Case C-43/08: Reference for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 8 February 2008 — Trade mark case: ZVS Zeitungsvertrieb Stuttgart GmbH v President of the German Patent- und Markenamt
Date: 2008-02-08
Institutions: Court of Justice
Subjects: equal treatment, interpretation of the law, restriction on competition, trade-mark 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?

26.4.2008

EN

Official Journal of the European Union

C 107/13

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 Korkein
oikeus (Finland) lodged on 8 February 2008 — Akavan
Erityisalojen Keskusliitto AEK ry v Fujitsu Siemens
Computers Oy

(Case C-44/08)

(2008/C 107/20)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicants: Akavan Erityisalojen Keskusliitto AEK ry, Erityisalojen
Toimihenkilöliitto ERTO ry, Uusi Insinööriliitto UIL ry (formerly
Insinööriliitto IL ry), Metallityöväen Liitto ry, Palvelualojen
Ammattiliitto PAM ry, Suomen Ekonomiliitto — Finlands
Ekonomförbund SEFE ry, Ammattiliitto SUORA ry Suomen
Valtiotieteilijöitten Liitto SVAL ry — Statsvetarnas Förbund i
Finland rf, Sähköalojen Ammattiliitto ry, Tekniikan Akatee-
misten Liitto TEK ry, Toimihenkilöunioni TU ry

Defendant: Fujitsu Siemens Computers Oy

cies’ of employees and ‘in good time’ requires consultations
to be started when it is established from strategic decisions
or changes that have been made relating to the activity that a
need for collective redundancies of employees follows? Or is
the provision in question to be interpreted as meaning that
the obligation to start consultations already arises on the
basis of the employer contemplating measures or changes
affecting the activity, such as a change in production capacity
or a concentration of production, as a consequence of which
a need for collective redundancies is to be expected?

2. Having regard to the fact that

the first subparagraph of
Article 2(3) of the directive refers to the supply of informa-
tion in good time during the course of the consultations, is
Article 2(1) of the directive to be interpreted as meaning that
the obligation under that provision to start consultations
when ‘contemplating’ collective redundancies and ‘in good
time’ requires consultations to be started already before the
employer's intentions have reached the stage at which the
employer is required to identify and supply to the employees
the information specified in Article 2(3)(b)?

3. Is Article 2(1) in conjunction with Article 2(4) of the direc-
tive to be interpreted as meaning that,
in a situation in
which the employer is controlled by another undertaking,
the employer's obligation to start consultations with the
representatives of the employees originates when either the
employer or the parent company controlling the employer
contemplates action for collective redundancies of employees
in the employer's service?

4. In the case of consultations to be carried on in a subsidiary
belonging to a group, and in assessing in the light of the
provisions of Article 2(4) of
the directive the obligation
under Article 2(1) to enter into consultations when ‘contem-
plating’ collective redundancies and ‘in good time’, does the
obligation to start consultations already arise when the
management of the group or the parent company contem-
plates collective redundancies but that intention has not yet
taken concrete form as concerning the employees in the
service of a particular subsidiary under its control, or does
the obligation to embark on consultations within the
subsidiary arise only at the stage when the management of
the group or the parent company contemplates collective
redundancies specifically in that subsidiary company?

Questions referred

1. Is Article 2(1) of Directive 98/59/EC (1) to be interpreted as
meaning that the obligation under that provision to embark
on consultations when ‘contemplating collective redundan-

5. If the employer is an undertaking (a subsidiary belonging to
a group) controlled within the meaning of Article 2(4) of the
directive by another undertaking (parent company or group
management), is Article 2 of the directive to be interpreted
as meaning that the consultation procedure referred to there
must be concluded before the decision on collective redun-
dancies to be implemented in the subsidiary company is
taken within the parent company or the group management?