Case C-38/08 P: 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
Date: 2008-02-01
Institutions: Court of Justice
Subjects: European Commission, European official, action by staff, action for annulment (EU), appeal, bonus payment, equal pay, personnel administration

26.4.2008

EN

Official Journal of the European Union

C 107/11

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

the Court of First

(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
Communities

the European

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 infrin-
gement 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 treat-
ment 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 discrimi-
nation 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
treatment and legal certainty can be
principles of equal
the
the court makes a finding that
complied with only if
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 requi-
site 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
the Commission acted lawfully.
other categories of officials,
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.

C 107/12

EN

Official Journal of the European Union

26.4.2008

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 protec-
tion afforded by the fundamental right. Only where the appli-
cant'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.

3. If the answer is ‘yes’, is the national court required to take
account of
the prohibition of discrimination having the
effect of distorting competition when interpreting and
applying Article 3 of Directive 89/104 if it has established
discrimination of that nature?

4. If Questions 1 to 3 are answered in the negative, in order to
prevent distortion of competition, must it be possible under
national legislation for the national authority to be placed
under an obligation to initiate, of its own motion, an action
for the annulment of trade marks which have previously
been wrongly registered?

(1) OJ 1989 L 40, p. 1.

Reference for a preliminary ruling from the Bundespatent-
gericht (Germany) lodged on 4 February 2008 — Trade
mark case: Bild.T-Online.de AG & Co. KG v President of
the German Patent- und Markenamt

(Case C-39/08)

(2008/C 107/18)

Language of the case: German

Reference for a preliminary ruling from the Bundespatent-
gericht (Germany) lodged on 8 February 2008 — Trade
mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v
President of the German Patent- und Markenamt

(Case C-43/08)

(2008/C 107/19)

Language of the case: German

Referring court

Bundespatentgericht

Referring court

Bundespatentgericht

Parties to the main proceedings

Bild.T-Online.de AG & Co. KG v President of
Patent- und Markenamt

the German

Parties to the main proceedings

ZVS Zeitungsvertrieb Stuttgart GmbH and President of
German Patent- und Markenamt

the

Questions referred

Questions referred

1. Does Article 3 of Directive 89/104/EEC of 21 December
1988 (1), which seeks to secure equality of opportunity in
matters of competition, require that identical or similar appli-
cations be treated in the same way?

1. Does Article 3 of Directive 89/104/EEC of 21 December
1988 (1) require equal treatment, with regard to the registra-
tion of trade marks, of applicants in competition with one
another in order to safeguard equality of opportunity in
matters of competition?

2. If the answer is ‘yes’, is the national court required to investi-
gate specific indications of unequal treatment which distorts
competition and, in so doing, to take account, in its analysis,
of earlier decisions of the competent authority in similar
cases?

2. If the answer is ‘yes’, is the national court required to investi-
gate specific indications of unequal treatment which distorts
competition and, in so doing, to take account, in its analysis,
of earlier decisions of the competent authority in similar
cases?