plainly form no basis for the assertion, can a substantive examination of the infringement of the fundamental right be dispensed with. But that does not apply in this case. The Court of First Instance thus infringed the basis principles of proper procedure. The judgment, and its underlying reasoning, cannot be maintained for that reason.